CHRISTINE BUSBY, Employee/Appellant, v. SUMMIT ACADEMY, and MINNESOTA ASSIGNED RISK PLAN adm=d by BERKLEY RISK ADM=RS CO., Employer-Insurer.

 

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 26, 2005

 

No. WC04-192

 

HEADNOTES

 

TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where there is adequately founded medical support in the record for the compensation judge=s findings that the employee=s restrictions from her 1998 injury were no longer present at the time of the second hearing in March 2004, substantial evidence supports the compensation judge=s finding that the employee was not entitled to temporary partial disability benefits.

 

PRACTICE & PROCEDURE - MATTERS AT ISSUE.  Where the parties had agreed at the hearing that the issue of whether the employee had sustained any permanent partial disability as a result of the 1998 injury would not be addressed, the compensation judge erred by making findings regarding the employee=s permanent partial disability rating, and therefore, those findings are vacated.

 

Affirmed in part and vacated in part.

 

Determined by: Rykken, J., Stofferahn, J., and Johnson, C.J.

Compensation Judge: Danny P. Kelly

 

Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Appellant.  Shannon A. Nelson, Hansen, Dordell, Bradt, Odlaug, & Bradt, St. Paul, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s denial of temporary partial disability benefits.  The employee also appeals from the finding that the permanent partial disability benefits paid by the employer and insurer were paid under a mistake of fact, contending that the decision concerning permanent partial disability improperly expanded the issues to be addressed at hearing.  We affirm in part and vacate in part.

 

BACKGROUND

 

On October 29, 1998, Christine Busby, the employee, sustained an admitted injury to her right foot and ankle, in the nature of a sprain and peroneal tendon problem, while employed  by Summit Academy OIC, the employer.  As a result of that injury, the employee had difficulty walking, and sought orthopedic treatment.  Following her injury, the employee eventually returned to work for the employer, at her position in the human resources area, but in June 2000 began working at Micom as a human resource administrator.  By October 2000, the employee was referred to a specialist, Dr. Lowell Lutter, Orthopedic Foot and Ankle Center, who, by November 2000,  diagnosed right peroneal tendon  irritation.  He ultimately performed surgery on December 20, 2000, in the nature of a right peroneal tendon exploration and excision of cystic lesion and bony ossicle from the right subtalar joint.  Under Dr. Lutter=s direction, the employee gradually increased her weight bearing and activity level, and began an exercise program.   The employee was able to return to work post-surgery, within restrictions which limited her to sedentary work and required her to keep her foot elevated.  She had difficulty walking for almost a year after her surgery, and experienced extreme pain extending up from her right foot to her right knee.  Her symptoms, including pain, swelling, and numbness resulted in difficulty with weight bearing and walking.  As a result of her pain and discomfort, she was required to use a roll-about  scooter and a CAM walker.

 

On February 14, 2001, the employee fell on a ramp while working for Micom.  Dr. Lutter diagnosed an aggravation of the employee=s right foot and ankle condition.  She obtained additional orthopedic treatment from Dr. Lutter.  Upon Dr. Lutter=s retirement in February 2002, the employee began treating with his colleague, Dr. Diane Palkert.  By July 2002, Dr. Palkert assigned restrictions necessitated by the employee=s right foot and ankle condition, including a lifting limitation of 5 to 10 pounds, a restriction to no climbing of stairs or ladders, and a limitation to sedentary work only.  In a chart note of July 23, 2002, Dr. Palkert stated that the employee had reached  maximum medical improvement, and that the employee could not tolerate a job that required a fair amount of standing, lifting, stair climbing or ladder climbing.  Dr. Palkert stated that the employee Aneeds to look for a sedentary job with a very infrequent need to walk or stand.  I feel that these would likely be permanent restrictions.@

 

At some point in 2002, the employee was also diagnosed with plantar fasciitis and sought treatment for that condition from Dr. Chris Coetzee.  Based on MRI scan results, Dr. Coetzee diagnosed mild plantar fasciitis in both ankles, and referred the employee to an orthopedist for Sonorex treatment, a type of ultrasonic treatment, for her plantar fasciitis.  In his report dated April 30, 2003, Dr. Coetzee advised that conservative treatment had not resolved her symptoms related to her bilateral plantar fasciitis, and restricted the employee to walking and standing no more than three to four hours per day.

 

The employee=s claim has been the subject of earlier litigation.  In August 2002, the employee filed a claim petition against Micom Corporation, alleging that she sustained a right foot and ankle injury on February 15, 2001.  In November 2002, Summit Academy, who had been paying temporary partial disability to the employee, filed a notice of intention to discontinue benefits, contending that the employee=s work restrictions were related to her injury in February 2001 and not to her earlier injury in 1998.  Following an administrative conference, a compensation judge granted Summit Academy=s request to discontinue benefits.  The employee then amended her claim petition to include a claim against Summit Academy relative to her October 29, 1998, injury, and also filed an objection to the discontinuance of temporary partial disability benefits.  Both the claim petition and the employee=s objection were addressed at a hearing on March 14, 2003.  Immediately before the hearing, however, the employee and Micom Corporation, along with its insurer, entered into a stipulation for settlement settling the employee=s claim related to her alleged injury of February 15, 2001.  The employee=s remaining claims against Summit Academy and its insurer were addressed at the hearing.

 

In Findings and Order issued on April 12, 2003, Compensation Judge James Cannon found that on October 29, 1998, while working for Summit Academy, the employee sustained a work-related right foot and ankle injury in the nature of a sprain and peroneal tendon problem, that she had current work restrictions as a result of that injury, and that she was entitled to temporary partial and temporary total disability benefits.  The judge concluded that the employee=s injury at Micom Corporation in February 2001 resulted in a temporary aggravation of the employee=s 1998 injury, of three months= duration.  The judge also found that the employee=s plantar fasciitis condition was not related to her October 19, 1998, injury.  In his memorandum, he noted that he was making no determination whether the employee was permanently partially disabled or had permanent restrictions, but only that she had present work restrictions.

 

The employee continued to receive workers= compensation benefits, including temporary partial disability benefits, from Summit Academy, the employer, and its insurer.  Payment of those benefits were delayed, and on June 26, 2003, the employee filed a claim petition, alleging entitlement to penalties for late payment of the benefits that were ordered by Compensation Judge Cannon=s findings and order.

 

On October 23, 2003, at the employer and insurer=s request, the employee underwent an independent medical evaluation with an orthopedist, Dr. Jack Drogt.  In his report, Dr. Drogt diagnosed chronic pain syndrome of the right ankle and foot, status post surgery to the right ankle, with plantar fascial pain.  He concluded that the employee=s injury of October 29, 1998, resulted in an ankle strain which was a temporary condition that would generally take three to six months to heal completely.  He stated that he felt that appropriate treatment had been provided by the employee=s initial treating orthopedist and that  AI believe that this condition would have reasonably healed in that time frame@ of three to six months.  He concluded that the employee did not sustain a permanent injury as a result of her 1998 injury, and that she had no permanent partial disability as a result of that injury.  Dr. Drogt concluded that the employee was capable of working without restrictions.  He found that although she might require treatment for her plantar fasciitis pain, such treatment would be unrelated to her 1998 work injury.  He recommended no further medical treatment for the 1998 injury.

 

On December 2, 2003, based on Dr. Drogt=s report, the employer and insurer filed a notice of intention to discontinue benefits.  Following an administrative conference held on December 31, 2003, a compensation judge granted the request to discontinue the employee=s temporary partial disability benefits, based on Dr. Drogt=s opinion that the employee was no longer subject to work restrictions as a result of her 1998 injury.  The employee filed an objection to discontinuance.  The employee=s claim petition and her objection to discontinuance were consolidated, and were addressed at a hearing on March 9, 2004, before Compensation Judge Danny P. Kelly.

 

In his findings and order, served and filed on May 7, 2004, the compensation judge found that the employee=s condition resulting from her 1998 work injury was not a substantial contributing cause of the employee=s current work restrictions.  Adopting Dr. Drogt=s opinion, the compensation judge found that the employee=s work restrictions were related to her non work-related condition of plantar fasciitis.  He also found that because the employee did not establish that her loss of earning capacity was causally related to her October 29, 1998, injury, she was not entitled to the claimed temporary partial benefits in 2003 and 2004.  The compensation judge also found that the employee had sustained 0% percent permanent partial disability of the whole body relative to her right ankle, and therefore was not entitled to the earlier-assigned rating of 2% permanent partial disability of the whole body.  Finally, the compensation judge also denied the employee=s claim for penalties based upon the late payment of temporary partial disability benefits, concluding that the payments were made in a reasonable manner and time frame and were not unreasonable or vexatious.

 

The employee appeals from the denial of temporary partial disability benefits, and from the finding concerning the employee=s entitlement to permanent partial disability benefits.  The employee alleges that the compensation judge improperly expanded the hearing issues by addressing the issue of permanent partial disability.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1 (2004).  Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).

 

DECISION

Temporary Partial Disability

 

The employee appeals from the compensation judge=s denial of her claim for temporary partial disability benefits.  The judge=s denial was based on his determination that the employee has no physical restrictions as a result of her October 29, 1998, personal injury and therefore has no loss of earning capacity causally related to that injury.  Because the compensation judge based his conclusions on the opinion of Dr. Jack Drogt, who examined the employee a few months after the first hearing and provided an expert medical opinion which the employee alleges lacks foundation, the employee contends that the judge=s findings are not supported by substantial evidence and must be reversed.

 

The employee=s arguments relate back to the original unappealed finding of Compensation Judge James Cannon, in his 2003 findings and order, that as a result of her October 29, 1998, the employee Asustained a work-related right foot and ankle injury, in the nature of a sprain and a peroneal tendon problem.@  He also found that, as of the day of the hearing held on March 14, 2003, the employee still had work restrictions as a result of her 1998 injury, although, in his memorandum accompanying his findings and order, Judge Cannon stated that he was making no determination that the employee=s current work restrictions were permanent.

 

Dr. Drogt, who examined the employee in October 2003, approximately 7 2 months following that first hearing, diagnosed the employee as having a chronic pain syndrome of her right ankle and foot, and concluded that the injury of October 29, 1998, was comprised of Aa very mild sprain to the lateral aspect of the foot and ankle with a tear of the anterior talofibular ligament.@  He concluded that this generally would require three to six months to heal completely.  Although Judge Cannon had found that the employee sustained a right ankle sprain and Aa peroneal tendon problem,@ Dr. Drogt concluded that the later-diagnosed conditions of peroneal impingement and sinus tarsi impingement were not present at the time of her ankle sprain.  Dr. Drogt explained that

 

Later, Ms. Busby was diagnosed with peroneal impingement and sinus tarsi impingement.  These conditions have nothing to do with an ankle sprain.  These conditions were not present at the time of her ankle sprain.  Her initial pain was described as anterolateral, which would have been to the front part of the outer aspect of the ankle.  The peroneal tendon is in the posterior or back part of the ankle.  Ms. Busby had no pain in that region at the time of the October 1998 injury.

 

The employee argues that because Dr. Drogt=s diagnosis was inconsistent with Compensation Judge Cannon=s findings on the nature of the 1998 injury, then Dr. Drogt=s opinion lacks foundation and Judge Kelly could not rely on that opinion.  We are not persuaded.

 

Adequate foundation is necessary for a medical opinion to be afforded evidentiary value.  Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991).  To establish an adequate foundation, the facts upon which an expert relies for his or her opinions must be supported by the evidence.  McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff=d (Minn. July 13, 1990).  Since Dr. Drogt=s opinion was based upon his review of medical records, his examination of the employee and the history he took from the employee, he had adequate foundation for his opinions.  As his opinion has foundation, it was not unreasonable for the compensation judge to accept Dr. Drogt=s opinion on the issue of whether the employee had any work restrictions causally related to her 1998 injury.  Klasen v. American Linen, 52 W.C.D. 284, 292 (W.C.C.A. 1994)  (AThe compensation judge is free to select all or any portion of any expert opinion, so long as that opinion has adequate foundation.@)

 

The employee argues that Dr. Palkert assigned permanent restrictions to the employee, based on her chart note of July 23, 2002, in which Dr. Palkert outlined specific restrictions and stated that AI feel that these would likely be permanent restrictions.@  Dr. Palkert again outlined restrictions in a AStatement of Disability Return to Work@ form dated March 9, 2004, although she placed no time frame on those restrictions.  We acknowledge that there is evidence to support the employee=s position that her earlier restrictions remained in place and that those restrictions relate back to her 1998 injury.  However, it is this court=s role to determine whether evidence exists to support the compensation judge=s findings.  In addition, it the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony, Nord v. City of Cook,  360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Since there is medical support in the record for the compensation judge=s finding that the employee=s restrictions from her 1998 injury were no longer present at the time of the second hearing in March 2004, we therefore must affirm that finding as well as the corresponding finding that the employee was not entitled to temporary partial disability benefits.^[1]

 

Permanent Partial Disability

 

The employee appeals from the compensation judge=s findings concerning whether the employee is entitled to payment of permanent partial disability benefits.  In his findings and order, the judge listed the issue of whether the permanent partial disability benefits earlier paid by the employer and insurer were paid under a mistake of fact.  However, that particular issue was not before the compensation judge.  The hearing held on March 9, 1994, was scheduled to address the employee=s claim petition, in which she claimed entitlement to penalties due to a late payment, and the employee=s objection to discontinuance of temporary partial disability benefits.

 

At the outset of the hearing, the parties and the compensation judge specifically discussed whether the issue of permanent partial disability could be addressed at the hearing.  Although counsel for the employer and insurer initially asked the compensation judge to determine whether the employee had sustained any permanent partial disability as a result of her 1998 injury, the employee objected to such an expansion of the issues.  The transcript of the hearing clearly includes a statement from counsel for the employer and insurer that she was aware that the  permanent partial disability issue would not be decided by the compensation judge.

 

In their appeal brief, the employer and insurer argue that it was necessary for the compensation judge to address the permanent partial disability issue because it was raised by the employee=s attorney in her opening statement when she referred to the employee=s earlier-assigned 2% permanency rating.  The employer and insurer argue that the employee=s attorney, in effect, waived her right to object to an expansion of the issues at the time of hearing.  We disagree.  AWaiver has been defined as an intentional relinquishment of a known right, and while both knowledge and the intention are essential elements, the knowledge may be actual or constructive and intention can be inferred from conduct.@  Stephenson v. Martin, 259 N.W.2d 467 (Minn. 1977).  The attorney=s reference to an earlier-assigned permanency rating does not equate with a waiver of her right to object to expanding the issues to include permanent partial disability.

 

Because the parties did not agree to an expansion of the issues to include permanent partial disability, we vacate those findings concerning that issue, Findings 17 and 19.