JERRY B. DARVELL, Employee, v. WHERLEY MOTORS, and AMERICAN MUT. INS. CO./MIGA, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 17, 2005

 

No. WC04-320

 

HEADNOTES

 

APPEALS - LAW OF THE CASE.  Where this court determined in a previous unappealed decision that the doctrines of res judicata and collateral estoppel were not applicable to the facts in this case, that determination is the law of the case and will not be again considered on appeal.

 

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  Where neither party raised the applicability of the treatment parameters nor identified the specific rules relevant to the treatment at issue or how the parameters should be interpreted and applied to the facts of the case, this court will not consider the applicability of the treatment parameters for the first time on appeal.

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including the adequately founded opinions of Dr. McPartlin, Dr. Person, and Dr. Kaiser, support the compensation judge=s determination that the employee=s treatment for reflex sympathetic dystrophy (RSD) between November 1998 and August 2001, was causally related to his work injury of June 5, 1980. 

 

Affirmed.

 

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

Compensation Judge: Patricia J. Milun

 

Attorneys: James W. Balmer and Tanna B. Schwartz, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Respondent.  Michael D. Miller, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s decision that the employee=s reflex sympathetic dystrophy is not a condition barred by res judicata or collateral estoppel and is causally related to the June 5, 1980, personal injury, and the judge=s consequent award of medical expenses.  We affirm.

 

BACKGROUND

 

Jerry B. Darvell, the employee, was involved in a work-related car accident on June 5, 1980, while riding home in the backseat of a car after delivering a truck to a client.  The car slid off the road and rolled several times until it came to rest upside down.  The employee remained in the vehicle until he smelled gasoline fumes, then, fearing an explosion, he forced his way out of the car by pushing out the back window.  The employee was treated for injuries that night at a hospital in the area.  The employer subsequently admitted liability for bilateral shoulder and wrist injuries, and paid benefits accordingly.

 

Approximately six months to one year after the work injury, the employee began to complain of recurring pain and tingling in his arms.  He continued to experience these symptoms and was eventually diagnosed with carpal tunnel syndrome, for which he underwent carpal tunnel releases in each arm in 1981.  The employee=s symptoms continued, and over the next three years he also began to experience swelling in his forearms.  In 1984, Dr. W. S. Pollard, a neurosurgeon, diagnosed thoracic outlet syndrome and the employee underwent thoracic outlet surgeries on December 6, 1984, and April 21, 1985.  The employee=s symptoms did not abate significantly following this course of treatment.  During this period of time, the employee was also treated by Dr. James Berlin, a family physician, who prescribed medication primarily intended to reduce pain.

 

The employee filed a claim petition in September 1983 alleging neck and back injuries, as well as thoracic outlet syndrome, resulting from his 1980 injury.  In a Findings and Order filed April 16, 1986, Compensation Judge Bonovetz denied the employee any benefits relating to neck and back injuries, but found the employee sustained a 10 percent permanent partial disability to each arm due to his personal injury.  Judge Bonovetz concluded that Aany thoracic outlet syndrome from which the employee may be suffering is totally unrelated to the work injury of June 5, 1980.@  (Findings & Order 4/16/86, finding 18.)

 

On February 25, 1988, Dr. Mark Engasser examined the employee at the request of the employer and insurer.  The employee then complained of bilateral shoulder pain with numbness and tingling in both hands and significant generalized weakness in both arms.  Dr. Engasser diagnosed status-post right Grade I acromioclavicular separation with degenerative changes, left acromioclavicular pain and bilateral carpal tunnel syndrome.  The doctor felt the employee exhibited some findings suggestive of a functional overlay with complaints out of proportion to the doctor=s findings on examination.  On June 7, 1988, Dr. Duane F. Person examined the employee at the request of his attorney.  The employee complained of numbness in his hands, with numbness and tingling in his fingers, swelling in his wrists, blotchiness in his hands and weakness in both arms.  Dr. Person diagnosed continuing severe carpal tunnel syndrome, left and right, with marked paresthesias of the median nerve.  The doctor rated permanent disability of both arms for the carpal tunnel syndrome, causally related to the employee=s personal injury.

 

In 1988, the employee filed a second claim petition seeking temporary total disability benefits for periods of lost work subsequent to the 1984 hearing before Judge Bonovetz.  In a Findings and Order filed September 29, 1988, Judge Bonovetz denied the employee compensation relating to the thoracic outlet surgeries.  In doing so, the compensation judge cited his findings in the 1986 Findings and Order regarding the employee=s thoracic outlet syndrome and found any further claims resulting from thoracic outlet syndrome were barred.  Specifically, Judge Bonovetz found, in finding 17, the employee=s inability to work was a direct result of surgery for thoracic outlet syndrome, Aa condition which the court has previously found was not work related.@  (Findings & Order 9/29/88.)

 

Prior to 1989, some physicians treating the employee referenced shoulder/hand syndrome and Areflex sympathetic responses.@  Typically, these terms refer to a disorder now known as reflex sympathetic disorder (RSD).^[1]  In 1989, the employee was referred to Dr. Thomas McPartlin, a neurologist, who diagnosed RSD.  The employee was then experiencing the following symptoms:^[2] pain in the lower arm and extending to the fingers, changes in skin color, a heightened sensitivity to changes in temperature in both arms, shiny skin, loss of hair on the arms, random and profuse periods of sweating, and a tingling sensation in the arms that occasionally progressed to a burning sensation.  Dr. McPartlin recommended that the employee undergo a series of stellate ganglion blocks.  The doctor told the employee success of this treatment in reducing the employee=s symptoms would also confirm the diagnosis of RSD.  The employee testified that he underwent this treatment shortly after Dr. McPartlin=s initial diagnosis and that it did improve his condition.  He has received at least one other series of blocks since that time, and testified that this treatment significantly reduced his symptoms.

 

Dr. Person re-examined the employee on July 16, 1998.  The employee reported that since he last saw the doctor in 1988, the employee=s symptoms in his arms had gotten much worse but improved with stellate ganglion blocks.  On examination, the doctor found decreased grip strength, a positive Tinel=s sign on the left, decreased sensation in both arms, tenderness in both wrists, slight swelling and shininess of the skin of the hand.  Dr. Person diagnosed continuing severe residuals of carpal tunnel syndrome, chronic impingement syndrome of both shoulders and resolving reflex sympathetic dystrophy.

 

Dr. Larry Stern examined the employee at the request of the employer and insurer on November 21, 1998.  The employee reported some relief following his carpal tunnel surgery, but told the doctor he eventually had swelling in both arms and bilateral shoulder pain.  He then underwent right- and left-sided thoracic outlet surgery which provided some relief but then began to notice symptoms in both hands, including loss of hair and sensitivity to cold.  The employee stated he underwent a series of ganglion nerve blocks which helped a great deal.  Dr. Stern diagnosed bilateral carpal tunnel releases and a right shoulder joint separation caused by the 1980 personal injury.  The doctor diagnosed developmental reflex sympathetic dystrophy which he opined was clearly related to the employee=s thoracic outlet syndrome and was not, therefore, related to the personal injury.  The doctor opined, however, the RSD was in remission and felt no further medical care would be necessary.  In October 1999, Dr. Stern reviewed additional medical records and provided a supplemental report.  Dr. Stern again noted the diagnosis of reflex sympathetic dystrophy was quite commonly linked to a diagnosis of thoracic outlet obstruction.  The doctor concluded that since the thoracic outlet syndrome was not work-related, the employee=s reflex sympathetic dystrophy was also not work-related.  By report dated August 29, 2000, Dr. Stern again opined the employee=s thoracic outlet syndrome turned into RSD and was not caused by the June 1980 work injury.

 

Dr. Thomas E. Kaiser, an orthopedic surgeon, reviewed certain of the employee=s prior medical records, including those from Dr. Pollard, Dr. Robert Tygart, the International Falls Clinic, and Dr. Chris Tountas.  By report dated May 19, 2002, Dr. Kaiser concluded the employee was clearly having symptoms of numbness, tingling, swelling and a cold feeling in both arms and was having shoulder problems from instability dating back to the time of the 1980 accident.  The doctor stated the medical records demonstrated the employee was having sympathetic dystrophy symptoms definitely present in 1983, prior to seeing Dr. Tygart, and prior to the first rib resection.  Based upon the records, the doctor concluded the employee=s sympathetic dystrophy problems pre-dated his thoracic outlet surgery.  Further, Dr. Kaiser related the employee=s RSD condition and the need for treatment to the 1980 personal injury.

 

The employee filed a medical request seeking payment for medical treatment received for RSD.  A hearing was held on May 8, 2003, before Compensation Judge Patricia Milun.  In a Findings and Order filed June 9, 2003, the compensation judge found the employee Ahad a group of symptoms which are consistent with both the diagnosis of thoracic outlet syndrome and reflex sympathetic dystrophy.  In 1986 and 1988, Judge Bonovetz found these symptoms to be thoracic outlet syndrome and found they were not related to his work injury.@  (Finding 1.)  The judge further found that Ait cannot be determined when reflex sympathetic dystrophy started.@  (Finding 2.)  Based on this statement, Judge Milun made two alternative findings:

 

3.If the reflex sympathetic dystrophy was actually occurring after the work injury but before the diagnosis of thoracic outlet syndrome then Judge Bonovetz=s finding that the collection of symptoms was not work related is a finding that the reflex sympathetic dystrophy is not compensable.

 

4.If the reflex sympathetic dystrophy arose later, it arose out of the thoracic outlet obstruction and it is not work related because Judge Bonovetz found that the thoracic outlet syndrome was not work-related.

 

Accordingly, the compensation judge denied the employee=s claim.

 

In a decision served and filed December 16, 2003, this court concluded the compensation judge=s application of the doctrine of collateral estoppel was inappropriate, vacated the compensation judge=s findings and remanded the case for new findings based on the existing record.  Darvell v. Wherley Motors, slip op. (W.C.C.A. Dec. 16, 2003).  In a findings and order on remand, the compensation judge found the employee suffered from RSD caused by his personal injury and awarded payment of medical expenses.  The employer and insurer appeal.

 

Collateral Estoppel

 

On remand, the compensation judge found the claimed treatment for reflex sympathetic disorder is not barred by the doctrine of res judicata or collateral estoppel.  The appellants contend this finding is unsupported by substantial evidence.  They argue the employee=s symptoms have not changed since the 1980 injury but have merely been called by different names, including thoracic outlet syndrome and RSD.  Judge Bonovetz previously concluded the employee=s thoracic outlet syndrome was unrelated to his personal injury.  Accordingly, the appellants contend, the employee=s claim is barred by the doctrine of collateral estoppel.

 

In this court=s decision of December 16, 2003, the court stated the symptoms of thoracic outlet syndrome and RSD are not precisely the same though there may be overlap between the two.  The court noted that the employee=s current claim is for medical expenses incurred subsequent to Judge Bonovetz=s Findings and Order of September 29, 1988, and stated collateral estoppel generally does not bar a new claim pertaining to medical treatment received in a subsequent benefit period.  For these reasons, the court concluded Judge Milun=s application of the doctrines of res judicata and collateral estoppel was legally erroneous.  The appellants make the same argument they did at the prior hearing.  That issue has been decided by the court, is the law of the case, and will not be again considered in this appeal.

 

Treatment Parameters

 

Minn. R. 5221.6305 of the Workers= Compensation Medical Treatment Parameters is entitled Reflex Sympathetic Dystrophy of the Upper and Lower Extremities.  Subp. 1.A. of the rule states:

 

This clinical category encompasses any condition of the upper or lower extremity characterized by concurrent presence in the involved extremity of five of the following conditions: edema; local skin color change of red or purple; osteoporosis in underlying bony structures demonstrated by radiograph; local dyshidrosis; local abnormality of skin temperature regulation; reduced passive range of motion in contiguous joints; local alteration of skin texture of smooth or shiny; or typical findings of reflex sympathetic dystrophy on bone scan.

On appeal, the appellants contend subpart 1.A. of the rule lists threshold requirements that must be met before an employee can be found to have RSD.  The appellants argue that because the compensation judge made no findings as to any of the required conditions under the rule,  the decision is legally and factually deficient and must be reversed.  We disagree.

 

The purpose of the treatment parameters is to Aestablish parameters for reasonably required treatment of the employees with compensable workers= compensation injuries to prevent excessive services . . .@.  The parameters Ado not affect any determination of liability for an injury under Minnesota Statutes, chapter 176,  . . .@  Minn. Rule 5221.6020, subp. 1.  Despite the rule stating that the parameters do not affect any determination of liability, Minn. Rule 5221.6305 may do exactly that.  The rule would appear to limit otherwise reasonable and necessary medical treatment to those cases in which the injured employee proves the concurrent presence of five of the eight specified conditions.  If so, the rule would appear to be not a standard for judging the propriety of medical care but rather a regulation limiting the delivery of that care contrary to the Supreme Court=s decision in Hirsch v. Bartley-Lindsay Co., 537 N.W.2d 480, 53 W.C.D. 144 (Minn. 1995).

 

In Wise-Thackery v. Universal Colour Lab., slip op. (W.C.C.A. Dec. 31, 1998), this court stated it would consider on appeal challenges to the reasonableness and necessity of treatment under the treatment parameters only if the issue was specifically raised at the hearing before the compensation judge and addressed by the parties.  In Jordan v. Howard Lumber Co., slip op. (W.C.C.A. Aug. 28, 1998,) noting the treatment parameters were lengthy and convoluted, the court directed the parties to identify to the compensation judge at the hearing the specific parameters relevant to the treatment at issue and how those parameters should be interpreted and applied to the facts in the case.  The court concluded the compensation judge need not consider rules not addressed by the parties.  See also, Olson v. Allina Health System, 59 W.C.D. 37 (Minn. 1999).

 

At the hearing before the compensation judge, neither party raised the applicability of the treatment parameters nor identified the specific parameters relevant to the treatment at issue or how those parameters should be interpreted and applied to the facts of the case.  Since the applicability of the treatment parameters was not raised at the hearing, this court will not consider their applicability for the first time on appeal.

 

Causal Relationship

 

The compensation judge relied on the opinions of Drs. Person, McPartlin, Kaiser and Berlin in concluding the employee=s diagnosis was RSD.   Dr. McPartlin and Dr. Person last examined the employee in 1989 and 1998 respectively.  Their opinions, the employer and insurer assert, are too dated to be relied upon by the compensation judge.  Dr. Berlin opined the employee=s symptoms have not changed only the diagnosis has changed.  Judge Bonovetz found the employee=s symptom complex was thoracic outlet syndrome so, the appellants contend, Dr. Berlin=s opinion is barred by collateral estoppel.  Accordingly, the appellants argue, the compensation judge erroneously relied on the opinions of Drs. Person, McPartlin and Berlin, and the compensation judge=s finding that the employee=s constellation of symptoms is reflex sympathetic dystrophy is unsupported by substantial evidence and must be reversed.  We are not persuaded.

 

In 1989, Dr. McPartlin diagnosed RSD and recommended stellate ganglion blocks that improved the employee=s condition.  In July 1998, Dr. Person re-examined the employee and also diagnosed RSD.  Dr. Kaiser examined the employee on multiple occasions and opined, in a May 2002 report, the employee had RSD secondary to his 1980 personal injury.  There is no contention that Drs. McPartlin, Person and Kaiser do not have the requisite training and experience to qualify as expert witnesses.  All three doctors obtained a history from the employee, reviewed medical records and performed a physical examination.  As a general rule, this level of scientific knowledge and practical experience provides adequate foundation for the experts= opinion.  Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983).

 

The employee sought payment of medical expenses for treatment of RSD provided from November 1998 through August 2001.  Admittedly, Dr. McPartlin=s opinion was rendered nine years prior to the initiation of the treatment in question.  That fact, however, goes only to the weight to be afforded the doctor=s opinion rather than to its admissibility.  Dr. Person diagnosed the employee with RSD in 1998 and Dr. Kaiser rendered his opinion in 2002.  Both these expert opinions were rendered concurrent with the provision of the disputed medical treatment.

 

We acknowledge Dr. Stern and Dr. Hubbard provided well-founded opinions that the employee did not suffer from RSD.  However in Golob v. Buckingham Hotel, the Minnesota Supreme Court stated:

 

[U]ntil the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining compensable injury or disease will have to remain in the province of the trier of fact.  Where qualified medical witnesses differ as they do here, it ordinarily is not for us on appeal to say that one is so eminently right and the other so clearly wrong that the fact finder was obliged to accept the opinion of one and discard the opinion of the other.  The determination of this question is like the determination of any other question of fact, and it must depend to a large extent upon the credibility attached by the trier of facts to the opinion and testimony of the various witnesses who are expressing their opinions.

 

244 Minn. 301, 304-05, 69 N.W.2d 636, 639, 18 W.C.D. 275, 278 (1955) (quoted in Ruether v. State, 455 N.W.2d 475, 478-79, 42 W.C.D. 1118, 1123-24 (Minn. 1990)).  The compensation judge accepted the causation opinions of Drs. McPartlin, Person and Kaiser.  The opinions of these doctors were adequately founded and the compensation judge reasonably relied upon them.  Accordingly, substantial evidence supports the compensation judge=s decision, and this court must affirm