TOM PODERZAY, Employee, v. UNIVERSITY OF MINN., SELF-INSURED/SEDGWICK CLAIMS MGMT., Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 1, 2005

 

No. WC05-192

 

 

HEADNOTES

 

MAXIMUM MEDICAL IMPROVEMENT - MULTIPLE CONDITIONS.  Where the issue was whether the employer was entitled to discontinue temporary total disability benefits based on the employee=s attainment of maximum medical improvement [MMI], and it was undisputed, on appeal, that the employee had not reached MMI with regard to his lumbar injury, the judge=s failure to make a finding as to MMI with regard to the employee=s cervical condition had no practical effect, and the court therefore declined to remand the matter or otherwise modify the judge=s decision, even though MMI as to the employee=s cervical condition had been at issue at hearing.

 

Affirmed.

 

Determined by: Wilson, J., Rykken, J., and Stofferahn, J.

Compensation Judge: Gregory A. Bonovetz

 

Attorneys: Russell J. LaCourse, Duluth, MN, for the Respondent.  Kathleen S. Bray, Hanft Fride, Duluth, MN, for the Appellant.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the judge=s failure to make a finding of maximum medical improvement with regard to the employee=s cervical spine injury.  We affirm.

 

BACKGROUND

 

The employee sustained an admitted work-related injury to his lumbar spine on July 18, 2002, and an admitted work-related injury to his cervical spine on January 10, 2003, while employed by the University of Minnesota [the employer], which was self-insured.^[1]  The employee subsequently received physical therapy for both conditions. 

 

In May of 2003, the employer had the employee examined by Dr. Joseph Tambornino, who issued a report diagnosing the employee as having resolved muscle strains of the lower back and the neck.  It was also Dr. Tambornino=s opinion that the employee had reached maximum medical improvement [MMI] with regard to his low back, neck, and left arm.  Dr. Tambornino=s report was served on the employee, and the employer filed a notice of intention to discontinue benefits based on the employee=s attainment of MMI.  On October 8, 2003, Dr. Tambornino issued a supplemental report, based on his further review of the employee=s medical records.  In that report, the doctor stated that the employee had reached MMI from both work injuries, effective within about three weeks of the injury dates.  The matter eventually went to hearing, and, in findings and order filed on October 23, 2003, Judge Cheryl LeClair-Sommer found that the employee had not reached MMI for the lumbar injury and that Awith recommendations for epidural steroid injections in the neck and EMG of the left arm, the employee has not reached MMI for the cervical injury of January 10, 2003.@  No appeal was taken from those findings.

 

The employee was examined by neurologist Dr. Joel Gedan, on the employer=s behalf, on November 3, 2003.  In his report of that date, Dr. Gedan opined that it was Adifficult to anticipate whether the employee will improve his functional capacities with additional treatment.@  With regard to the cervical spine, he stated that an EMG would be helpful, and, Aif not previously instructed, several visits to a therapist would be helpful in instructing the employee in range of motion exercises and gentle stretching of the cervical spine.@

 

The employee received two cervical epidural injections from Dr. Molly Urban in January and February of 2004.   When he saw Dr. Scott Dulebohn in March of 2004, the employee reported that the epidural injections had helped his neck and arm pain but that he still had numbness in the left arm.  In his office note, Dr. Dulebohn reported that an EMG of the left arm showed no evidence of cervical radiculopathy or peripheral neuropathy.  By this time, the employee was experiencing increased lumbar symptoms, and Dr. Dulebohn recommended a repeat MRI of the lumbar spine.  The April 6, 2004, MRI showed a disc protrusion at L4-5 resulting in contact with the L5 nerve root.  On April 14, 2004, Dr. Dulebohn kept the employee off work due to his low back condition and opined that surgery might be necessary.  He also recommended Acontinued conservative therapy@ for the employee=s neck.

 

In May of 2004, Dr. Dulebohn noted that the employee was having more problems with his left arm but Athat is nothing compared to his left leg and low back pain.@  Dr. Dulebohn further noted that he was treating the employee for herniated discs at L4-5 and L5-S1.  In his office note of July 14, 2004, following a discogram, Dr. Dulebohn noted that the employee=s cervical condition was being treated conservatively and that he recommended anterior lumbar interbody fusion [ALIF], at the L4-5 level, to treat the employee=s low back condition.

 

On August 10, 2004, the employee filed a medical request seeking authorization for the ALIF surgery.

 

The employer subsequently had the employee examined by Dr. Mary Dunn.  In her report of November 2, 2004, Dr. Dunn diagnosed the employee as having sustained a lumbar strain on July 18, 2002,  and stated that MMI would have been reached within six weeks of that date.  She did not think that the employee=s low back condition would improve with the proposed ALIF surgery.  It was further Dr. Dunn=s opinion that the employee suffers from cervical degenerative disc disease and that the Ainjury that he reports occurring on January 10, 2003, does not substantially contribute to his cervical spine degenerative disc disease or his current status.@  She went on to state, A[i]t is my opinion that Mr. Poderzay did not sustain a cervical spine injury on the date he indicated, January 10, 2003@ and that Aany further treatment regarding the cervical spine is unrelated to any reported work injury.@

 

The employee returned to Dr. Dulebohn on November 10, 2004.  In a treatment note of that date, Dr. Dulebohn stated, AI think there is nothing for us to do in terms of his neck at this time.  In regards to his low back, I feel that the patient would probably benefit from an ALIF.@  He also recommended psychometric testing.

 

In a findings and order filed November 30, 2004, a compensation judge determined that the employee=s request for fusion surgery was premature.  The following month, in December of 2004, Dr. Dunn=s report was served on the employee, and a notice of intention to discontinue benefits was filed.  Following an administrative conference, the employee filed an objection to discontinuance.  A few weeks later, in a letter dated February 2, 2005, Dr. Dulebohn opined that the employee had not reached MMI from his lumbar condition.

 

The objection to discontinuance came on for hearing on May 3, 2005.  At issue was whether MMI had been reached with respect to the employee=s lumbar and cervical condition and whether temporary total disability benefits were payable continuing from February 7, 2005.  In findings and order filed May 6, 2005, the compensation judge found that the employee had not reached MMI from the effects of his lumbar injury, that he could not make a finding regarding MMI for the employee=s cervical injury, and that temporary total disability benefits were payable as claimed.  The employer appeals from the judge=s failure to make a finding regarding MMI for the cervical spine.

 

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).

 

DECISION

 

The compensation judge found that,

 

[b]ecause of the prominence which the employee=s low back condition has taken in his medical care, treatment for the cervical injury of January 10, 2003 has essentially been held in abeyance.  As such the Court can make no finding as to whether the employee has in fact reached maximum medical improvement from the effects of the cervical injury of January 10, 2003.

 

The employer contends that the compensation judge Asidestepped@ the issue of MMI as to the employee=s cervical spine, and it requests this court to issue a substituted finding that MMI has been reached with respect to the January 10, 2003, work injury.  We deny the employer=s request.

 

The statute directs compensation judges to dispose of all questions of fact and law submitted to them, Minn. Stat.' 176.371, and the issue of MMI as to the employee=s cervical condition was an issue at trial.  However, the case came before the compensation judge on an objection to discontinuance, after the employer had discontinued temporary total disability benefits based on an administrative conference finding that the employee had reached MMI from both his cervical and lumbar injuries.  In order to discontinue temporary total disability on the basis of MMI, MMI must be reached from all compensable conditions.  Schewe v. Tom Thumb, 46 W.C.D. 693, (W.C.C.A. 1992).  The employer does not dispute the judge=s finding that the employee has not reached MMI with regard to his lumbar injury.  Accordingly, because temporary total disability benefits may not be discontinued in any event, any finding of MMI with regard to the employee=s cervical injury would have no practical effect at this time.  Under these circumstance, we decline to either remand the matter to the judge or to otherwise modify the judge=s decision.