MARSHALL L. SETHER, Employee, v. WHERLEY MOTORS, and AP CAPITAL/AM. WORKERS ASSUR., Employer-Insurer/Appellants, and SMDC HEALTH SYS., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 27, 2005

 

No. WC04-250

 

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including the adequately founded opinion of the employee=s treating physician, supports the compensation judge=s finding that the employee=s 1994 work injury remained a substantial contributing factor of the employee=s current disability.

 

INTERVENORS.  An intervenor makes an appearance in the case separate from that of the employee by filing a motion to intervene and has a right to present evidence and argument in support of its claim at the hearing.  Attached documentation to the motion to intervene, however, may be sufficient to establish an intervention interest and right to reimbursement for the claimed amount without the intervenor being present at the hearing.

 

Affirmed in part, vacated in part, and remanded in part.

 

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

Compensation Judge: Paul V. Rieke

 

Attorneys: Russell J. LaCourse, LaCourse Law Office, Duluth, MN, for the Respondent.  Richard L. Plagens, Lommen, Nelson, Cole & Stageberg, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal the compensation judge=s finding that the employee has been temporarily totally disabled since September 3, 2003, as a substantial result of his work-related myocardial infarction in 1994, and from the award of reimbursement to the intervenor for medical care and treatment related to the employee=s myocardial infarction.  We affirm in part, vacate in part and remand in part.

 

BACKGROUND

 

On September 17, 1994, Marshall L. Sether, the employee, was injured while working for Wherley Motors, Inc., the employer, which was insured by Michigan Physicians/Superior ER Plan, now known as APCapital, the insurer.  On that date, the employee was 47 years old and worked as the service department manager, earning a weekly wage of $788.37.  The employee began working for the employer in 1982, and had worked as its service manager since 1988.  In that capacity, he occasionally was asked to assist in emergency situations by operating the employer=s wrecker and tow truck.  On September 17, 1994, the employee was called to extricate a gasoline truck which had slid into a muddy ditch.  After working approximately two and a half hours in an attempt to free the truck from the mud, the employee began experiencing a Afunny@ sensation in his right arm.  He suddenly felt nauseated, dizzy, and sensed a severe pain and pressure in his chest.  The employee was driven immediately to Falls Memorial Hospital in International Falls, and was flown to St. Mary=s Hospital in Duluth the following day.  He was hospitalized until September 24, 1994, was diagnosed with a major anterior wall myocardial infarction and underwent coronary angiography and angioplasty, and underwent cardiac rehabilitation therapy following his hospitalization.

 

The employer and insurer admitted liability for the anterior wall myocardial infarction, paid medical expenses on behalf of the employee, and paid approximately nine weeks of temporary total disability benefits until the employee=s return to work.  Following his return to work for the employer on or about November 28, 1994, the employee resumed his regular duties.  While continuing to work as a service manager, the employee apparently found it necessary to adopt certain stress management techniques in order to reduce chest pain which he attributed to stressful job situations, including handling customer service and complaints, bill collection, an increased level of business, scheduling deadlines, and insurance coverage issues.  The employer implemented changes in the service department after the employee returned to work, in response to the employee=s concerns.

 

According to the employee=s testimony, he had not experienced heart-related symptoms prior to his September 1994 injury.  Since that injury, however, he has experienced periodic chest pain symptoms, especially when feeling under stress or pressure at work, and has undergone medical examinations for those symptoms since 1994.  The employee occasionally takes nitroglycerin when experiencing this pain and sensation, which sometimes, but not always, alleviates his symptoms.  The employee has continued to consult his treating physician, Dr. Charles Helleloid, for treatment related to his cardiac condition.  He has also undergone cardiac consultations to address his ongoing symptoms of occasional chest pain, aching sensation in his left shoulder and upper left shoulder, and fatigue.  In addition, in May and June 1996, the employee attended four psychotherapy sessions with Dr. Jeffrey Hartwig, at Dr. Helleloid=s recommendation, to address his reaction to stressful situations and his depression.  The employee received medical treatment for his diabetic condition and, by at least October 1994, was diagnosed as having borderline diabetes mellitus.

 

On October 30, 1997, the employee was confronted with a stressful situation at work when the overhead garage door at the shop was jammed, making it impossible to remove from the shop those vehicles which had been repaired and or to allow unrepaired vehicles to enter the shop for repair.  The employee felt quite agitated because customers were waiting for their cars, and felt chest pains and a heaviness and chest symptoms which were worse that those he had experienced since his 1994 work injury.  He reported to Falls Memorial Hospital from which he was transferred to St. Mary=s Hospital in Duluth, where he was hospitalized between October 31-November 4, 1997.  Based on the employee=s 1994 myocardial infarction, his coronary artery disease and other risk factors, including family history of heart attacks, extensive testing was performed at St. Mary=s Medical Center to rule out further cardiac symptoms.  According to the November 4, 1997, discharge summary from St. Mary=s Medical Center, Dr. Carl Heltne, cardiologist, diagnosed atherosclerotic coronary heart disease, chest pain and diabetes mellitus.  Dr. Heltne prescribed Captopril, a medication used to treat hypertension and congestive heart failure.  Dr. Heltne stated that AI think our goals of therapy should be that of reduced work for this myocardium,@ and recommended angiography if the employee noted recurrent discomfort.  The employee was provided with a referral for stress management, and a prescription for a low fat, low cholesterol diabetic diet.  He was advised to remain off work until November 10, 1997.

 

At the time of follow-up examinations with Dr. Helleloid on in November and December 1997, the employee reported that his occasional chest pain was Aof a real concern to him as it almost always seemed to come when he [was] under pressure in the work situation.@  Dr. Helleloid recommended that the employee change jobs in order to reduce job stress which he felt had the potential for endangering his health.  In late 1997 and early 1998, the employee underwent additional consultations with a cardiologist and with Dr. Helleloid, who repeatedly recommended that the employee implement changes in his work setting to decrease his level of stress.

 

Earlier litigation on this claim involved a dispute over the employee=s entitlement to a rehabilitation consultation and the compensability of medical expenses.  During that litigation, Dr. Mark H. Johnson conducted a medical record review on behalf of the employer and insurer, and issued a report dated July 12, 1998.  He opined that the employee=s hospitalization in October 1997 was not related to his September 1994 injury, concluding instead that A[a]ny progression of his heart disease would have been due to his multiple risk factors and not as a result of the 1994 injury.@  Dr.  Johnson also found no objective medical basis for the recommendation that the employee change jobs.

 

A hearing was held on February 11, 1999, before a compensation judge, to address the rehabilitation and medical issues.  In his findings and order, served and filed on June 24, 1999, the judge determined that neither the underlying symptoms nor need for care and treatment in 1997 directly resulted from the employee=s myocardial infarction of September 17, 1994.  The compensation judge also denied the employee=s request for a rehabilitation consultation, specifically finding that since the 1994 work injury was not a substantial contributing cause of the employee=s symptomatology and hospitalization in the autumn of 1997, therefore it was not a substantial contributing cause for the need for a rehabilitation consultation.

 

The employee appealed from the compensation judge=s denial of his medical and rehabilitation claims.  On appeal, this court affirmed the compensation judge=s finding of no causal relationship between the employee=s 1994 work-related injury and the medical treatment he received in 1997, and affirmed the related denial of the employee=s claim for payment of medical expenses.  The court remanded in part to the compensation judge for further determination of whether the employee continued to experience any residual disability from his 1994 work-related injury, and whether the employee worked under any physical work restrictions as a result of that injury, which could serve as a basis for the need for a rehabilitation consultation.  Sether v. Wherley Motors, slip op. (W.C.C.A. Dec. 30, 1999).

 

In his findings and order issued on remand, the compensation judge found that the employee continued to experience an increased heart rate and chest pain as a result of his myocardial infarction in 1994, and found that because the employee continued to have ongoing disability as a direct result of his myocardial infarction, a rehabilitation consultation was required pursuant to Minn. Stat. ' 176.102, subd. 4(a).  A QRC who had previously worked with the employee conducted a consultation, and determined that the employee was a qualified employee for rehabilitation assistance.  The employer and insurer provided rehabilitation assistance for a period of time.

 

Between 1999 and September 2003, the employee continued to experience occasional chest pains which he attributed, in part, to stress at work.  He periodically consulted his treating physician, Dr. Helleloid, as well as cardiologists at St. Mary=s Hospital/Duluth Clinic.  On December 14, 1999, the employee noted exercise-induced atrial fibrillation, and was admitted to the hospital by Dr. Kerns, cardiologist, in order to control his heart rate and restore his sinus rhythm.  He was again hospitalized in November 2000 for catheterization on the basis of angina and congestive heart failure.  The employee underwent cardiac evaluations at Mayo Clinic in December 2000, which confirmed diagnoses of congestive heart failure and ischemic dilated cardiomyopathy, for which he was prescribed medication and an exercise program.

 

The employee underwent periodic cardiac evaluations with Dr. Kerns at  SMDC, and periodically reported ongoing symptoms to Dr. Helleloid.  In a report dated April 8, 2003, Dr. Helleloid determined that the employee had reached maximum medical improvement from his 1994 injury as of April 3, 2003, and assigned a combined permanent partial disability (PPD) rating of 40%, based upon a 25% PPD rating for the employee=s cardiac condition and 20% PPD  rating related to the employee=s diagnoses for depression and post-traumatic stress disorder.^[1]

 

The employee last worked on September 3, 2003, when he was hospitalized for chest pains and fibrillation.  On September 22, 2003, Dr. Helleloid determined that the employee should remain off work, and should rest, stating that he believed the employee=s work environment would cause recurrence of more frequent fibrillation and cardiac symptoms.  Dr. Helleloid continued to restrict the employee from work after a follow-up appointment on October 16, 2003.  In November 2003, the employee was again hospitalized due to atrial fibrillation.  In his chart note of November 24, 2003, Dr. Helleloid stated that the chest pain the employee experienced at work clearly indicated that he was placing an undue burden on his heart, which was Aa definite threat from a cardiovascular standpoint@ that rendered him unable to work.

 

According to Dr. Hartwig=s chart note of December 29, 2003, he continued to prescribe medication for PTSD and depression.  The employee evidently reported to Dr. Hartwig that he was applying for social security disability benefits based, at least in part, on his depression and anxiety which developed after his work injury and which were manifested by his feelings of chest tightness and fear of impending myocardial infarction.

 

The employee filed a claim petition, seeking payment for permanent partial disability benefits as rated by Dr. Helleloid, and later amended his claim, seeking temporary total disability benefits since September 4, 2003.  The employer and insurer scheduled an independent medical examination with Dr. Johnson, who earlier conducted a review of the employee=s medical records.  Following an examination on January 16, 2005, Dr. Johnson outlined the employee=s long history of symptoms related to his coronary heart disease beginning in 1994, citing his heart attack as being the first recognized clinical sign of his underlying coronary artery disease.  Dr. Johnson determined that the employee=s treatment in 2003, including two hospitalizations, was not related to his work injury, stating that,

 

These hospitalizations were for recurrences of atrial fibrillation, and this rhythm disorder is not caused by his 1994 heart attack (MI) but is a result of the underlying and slowly progressive coronary artery disease (CAD).  He was not admitted for treatment that had anything to do, directly or indirectly, with his old MI.  Atrial fibrillation (AF) is a very common consequence of CAD and did not occur until long after the 1994 MI.

 

Dr. Johnson concluded that the employee was physically capable of performing his job duties, as shown by his continuous employment since recovering from the acute effects of his 1994 MI.  He restricted the employee to a light level of physical activity, including no lifting or carrying over 25 pounds, no working above shoulder level, and no overtime work.  Dr. Johnson concluded that it was not necessary, on a physical basis, for the employee to discontinue his work as a service manager.  Dr. Johnson commented that although the employee had been advised to discontinue working, to avoid stress and to rest, he found no support for the presumption that an absence from work would prevent a purportedly imminent Acardiac event.@  Dr. Johnson stated that AI do not find that work absence is medically necessary to properly treat his physical condition, and or that early retirement is in the best interests of his long term health.@

 

The employee=s claim petition was addressed at hearing on July 16, 2004.  At that hearing, the employee claimed entitlement to temporary total disability benefits from September 4, 2003; permanent partial disability benefits of 25% to the whole body related to his cardiac condition, with a credit for the previously-paid benefits based on 10% PPD;^[2] a rehabilitation consultation; and payment of outstanding medical expenses at St. Mary=s/Duluth Clinic Health System (SMDC), pursuant to that hospital and clinic=s intervention interest.

 

In his Findings and Order, served and filed on July 20, 2004, the compensation judge granted the employee=s claim for temporary total disability benefits, finding that due to the employee=s heart condition, he was unable to engage in any sustained gainful employment and had been medically unable to continue his work activity after September 3, 2003, as a result of his heart condition.  The compensation judge also granted reimbursement in the amount of $6,396.55 to the medical intervenor, SMDC, concluding that the employee=s work-related myocardial infarction in 1994 was a substantial contributing cause of the employee's need for medical care and treatment, and that such treatment was reasonable and necessary.  The compensation judge denied the employee=s requested rehabilitation consultation, finding that the employee had previously undergone vocational rehabilitation efforts with no success, that his treating physician had determined that he was totally disabled from competitive employment, and that there was no indication that the employee needed medical monitoring assistance from a QRC at this time.  In addition, the judge denied the employee=s claim for additional permanent partial disability benefits, relying on Dr. Johnson=s opinion that the employee had sustained 10% permanent partial disability of the whole body.

 

The employer and insurer appeal from the award of temporary total disability benefits and the award of reimbursement to the intervenor.

 

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.  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).

 

DECISION

 

Temporary total disability claim

 

The employer and insurer argue that the employee=s current claims are based on the same doctor=s opinion, that of Dr. Helleloid, that was rejected by the compensation judge at the 1999 hearing, in a decision that was affirmed by this court, and therefore that the current claims should be denied as res judicata.  We disagree.

 

In the 1999 findings and order, the compensation judge determined that the 1994 work injury was not a substantial contributing cause of the employee=s symptoms and need for treatment in 1997, and also was not a substantial contributing cause for the need for a rehabilitation consultation. The employee appealed.  On appeal, this court affirmed that compensation judge=s finding of no causal relationship between the employee=s 1994 work-related injury and the medical treatment he received in 1997, and affirmed the related denial of the employee=s claim for payment of medical expenses.  The court remanded in part to the compensation judge for further determination of whether there was residual disability or physical work restrictions related to the 1994 work injury, which could support the need for a rehabilitation consultation.  Sether v. Wherley Motors, slip op. (W.C.C.A. Dec. 30, 1999).  On remand, the compensation judge found that the employee continued to have ongoing disability as a direct result of 1994 work injury and that a rehabilitation consultation was required pursuant to Minn. Stat. ' 176.102, subd. 4(a).  The employee was later determined to be a qualified employee for rehabilitation assistance.

 

The principles of res judicata are applicable in workers= compensation proceedings.  Abrahams v. University of Minn.- Duluth, 61 W.C.D. 103 (W.C.C.A. 2001).  The doctrine precludes litigation of issues and claims that were in fact decided in an earlier decision.  Fischer v. Saga Corp., 498 N.W.2d 449, 48 W.C.D. 368 (Minn. 1993); Westendorf v. Campbell Soup, 243 N.W.2d 157, 28 W.C.D. 460 (Minn. 1976).  Collateral estoppel is a limited form of res judicata whereby a prior judgment is conclusive in a later suit between the same parties as to determinative issues finally decided in the former suit.  Travelers Ins. Co. v. Thompson, 163 N.W.2d 289 (Minn. 1969).  The Minnesota Supreme Court has held that the principles of collateral estoppel are appropriately applied in the following circumstances: (1) the issue is identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.  Nelson v. American Family Ins. Group, 651 N.W.2d 499, 511 (Minn. 2001).  The court has also held that Aneither collateral estoppel nor res judicata is rigidly applied,@ and the focus is on Awhether its application would work an injustice on the party against whom estoppel is urged.@  Johnson v. Consolidated Freightways, 420 N.W.2d 608, 613-614 (Minn. 1988).

 

During the hearing in 1999, temporary total disability benefits were not at issue.  In addition, the medical treatment at issue in the 2004 hearing occurred after the 1999 decision was issued.  Collateral estoppel generally does not bar a new claim pertaining to medical treatment received after the initial decision.  Darvell v. Wherley Motors, slip op. (W.C.C.A. Dec. 16, 2003) (citing  Lindberg v. J & D Enters., 543 N.W.2d 90, 90 (Minn. 1996) (in workers= compensation cases, principles of res judicata primarily govern with respect to the periods of benefits at issue)).  The compensation judge did not err in determining that the employee=s claims should not be dismissed on the basis of res judicata.

 

The employer and insurer also argue that there is not substantial evidence in the record to support the compensation judge=s findings that the employee has been temporarily disabled from work since September 4, 2003, and that the employee=s 1994 work injury is a substantial contributing cause of the employee=s disability.  The employee=s treating physician, Dr. Helleloid, took the employee off work in the fall of 2003.  Dr. Johnson also examined the employee and opined that the employee=s 1994 work injury had healed and that the employee=s ongoing heart symptoms were due to his ongoing progressive coronary heart disease.  Dr. Helleloid, however, indicated in a July 15, 2004, report that the employee=s 1994 work injury produced significant heart damage, the remaining heart muscle was overloaded, and that if the damage had not occurred, the employee would not have had his subsequent heart symptoms.  The compensation judge specifically accepted Dr. Helleloid=s opinion.  It is 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, 342, 37 W.C.D. 364, 372 (Minn. 1985).  Because substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee=s 1994 work injury is a substantial contributing factor to his temporary total disability since September 4, 2003, and because Dr. Helleloid=s opinion, upon which the compensation judge relied, is adequately founded, we affirm.

 

Intervention claim

 

On February 20, 2004, St. Mary=s/Duluth Clinic Health System , the intervenor, filed an intervention claim which included an itemization of medical services related to treatment the employee received from September 2003 through January 2004, and the claimed amount, $2,378.25.  Neither party objected to the intervention claim.  An Order of Intervention was issued on February 24, 2004.

 

On July 15, 2004, the intervenor sent a facsimile transmission of a document, titled ASummary of outstanding medical expenses,@ to the Office of Administrative Hearings updating its intervention claim to a total of $6,396.55.  No itemization of the type and dates of services, nor copies of medical records or invoices, were included with this faxed document, nor did the intervenor appear at the hearing.

 

The employer and insurer argue that because the intervenor failed to appear, the intervention claim should have been dismissed.  Minn. Stat. ' 176.361, subd. 4 provides:

 

Unless a stipulation has been signed and filed or the intervenor=s right to reimbursement has otherwise been established, the intervenor shall attend all settlement or pretrial conferences, administrative conferences, and the hearing.  Failure to appear shall result in the denial of the claim for reimbursement.

 

In this case, the intervenor made an appearance in the case separate from that of the employee by filing a motion to intervene.  Carlino v. Peterson Constr., slip op. (W.C.C.A. Oct. 4, 2004).  As a party, the intervenor has a right to present evidence and argument in support of its claim at the hearing.  In this case, the intervenor attached documentation to the motion to intervene filed February 20, 2004, sufficient to establish its intervention interest and right to reimbursement for the claimed amount, $2,378.25.  There was no objection filed to the original motion for intervention status.  Based on our affirmance of the compensation judge=s finding  that the employee=s 1994 work injury remains a substantial contributing cause of his current disability, as well as a substantial contributing cause of the need for medical care and treatment for which the intervenor sought payment and which the judge determined was reasonable and necessary, we therefore affirm the award of the documented medical expenses in the amount of $2,378.25.

 

The intervenor, however, did not attach any documentation to the July 15, 2004, fax which updated the claim to $6,396.55.  The employee has other medical conditions unrelated to his cardiac condition which may have been treated at the intervenor from January 2004 through July 2004.  The record contains no documentation for the compensation judge=s review or for our review on appeal.  There is no basis for the compensation judge=s award of the additional reimbursement of the intervention claim, and therefore we vacate the amount awarded over $2,378.25 and remand to the compensation judge for reconsideration of the intervenor=s supplemental claim.  Additional evidence will be necessary on remand.