The employer and insurer appeal from the compensation judge’s finding that the employee sustained injuries to her cervical, thoracic and lumbar spine as a result of her work-related injury on January 14, 2004, and appeal from the awards of temporary total disability, permanent partial disability benefits, medical expenses and rehabilitation assistance.  We affirm.

On January 14, 2004, Ms. Georgia Paoli, the employee, sustained an injury to her back while working for Rainbow Foods, the employer.  The employer and its insurer, Gallagher Bassett Services, admitted liability for the employee’s diagnosed thoracic compression fracture, but denied primary liability for the employee’s later claims that she also sustained cervical, thoracic and lumbar sprains/strains as a result of her work-related injury.  The disputed issues on appeal include whether the employee was entitled to payment of certain temporary total and permanent partial disability benefits, and whether the medical expenses and rehabilitation assistance awarded by the compensation judge were causally related to the employee’s work injury.

The employee began working for the employer in approximately 1986.  On January 14, 2004, while working a night shift as a service manager at the employer’s New Brighton location, she fell while trying to break the fall of a customer.  As that customer slipped on some water on the floor and started to fall, the employee grabbed her to prevent her from falling.  In the course of the incident, the employee twisted and fell onto her left side, and noted pain in her back.  The employee continued working her shift, and took aspirin to alleviate pain in her back, neck and the lower part of her left leg.

Her symptoms persisted, and three days later the employee sought medical treatment at the St. John’s HealthEast hospital emergency room, reporting pain in the areas of her thoracic and lumbar spine as well as some pain in her left upper leg.  The chart note also refers to the employee noticing pain when she rotated her neck.  Following x-rays of the employee’s thoracic and lumbar spine, she was diagnosed with a mild wedging at the T-4 vertebral level and a possible compression fracture.  The following day, the employee consulted Dr. Terese Shearer at Healtheast who diagnosed pain primarily in the mid back secondary to a thoracic compression fracture.  An MRI scan done within two weeks showed a disc herniation at the T4-5 level and a post-traumatic moderate compression fracture at the T-4 level, but also showed normal findings in the lumbar spine.  The employee followed up with her treating physician, Dr. Charles Callaghan, internal medicine specialist, who also diagnosed a thoracic spine compression fracture.  Dr. Callaghan initially suggested that a vertebroplasty be considered to alleviate the employee’s pain, but the employee later declined that procedure and underwent other conservative care; the employee’s condition eventually changed to the point where a vertebroplasty no longer was viable.

In April 2004, the employee reported new pain in her low back radiating down her left leg.  Additional MRI scans of the lumbar spine taken in April 2004 showed no evidence of significant disc herniation, central canal narrowing, or neural foraminal narrowing that typically would cause left lower extremity symptoms such as those the employee experienced.  The only pertinent findings on MRI scans, other than a moderate compression fracture at the T-4 level, were moderate degenerative changes in the mid and lower lumbar facet joints and degenerative marrow signal changes at the L5-S1 level.

The employee’s medical history before her 2004 injury includes a diagnosis of bilateral carpal tunnel syndrome in approximately 1995 or 1997, admitted by Rainbow Foods as a work-related injury.  As a result of that condition, the employee missed time from work, and later was restricted for a period of time to working four hours per day.  Between 2000 and 2002, the employee periodically lost time from work due to various medical conditions.  In 2000, the employee was diagnosed with breast cancer, and missed approximately six months of work to undergo treatment.  After returning to work for the employer in 2001, the employee experienced seizures which resulted in periodic time loss from her work.  The employee also remained off work for a period of time following a February 2002 carpal tunnel release of her right hand, and missed time from work later in 2002, for additional breast cancer treatment.  By October 2002, Dr. Callaghan recommended that the employee work only during the day and that she avoid irregular hours, in order to manage the control of her seizures and to lessen the risk of neurologic problems.  In late 2002 and early 2003, Dr. Charles Ormiston, neurologist, who earlier had evaluated her for carpal tunnel syndrome and seizures, noted that the employee was experiencing short-term memory problems which may have caused her to be inconsistent with taking her anti-seizure medication.

In July 2003, the employee sustained another work-related injury when she extended her right hand to prevent a box from falling.  She broke her right small finger and noted swelling in two other fingers, was diagnosed with advanced degenerative arthritis in her right small finger as well as osteopenia,^[1] and in September 2003 underwent joint fusion surgery on that finger.

Dr. Ormiston recommended that the employee remain off work for approximately five weeks in September and October 2003.  In November 2003, Dr. Ormiston noted that the employee had experienced some spells recently, precipitated by stress, and recommended that she work daytime hours due to her seizure disorder.  He also noted the employee “has had a life-long learning disability, though she was able to get through school satisfactorily,” and that her memory problems had worsened since she began experiencing seizures.  Dr. Ormiston did not causally link the seizures to the employee’s current work activities, but did advise that seizures are more common as one ages and that stress does not cause but can aggravate a seizure disorder.  According to a reference in Dr. Callaghan’s chart notes, the employee underwent bone density tests in December 2003 and was diagnosed with osteoporosis of her spine.  The employee, however, later testified that she had not noticed any spine, back or neck problems before her January 14, 2004, work injury.

The employee continued to treat with Dr. Callaghan following her January 2004 injury.  In a letter to the employer in April 2004, he reiterated his earlier recommendations that the employee work only daytime hours on a fixed schedule, to aid with controlling her seizures.  He also assigned work restrictions due to her 2004 work injury, including a lifting and carrying limit of 15 pounds and avoidance of excessive overuse of her upper extremities.  In an April letter to Dr. Callaghan, Dr. Ormiston referred to the employee’s history of seizures and memory difficulties, and commented that the employee’s recent evening work shifts had been troublesome for the employee and that her fall at work further aggravated her problems.  By May 2004, Dr. Callaghan recommended that the employee remain off work for three months due to her severe back pain.  By June 2004, the employee reported that she had changed jobs to a position that resulted in more standing, which caused worsening of her aches and pain by the end of a work day.  She also reported that her pain medication aggravated her dizziness and caused her to feel drowsy.  Dr. Ormiston recommended that the employee remain off work for a healing period of three months.

On July 6, 2004, the employee was examined by Dr. William T. Simonet at the request of the employer and insurer.  The employee reported pain in her neck and entire back, with some pain extending into her leg.  He concluded that the employee’s T-4 compression fracture had fully resolved and was no longer the cause of her subjective complaints of pain in her upper back, neck and lower back.  He instead believed that the employee’s symptoms were causally related to her deconditioning, osteoporosis and osteopenia.  Dr. Simonet stated that, in his opinion, the employee’s severe subjective complaints were disproportionate to her objective findings on examination, and concluded that she had reached maximum medical improvement (MMI) from her work injury by May 14, 2004.  Dr. Simonet recommended that the employee return to work on a full-time basis within a 50-pound lifting restriction, with that restriction relating solely to her osteopenia and not to her work injury, and commented that the employee could continue to work as a service manager, the position she held at the time of her injury.  He also concluded that the employee needed no future care or treatment.  The employer and insurer served Dr. Simonet’s report on the employee on July 15, 2004, along with notice of attainment of MMI.

On July 7, 2004, the employee consulted Dr. Ronald Tarrel, D.O., at the Noran Neurological Clinic.  Dr. Tarrel diagnosed a thoracic vertebral fracture at T-4 and an associated thoracic sprain.  He also noted a cervical and lumbar sprain and potential cervical radiculopathy and diagnosed bilateral neck pain with radiation into her left upper extremity and a numbness in her neck and back.  Dr. Tarrel restricted the employee from work through September 1, 2004, due to her back pain resulting from her compression fracture, to limit her standing.  He suggested that she might need to remain off work longer, depending on the results of additional diagnostic testing.  An MRI scan of the employee’s cervical spine showed no evidence of disc herniation or central stenosis, but showed moderate stenosis at the C5-6 level secondary to uncinate process hypertrophy.  The radiologist stated that the MRI findings were consistent with diffuse cervical and upper thoracic spondylosis.

The employee continued to work until July 15, 2004.  According to her testimony, she was experiencing unrelenting back pain and had increasing difficulty maintaining her employment, but had continued to work as long as possible in order to maintain her job, pension benefits and health insurance.  Shortly thereafter, Dr. Tarrel prescribed 10 physical therapy sessions to address her chronic pain.  Although the employer and insurer did not approve that course of treatment, the employee began undergoing physical therapy in August 2004 at the offices of Physical Medicine ∙ Diagnostics ∙ Rehabilitation, also known as PDR Midway.

In a narrative report dated August 22, 2004, Dr. Tarrel reiterated his diagnosis of a cervical sprain, lumbar sprain and thoracic sprain which he related all to the employee’s January 2004 work injury.  He explained that a twisting, turning, and falling motion such as the employee experienced would cause undue stretching and strain of “certainly the soft tissues and easily explains her presenting symptoms.”  In mid-September, Dr. Tarrel took the employee off work for an additional month, a restriction he later continued until April 2005.

The employee began attending a physical therapy and strengthening program at PDR Midway on August 3, 2004, treating with physical therapist, Curtis Johnson.  Physical therapy records in evidence describe the employee’s pain in her left hip, mid-back, left buttock and left leg, her difficulty sleeping, her sitting and standing tolerances, and lifting restrictions.  The physical therapist outlined his goals for the treatment, and the types of treatments, including active exercises as well as active and passive treatment modalities.  The employee’s progress and chart notes were periodically reviewed by Dr. Tarrel and also by Dr. Mark Agre at PDR.  During the next few months the employee reported slow but consistent progress from her physical therapy regimen.  By January 20, 2005, Dr. Agre concluded that the employee’s progress had essentially reached a plateau, and recommended three or four additional sessions in order to help the employee make a transition to an independent exercise program.  In February and March, 2005, however, due to the employee’s increased pain level, Dr. Agre recommended six additional physical therapy visits.  At that point, Mr. Johnson, the employee’s original physical therapist, referred the employee to Mark Wolf, who reportedly had more experience in handling cases such as the employee’s.  The employee attended eight additional physical therapy sessions with Mr. Wolf, from February through least April 6, 2005.

By February 14, 2005, Dr. Tarrel concluded that the employee’s work injuries were permanent, that she might be prone to exacerbation of her condition, and therefore might require re-evaluation and more frequent therapy.  He also suggested that she might require chronic pain treatment.  He restricted the employee from work until April 1, 2005, and assigned work restrictions thereafter.

In March 2005, Dr. Tarrel prescribed work restrictions for the employee, including a restriction from working before 8:00 a.m. and after 8:00 p.m. to avoid stress and fatigue that could exacerbate her seizures.  In April 2005, the employee returned to work as a cashier for the employer.  Based on its conclusion that the employee could not perform multiple tasks well, the employer chose not to offer the employee a return to her previous position as a service manager.  The employee continued to work as a cashier at least until the hearing in September 2005.  Prior to the hearing, she obtained follow-up treatment with Dr. Callaghan’s office and Dr. Tarrel, and attended six additional physical therapy treatments in June and July 2005.

The employee’s claim petition, which was filed on July 30, 2004, was addressed at an evidentiary hearing on September 12, 2005.  Following the hearing, the parties submitted depositions of Mr. Johnson, the employee’s physical therapist, and Dr. Simonet, in addition to written closing arguments.  By Findings and Order, served and filed on November 14, 2005, the compensation judge awarded benefits to the employee and intervenors.  The compensation judge found that, in addition to a vertebral fracture in the employee’s thoracic spine, the employee sprained her cervical, thoracic and lumbar spine at the time of her January 14, 2004, injury.  The judge concluded that the employee was temporary totally disabled from working as a result of that injury, between July 16, 2004, and at least April 1, 2005.  The compensation judge concluded that the employee had established permanent partial disability at the following levels: 3.5 % whole body impairment related to her cervical spine,^[2] 6.5% whole body impairment related to the thoracic spine,^[3] and 3.5% whole body impairment related to her lumbar spine.^[4]

The compensation judge also awarded the employee’s and intervenors’ claims for payment of medical expenses, concluding that the treatment was reasonable and necessary and causally related to the employee’s work injury.^[5]  In addition, the compensation judge awarded reimbursement of short-term disability benefits paid to the employee by her labor union’s pension health and welfare fund.  The employer and insurer appeal.

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).

The employer and insurer appeal from the compensation judge’s determination that the employee sprained her cervical, thoracic and lumbar spine at the time of her January 14, 2004, injury, in addition to sustaining an admitted thoracic compression fracture.  The employer and insurer argue that the records in evidence do not support the compensation judge’s findings.  In reliance on Dr. Simonet’s opinion, the employer and insurer assert that the employee’s primary and constant complaints since her injury have focused on her thoracic spine, and that her medical records contain very limited references to neck and low back symptoms for three months after the injury.  The employer and insurer also argue that the employee’s subjective complaints of cervical and lumbar pain were out of proportion to her objective examination findings.  Dr. Simonet explained his opinion as follows:

The compensation judge outlined in detail the employee’s medical history following her January 2004 injury, and also referred specifically to her medical history predating that injury.  The judge accepted the causation opinions of the employee’s treating physicians, Drs. Callaghan and Tarrel, and concluded that the employee sprained her cervical, thoracic and lumbar spine at the time of her injury.  The judge acknowledged the employee’s predisposition to injury, as referred to by the employer and insurer, but also commented that the employee had been able to work full time without difficulty or back problems before her January 2004 work injury.  At Finding No. 20, the judge concluded that:

Our review of the record shows that the compensation judge had ample evidentiary support for her findings, in the employee’s medical records and testimony.  On appeal, the employer and insurer argue that the records in evidence support a contrary result than the conclusions reached by the compensation judge.  The question for this court is not whether the evidence would support a contrary result but whether substantial evidence supports the decision reached by the compensation judge.  It is the role of this court to 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).  In this case, substantial evidence, including medical records and witness testimony, supports the compensation judge’s findings that the employee’s January 2004 injury was a substantial contributing factor in her cervical, thoracic and lumbar spine injuries.  We therefore affirm the compensation judge’s findings on causation.

The employer and insurer also appeal the compensation judge’s award of additional permanent partial disability.  The employer and insurer conceded and have paid 4% permanent partial disability benefits for the thoracic spine pursuant to Minn. R. 5223.0380, subp. 2(A)(2), based on the employee’s thoracic compression fracture.  The compensation judge awarded an additional 2.5% permanent partial disability under Minn. R. 5223.0380, subp. 3(B), relative to the thoracic spine, which requires objective clinical findings of involuntary muscle tightness in the paradorsal muscles, regardless of radiographic abnormality.  The employer and insurer argue that this additional rating is not supported by substantial evidence; we disagree.  The medical records contain a basis for this rating.  By October 6, 2004, Dr. Tarrel examined the employee and noted that “[t]here continues to be significant tissue texture change which is chronic throughout the posterior cervical, upper, mid and lower back regions bilaterally.  There is tenderness in the region of the upper thoracic spine.”  A compensation judge's finding regarding the rating of permanent partial disability is one of ultimate fact and must be affirmed if it is supported by substantial evidence.  Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274, 39 W.C.D. 771, 778 (Minn. 1987).  The compensation judge relied on Dr. Tarrel’s opinion and also upon records from the employee’s physical therapist.  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).  As Dr. Tarrel’s opinion provides substantial evidence to support additional rating, we affirm the compensation judge’s award of additional permanent partial disability related to the employee’s thoracic spine.

The compensation judge also awarded 3.5% permanent partial disability related to the employee’s cervical spine pursuant to Minn. R. 5223.0370, subp. 3(B), and 3.5% permanent partial disability related to her lumbar spine pursuant to Minn. R. 5223.0390, subp. 3(B).  The employer and insurer first argue that any cervical or lumbar spine injuries are not causally related to the employee’s 2004 work injury, but we have already affirmed the finding that those injuries are causally related to her work injury.  The employer and insurer also argue that the employee’s cervical and lumbar spine conditions do not meet the permanency schedule requirements.  For both ratings, the condition must be substantiated by involuntary muscle tightness or decreased range of motion, and the employer and insurer argue that Dr. Tarrel did not find muscle tightness on examination, but only listed findings from reading physical therapy reports.  We note, however, that Dr. Tarrel examined the employee on multiple occasions and outlined the employee’s symptoms and examination findings in his chart notes.  In addition, the compensation judge had the physical therapy records available for her review; those records document the employee’s symptoms of pain and stiffness and also refer to the factors cited in the permanency schedules.  The compensation judge relied on Dr. Tarrel’s opinion and the physical therapy records which indicated reduced range of motion and tightened muscles.  Substantial evidence supports the compensation judge’s award of permanent partial disability related to the employee’s cervical and lumbar spine.  Accordingly, we affirm those awards.

Although the employee returned to work following her January 2004 injury, she discontinued working on July 16, 2004, and remained off through April 1, 2005, when she returned to work for the employer.  The compensation judge awarded temporary total disability benefits for the entire period the employee was off work, relying on the opinions of Dr. Tarrel and Callaghan that the employee was unable to work during that period.  The employer and insurer appeal from that award, relying on Dr. Simonet’s opinion as support for their argument that the employee was capable of working.  They also argue that any restrictions to which the employee was subject during this period of time were linked to conditions unrelated to her work injury.

“[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an unsubstantial income.”  Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).  The compensation judge found her testimony to be credible that she had unrelenting back pain and that she had an increasingly difficult time maintaining her employment between her January injury and July 2004; the judge also found that testimony to be consistent with the employee’s medical records.  The records contain a recommendation made by Dr. Callaghan in May that the employee remain off work due to her severe pain, her restrictions on her lifting and use of her upper extremities, and the significant side effects she experienced from her pain medications.  He suggested that she be allowed to take three months off to help with the healing of her back.  In July 2004, Dr. Tarrel restricted the employee from work due to her compression fracture and significant pain.  The records contain other recommendations in 2004 and 2005 that the employee remain off work or that she work only within specific restrictions.  Even though the employee was restricted due to her January 2004 work injury as well as other unrelated medical conditions, such as her seizure condition and her carpal tunnel syndrome, it was not necessary for the employee to show that her January 2004 work injury was the sole cause of her disability from employment; it was sufficient for her to establish that the injury was a substantial contributing factor in her disability.  Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989).  The medical records amply support the judge’s finding that the employee was unable to work during between July 2004 and April 2005 as a substantial result of her January 2004 work injury.

In addition to arguing that the employee was not disabled from work between July 2004 and April 2005, the employer and insurer also assert that the employee did not conduct a job search during that period, and argue that the judge erred by not addressing the issue of whether the employee conducted a job search adequate to support her claim for temporary total disability benefits.  While it is true that an employee generally must conduct a job search to receive temporary total disability benefits, “[t]here is no requirement in the statute or elsewhere which imposes on an injured employee the obligation to affirmatively seek and be denied employment as a prerequisite to being found totally disabled.  Rather, the fact that a compensation claimant has not sought post-injury employment goes only to the evidentiary weight of the assertion that he is totally disabled.”  Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978) (citations omitted).

In this case, the compensation judge expressly addressed the issue of whether the employee was totally disabled between July 2004 and April 2005 and found that the employee was disabled from employment due to her work injury.  In addition, it appears that the parties reasonably anticipated that the employee would eventually be able to return to work for the employer.  As this court stated in Glasow v. Gresser Concrete Masonry, slip op. (W.C.C.A. April 18, 1995), “Where there appears to be a reasonable possibility that an employee might return to work with his prior employer, it may not be reasonable to require an immediate search for work elsewhere.”  See also Chilton v. Brown Minneapolis Tank, slip op. (W.C.C.A. July 8, 1996).  The evidence shows that Dr. Tarrel provided updated information to the employer and the Minnesota Department of Labor and Industry during this period.  By March 9, 2005, the employer wrote to the employee, requested that she return to work in her previous position as a customer service employee, and advised that her failure to return to work would “be viewed as a voluntary resignation” and that her employment with Rainbow Foods would be terminated.  The employee ultimately returned to work with the employer on April 1, 2005, and has continued working there as a cashier.  Since the employee was disabled from work and anticipated returning to work for the employer during the period at issue, it was not necessary for the judge to address whether the employee had made a diligent job search during that time.  The evidence in the record supports the compensation judge’s finding that the employee was temporarily totally disabled between July 16, 2004, and April 1, 2005.

The employer and insurer also argue that the employee has reached maximum medical improvement (MMI) from her work injury, that notice of MMI was served on July 15, 2004, and that the employee’s entitlement to temporary total disability benefits expired at least by 90 days later.^[6]  Maximum medical improvement is defined as “the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability.”  Minn. Stat. § 176.011, subd. 25.  Maximum medical improvement “occurs upon medical proof that the employee’s condition has stabilized and will likely show little further improvement.”  Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740, 742 (W.C.C.A. 1987).  When an employee has reached MMI, temporary total disability benefits cease 90 days after the employee is served notice of MMI.  Minn. Stat. § 176.101, subd. 1(j).  Whether MMI has been reached is a question of ultimate fact for the compensation judge to decide.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989).  The burden of proving maximum medical improvement is normally on the employer and insurer.  Burns v. Firestone Tire & Rubber, slip op.  (W.C.C.A. June 29, 1993).  Factors to be considered in determining whether MMI has been reached, include:

The employer and insurer argue that the medical evidence supports a result contrary to the conclusion reached by the compensation judge.  Substantial evidence, however, 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).  In this case, substantial evidence supports the compensation judge’s finding that the employee was not at MMI in July 2004, and that the employee was temporarily totally disabled from at least July 16, 2004, through April 1, 2005.  Accordingly, we affirm those findings. 

The employer and insurer appeal from the compensation judge’s award of medical expenses.  They present three bases for their appeal: (1) That the overall treatment was not reasonable and necessary to cure and relieve the effects of the injury, (2) that the physical therapy treatments, in particular, exceeded the limits set out in the medical treatment parameters, and (3) that Dr. Agre was not an authorized treating physician and therefore no payment is owed for his expenses.

1)  Reasonableness and necessity of medical treatment

Relying on Dr. Simonet’s opinion, the employer and insurer assert that the medical treatment provided beyond three weeks following the employee’s injury was not reasonable and necessary to cure or relieve the effects of the employee’s T-4 compression fracture and that the treatments provided by several of the providers were not related to the thoracic fracture.  The employer and insurer also argue that even if the employee’s condition had not resolved to the point where she could work by three weeks after her injury, the treatment she received at the Noran Clinic for her cervical and lumbar symptoms was not compensable, nor were her treatments with Dr. Ormiston at Neurological Associates in St. Paul, nor at PDR, as they were not causally related to her January 2004 work injury.

Minn. Stat. § 176.135, subd. 1(a), states that an employer is to furnish “any medical, psychological, chiropractic, podiatric, surgical and hospital treatment . . . as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.”  The compensation judge relied on the opinions of the employee’s treating physicians in concluding that the employee injured her cervical, thoracic and lumbar spine as a result of her work injury, and accordingly awarded payment for the medical treatment directed to treat those conditions.  Although the employee’s records refer to ongoing treatment she received for her seizure symptoms, our review shows that those records also refer to the employee’s symptoms in her neck, upper back, mid-back, low back, and extremities, and outline ongoing examinations, diagnostic testing conducted, and medications prescribed to address those symptoms.  In addition, the employee’s testimony outlines her ongoing symptoms.  Based on the extensive medical evidence in the record, it was reasonable for the compensation judge to conclude that the medical treatment was causally related to the employee’s January 2004 work injury.

2)  Applicability of treatment parameters to physical therapy treatments

At hearing, the employee and PDR sought payment for physical therapy treatments rendered in 2004 and 2005.  The employer and insurer argue that those treatments were excessive and in violation of the medical treatment parameters.  The compensation judge concluded that the treatment parameters did not apply in this case, due to the employer and insurer’s denial of liability for the employee’s claimed cervical, thoracic and lumbar strains, and due to their position that the employee’s thoracic compression fracture required only temporary medical treatment.

Under legislation enacted with the objective of controlling medical costs in the workers’ compensation system, the Minnesota Department of Labor and Industry promulgated treatment parameter rules for health care provider treatment.  Hirsch v. Bartley-Lindsay Co., 537 N.W.2d 480, 483, 53 W.C.D. 144, 148 (Minn. 1995).  The applicable parameters in this case, Minn. R. 5221.6200, subp. 3; Minn. R. 5221.6205, subp. 3; and Minn. R. 5221.6210, subp. 3; (referring to low back, cervical and thoracic spine conditions, respectively), limit the number of treatments an employee can receive for passive treatment modalities.  The compensation judge concluded that the physical therapy and strengthening program at PDR were reasonably required and in compliance with the medical treatment parameters, and that after the first twelve weeks, “additional treatment was shown to have continuing effectiveness by improving symptoms and improved functional status in activities of daily living.”  She also concluded that because the employer and insurer denied primary liability for any injury other than the employee’s compression fracture in her thoracic spine, the medical treatment parameters were inapplicable to the medical treatment provided to the employee.

Under Minn. R. 5221.6020, subd. 2, the parameters do not apply to treatment for an injury after an insurer has denied liability for the injury.  The employer and insurer contend that Minn. R. 5221.6020, subd. 2, is inapplicable because they initially admitted liability for the employee’s thoracic compression fracture, even though they later asserted that the employee’s thoracic spine injury had healed adequately so as to allow the employee to return to work without a wage loss or any further permanent partial disability beyond the 4% rating assigned by Dr. Simonet.  They also assert that the parameters apply to treatment for the employee’s claimed lumbar and cervical spine injuries, even though they denied liability for those injuries.  This court addressed the applicability of the treatment parameters in Mattson v. Northwest Airlines, slip op. (W.C.C.A. Nov. 29, 1999), where an employer initially admitted primary liability for a work injury and later denied that the employee’s current condition was causally related to that injury, and stated that “[F]or all practical purposes, the employer and insurer’s denial of medical causation for the employee’s . . . condition after [the alleged end of the temporary aggravation], is no different than a denial of primary liability from and after that time.”  We concluded that,

The compensation judge found the physical therapy treatments to be reasonable and necessary to cure or relieve the effects of the employee’s 2004 injury.  She rejected the employer and insurer’s argument that the treatments exceeded the limits outlined in the parameters, and concluded that “the employer and insurer cannot deny the employee’s condition is work-related, yet assert the protection of, or demand compliance with, medical treatment parameters that apply only to work injuries.”  We agree.  If an employer has denied liability for an injury, it does not enjoy the practical protections afforded by the treatment parameters.  Schulenberg v. Corn Plus, 65 W.C.D.237 (W.C.C.A. 2005).  Likewise, an insurer’s claim that an injury was temporary in nature, but has fully resolved, negates the application of the treatment parameters.  Oldenburg v. Phllips & Temro Corp., 60 W.C.D. 8 (W.C.C.A. 1999), summarily aff’d, 606 N.W.2d 445 (Minn. 2000); see also Winquist v. Hansen Gravel, Inc., slip op. (W.C.C.A., Dec. 6, 1999).  Because the employer and insurer have denied primary liability for any injury other than a T-4 compression fracture, the medical treatment parameters do not apply to limit the compensability of the claimed physical therapy treatments.  The compensation judge did not err in awarding payment for those treatments, and we affirm that award. 

3)  Authorized treating physician

The employer and insurer also argue that Dr. Agre, who examined the employee and oversaw the employee’s treatment at PDR, represented an unauthorized treating physician in violation of Minn. R. 5221.0430, which states that,

A crucial aspect of Minn. R. 5221.0430 requires a primary health care provider to direct and coordinate the course of medical treatment.  The employee’s primary medical provider did so.  That Dr. Agre, who was not the employee’s primary treating physician, oversaw the employee’s treatment at PDR Midway cannot serve as a basis for denial of payment for those treatments.  The compensation judge did not err by denying the employer and insurer’s assertion that Dr. Agre’s periodic examinations and reviews of the employee’s physical therapy program violated Minn. R. 5221.0430, and we affirm the compensation judge’s finding that Dr. Agre’s treatment at PDR was compensable.

The employer and insurer appeal from the compensation judge’s award of reimbursement to medical intervenors who did not attend the hearing - - Medical Associates of Minnesota and the Noran Clinic.^[7]  The employer and insurer argue that, pursuant to Minn. Stat. § 176.361, these intervenors received notice of their intervention status, but did not appear at the hearing, and therefore are not entitled to reimbursement for their claims.  The compensation judge concluded that the intervenors were not precluded from payment by their failure to attend the hearing.

We have previously determined that the filing of a motion to intervene is an appearance where the attachments are sufficient to establish the claim, and that by failing to attend a hearing, an intervenor only waives the right to submit additional evidence, examine witnesses, and make statements or arguments.  See Carlino v. Peterson Construction, slip op. (W.C.C.A. Oct. 4, 2004); Sether v. Wherley Motors, slip op. (W.C.C.A. July 27, 2005).  In addition, an intervenor’s claim is not precluded where the employee has also filed a claim for the medical expenses or benefits claimed by the intervenor and the insurer is not materially prejudiced by non-attendance of the intervenor.  We find no prejudice in this case resulting from the intervenor’s nonattendance at the hearing; the amounts claimed as reimbursement were listed on exhibits submitted into evidence at the hearing, the amounts were updated and provided to the judge by letter from the employee’s counsel post-hearing, and medical records documenting the treatment related to the claimed expenses were also submitted into evidence, available for the employer and insurer’s review.  We therefore affirm the compensation judge’s conclusion that the intervenors’ appearances adequately established their claims.

The compensation judge found that the employee is entitled to rehabilitation assistance, specifically findings that the employee is “in need of rehabilitation assistance to evaluate the current work situation and any necessary modifications.”  The employer and insurer argue that the judge awarded rehabilitation assistance on the basis of the employee’s seizure condition, and not because of the effects of her work-related injury.  Minn. Stat. § 176.102 provides that rehabilitation “is intended to restore the injured employee so that employee may return to a job related to the employee’s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability.”  According to Minn. R. 5220.0100, subp. 22, a “qualified employee” is one who, “because of the effects of a work-related injury or disease, whether or not combined with the effects of a prior injury or disability:”

In this case, the employee had been assigned physical restrictions related to her injury of January 14, 2004, including restrictions on the length of time she could stand while working, and the frequency of breaks.  She was also subject to restrictions related to her July 2003 work injury to a right-hand finger and to her nonwork-related seizure condition.   At the time of the hearing, the employee was working as a cashier, which requires lifting, twisting, turning, and standing.  The compensation judge deemed it important to assign a qualified rehabilitation consultant (QRC) to assess the employee’s current work situation and to develop a plan to obtain suitable employment.  The judge did not award rehabilitation assistance solely due to the employee’s seizure condition.  As the judge explained at Finding No. 40,