KAMINIE RAGHUBIR, Employee, v. WALKER METHODIST HEALTH CTR., and CAMBRIDGE INTEGRATED SERVS., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 17, 2006

 

No. WC06-135

 

HEADNOTES

 

WAGES - CALCULATION.  Under the circumstances of this case, the compensation judge properly concluded that the employee=s weekly wage on the date of injury should be calculated with reference to the two weeks the employee worked full time prior to the injury, rather than by averaging the employee=s earnings in part-time employment in the 26-week pre-injury period, where there was no evidence that the employee=s change from part-time to full-time work was expected to be temporary.

 

MEDICAL TREATMENT & EXPENSE - CHANGE OF PHYSICIANS.  The compensation judge properly concluded that the employee was entitled to treatment with the provider she chose as her primary health care provider following her work injury, where she subsequently treated at a different clinic, of the employer=s choice, only because the employer refused to authorize payment to the employee=s chosen provider.

 

REHABILITATION - ELIGIBILITY.  Where the employee was almost a year post-injury at the time of hearing, was not performing her usual pre-injury job duties, and was only working half the hours, or less, than she had worked prior to her injury, the compensation judge did not err in finding the employee eligible for rehabilitation assistance, even though there was no express medical evidence that the employee was likely to be permanently precluded from returning to her pre-injury occupation.

 

Affirmed.

 

Determined by: Wilson, J., Johnson, C.J., and Pederson, J.

Compensation Judge: Kathleen Behounek

 

Attorneys: Denise D. Lemmon, Lemmon & Associates, Eagan, MN, for the Respondent.  Mark A. Kleinschmidt, Cousineau McGuire, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge=s decision as to the employee=s weekly wage, the employee=s right to choose a physician=s assistant at Bloomington Lake Clinic as her primary health care provider, the employee=s entitlement to rehabilitation services, and the employee=s entitlement to a surgical consultation.  We affirm.

 

BACKGROUND

 

The employee was born in 1960 in Guyana, where she attended school until age thirteen.  Classes were conducted in English, and English is the employee=s primary language.  However, she has a difficult time reading and writing, and one reference in the record suggests that she speaks a dialect different from American English.

 

The employee left Guyana and came to live in Minneapolis in about 2000.  After working in laundry and housekeeping for another employer, the employee obtained a part-time job as a laundry aide for Walker Methodist Health Center [the employer], where her job duties included washing, sorting, and folding linen.  As a part-time worker, her hours varied.  Effective December 25, 2004, the employee changed from part-time to full-time status, which meant that she would be scheduled to work 32 or more hours a week.

 

On January 20, 2005, the employee sustained a work-related injury to her low back while pulling or pushing a heavy laundry cart filled with bedspreads.  She reported the injury to her supervisor, Patricia Shonka, who sent her to Park Nicollet Clinic for treatment that same day.  According to clinic records, Dr. David Parker diagnosed the employee with a lumbar strain and advised her to avoid lifting more than 20 pounds.

 

Four days after her work injury, on January 24, 2005, the employee was seen by Kathy Huntington, a physician=s assistant at the Bloomington Lake Clinic.  Ms. Huntington, too, diagnosed a strain, and she took the employee off work through January 31, 2005, and referred her for physical therapy.  The employee returned to see Ms. Huntington again on January 31, 2005, at which time she was released to work on a light-duty basis.

 

During February of 2005, the employee was seen at both Park Nicollet and Bloomington Lake Clinic on several occasions.  Concerned about possible radiculopathy, Ms. Huntington arranged for the employee to undergo an MRI scan, which revealed a Asmall left paracentral disc herniation with an annular tear that causes some anterior decompression on the thecal sac without overall central stenosis.@  In late February of 2005, Ms. Huntington took the employee off work again for a week.  Dr. Parker, however, saw no reason for the employee to be off at that time.  Shortly thereafter, on March 1, 2005, the employer=s insurer notified the employee that it considered Park Nicollet to be the employee=s primary health care provider under applicable workers= compensation rules, because the employee had been seen there on two or more occasions, and that payment to any other provider would be denied.

 

Over the next several months, the employee received treatment primarily at Park Nicollet, initially from Dr. Parker and then from Dr. Mary Arneson.  Dr. Parker reported at one point that the employee=s symptoms were not Aconcordant@ with her MRI scan, and one of Dr. Arneson=s office notes indicates that the employee=s pain response was thought to be Aout of proportion with identifiable pathology.@  Treatment included medication, pool therapy, and a work conditioning program.  The employee testified that she went to Park Nicollet for treatment because she had been told to do so.

 

In early June of 2005, Dr. Arneson discontinued the employee=s work conditioning program, concluding that it had not been beneficial, and planned instead to gradually increase the employee=s activity level over the next two or four months.  According to Dr. Arneson=s report, the employee Astrongly object[ed] to this plan, predicting that she [would] not be able to resume normal work activities.@  At that time, Dr. Arneson continued previously recommended restrictions, including a restriction against any lifting of more than 10 pounds.

 

On June 16, 2005, Dr. Arneson ordered blood tests to rule out any underlying systemic pathology.  After reviewing the test results, Dr. Arneson noted that the employee=s sedimentation rate was elevated, and she directed the employee to discuss the tests with her personal physician.

 

In early July 2005, the employee underwent a rehabilitation consultation, conducted by QRC Connie Graham.  QRC Graham observed that the employee was still working for the employer at a light-duty, modified position and that the employee believed that she was working within the limitations recommended by physicians.  However, noting that Ait [was] not known if [the employee] will return to her usual job, or if her employer is able to accommodate limitations on a permanent basis,@ the QRC concluded that the employee was eligible for rehabilitation services.  QRC Graham also concluded that the employee=s communication skills were so poor that someone should attend all medical appointments with her.

 

Also in early July, the employee was seen again at the Bloomington Lake Clinic, accompanied by QRC Graham.  Office notes indicate that the employee was sent to the lab for repeat blood tests.  The actual test results are not in the record; however, the QRC subsequently reported that the tests were essentially normal.  Noting that the employee had been experiencing persistent low back pain for six months, Ms. Huntington referred the employee to Twin Cities Spine Center for further evaluation.

 

In notes from a July 6, 2005, office visit, Dr. Arneson indicated that she did not think that the employee was a surgical candidate but that it Aprobably makes sense at this point to get a surgical opinion, since she has failed a number of interventions in the past 6 months.@  However, in notes from an appointment on July 28, 2005, Dr. Arneson amended her opinion, writing as follows:

 

Ms. Graham says that the referral to Twin City Spine has been denied by the insurer because I didn=t make it.  I explained that I don=t find that referral to be a high priority, because there is no surgical problem; it=s more a question of whether there is anything being missed here.  It would be more important to know what is causing the high sedimentation rate, and I could certainly understand why the insurer might not authorize a surgical consultation when the possibility of an underlying infectious or inflammatory problem hasn=t been ruled out and actually seems fairly likely.

 

*  *  *

 

She does have a herniated disc, but it was not impinging on the foramina.  It has been 6 months since her injury, and she reports that she is only getting worse.  I am not going to contest the insurer=s refusal to authorize a surgical opinion at this point, since it certainly would make sense to find out what=s going on with the high sedimentation rate first.  If there=s no infectious, inflammatory, or neoplastic cause for the back pain, I would endorse getting another opinion, but my preference would be for an evaluation at Physician=s Neck and Back Clinic, or perhaps through PM&R.

 

The employee subsequently received additional treatment both at Park Nicollet and Bloomington Lake Clinic.  At times, providers at Bloomington Lake Clinic removed the employee from work.  The employee also underwent independent medical examinations by Drs. Robert Wengler and John Dowdle.

 

In November of 2005, the employee was evaluated by Dr. Amir Mehbod at the Twin Cities Spine Center.  Dr. Mehbod recommended an epidural steroid injection, strengthening exercises, a Tens unit, traction, and ultrasound, and he also referred the employee to a physiatrist, noting that he wanted to Amaximize all non-operative treatment prior to proceeding with any type of surgery.@  By this time, the employee had been restricted to a maximum of 10 pounds lifting and 4 hours of work per day.

 

The employer has allowed the employee to work light duty, folding laundry and helping residents.  When the employee experiences symptoms, she is allowed to sit down.  QRC Graham indicated that the employer has been very cooperative but that Ms. Shonka, the employee=s supervisor, could not guarantee that the employer would be able to continue the accommodations.  QRC Graham also indicated that she had been refused permission to conduct an on-site job analysis.

 

The matter came on for hearing before a compensation judge on December 7, 2005, for resolution of several issues, including the employee=s weekly wage, whether the employee was entitled to receive treatment at Bloomington Lake Clinic, whether the employee was entitled to a surgical consultation, and whether the employee was entitled to rehabilitation services.  In a decision issued on February 6, 2006, the compensation judge resolved all issues in the employee=s favor.  The employer and insurer appeal.

 

 

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

 

1.  Weekly Wage

 

Pursuant to Minn. Stat. ' 176.011, subd. 3,

 

     Subd. 3.  Daily wage.  ADaily wage@ means the daily wage of the employee in the employment engaged in at the time of injury but does not included tips and gratuities paid directly to an employee by a customer of the employer and not accounted for by the employee to the employer.  If the amount of the daily wage received or to be received by the employee in the employment engaged in at the time of injury was irregular or difficult to determine, or if the employment was part time, the daily wage shall be computed by dividing the total amount of wages, vacation pay, and holiday pay the employee actually earned in such employment in the last 26 weeks, by the total number of days in which such wages, vacation pay, and holiday pay was earned. . . .

 

(Emphasis added.)  Weekly wage is calculated by multiplying the daily wage by the number of days and fractional days normally worked at the employer for the employment involved.  Minn. Stat. ' 176.011, subd. 18.  In the present case, the employer and insurer argued that, because the employee=s pay in the 26-week pre-injury period varied pay period to pay period, her earnings were irregular within the meaning of the statute.  As such, they argued, the employee=s weekly wage on the date of injury was $305.52, as calculated by averaging her earnings over the 26-week pre-injury period.  The compensation judge disagreed, and so do we.

 

The employee changed from part-time to full-time status effective December 25, 2004, and she worked one full pay period, as a full-time employee, prior to her January 20, 2005, work injury.  There is no evidence that the employee=s move to full-time work was intended to be temporary. Because Athe employment engaged in at the time of the injury@ was full time, it was entirely appropriate for the compensation judge to conclude that the employee=s wage in full-time work as a laundry aide was most nearly representative of A[the employee=s] probable future earning power which has been impaired or destroyed because of injury.@  Knotz v. Viking Carpet, 361 N.W.2d 872, 874, 37 W.C.D. 452, 455 (Minn. 1985).  The fact that the employee=s specific job title and duties did not change when she went full time is not determinative.  Also, the employer and insurer submitted no evidence indicating what other full-time laundry aides generally earned or how much they worked.  As such, the compensation judge was given no basis to reject the employee=s actual full-time earnings as a measure of her earning capacity.  Cf. Bradley v. Vic=s Welding, 405 N.W.2d 243, 246, 39 W.C.D. 921, 924 (Minn. 1987) (Athere are various circumstances which make a claimant=s actual earnings during a particular period an unreliable measure of [her] earning power. . . [and] sometimes it is as important to reject as it is to accept a brief recent-wage experiencing, if a realistic approximation of future wage loss is to be obtained@).  We therefore affirm the judge=s decision that the employee=s weekly wage on the date of injury was $513.78.^[1]

 

2.  Primary Health Care Provider

 

Minn. R. 5221.0430, subp. 1, provides as follows:

 

     Subpart 1.  Primary health care provider.  The individual health care provider directing and coordinating medical care to the employee following the injury is the primary health care provider.  If the employee receives medical care after the injury from a provider on two occasions, the provider is considered the primary health care provider if that individual directs and coordinates the course of medical care provided to the employee.  The employee may have only one primary health care provider at a time.

 

The compensation judge found that A[t]he employee=s treating physician shall be her personal physicians at the Bloomington Lake Clinic.@  In her memorandum, the judge explained her decision by noting that the employee had treated at that clinic prior to her work injury, that she was uncomfortable with the Park Nicollet physicians and had not elected to be seen by them, and that Ms. Huntington, the Bloomington Lake physician=s assistant, had appropriately referred the employee for specialized care following her work injury.

 

On appeal, the employer and insurer argue that the term Aprovider,@ as used in the rule quoted above, means a person holding an M.D. or D.O. degree.  Therefore, they argue, because Ms. Huntington is a physician=s assistant, not a medical doctor, she is not qualified to be the employee=s primary health care provider.  This argument has no merit.  Pursuant to Minn. Stat. ' 176.011, subd. 24, the term Ahealth care provider@ means Aa physician, podiatrist, chiropractor, dentist, optometrist, osteopath, psychologist, psychiatric social worker, or any other person who furnishes a medical or health service to an employee.@  Clearly Ms. Huntington furnished medical services so as to qualify as a health care provider under the statute.

 

The employer and insurer also contend that, as a physician=s assistant, Ms. Huntington is not qualified to provide the specialized care required by the employee=s low back condition.  This argument similarly lacks merit.  As noted by the compensation judge, Ms. Huntington appropriately referred the employee for tests, physical therapy, and additional evaluation.

 

Most of the employer and insurer=s remaining arguments are framed in terms of the compensation judge=s alleged errors in allowing the employee to change physicians.  However, as the judge pointed out, this case does not involved the question of the employee=s right to change physicians; rather, by seeking treatment for her injury from Ms. Huntington twice, right after the injury - - before she saw physicians twice at Park Nicollet - - the employee in fact chose Ms. Huntington as her primary treating health care provider.  Minn. R. 5221.0430, subp. 1.  The insurer=s refusal to authorize further treatment at Bloomington Lake Clinic cannot be used to negate the employee=s right to make that choice.  The judge=s decision on this issue is affirmed.

 

3.  Surgical Consultation

 

The employer and insurer contend that substantial evidence does not support the compensation judge=s decision that the surgical consultation at Twin Cities Spine Center was reasonable and necessary.  In support of this argument, the employer and insurer note that both Dr. Dowdle and Dr. Arneson indicated that the employee was not a surgical candidate.  The employer and insurer also argue that the employee unreasonably failed to follow up on Dr. Arneson=s suggestion to investigate the employee=s abnormal sedimentation rate, which might indicate a systemic source for her back pain, and they contend that Ms. Huntington=s surgical referral is suspect because AMs. Huntington has no expertise in the area of low back injuries.@  We are not persuaded.

 

Both the employee and QRC Graham testified that the employee did in fact undergo repeat blood tests and that the tests were normal; according to Ms. Graham, Athere was a third appointment that I attended with Dr. Arneson and that was to confirm that the blood work was all right. . . .@  Furthermore, there is no evidence whatsoever to support the employer and insurer=s allegation that Ms. Huntington lacks experience with low back injuries.  Finally, even Dr. Arneson initially concurred with the idea of a surgical consultation given the employee=s failure to improve with nonsurgical treatment.  The judge=s decision on this issue is therefore also affirmed.

 

4.  Rehabilitation Services

 

Pursuant to Minn. R. 5220.0100, subp. 22, an employee is qualified for rehabilitation  services if, because of the effects of the work injury, the employee:

 

  A.  is permanently precluded or is likely to be permanently precluded from engaging in the employee=s usual and customary occupation or from engaging in the job the employee held at the time of injury;

   B.   cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer; and

  C.  can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services, considering the treating physician=s opinion of the employee=s work ability.

 

In the present case, the employer and insurer argue that the compensation judge erred in finding the employee a Aqualified employee@ under this provision, in that there is no evidence that the employee will be permanently precluded from performing her pre-injury job.  The employer and insurer also allege that the employee is in fact currently performing Asuitable gainful employment@ with the employer.

 

This is a close case.  Medical records do not clearly establish that the employee is likely to be permanently precluded from returning to full-time work as a laundry aide or even that she will necessarily have permanent restrictions.  She has not yet reached maximum medical improvement [MMI], or at least there is no allegation that she has done so.  However, part of the problem in this case is that the QRC has not been able to assess the physical suitability of the employee=s current light-duty job and has not been allowed to analyze the physical requirements of the employee=s usual pre-injury job as a laundry aide in order to present that information to the employee=s treating physicians.  Moreover, while the employer has evidently been cooperative in accommodating the employee=s restrictions, the employee is still missing work due to her symptoms, and the employer has not been able to guarantee that permanent light-duty work will be available.  In addition, while the employee may not yet be at MMI, she was nearly a year post-injury by the time of the hearing and was still subject to restrictions that precluded resumption of her pre-injury job, at least with respect to hours worked.^[2]

 

QRC Graham explained how she would proceed, if rehabilitation services were authorized, as follows:

 

The first thing that I would do would be to meet with the employer, take a look at her usual job, and also her modified light duty, make sure that that information is presented to the physician and the physical therapist working with her so that they have a clear understanding of what - - what she=s doing, what=s required, and what the employer needs her to get back to.  And then assuming authorization is received from the insurer for injection therapy I would contact CDI to make certain that that=s in place, and I=d also be speaking with the insurer to make certain that there is transportation in place for her.  I understand that her son is on probation right now for school and transportation is an issue and that needs to be resolved for her.  And then - - oh, and then also facilitate the referral to Dr. Krishnamurthy and make sure that he has this information available to him.  And that would be the - - those would be my initial steps.

 

Given all the circumstances in this case, including evidence indicating that the employee has some trouble with communication, we cannot conclude that the judge erred in finding the employee eligible for rehabilitation services.  However, our decision here should not be read to approve the provision of any particular kind of rehabilitation services, as that issue was not before the compensation judge and is not before this court on appeal.  Any dispute in that regard will have to be resolved, if necessary, in other proceedings.