CONNIE C. REIDER, Employee, v. ANOKA-HENNEPIN SCH. DIST. #11, SELF-INSURED, Employer/Appellant, and NORAN NEUROLOGICAL CLINIC and BLAINE CHIROPRACTIC CTR., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 21, 2006

 

No. WC05-276

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including the testimony of the employee and the records and opinions of her treating doctors, supports the compensation judge's determination that the employee sustained a Gillette injury to her neck, shoulders and upper back as a result of her job duties as an American Sign Language (ASL) interpreter, even though the employee continued to work without restrictions.

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Permanent partial disability benefits are intended to compensate for permanent loss or impairment of bodily function and are in no way dependent upon work restrictions or inability to work.  Where there was substantial evidence to support the conclusion that the employee met the criteria in the permanent partial disability schedules for the assigned permanency ratings, the compensation judge did not err in awarding benefits based on those ratings.

 

PRACTICE & PROCEDURE - NEUTRAL PHYSICIAN.  The compensation judge did not err in denying the employer's request for examination of the employee by a neutral physician, pursuant to Minn. Stat. ' 176.155, subd. 2 (2005), given the issues in dispute in this case.

 

Affirmed.

 

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

Compensation Judge: Cheryl Le-Clair-Sommer

 

Attorneys: Thomas D. Mottaz and David B. Kempston, Law Office of Thomas D. Mottaz, Anoka, MN, for the Respondent.  Kirk C. Thompson, Cronan, Pearson, Quinlivan, Minneapolis, MN, for the Appellant.

 

 

MAJORITY OPINION

 

THOMAS L. JOHNSON, Judge

 

The self-insured employer appeals the compensation judge=s determination that the employee sustained a Gillette injury to her cervical and thoracic spine as a result of her work for the employer and from the related award of medical and chiropractic expenses and permanent partial disability benefits.  The employer also appeals the compensation judge=s denial of its motion for an examination by a neutral physician pursuant to Minn. Stat. ' 176.155, subd. 2.  We affirm.

 

BACKGROUND

 

The employee, Connie C. Reider, has been employed by the self-insured employer, Anoka-Hennepin School District #11, since 1992 as an American Sign Language (ASL) interpreter.  As a school-year employee, she has a 195-day contract with the employer, that includes working 175 days each year with student contact, 10 additional days for workshops and similar responsibilities, and 10 paid holidays.  The employee typically interprets for six 45-minute class periods each day, plus a 20-minute home room period, and is usually allotted one additional preparation period each day.  A portion of the employee=s time at school is spent with duties that do not include interpreting.

 

American Sign Language is a language that allows people who are hearing-impaired to communicate, and is accomplished by using hand gestures to communicate ideas, words or phrases, and finger spelling to spell out words.  During the course of each school day, the employee does not follow a particular student, but instead is assigned to attend various classes, depending upon the needs of the students and the school.  The employee has worked at Coon Rapids Middle School for the past nine years, and currently works with two other interpreters at the school.  The amount of signing performed in each class varies depending upon the presentation by the teacher.  For example, the employee=s duties might include signing for a teacher or for an instructional video, or might include working with students in a small group.  To perform signing, the employee holds her arms in front of her body at about shoulder height, and usually signs with both arms, using her dominant (right) hand to perform the finger spelling.

 

The employee claims she sustained a Gillette injury on or about February 24, 2003, as a result of her ASL interpretation duties.  Prior to that date, the employee gradually noticed symptoms in her neck, both shoulders, and upper back ranging into her mid- back.  She associated her symptoms with her interpretation duties since she noticed them primarily when working.  She testified her symptoms usually subsided when she was not working, especially during the summer months.  She also testified her symptoms increased during the first weeks of school due to interpretation of additional information that was distributed and explained to teachers during workshops and to students at the beginning of the school year.  In February 2003, she noted symptoms which she described as being at an A8 out of 10" on the pain scale.  The employee noted a deep ache with muscle tightness and associated burning.

 

On April 14, 2003, the employee consulted with Thomas Rice, D.C., reporting symptoms affecting her head, neck, upper back, mid- back, left shoulder and arm, under her right arm and diagonally across her upper chest on the right.  She also reported pain and weakness in her left arm and left shoulder.  Dr. Rice provided treatment consisting of mild spinal and extremity manipulation and physiotherapy in the form of interferential stimulation.  Following an aggravation of her symptoms in December 2003, the employee continued to treat with Dr. Rice, initially three times per week, eventually decreasing her treatment to an Aas-needed@ basis.  She performed exercises as well and testified that, although her symptoms diminished over time, they have never entirely resolved.

 

The employer initially paid for Dr. Rice's treatment through June 2004, but then denied primary liability for the claimed February 24, 2003, injury.  In July 2004, the employee filed a claim petition, alleging two dates of injury, February 24 and December 3, 2003, and seeking payment of permanency benefits based upon a 10 percent whole body impairment relative to the cervical spine and a 2.5 percent whole body impairment to the thoracic spine.  The employee also sought payment of outstanding medical and chiropractic treatment expenses.

 

In October 2004, the employee was examined by Dr. Neil Dahlquist at the request of the employer.  Dr. Dahlquist found the employee had completely normal range of motion in her spine, including her neck, thoracic and lumbar spine.  He diagnosed trochanteric bursitis, a hip condition unrelated to her claimed work injury, and concluded the employee has had mild musculoskeletal complaints over the years and that her symptoms relate to aging.  He concluded the employee did not sustain any type of repetitive trauma or Gillette injury, and had no permanent injuries as a result of her job as a sign language interpreter.  Dr. Dahlquist also concluded the employee required no medical or chiropractic care as a result of her work and placed no work restrictions on the employee.

 

In February 2005, the employee noticed increased symptoms that she attributed to her new semester schedule and her participation with interpreting a theatrical production.  After the employee reported new and different symptoms in her neck, Dr. Rice referred the employee to Dr. Ana Patricia Groeschel, a neurologist.  An MRI scan of the cervical spine in March 2005 showed  spondylitic and discogenic degenerative changes of the cervical spine, most severe at C4-5, with no foraminal narrowing, and mild degenerative changes throughout the remainder of the cervical spine.  Dr. Groeschel concluded the employee had sustained a cervical strain as a result of the repetitive use of her muscles while working as an interpreter.  Dr. Groeschel referred the employee for massage therapy and prescribed muscle relaxants, but did not restrict her from continuing to work.  The employee attended six therapy sessions and continued to perform stretching exercises in an attempt to reduce her symptoms.

 

 Following a later review of additional medical records and the March 2005 MRI scan, Dr. Dahlquist concluded the MRI scan showed changes consistent with the employee=s age, with no suggestion of nerve root or spinal cord impingement.  He reiterated his opinion that the employee had not sustained any permanent partial disability related to her employment as an ASL interpreter.

 

On March 29, 2005, the self-insured employer filed a motion for examination by a neutral physician pursuant to Minn. Stat. ' 176.155, subd. 2.  On April 7, 2005, and again on June 6, 2005, the Office of Administrative Hearings served a notice advising the case was set for a hearing on August 5, 2005.  Neither notice included any notice of a pre-trial conference.  On June 30, 2005, the compensation judge to whom the hearing was assigned served and filed an order denying the employer=s motion for an examination by a neutral physician.

 

A hearing was held on August 5, 2005, before a compensation judge at the Office of Administrative Hearings.  The judge issued a Findings and Order on September 29, 2005, in which she concluded that the employee sustained a Gillette injury culminating on or about February 24, 2003, as a result of her work activities as an ASL interpreter.  The judge also found that, although the employee aggravated her underlying Gillette injury on December 3, 2003, there was insufficient evidence to determine that she sustained an additional Gillette injury on that date.  The compensation judge concluded that the employee had sustained a 10 percent whole body disability as a result of her cervical spine injury, and a 2.5 percent permanent partial disability of the body as a whole relative to her thoracic spine.  The judge also determined that the disputed medical and chiropractic treatment the employee received from the Noran Clinic, Karlene Comer, the physical therapist, and Blaine Chiropractic Clinic, was reasonable and necessary, and ordered payment of the employee's medical expenses.  The self-insured employer appeals.

 

DECISION

 

1.  Gillette Injury

 

The self-insured employer appeals from the compensation judge=s determination that the employee sustained a Gillette injury as a result of her work as an ASL interpreter.  To establish a Gillette injury, an employee must "prove a causal connection between [her] ordinary work and ensuing disability."  Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).  The determination of a Gillette injury "primarily depends on medical evidence."  Steffen, id. (citing Marose v. Maislin Transp., 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987)).

 

The compensation judge specifically adopted the opinions of Dr. Rice and Dr. Groeschel, the employee's treating doctors, finding their opinions "were persuasive and consistent with the factual evidence."  (Finding 2.)  Both Drs. Rice and Groeschel concluded the employee's work duties as an ASL interpreter were a substantial contributing cause of her upper back, shoulder and neck symptoms.  In her memorandum, the compensation judge noted Dr. Rice's "clear explanation on the mechanism of injury while performing the duties of a sign language interpreter" and Dr. Groeschel's opinion that "[t]he patient=s work as a sign language interpreter has caused her to have increase[d] problems with strain in her neck and upper back with consistent repetitive use of the same muscle groups."  (Mem. at 5.)

 

The employer, however, contends the compensation judge erred in relying upon the treating doctors' opinions.  It points out that, although Drs. Rice and Groeschel opined the employee sustained a work-related injury and permanent partial disability, they placed no work restrictions on the employee.  The employer argues these opinions are internally inconsistent, and cannot form a reasonable basis for the determination that the employee sustained a permanent injury.  Instead, the employer argues, Dr. Dahlquist's opinion that the employee did not sustain a Gillette injury is more consistent with the employee's lack of work restrictions.

 

A Gillette injury occurs as the result of repetitive minute trauma brought about by the performance of ordinary job duties.  Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W.2d 200, 205-06, 21 W.C.D. 105, 111-13 (1960); Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981).  This type of injury usually occurs gradually and may manifest as a sudden onset of symptoms or as an intensification of symptoms.  To establish a compensable Gillette injury, the employee must show "disability" as a result of her work activities.  Although disablement is most frequently characterized as an inability to continue working or the imposition of work restrictions requiring modification of job duties, the "ascertainable event" may include a significant increase in symptoms or problems sufficient to cause the employee to seek medical treatment.  See, e.g., Schnurrer v. Hoerner‑Waldorf, Inc., 345 N.W.2d 230, 36 W.C.D. 504 (Minn. 1984); compare Hanson-Haukoos v. Hormel Foods Corp., slip op. (W.C.C.A. Aug. 18, 2005); Manthei v. Layne Minn. Co., slip op. (W.C.C.A. Jan. 20, 2005).

 

At the hearing, the employee described the nature of her interpretive duties and the gradual onset of her symptoms.  She testified that in February 2003, her symptoms had intensified to "8 out of 10" on the pain scale with muscle tightness and burning, leading the employee to consult with Dr. Rice on April 14, 2003.  The employee was provided treatment following the initial consultation, and stated that, although her symptoms diminished over time, they have never completely resolved.  The compensation judge accepted that testimony.^[1]

 

As the trier of fact, the compensation judge is to resolve conflicting medical expert opinion.  The judge's choice between experts is to be upheld where the facts assumed by the expert in rendering his opinion are supported by the evidence.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). "[W]here more than one inference may reasonably be drawn from the evidence, the compensation judge's findings shall be upheld."  Id.; see also Cameron v. Metro Transit, slip op. (W.C.C.A. October 1, 2004).  Based upon our review of the evidence, including the employee's testimony and the medical records submitted into evidence, we cannot conclude that the facts assumed by Drs. Rice and Groeschel are lacking in evidentiary support.  There is substantial evidence to support the compensation judge's finding that the employee sustained a Gillette injury as a result of her work as an ASL interpreter, and we must, accordingly, affirm that finding and the related award of medical and chiropractic expenses.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

 

2.  Permanent Partial Disability

 

The self-insured employer contends the compensation judge's award of permanent partial disability benefits is not supported by substantial evidence.  We disagree.  To be entitled to permanent partial disability under the permanency schedule, the employee must prove each element of the assigned rating.  Knudson v. Twin City Hide, Inc., 40 W.C.D. 336, 338 (W.C.C.A. 1987) (citing Davies v. Marriott-Host Int'l, 39 W.C.D. 631, 633 (W.C.C.A. 1987)).  The employee's doctors opined the employee met the criteria necessary for a 10 percent permanent partial disability rating for the cervical spine and a 2.5 percent permanent partial disability rating for the thoracic spine.^[2]  Dr. Rice's and Dr. Groeschel's recorded examination findings, as well as the March 11, 2005, MRI scan, document stiffness, muscle tightness, radiographic abnormalities, reduced range of motion, and cervical spasm.  The doctors' records also document spasm and hypertonicity to the upper thoracic and trapezius area.  These findings are sufficient to meet the criteria of the permanent partial disability schedules, and the compensation judge could reasonably find the employee met the criteria for the assigned permanent partial disability ratings.

 

The self-insured employer contends, however, that the compensation judge's award of permanent partial disability is not appropriate because the employee is able to work without restrictions and, therefore, has not experienced a functional loss of use or impairment of function which is necessary for an assignment of permanent partial disability.  The employer argues that with the employee's exemplary attendance record and minimal loss of time due to her symptoms, it is impossible to conclude that she has significant impairment of function.  Furthermore, the employer argues, it would be unreasonable for any physician to allow a patient to continue working in a position the physician believed had caused a significant permanent impairment.

 

The Minnesota Supreme Court has held on multiple occasions that permanent partial disability benefits are intended to compensate for permanent loss or impairment of a bodily function, and are in no way dependent upon wage loss or ability to work.  Moes v. City of St. Paul, 402 N.W.2d 520, 39 W.C.D. 675 (Minn. 1987)(citing Tracy v. Streater/Litton Indus., 283 N.W.2d 909, 32 W.C.D. 142 (Minn. 1979)).  A condition that meets the requirements for a scheduled permanent partial disability rating by definition constitutes functional impairment.  Permanency benefits are "separate [and] distinct" from wage loss benefits, and there is no necessary connection to an injured employee's work restrictions or ability to work.^[3]  Minn. Stat. ' 176.021, subd. 3; see Fleener v. CBM Indus., 564 N.W.2d 215, 217, 56 W.C.D. 495, 498 (Minn. 1997); Eisenmenger v. Raven Industries, slip op. (W.C.C.A. Mar. 15, 2000). Metzger v. Turck, Inc., 59 W.C.D. 229 (W.C.C.A 1999); Zidich v. National Cash Register Corp., 54 W.C.D. 348 (W.C.C.A. 1996) (dissenting opinion). "To hold otherwise would subvert . . . the stated legislative intent to 'promote objectivity and consistency in the evaluation of permanent functional impairment.'"  Eisenmenger, id. (quoting Minn. Stat. ' 176.105, subd. 1).

 

Persistent muscle spasm, limitation of motion and other measurements of a chronic cervico/thoracic strain, along with periodic medical treatment to relieve symptoms, demonstrate ongoing impairment of function of the affected body parts.  The fact the employee chose to continue working, despite her condition, in no way negates the existence of a functional bodily impairment meeting the requirements of the permanency schedules.  Having accepted the treating doctors' opinions, the compensation judge properly applied the rules to the evidence.  We, therefore, affirm.

 

3.  Employer=s Request for Neutral Examination

 

The self-insured employer appeals from the compensation judge=s denial of its request for a neutral examination pursuant to Minn. Stat. ' 176.155, subd. 2.^[4]  The employer asserts the statute provides an absolute right to a neutral medical examination if an interested party files a request on a timely basis.  We disagree.

 

The employee filed a claim petition seeking permanent partial disability benefits on July 23, 2004.  On August 13, 2004, the self-insured employer filed an answer in which it reserved as witnesses all treating doctors, an independent medical examiner and a neutral medical examiner.  Although a settlement conference was held in February 2005, no settlement was reached on the claim, and on March 14, 2005, the OAH filed a notice of certification and judge assignment.  On March 29, 2005, the employer filed a motion for examination by a neutral physician, explaining on appeal that it requested such an examination due to the Agreat disparity@ between the medical evidence submitted by the employer and the employee.  (App. Brief at 8.)  On April 7, 2005, the OAH filed a notice of hearing on the claim petition, scheduling the matter for hearing on August 5, 2005.  That notice did not indicate any date for a pretrial conference, but the notice did state that pretrial statements should be filed 30 days prior to the hearing date.

 

On June 6, 2005, the OAH filed a duplicate notice of hearing.  By letter dated June 13, 2005, counsel for the employer wrote to the compensation judge assigned to the case requesting an order on its motion for a neutral examination, or, in the alternative, a continuance of the hearing.  By letter dated June 23, 2005, counsel for the employee objected to a neutral examination, asserting the attempt to secure an opinion was untimely in view of the upcoming hearing.  By order issued on June 30, 2005, the compensation judge denied the motion.  The compensation judge stated the motion failed to provide documentation necessary for her review and did not, therefore, trigger the provisions of the statute.  The judge also stated that, because no prehearing conference had been scheduled, the mandatory provisions in Minn. Stat. ' 176.155, subd. 2, did not apply.

 

Within one week of the order, both parties filed a pretrial statement and both requested a pretrial conference, in person, but no prehearing conference was ultimately scheduled by OAH.  A hearing was held before the compensation judge on August 5, 1005.  In the Findings and Order, served and filed on September 29, 2005, no mention was made of the request for examination by a neutral physician.

 

By way of background, the initial Minnesota workers' compensation statute providing examination by a neutral physician, effective October 1, 1913, stated as follows:

 

8215. Examination and verification of injury.  *  *  * 

(2) Medical examination by a neutral physician. - In case of dispute as to the injury, the court may, of its own motion, or upon request of any interested party, appoint a neutral physician of good standing and ability to make an examination of the injured person, and report his findings to the court.  The expense of such examination shall be borne by the said parties.

 

Since 1953, Minn. Stat. ' 176.155, subd. 2, has provided that any request for a neutral physician must be made in compliance with duly adopted rules regulating the proper time and forms for the request, and that payment for such an examination shall be made as ordered by the commissioner or judge.  Until 1979, the statute unequivocally provided that any neutral examination was permissive and discretionary with the commissioner or judge.  Hosking v. Metropolitan House Movers Corp., 272 Minn. 390, 138 N.W.2d 404, 408, 23 W.C.D. 673, 682 (1965).

 

The statute was amended by the 1979 Minnesota legislature by adding the following language:

. . . provided that when an interested party requests, not later than 30 days prior to a scheduled prehearing conference, that a neutral physician be designated, the compensation judge shall make such a designation.  When a party has requested the designation of a neutral physician prior to a prehearing conference, that party may withdraw the request at any time prior to the hearing. 

 

The revised statute further stated the Commissioner of Labor and Industry "shall develop and maintain a list of neutral physicians available for designation pursuant to this subdivision."  Minn. Stat. ' 176.155, subd. 2 (1979).  In 2002, the statute was amended to delete the requirement that the commissioner maintain a list of neutral physicians.  We are aware of no current list of neutral physicians at either the Department of Labor and Industry or the Office of Administrative Hearings (OAH).  Nor does the Department of Labor and Industry, OAH or this court have any rules regarding the procedure for an examination by a neutral physician.

 

The appellant argues that Minn. Stat. ' 176.155, subd. 2, as amended in 1979, mandates the appointment of a neutral physician any time an interested party requests such an appointment.  The statute also provides, however, that the compensation judge conducting the hearing "may with or without the request of any interested party, designate a neutral physician" and "may request the neutral physician to answer any particular question with reference to the medical phase of the case.@  (Emphasis added.)  These provisions clearly leave whether to seek the assistance of a neutral physician to the discretion of the compensation judge and appear to conflict with the apparent mandatory language.  Statutes should be construed to avoid or reconcile conflict where possible.  Septran, Inc., v. Independent Sch. Distr. #271, 555 N.W.2d 915 (Minn. 1996).

 

The purpose of the statute is to provide authority to the factfinder to appoint a neutral physician when it would be Aneedful or desirable in arriving at a decision.@  Hosking at 408, 23 W.C.D. at 682.  The statute was enacted not to give a party the right to an additional medical expert but rather as an aid for the factfinder.  To construe the statute as urged by the appellant would be contrary to the purpose of the statute. This statutory purpose is consistent with the broad discretionary power given a compensation judge to Amake an independent investigation of the facts alleged in the petition or answer.@ Minn. Stat. ' 176.391, subd. 1.  Further, we note that Minn. Stat. ' 176.391, subd. 2, which provides a compensation judge Amay appoint one or more neutral physicians or surgeons to examine the injury of the employee and report thereon,@ has never been revised.  Had the legislature intended that the appointment of a neutral physician be mandatory upon request, presumably it also would have amended Minn. Stat. ' 176.391, subd. 2.

 

The appellant argues the medical opinions in this case are extremely polarized and inconsistent.  The employee=s medical experts concluded her work duties caused an injury resulting in permanent partial disability.  The employer=s medical expert opined the employee sustained no personal injury and has no permanent disability.  In light of these diametrically opposed opinions, the appellant contends, it is entitled to a neutral medical examination.  We do not find this argument persuasive.  The issues before the compensation judge were whether the employee sustained a Gillette injury and the extent of permanent partial disability.  These are not complex or difficult issues but are issues decided by compensation judges on a regular basis.^[5]  In such a routine and ordinary case, there is simply no need for a neutral physician.  In our experience, nearly all disputes in workers= compensation cases have a medical component.  Compensation judges routinely are required to resolve complex medical issues and have considerable experience and expertise in dealing with complex medical-legal issues.  "[T]he mere fact that medical experts expressed divergent opinions as to the cause of disability . . . does not obligate [the compensation judge] to . . . appoint a neutral physician."  Hosking at 409, 23 W.C.D. at 684.^[6]  We fail to see how requiring a compensation judge to designate a neutral physician any time a party requests an appointment will aid the dispute resolution process.

 

The report of a neutral examiner is Anot necessarily and invariably decisive of an issue where other competent evidence will permit a different finding.@  Stotz v. Sabin Brothers, 257 N.W.2d 359, 360, 30 W.C.D. 28, 29 (1977).  Rather, it is the responsibility of the compensation judge as a trier of fact to weigh the evidence and to resolve conflicts in expert testimony.  See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985).^[7]  There may be cases in which a compensation judge could conclude a neutral examination is needed to aid the decision making process.  But if the compensation judge does not conclude a neutral examination is necessary in the case, another mandatory expert opinion is, very simply, a waste of time and resources.

 

AIt is the intent of the legislature that chapter 176 be interpreted so as to assure the quick and efficient delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers who are subject to the provisions of this chapter.@  Minn. Stat. ' 176.001.  The mandatory appointment of a neutral physician may well impede the stated intent of the legislature.  The charges of a neutral physician will only add increased expense to the workers= compensation system and it is unclear who would bear the expense.  It seems problematic to require the employee or the employee=s attorney to bear all or any part of the cost and employers may object to having to pay for neutral examinations requested by the employee or some other interested party.  We can also foresee that it could take several months to select a neutral physician, agree on the records and information to be sent to the doctor, schedule and complete an examination, obtain the doctor=s report and, quite possibly, depose the physician.^[8]  While a timely neutral examination may be possible in a non-expedited case, it may well be impossible to accomplish these steps within the time limits established when a case is expedited under Minn. Stat. ' 176.238, subd. 6, and Minn. Stat. ' 176.341, subd. 6.

 

Finally, we see numerous practical problems with the mandatory appointment of a neutral physician.  In most cases, the resolution of a medical issue depends not solely on the opinion of the doctor but upon the testimony of witnesses and upon the credibility attached by the compensation judge to those witnesses.  Typically, an attorney for one party or the other will provide these facts to an examining doctor in a hypothetical question.  Absent any rules governing the utilization of a neutral physician, we do not know what factual information would be communicated to a neutral physician, particularly when the examination occurs prior to the hearing.  Presumably, the compensation judge could not do so until the judge has heard the evidence.  We further note there is no designated list of neutral physicians or any rules establishing procedures for the appointment of a neutral physician.^[9]

 

We conclude Minn. Stat. ' 176.155, subd. 2, does not necessarily mandate the appointment of a neutral physician upon request by a party, but rather designation of a neutral physician remains, ultimately, discretionary with the compensation judge.  The compensation judge=s order denying the appellant=s motion for an examination by a neutral physician is, accordingly, affirmed.

 

 

DISSENTING OPINION

 

MIRIAM P. RYKKEN, Judge

 

I respectfully dissent.  Minn. Stat. ' 176.155, subd. 2, specifically allows for an interested party to schedule a neutral examination, as long as a request for such an examination is timely made.  The language of the statute, as amended in 1979, is plain and unambiguous, and states, in part, A. . . when an interested party requests, not later than 30 days prior to a scheduled prehearing conference, that a neutral physician be designated, the compensation judge shall make such a designation.@  (Emphasis added.)  Because the employer requested a neutral examination in a timely manner, the statute unequivocally requires that the employer be allowed to proceed with that examination.

 

If a neutral examination is allowed, the employer requests that the matter be   remanded to a different compensation judge than the one who presided at the evidentiary hearing.  The employer argues that fairness requires that the neutral examination report be reviewed and evaluated by a judge who has not already reached a decision about the outcome of the case.  I would not be in favor of granting the employer=s request for a reassignment of the case.  Workers= compensation judges are experienced factfinders, and possess the integrity and willingness to review newly-received evidence and to re-evaluate the issues in view of that new evidence.  I would, therefore, vacate the compensation judge=s findings and order and remand this case to the Office of Administrative Hearings for an expeditious assignment of a neutral examiner, and would direct the compensation judge to coordinate, with the parties to the case, the provision of information, records and questions to the neutral examiner.  Once the neutral examiner has issued his or her opinion, the compensation judge should then review the employee=s claim in view of that additional medical opinion, and issue findings and order following that review.