DEBORAH M. WESTPHALL, Employee/Petitioner, v. HONEYWELL, INC., SELF-INSURED/SEDGWICK CLAIMS MGMT. SERVS., Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 23, 2006

 

No. WC05-220

 

HEADNOTES

 

VACATION OF AWARD.  Where the issue at a hearing held to address a petition to discontinue was limited to the employee=s right shoulder condition, and other claims related to an alleged left shoulder injury were pending, the employee was assigned restrictions based on both shoulders, the employee=s treating physician and the independent medical examiner both recognized the significance of evaluating results from a functional capacities evaluation, and that evaluation was held post-hearing and therefore could not be considered by the compensation judge, the court vacates the findings and order and remands the matter for consolidation with all pending claims and issues.

 

Petition to vacate granted.

Appeal dismissed, remanded to OAH for further proceedings.

 

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

Compensation Judge: Janice M. Culnane

 

Attorneys: William H. Getts, Minneapolis, MN, for the Petitioner.  Kristin M. Cajacob and Jeremiah W. Sisk, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s finding that the employee=s reduced earning capacity was not causally related to her work injury to her right shoulder, and appeals from the discontinuance of her temporary partial disability benefits.  The employee also petitions to vacate the compensation judge=s findings and order on grounds of newly discovered evidence.  After review of the entire record, we grant the petition to vacate and dismiss the appeal.

 

BACKGROUND

 

On August 8, 2003, Deborah Westphall, the employee, sustained an admitted work-related injury to her right shoulder after she tripped and fell on her right shoulder while working as a technician for Honeywell, the employer, which is self-insured for workers= compensation liability.  At the time of her injury, the employee=s weekly wage was $1,583.36, which included 18 to 30 or 35 hours of overtime per week on a regular basis.  The employee initially sought treatment from Dr. James Anderson at Minnesota Occupational Health, and later was referred to an orthopedist, Dr. Frank Norberg.  Based on x-ray and MRI findings, Dr. Norberg diagnosed a massive rotator cuff tear and  recommended surgery.  On October 16, 2003, Dr. Norberg performed surgery on the employee=s right shoulder, including an arthroscopy with subacromial decompression, an open rotator cuff reconstruction, and a bicep tenodesis.

 

Dr. Norberg prescribed post-operative physical therapy and conditioning exercises, and released the employee to return to work within restrictions.  The employee returned to work in late December 2003, at first working two hours per day.  She performed a parts testing job, and by early March 2004, Dr. Norberg advised that the employee Amay work up to 7 hours a day as tolerated.@ She worked her way up to 40 hours per week by April 2004.  This testing job was repetitive in nature, and the employee noted an increase in her right shoulder symptoms toward the end of each shift and the end of each week.  Overtime was available for the employee when she returned to full-time work, but she did not work over 40 hours per week because of her right shoulder symptoms.

 

In early 2004, the employee began to experience symptoms in her left shoulder and arm, which she described as an aching on the top of her left shoulder and in the left biceps area and which she reported to Dr. Norberg at an examination on March 24, 2004.  Following an exam on May 5, 2004, Dr. Norberg assigned restrictions related to the employee=s right and left shoulders.  A May 24, 2004, MRI scan of the left shoulder revealed positive findings, including partial-thickness cuff tearing of the supraspinatus tendon.  Following an examination in June 2004, Dr. Norberg noted that the employee was Amaking good progress in the return of her function@ in her right shoulder, that she had regained essentially full passive range of motion in the return of her function, but that she still experienced some pain.  He recommended continued physical therapy, independent exercises and work restrictions.  Dr. Norberg also planned to see the employee again in two months, and advised that if her left shoulder symptoms did not improve, she might be a candidate for arthroscopic debridement on her left shoulder.

 

In July 2004, the employee=s qualified rehabilitation consultant (QRC) performed a job analysis of an electrical technician position entitled ATechnician-OD Testing.@  This position was one that the employee apparently bid for and eventually was transferred to in early August 2004.  The job analysis outlined the requirements of the position, the machinery and tools used for the position, and the physical demands of the position.  The QRC noted that he had reviewed the job with the occupational health nurse, supervisor, union representative and employee all present.  The job analysis form indicated that the activities of the position were rated for frequency based upon an average 8-hour day, during the third shift, with one lunch break and two other breaks. On the form, in response to a request for an estimate on the number of overtime hours the job included, the QRC stated Avaries.@

 

The employee was examined by Dr. Norberg on August 4, 2004, and the QRC met with Dr. Norberg on that day as well, to review the job analysis.  Dr. Norberg=s chart note from that day states that the employee reported she was evaluated for a new position, doing parts testing as opposed to assembly work, that she felt this job would be a better position for her and that it represented a promotion.  On a AReturn to Work@ form signed by Dr. Norberg on that date, Dr. Norberg again outlined work restrictions related to the employee=s right and left shoulders.  On that form, he added a comment that AJob analysis reviewed and appears appropriate.@

 

In August 2004, the employee was transferred to the technician position, which she described as being a higher-paying, less repetitive job.  The employee continued to note increased symptoms in her right shoulder at the end of the work week, and continued to limit her work to 40 hours per week, although the form listing the employee=s work restrictions did not include any limitation to 40 hours per week.  Following an exam on September 29, 2004, Dr. Norberg advised that the employee=s restrictions would remain the same, and prescribed a total conditioning program at the Courage Center for the next eight weeks.  He added that AWe will plan on seeing her back at that point, and at that time we could go ahead and do a functional capacity evaluation if things appear to be plateauing.  At that point we would also discuss possible surgical intervention for her left shoulder pain and problems.@

 

By November, in response to an inquiry from the insurance administrator concerning her work hours, the employee contacted Dr. Norberg to inquire whether she could work over 40 hours per week, and spoke to his nurse.  On a form dated November 22, 2004, Dr. Norberg advised that the employee Ashould not work over a 40 hr work week until further notice due to medical reasons.@  In December 2004, the employee complained of more pain in the left shoulder than the right, and also reported to Dr. Norberg that she had been unable to start an exercise or therapy program, so he again recommended physical therapy, and continued to restrict her to 40 hours per week, based on her right and left shoulder conditions.  Dr. Norberg also planned to see the employee again in two months, and stated that he felt the employee Awill be ready for a functional capacity evaluation of her right shoulder at that point, and if her right shoulder is maximized, she could also proceed with her left shoulder arthroscopic evaluation with debridement versus cuff repair.@

 

On December 10, 2004, the employee was examined by Dr. Michael D=Amato at the employer=s request.  Dr. D=Amato opined that the employee had reached maximum medical improvement from her work-related right shoulder injury, and assigned a permanency rating of 6% permanent partial disability of the whole body related to the employee=s right shoulder.  Dr. D=Amato also recommended permanent work restrictions that he felt typically would be appropriate following a surgical repair for a large or massive rotator cuff tear, based on the employee=s diagnosis and surgery.  He also concluded that the employee=s left shoulder condition was not related to her work activities.

 

After the employee returned to work in December 2003, the employer paid  temporary partial disability benefits based upon the difference in her weekly wage at the time of the injury and her reduced weekly wage.  On January 5, 2005, the employer filed a notice of intention to discontinue benefits (NOID), asserting that, based on Dr. D=Amato=s report, the employee was able to work overtime hours and no longer was entitled to payment of temporary partial disability benefits.  When Dr. Norberg re-examined the employee on January 27, 2005, he concluded that the employee had not yet reached maximum medical improvement, and again recommended that the employee work only 40 hours per week due to her right shoulder condition.

 

On January 28, 2005, an administrative conference was held to address the NOID.  In her order on discontinuance filed on February 7, 2005, a compensation judge found no reasonable grounds existed to discontinue the employee=s benefits.  The compensation judge determined that although the employer contended that the employee was restricted as a result of her left shoulder condition, the employee=s treating physician had restricted her due to both her shoulders.

 

On February 18, 2005, the employee filed a claim petition, listing two dates of injury: August 8, 2003, the date of her admitted injury to her right shoulder, and March 18, 2004, the date on which the employee claimed she had sustained a Gillette injury to her left shoulder.  In that claim petition, the employee sought permanent partial disability benefits, rehabilitation assistance, and surgery to her left shoulder.  The employer denied primary liability for the employee=s left shoulder injury.  That claim petition was originally scheduled for an evidentiary hearing to be held on April 5, 2005; the hearing apparently was set on an expedited basis due to the request for left shoulder surgery.  The employer, however, requested that the hearing be continued to allow for completion of discovery, and depositions if needed, before the hearing, and requested a pretrial to determine whether the parties were ready for hearing.  The Office of Administrative Hearings reset the hearing on the claim petition to be held on July 6, 2005.

 

On April 5, 2005, the employer filed a petition to discontinue the employee=s temporary partial disability benefits, alleging that her loss of earnings was not causally related to her August 8, 2003, right shoulder injury.  In its petition, the employer  asserted that overtime hours were available to the employee, that her current job duties were light in nature and within her work restrictions, and that there was no medical reason that she could not return to her full pre-injury overtime hours.  A hearing on the employer=s petition to discontinue was scheduled to be held in May 2005, on an expedited basis as allowed by Minn. Stat. '176.238, subd. 6.

 

In a narrative report prepared on April 15, Dr. Norberg expressed his opinion that although he agreed with the majority of Dr. D=Amato=s findings, he felt that the restrictions assigned by Dr. D=Amato exceeded the employee=s capacity related to both shoulders.  He also concluded that the employee=s work activities resulted in her left shoulder pain.  On April 19, 2005, a physical therapist from Health Fitness Corporation conducted an evaluation of the employee=s work station, at the request of the employer.  The therapist evaluated the job for the frequency and duration of tasks completed by the employee in March 2004.  In her report (Er. Exh. 1), the therapist stated that the Apurpose of the evaluation was to determine job demands, in particular stress to the rotator cuff due to a complaint by an employee (Deb Westphall) working on the job in March 2004.@

 

 In May 2005, Dr. D=Amato issued two supplemental reports.  In his report of May 10, 2005, following review of  the description of the employee=s workstation and job duties prepared by Health Fitness Corporation, he concluded that the employee could perform those job duties, and that she could work overtime hours if she worked as outlined on that job description.  He also concluded that Athere is no evidence that Ms. Westphall=s work requirements contributed in any way to the symptoms or injury of her left shoulder.@  In his report of May 17, 2005, following his review of Dr. Norberg=s recent narrative report, Dr. D=Amato addressed the issues of the employee=s work restrictions and whether there was a causal relationship between the employee=s work and her left shoulder condition.  He again found no reason to attribute any of her left shoulder symptoms or abnormalities to her work activities.  As to the employee=s work restrictions, Dr. D=Amato stated as follows:

 

The work restrictions I recommended were based on my opinion as to what would be reasonable and safe for someone with her history of injuries and treatment as well as the length of time that had passed since her surgical treatment.  They were not based on an accurate assessment of what her true functional ability was as that assumption is best determined by a Functional Capacities Evaluation.  To my knowledge, no such Functional Capacities Evaluation has been performed to date.  If it had been performed, that information was not available at the time of my recommendations.  Therefore, I would not disagree with Dr. Norberg=s comments that my restrictions were felt to be in excess of her demonstrated activity levels.  I will state, however, that based on the job description provided, there is nothing in her job description that would prevent Ms. Westphall from performing her work requirements at either the restriction levels that I placed or the restriction levels placed by Dr. Norberg.

 

(Emphasis added.)  On May 17, Dr. Norberg again restricted the employee to 40 hours of work per week.

 

On May 19, 2005, a hearing was held before a compensation judge to address the employer=s petition to discontinue.  In her findings and order served and filed June 20, 2005, the judge granted the petition to discontinue.  The employee appealed from the  judge=s order allowing discontinuance of benefits.

 

The employee=s attorney also requested a continuance of the July 6, 2005, hearing that had been scheduled to address the employee=s claim petition, advising OAH that the claims involving the employee=s two injuries were interconnected and that the outcome of the appeal from the findings and order would determine whether the employee would proceed with litigation concerning the left shoulder.  The Office of Administrative Hearings has postponed the July 6, 2005, hearing, and has not yet rescheduled that hearing.

 

 On May 25, 2005, Dr. Norberg re-examined the employee, and continued the same restrictions that he had assigned in January 2005, related to both shoulders.  He again recommended an FCE for the employee=s right shoulder.^[1]

 

On July 18, 19 and 20, 2005, the employee underwent an FCE at Saunders Therapy Center.  The occupational therapist who conducted the evaluation concluded that the employee was able to work full-time on a light-duty basis. She concluded that the employee was restricted to working eight hours per day, because of the deterioration observed after eight-hour days during the evaluation, the massive rotator cuff tear and repair the employee sustained to her right shoulder, and the fact that the employee had plans for rotator cuff surgery to her left shoulder.

 

The FCE report did not address how many days per week the employee could work.  In response to a letter and inquiry from the employee=s attorney, the therapist who conducted the evaluation advised that the employee was restricted to working 40 hours per week, citing the following reasons for her conclusion:

 

(1)        Her pain builds as the work week progresses.

(2)        Client needs the time off to rest her shoulders to prevent further injury.

(3)        Client sustained a massive tear and repair to right shoulder.

 

On August 10, 2005, Dr. Norberg referred to the findings from the FCE, stating that he found them to be realistic.  He again recommended an 8-hour work day, based on his opinion that Aa lot of her activities are likely to aggravate her shoulder.@  On September 20, 2005, Dr. Norberg reiterated his opinion that the employee should continue to limit her work activities to 8 hours per day, up to 40 hours per week.

 

On August 11, 2005, the employee filed another claim petition, seeking temporary partial disability benefits since April 5, 2005, due to her right shoulder injury.  On September 30, 2005, the employee filed a petition to vacate the June 20, 2005, findings and order, alleging  newly discovered evidence based on the results of the functional capacities evaluation; the employer objected to the petition to vacate.   On December 19, 2005, this court heard oral arguments on the employee=s appeal and the petition to vacate.

 

DECISION

 

Petition to Vacate

 

The employee argues that the report of the July 2005 functional capacities evaluation represents newly discovered evidence since the time of the hearing, and that on the basis of that new evidence, good cause exists under Minn. Stat. ' 176.461 to vacate the findings and order.  The employee alleges that the FCE results represent new evidence of the extent to which she is restricted from performing the same overtime work that she accomplished before her right shoulder injury in 2003.  The employer contends that the results of the FCE do not satisfy the definition of newly discovered evidence, and that those results simply provide cumulative support for the employee=s contention that she continues to be restricted from performing overtime work.

 

This court has wide discretion in determining whether to vacate an award.  Krebsbach v. Lake Lillian Coop. Creamery Ass=n, 350 N.W.2d 349, 36 W.C.D. 796 (Minn. 1984).  This court's authority over petitions to vacate is governed, in part, by Minn. Stat. '176.521, subp. 3.  In addition,  Minn. Stat. '176.421, subd. 6, provides statutory authority for this court to remand or make appropriate orders on appeal.

 

This case involves multiple injuries.  The hearing held on May 19, 2005, on an expedited basis, addressed the employer=s petition to discontinue and was limited to the employee=s admitted right shoulder injury; the employee=s left shoulder condition is the subject of separate litigation.  The issue identified by the judge and counsel at the hearing was whether there were reasonable grounds to discontinue temporary partial disability wage loss benefits; the judge found that the employee=s loss of earnings was not causally related to her admitted right shoulder injury and allowed discontinuance of the temporary partial disability benefits.

 

Due to the expedited schedule, however, and the narrow issue addressed at that hearing, the parties were able to only present a portion of the case.  Even though the parties agreed that no claims related to the alleged left shoulder injury would be addressed at the hearing, the petition to discontinue benefits was based on the employer=s assertion that it was the employee=s left shoulder condition that prevented her from working overtime.  In addition, it was the pending resolution of the employee=s left shoulder symptoms that resulted in a delay of the FCE until July 2005.  In addition, both Drs. Norberg and D=Amato referred to the need for the FCE and the more definitive assessment it would provide of the employee=s overall work restrictions.   After the employee completed the FCE, the therapist concluded that the employee=s work restrictions were related to both shoulders.

 

These factors all demonstrate that the issues concerning the employee=s left and right shoulder conditions are inextricably intertwined.  The employee has work restrictions related to both shoulders. Although the hearing in May 2005 was limited to the petition to discontinue, we believe that limiting the issue at the hearing to the employee=s right shoulder condition did not allow the compensation judge to regard the employee=s overall restrictions and ability to work.  Findings from that expedited hearing, held while other interrelated claims were pending, could result in inconsistencies during future litigation on the employee=s left shoulder injury.  In addition, based on their alternate requests made in 2005 that the dates of hearings be continued, it is evident that both parties recognized the interrelated nature of the injuries and the effect of those injuries on the employee=s work restrictions.

 

It also is pertinent that both Drs. Norberg and D=Amato referred to important evidence that was not available to the compensation judge at the time of the hearing - - the report from the anticipated FCE.  That evidence was produced soon after the date of the hearing, was significant to both Drs. Norberg and D=Amato on the issue of the employee=s restrictions, and was relevant to the issue addressed at the hearing.

 

  For these reasons, we conclude that the most appropriate way for a compensation judge to evaluate this case is to consolidate all pending claims and issues.  While it is difficult to fit this case neatly into a specific category that would provide a basis for vacation of the findings and order, and while we take no position as to whether the employee=s left shoulder condition is work-related, we conclude that under the unique circumstances of this case, and in the interests of justice, the compensation judge=s June 2005 Findings and Order should be vacated and remanded for consideration of the entire claim.  We therefore grant the petition to vacate.  See Peterson v. Bullyan Mobile Homes, slip op. (W.C.C.A. Feb. 23, 2005) (findings and order vacated based on results of post-hearing EMG).  We  remand this matter to the compensation judge, to be consolidated with the pending claim petitions filed on February 18 and August 11, 2005, so that all issues in the case can be considered in their entirety.

 

Appeal

 

Having vacated the judge=s findings and order, we need not address the appeal, which is therefore dismissed.