DAVID P. SCHULER, Employee, v. CEMSTONE PRODS. CO. and ZURICH/RISK ENTER. MGMT., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 10, 2008

 

No. WC08-198

 

HEADNOTES

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Substantial evidence supported the judge=s decision that the employee did not reach MMI on the date claimed by the employer and insurer, where the employee=s treating doctor subsequently ordered an EMG and referred the employee for a follow-up surgical consultation.

 

DISCONTINUANCE - MATTERS AT ISSUE.  Where the employee=s failure to look for work was not raised by the employer and insurer=s NOID and was specifically excluded as an issue at hearing, the employer and insurer could not challenge the judge=s award of temporary total disability benefits, on job search grounds, on appeal.

 

INTEREST.  Because interest is mandatory under the statute, the judge did not err in awarding interest, even though that claim was not made at hearing.

 

Affirmed in part, modified in part, and vacated in part.

 

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

Compensation Judge: Jennifer Patterson

 

Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Respondent.  Leslie M. Altman and Joshua T. Brinkman, Littler Mendelson, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the judge=s decision regarding maximum medical improvement [MMI] and from the judge=s award of temporary total disability benefits, medical expenses, and interest.  We affirm on the issue of MMI, modify the award of temporary total disability benefits, vacate the award of medical expenses, and affirm the award of interest.

 

BACKGROUND

 

The employee worked as a cement truck driver, for various employers, for 30 years.  In 1997, he was hired to work in that capacity by Cemstone Products Company [the employer].  Some aspects of the job could be characterized as strenuous, such as unloading and positioning the steel chutes that carried cement from the truck.  The job also required a certain amount of walking and climbing steps and ladders on the truck.  Beginning in 2005, the employee=s physician restricted him to an 8-hour work day due to a nonwork-related cardiac condition.  The employee testified that the employer did not always comply with the restriction but that he could generally avoid overtime because of his seniority on the job.

 

On June 2, 2006, the employee felt his back Acrack@ and experienced low back pain while lifting chutes at work.  He reported the incident to his employer that same day but did not seek medical treatment for back symptoms until early the following year, testifying that he thought he had simply sprained his back and that it would heal over time.

 

On January 23, 2007, the employee was seen by Dr. David Keeley, his primary care physician, for evaluation of low back pain with occasional tingling in the toes but no radicular symptoms.  It appeared to Dr. Keeley to be a musculoskeletal problem, and he limited the employee to lifting 20 pounds and referred him for physical therapy.

 

The employee was subsequently seen by other physicians, including Drs. Paul Biewen and John Sherman, for evaluation of continuing low back complaints.  An MRI disclosed multilevel degenerative disc disease, and the employee underwent a variety of conservative treatments in an attempt to alleviate his symptoms, including physical therapy, chiropractic care, and two therapeutic injections.

 

In treatment notes dated July 27, 2007, Dr. Biewen indicated that, despite fairly extensive conservative care, the employee=s symptoms remained unchanged, that the doctor did not have any other treatment recommendations, and that the employee had reached MMI.  The employer served this report on the employee on August 6, 2007.

 

The employee continued to work for the employer in his usual job until November 1, 2007, when he returned to Dr. Biewen, indicating that his job was very difficult for him and that he felt unable to continue driving given his level of pain.  In the AImpression@ section of his office notes, Dr. Biewen wrote as follows:

 

1.         Mr. Schuler presents with chronic low back and lower extremity pain.  He is reporting paresthesias in his feet.

 

2.         Radiographic evidence of significant degenerative changes in the lower lumbar spine with a degenerative spondylolisthesis.

 

3.         Mr. Schuler has undergone a fairly extensive evaluation and treatment process.  He remains symptomatic.  Options for further treatment in my opinion are very limited and I do not have any particular suggestions.

 

4.         Mr. Schuler indicates that his family doctor referred him to see Dr. Holte.  We understand he is not taking new patients.  Mr. Schuler has previously been evaluated by Dr. Holte=s associate and my associate, Dr. Sherman.

 

5.         It does not appear reasonable for Mr. Schuler to continue with his current work duty and the basis is [his] pain report.  This is a judgement call and the based upon [his] subjective report.  He has been willing to work with pain up to this point.

 

At this time, Dr. Biewen recommended that the employee undergo an EMG of the lower extremities and that he follow up again with Dr. Sherman.  Pending the additional assessment, Dr. Biewen indicated that the employee was capable of work but should restrict his sitting and driving.

 

During the EMG, performed on November 15, 2007, Dr. Biewen found evidence consistent with a sensory neuropathy with a mild component of motor involvement but no lumbar radiculopathy.  The employee=s follow-up with Dr. Sherman took place on November 29, 2007.  At that time, Dr. Sherman indicated that it was unlikely that surgery would significantly improve either the employee=s function or his pain level.

 

On December 4, 2007, the employee returned to Dr. Biewen, who indicated again that the employee had reached MMI, that it was not Arealistic for him to consistently tolerate driving@ for the employer, and that he was capable of full-time work with restrictions on lifting, bending, twisting, and sitting.

 

About a week later, on December 10, 2007, the employee was evaluated by Dr. Richard Hadley, the employer and insurer=s independent examiner.  In his report of that same date, Dr. Hadley indicated that the employee=s low back condition was not work-related and that, even if the employee had sustained a work-related injury, as claimed, that injury would have resolved within  about three months.  Dr. Hadley=s report was served on the employee on January 7, 2008.

 

Around this same time, in a Health Care Provider Report issued on January 4, 2008, Dr. Biewen indicated again that the employee had reached MMI on December 4, 2007, and that the employee had a 10% whole body impairment related to his work injury with the employer.  The employer and insurer served this report on the employee on January 22, 2008.

 

The employer and insurer filed a Notice of Intention to Discontinue Workers= Compensation Benefits [NOID] and amended NOID, seeking to discontinue temporary total disability benefits for the following reasons:

 

The IME of Dr. Hadley, dated 12/10/07, was sent to the injured worker on 1/7/08 along with a NOID discontinuing wage loss benefits and the doctor gives no restrictions for Mr. Schuler.  At that time, Cemstone asked that Mr. Schuler to call in to dispatch for work assignments.  He has not done so.  As he=s failed to report for work, we are discontinuing his benefits.

Dr. Hadley indicates that there is not support that Mr. Shculer [sic] sustained an injury on 6/2/06 and that Athere is inadequate medical evidence to attribute any current diagnoses to work related activities on or about 6/2/06.  He has multi-level deg. Disc disease [which] is either of idiopathic or developmental origin.@  As such, we claim a credit on all the benefits paid on this claim file as they were paid under mistake of fact.

Further, we have an MMI opinion from the treating doctor, Dr. Biewen on 7/27/07.

 

Following an administrative conference held on January 31, 2008, a compensation judge allowed the employer and insurer to discontinue benefits effective January 7, 2008, on grounds that the employee=s low back condition was not related to the employee=s alleged June 2, 2006, work injury.  Shortly thereafter, in light of the judge=s liability finding, the employee=s QRC closed her file.  The employee then filed an objection to discontinuance as well as a claim petition and a rehabilitation request.  A compensation judge subsequently denied the employee=s request to consolidate the claim petition and rehabilitation request with the objection to discontinuance.  As such, when the matter came on for hearing on May 6 and June 5, 2008, only the objection to discontinuance was before the compensation judge.

 

At the beginning of the hearing, the parties and the compensation judge discussed in some detail the issues to be litigated and decided at that time.  The primary issue was causation - - that is, whether the employee=s low back condition was related to the alleged June 2006 incident at work.  The other issues designated by the parties were the nature of the employee=s restrictions, whether the employee had been offered a job by the employer as a dispatcher, whether the employee had reached MMI, and, if he had reached MMI, when.  Service of notice of MMI, on various dates, was admitted.

 

In a decision issued on July 10, 2008, the compensation judge concluded that the employee had sustained a work-related low back injury on June 2, 2006, and that that injury was a substantial contributing cause of the employee=s ongoing low back condition, as claimed.  The judge further concluded that the employee had reached MMI effective with service of Dr. Hadley=s report on January 7, 2008, that the employee had not been offered work by the employer as a dispatcher, and that the employee=s low back restrictions precluded him from working as a cement truck driver and affected his ability to find other employment.  The judge awarded the employee temporary  total disability benefits from January 8, 2008, through April 21, 2008, and also ordered the employer and insurer to pay unspecified medical expenses, together with Astatutory interest and costs and disbursements on issues on which [the employee] prevailed.@  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

On appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (2008).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of 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. MMI

 

Pursuant to Minn. Stat. ' 176.011, subd. 25,

 

AMaximum medical improvement@ means 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, irrespective and regardless of subjective complaints of pain.  Except where an employee is medically unable to continue working under section 176.101, subdivision 1, paragraph (e), clause (2), once the date of maximum medical improvement has been determined, no further determinations of other dates of maximum medical improvement for that personal injury [are] permitted.  The determination that an employee has reached maximum medical improvement shall not be rendered ineffective by the worsening of the employee=s medical condition and recovery therefrom.

 

A finding as to MMI is one of ultimate fact, to be determined by the compensation judge.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528, 41 W.C.D. 634, 639 (Minn. 1989).  Relevant factors include the employee=s history of improvement, current treatment, preexisting conditions, and proposed treatment.  Id. at 529, 41 W.C.D. at 639.

 

In the present case, the compensation judge concluded that the employee had reached MMI effective with service of Dr. Hadley=s MMI report on January 7, 2008.  On appeal, the employer and insurer contend that the compensation judge erred in this regard, in that the record establishes that MMI was reached effective on August 6, 2007, with service of Dr. Biewen=s July 27, 2007, report.  In support of this contention, the employer and insurer point out that the medical records and the employee=s own testimony establish that the employee=s low back condition did not improve in any meaningful way after the earlier MMI opinion.  In fact, no subsequent treatment was rendered.  However, while the employer and insurer=s argument has some merit, we cannot conclude that the judge=s MMI determination is unsupported by substantial evidence.

 

In a letter dated February 21, 2008, Dr. Biewen explained his successive MMI opinions as follows:

 

Regarding a determination of maximum medical improvement, I do apologize if I have created confusion regarding this determination.  In my opinion, the most appropriate date for maximum medical improvement for Mr. Schuler as relates to his date of injury, 06/02/06, is 12/04/07.  I did complete a healthcare provider report on 01/04/08 outlining my opinion regarding the appropriate permanency rating [and] an MMI date of 12/04/07.  I did comment in my progress note on 07/27/07 that Mr. Schuler appeared to be at MMI.  I did not complete a healthcare provider report at that time.  I subsequently recommended further assessment of Mr. Schuler including a lower extremity EMG and then indicated that Mr. Schuler had indeed reached maximum medical improvement as of 12/04/07.

 

Interestingly, the issue of causation aside, Dr. Hadley, the employer and insurer=s examiner, essentially agreed, testifying that the employee=s degenerative disc disease could reasonably be considered to have stabilized after the EMG was performed in November of 2007.

 

The compensation judge concluded that the employee had not reached MMI in July of 2007, despite Dr. Biewen=s MMI opinion at that time, given the employee=s subsequent follow-up with Dr. Biewen and the doctor=s recommendation for an EMG and another consultation with Dr. Sherman.  The employer and insurer=s arguments to the contrary notwithstanding,^[1] Dr. Biewen=s later recommendation for additional testing and surgical evaluation reasonably supports the judge=s decision that the employee did not reach MMI effective August 6, 2007, and we affirm.

 

2. Temporary Total Disability Benefits

 

In findings relevant to the employee=s claim for temporary total disability benefits, the compensation judge concluded as follows:

 

31.       Dr. Hadley in his deposition testimony concurred with the opinion of Dr. Biewen that the employee needs permanent restrictions arising out of his low back condition that prevent him from returning to driving a cement truck.  Beyond restricting the employee from driving, Dr. Biewen has expressed the opinion the employee needs limits on lifting, bending, twisting and sitting and may need a functional capacities evaluation to more fully define these limits.  The restriction against driving a cement truck affects the employee=s ability to find and hold a job.

 

32.       As supported by the opinion of Dr. Biewen, the employee=s low back restrictions arise out of his June 2006 work injury.

 

33.       Records from the employer in evidence indicate that at one point the employer considered offering a dispatch job to the employee.  As supported by the testimony of the employee and his QRC, he was not offered a dispatch job by the employer.

 

As indicated previously, the judge also concluded that the employee did not reach MMI until January 7, 2008, effective with service of Dr. Hadley=s MMI report.  In her order, the judge awarded the employee temporary total disability benefits Afor the time span January 8 through April 21, 2008.@

 

On appeal, the employer and insurer contend, in part, that no temporary total disability benefits are payable after November 1, 2007, because the employee voluntarily resigned from his job.  This argument has no merit, in that Dr. Biewen removed the employee from his driving job on that date, and, on December 4, 2007, Dr. Biewen indicated that it was not Arealistic@ to expect the employee to tolerate driving for the employer on a consistent basis.  As such, it was similarly reasonable for the employee to reject the driving work that the employer offered him in January of 2008, the following month.

 

The employer and insurer also contend that the compensation judge erred in awarding the employee temporary total disability benefits after February 7, 2008, when his QRC ceased rehabilitation efforts, in that the employee admittedly conducted no job search after that date.  This argument also has no merit.  Job search was not listed as a basis for discontinuing benefits in the employer and insurer=s NOID, as amended, and counsel for the employer and insurer repeatedly indicated at hearing that job search was not at issue.  Also at hearing, the compensation judge reiterated, without objection by either party, that Aquestions about job search are not relevant to the issues before me,@ because the requested discontinuance was based on issues of causation and MMI.  Because job search was not properly at issue at the hearing, we will not consider that argument further.  See Minn. Stat. ' 176.238, subd. 6 (AThe hearing shall be limited to the issues raised by the notice . . . unless all parties agree to expanding the issues@); Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988).

 

Finally, the employer and insurer contend that the compensation judge erred in awarding benefits through April 21, 2008, as the 90-day post-MMI period expired on April 6, 2008.  See Minn. Stat. ' 176.101 (1)(j).  The employee agrees.  We therefore modify the judge=s award to provide for payment of temporary total disability benefits through April 6, 2008.

 

3. Medical Expenses and Interest

 

The compensation judge ordered the employer and insurer to pay past and ongoing charges for care of the employee=s low back, subject to the fee schedule and Athe terms and conditions of the Minnesota Workers= Compensation Act.@  On appeal, the employer and insurer argue that the judge erred by making this award, in that medical expenses were not claimed or litigated in this proceeding.  In response, the employee contends that the employer and insurer put the employee=s entitlement to medical expenses at issue by virtue of the language in the NOID claiming a Acredit for all benefits paid.@  The employer and insurer clearly have the better argument here.  Medical expenses were not claimed by the employee or reasonably raised by the NOID and amended NOID.^[2]  We therefore vacate the order for payment of these expenses.

 

Finally, the employer and insurer argue that the judge erred in awarding Astatutory  interest,@ in that interest was not claimed.  This argument, we reject.  Interest is mandatory under the statute, whether or not specifically claimed.  See, e.g., Hanegmon v. National Steel Pellet, No. WC04-140 (W.C.C.A. Oct. 6, 2004); Helquist v. Kentucky Fried Chicken, slip op. (W.C.C.A. Oct. 19, 1993), citing Crimmins v. NACM North Cent. Corp., 45 W.C.D. 435 (W.C.C.A. 1991).  We therefore affirm the judge=s order in this regard.