LINDA M. HALLETT, Employee, v. MENARDS, INC., and ZURICH N. AM., Employer-Insurer/Appellants.

WORKERS’ COMPENSATION COURT OF APPEALS
MAY 1, 2009

No. WC09-102

HEADNOTES

PRACTICE & PROCEDURE - MATTERS AT ISSUE.  Where the nature and extent of the employee's physical restrictions and her ability to perform her pre-injury job were not litigated by the parties in the employee's request for payment of medical expenses, and the findings have precedential value that could, in the future,  impact the employee's claims for benefits and the employer and insurer's defenses, the compensation judge erred in making findings on these issues.  The remaining findings appealed by the employer and insurer are relevant to issues relative to the effectiveness of the employee's treatment and application of the treatment parameters and were properly made by the compensation judge.

Affirmed in part and vacated in part.

Determined by:  Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge:  Danny P. Kelly

Attorneys:  Gregg B. Nelson, Nelson Law Offices, Inver Grove Heights, MN, for the Respondent.  Timothy J. Manahan and Kristin M. Nervig, Brown & Carlson, Minneapolis, MN, for the Appellants.

 

OPINION

THOMAS L. JOHNSON, Judge

BACKGROUND

Linda M. Hallett, the employee, sustained a personal injury on February 19, 2007, while working for Menard, Inc., the employer, then insured by Zurich North America.  The employer and its insurer admitted liability for the employee’s personal injury.

In May 2008, the employee filed a medical request seeking payment for treatment provided by the Physicians Neck and Back Clinic and Health Resources of Minnesota.  The employer and insurer denied liability for the claimed medical expenses.  At the hearing before the compensation judge, counsel for the employer and insurer contended the claimed medical expenses were barred by the treatment parameters, Minn. R. 5221.6205, subp. 3.A., and Minn. R. 5221.6300, subp. 3A., which limit the use of passive modalities in a clinical setting to twelve calendar weeks.  The employee’s attorney contended a departure from the treatment parameters limiting the duration of treatment was appropriate under Minn. R. 5221.6050, subp. 8.

Following a hearing, the compensation judge found the disputed medical treatment claimed by the employee exceeded the twelve week limitation of Minn. R. 5221.6205, subp. 3.A.  The judge also found the employee did not meet all of the requirements of Minn. R. 5221.6205, subp. 3.B.(1), for an additional twelve visits for passive treatment modalities over an additional twelve months.  Finally, the compensation judge found the employee failed to meet the requirements for a departure from the treatment parameters under Minn. R. 5221.6050, subp. 8, or the so-called “rare case” exception.  See Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998).  Accordingly, the compensation judge denied the employee’s claims for payment of the disputed medical care.  No party appealed this decision.

In addition to making findings regarding the treatment parameters, the compensation judge made factual findings regarding the nature and extent of the employee’s treatment and her response thereto, made a factual finding regarding the employee’s current physical restrictions, and found the employee cannot physically perform her pre-injury job.  The employer and insurer appeal these factual findings of the compensation judge contending the judge made findings on uncontested issues that were unnecessary to resolve the issues before him.

DECISION

The employer and insurer seek vacation of findings 10 and 22 through 28 of the compensation judge’s findings and order.  The appellants contend the appealed findings address issues that were not contested and the findings are unnecessary to resolve the issue of whether the claimed medical expenses were compensable.

Findings 10 and 22 state:

10.       By October 23, 2007 the employee had participated in 13 rehabilitation visits at the Physicians Neck and Back Clinic.  On October 23, 2007 it was noted that the employee woke up a few days ago with more tightness in her neck and reverted to tilting her head to the right side.  Rehabilitation was restricted because of the employee’s inability to get her head in a neutral position.  Dr. Knutson recommended a hold on aggressive strengthening programs for four weeks and referred the employee to a physical therapist at OSI.
22.       On April 30, 2008 the employee was discharged from Physicians Neck and Back Clinic programs.  Noted on the discharge summary is that the employee stated her ability to do the functional activities, listed at the beginning of treatment as deficient, is about the same.  Assessment noted that the employee had shown a fair-poor response to rehabilitation.  It was noted that the employee was still not able to return to work.  The employee’s Oswestry disability index score was identical to what is was when the employee started the program.  It was noted that the employee’s perception was that she really did not have any improvement. Noted in the summary was the fact that the employee had very little functional improvement according to the employee’s ongoing symptoms.

Findings 10 and 22 are summaries of medical records and/or selected statements from medical records.  These findings deal with the effectiveness of the treatment and are relevant to the issues of compensability and departure from the treatment parameters.  Neither finding has any precedential value. The employer and insurer’s request to vacate these findings is denied.

Findings 23, 24, 26, and 28 state:

23.       At hearing, November 12, 2008, the employee credibly testified that the Physicians Neck and back Clinic treatment did not take her pain away and only provided temporary relief.
24.       The treatment provided by Health Resources of Minnesota provided no long-term changes or relief in the employee’s symptoms.
26.       The employee’s symptoms of headache, neck pain, head tilt, left shoulder pain, left elbow pain, and left hand weakness have not improved since the February 19, 2007 personal injury.
28.       None of the treatment received by the employee from Physicians Neck and Back Clinic and Health Resources of Minnesota has relieved her painful symptoms or increased her physical functioning.

The above quoted findings all deal with the employee’s response to the treatment at issue in the hearing before the compensation judge.  Each of the findings involve factors which the compensation judge might consider in determining whether this was a case in which a departure from the treatment parameters was necessary to obtain proper treatment.  Accordingly, we decline to vacate these findings.

Findings 25 and 27 state:

25.       The employee’s current physical restrictions are no lifting and no use of the left arm.
27.       The employee cannot physically perform her pre-injury job.  The employee’s physical capacity to perform work has not improved since the February 19, 2007 personal injury.

The issue of the employee’s restrictions and whether she could physically perform her pre-injury job were not matters placed at issue before the compensation judge.  While the findings may be relevant to the question of the compensability of the claimed medical expenses, their relevance is marginal at best.  Findings 25 and 27 have precedential value that may impact the employee’s claims for benefits in the future and the appellants’ defenses to such claims.  The employer and insurer did not have the opportunity to litigate the nature and extent of the employee’s current physical restrictions or her ability to perform her pre-injury job.  Fundamental fairness requires that parties in a workers’ compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlements to benefits can be made.  Kulenkamp v. TimeSavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988).  Finding 25 and 27 are, accordingly, vacated.