The employer and insurer appeal the compensation judge’s findings that (1) the award of medical treatment expenses was not barred by collateral estoppel, (2) the employee had not been terminated for misconduct, (3) the employee was entitled to a trial spinal cord stimulator, and (4) the employee was entitled to temporary total disability benefits without performing a job search.  We affirm.

In 2004, Stacy Sanderson, the employee, began working as a housekeeper for Arrowwood Radisson Resort, the employer, which was insured for workers’ compensation liability by Liberty Mutual Insurance Companies, the insurer.  At that time, the employee had no physical restrictions and she had received no medical treatment for her low back.  The employee claims that she sustained a work injury after a slip and fall on February 22, 2005, which she stated that she reported to a supervisor and was told it was not compensable since it happened while she was on a break.  The employee received chiropractic treatment from Dr. Michael Dahlquist from February through August 19, 2005, but she did not miss any time from work after that incident.  On October 29, 2005, the employee sustained a work-related injury to her low back while pulling a bed away from a wall.  The employer and insurer admitted primary liability and paid temporary total disability benefits from November 7 through November 11, 2005, and temporary partial disability benefits from November 12, 2005, through June 29, 2007.

Starting on October 31, 2005, the employee treated with Dr. Randy Peterson, her primary physician, at the Broadway Medical Center.  Dr. Peterson recommended physical therapy and referred the employee to Dr. Jeffrey Gerdes at Central Minnesota Neurosciences.  A December 20, 2005, MRI indicated mild to moderate disc desiccation at L3-4, L4-5, and L5-S1, left foraminal herniation and annular tear at L3-4 contiguous with the L3 ganglion nerve, left foraminal L5-S1 protrusion that abutted the left L5 nerve, and mild facet degeneration.

Dr. Gerdes determined that the employee was not a surgical candidate and referred her to Dr. Leslie Hillman, a physiatrist at the same location.  Dr. Hillman examined the employee on Feruary 20, 2006, diagnosed bilateral lower extremity and low back pain, right SI joint dysfunction and pain, bilateral trochantri bursitis, and a gait disorder, and recommended physical therapy and medication.  On April 26, 2006, Dr. Hillman indicated that the employee’s work restrictions included no lifting over ten pounds and not working more than two days in row.  On August 14, 2006, the employee’s restrictions were changed to include a restriction of working two hours per day.  In October 2006, Dr. Hillman recommended that the employee’s hours be increased fifteen minutes per day until she reached four hours per day.  Dr. Hillman referred the employee to the Center for Pain Management.  Between March 22, 2006, and April 7, 2008, Dr. Sam Elghor at the Center for Pain Management treated the employee with injections and rhizotomies several times for her pain symptoms.

The employee was assigned a QRC, Tod Paulson, in April 2006, and continued to work in a modified position with the employer through 2006 and part of 2007.  Dr. Elghor took the employee off work from June 7 through June 18, 2007, for recovery after injections.  Dr. Hillman requested an on-site job evaluation of the employee’s work activities, which was denied.  In early July 2007, the employee missed work for several days due to a relative’s death and funeral.  The employee told the QRC that she was unable to return to work for three weeks in July 2007 because of her leg pain and swelling.  On August 3, 2007, the employer terminated her employment.  No further wage loss benefits were paid.  The QRC testified that he understood that the employee’s employment was terminated since the employer could no longer offer her work within her restrictions.  The employee’s supervisor testified that the employee was terminated since she did not show up for work or call several times, in violation of the employer’s policy.  The supervisor also testified that the employer’s policy allowed termination after three absences without calling.  Multiple rehabilitation plan amendments through 2007 and 2008 indicate that the QRC was providing medical management services and did not require job search activities.

The employee continued to seek medical treatment with Dr. Hillman, who referred the employee to Dr. Richard Salib at the Institute for Low Back and Neck Care for a surgical consultation.  On November 9, 2007, Dr. Salib evaluated the employee.  He did not recommend surgery, and referred the employee to the Physicians Neck and Back Clinic.

On December 7, 2007, the employee filed a medical request for payment of several specific medical bills, prescriptions, and medical mileage, and for an order allowing her to continue receiving steroid injections at the Center for Pain Management, to continue pool therapy, and to return to Dr. Elghor and Dr. Salib for treatment.  The employer and insurer filed a medical response denying the request.  On February 5, 2008, an administrative conference was held before a commissioner’s designee at the Department of Labor and Industry.^[1]  The employer and insurer agreed to pay certain prescription and mileage expenses.  A decision and order was filed on February 11, 2008, denying the medical treatment claimed, additional pool therapy, and future treatment with Dr. Elghor or Dr. Salib.  Neither party appealed this decision.

The employee was evaluated by Dr. Thomas Balfanz at the Physicians Neck and Back Clinic on February 25, 2008.  He diagnosed mechanical low back pain, lumbar degenerative disc disease, spondylolisthesis, and deconditioning syndrome, and recommended a rehabilitation program.  The employee attempted to participate in the rehabilitation program, but stopped after eight sessions after aggravating her back.  The employee returned to Dr. Salib, who recommended a discogram, which was performed on July 14, 2008, and indicated left-sided annular tears at L2-3, L3-4, L4-5, and L5-S1 with concordant pain at L4-5 and L5-S1.  A CT scan indicated left lateral herniated discs at L2-3 and L3-4, with contact on the exiting left L2 and L3 nerve roots, left subarticular disc herniation with underlying annual tear at L4-5 with mild contact of the exiting left L4 nerve root, and multiple annular tears at L5-S1 with no significant central canal or neural foraminal narrowing.  Dr. Salib recommended a different rehabilitation program and indicated that if the employee continued to have disabling pain, he would recommend a fusion at L5-S1 and a total disc replacement at L4-5 and L3-4.  

The employee’s QRC continued to provide medical management services and indicated in September 2008 that rehabilitation services had been placed on hold pending resolution of the employee’s low back surgery request.  Dr. Hillman indicated at that time that the employee was restricted to working two hours per day, no more than two consecutive shifts, and occasional lifting up to twelve pounds.

In October 2008, the employee began treating with Dr. Steven Radjenovich as her primary physician.  She reported chronic low back pain radiating down both legs, right worse than left.  Dr. Radjenovich referred the employee to Dr. Sunny Kim at Central Minnesota Spine Center.  On December 2, 2008, Dr. Kim determined that a fusion surgery would not be feasible, and recommended that the employee be referred to Dr. James Andrews at the Fergus Falls Medical Group for consideration of a trial spinal cord stimulator.  On December 9, 2008, the employer and insurer denied the request for a trial spinal cord stimulator.  In January 2009, Dr. Kim rated the employee as having ten percent permanent partial disability for her low back condition under Minn. R. 5223.0390, subp. 3.C.(2), and opined that the employee could only perform very light duty work with no lifting over ten pounds.

On July 26, 2010, the employee filed a claim petition for temporary total disability benefits from June 30, 2007, through June 23, 2009, a ten percent permanent partial disability rating, medical expenses, and rehabilitation services.  The employee also filed a medical request for pre-approval of a trial spinal cord stimulator.  On October 1, 2010, the employee filed a rehabilitation request to change QRCs from Tod Paulson to Ione Tollefson.  The claim petition, medical request, and rehabilitation request were consolidated for hearing.

In a report dated September 23, 2010, Dr. Elghor opined that the employee’s work injuries substantially contributed to the employee’s conditions, including lumbar spondylosis, bilateral sacroiliac joint pain/sacroilitis, bilateral trochanteric bursitis, and chronic low back pain.  He also opined that the treatments the employee received at his clinic were reasonable and necessary, and causally related to her work injury.  Dr. Radjenovich opined in a November 30, 2010, report that the employee’s work injuries aggravated the employee’s pre-existing degenerative disc disease.

On October 20, 2010, the employee was evaluated by Dr. Mark Larkins at the employer and insurer’s request.  Dr. Larkins diagnosed the employee as having complaints of chronic low back pain with a normal neurological examination and unremarkable diagnostic studies and having sustained a lumbar sprain/strain.  He opined that the employee would have recovered from the October 2005 injury within one year, that she had reached maximum medical improvement on October 29, 2006, that any treatment after that date was not reasonable and necessary, that her work injures were not a substantial contributing factor to her complaints of chronic pain, and that she had not sustained any permanent partial disability.  He also opined that he did not believe a spinal cord stimulator would be helpful, and did not recommend further diagnostic studies, injections or surgery.  He recommended a functional capacities evaluation, possible work hardening and pain management.

A hearing was held on December 14, 2010, before Compensation Judge Jane Gordon Ertl.  The compensation judge awarded temporary total disability benefits as claimed, ten percent permanent partial disability benefits, medical expenses as claimed, and approval of the trial spinal cord stimulator.  The employee’s request to change QRCs was denied.  The employer and insurer appeal.^[2]

In reviewing cases 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.”^[3]  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.”^[4]  A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.^[5]

The employer and insurer assert that the employee’s claim for medical expenses was barred by collateral estoppel due to the previous decision by the Commissioner’s designee at the Department of Labor and Industry denying medical expenses.  We disagree.  Collateral estoppel is a limited form of res judicata by which an earlier judgment is conclusive in a later suit between the same parties as to determinative issues finally decided in the earlier suit.^[6]  The doctrine of collateral estoppel prevents further litigation on a medical request to pay specific bills or grant specific treatment after the medical request is decided by a designee unless her decision is appealed^[7] by a party within thirty days.  The unappealed decision becomes a final decision on each medical expense considered and decided by the designee and generally serves as a tool to bar future claims or defenses on that claim.  However, collateral estoppel applies only to issues that were in fact decided in an earlier decision.^[8]  Here, the medical bills denied by the designee in her February 11, 2008, decision were specifically identified and excluded by the employee and the compensation judge at the record hearing.  The judge, however, did not exclude the employee’s medical treatment that the designee had earlier denied in broad statements contained in her decision.^[9]

Where the commissioner’s designee listens to each party’s argument at a conference, but does not take evidence by exhibit or sworn testimony at a record hearing, the doctrine of collateral estoppel will not apply to future medical treatment denied in her decision.  The application of collateral estoppel will not go beyond the medical bills in dispute at the administrative conference and actually determined in the decision.^[10]  Thus, the entire decision by the designee cannot be used as a tool to bar liability for the medical treatment claimed at the hearing.  Nor can the entire decision be used to bar future claims for medical treatment from Dr. Elghor, Dr. Salib, or at the Institute for Low Back and Neck Care.

Judge Gordon Ertl heard all arguments and reviewed the evidence.  She made findings of fact and applied the law as if there had been no prior decision on the issues of disputed medical treatment.  The judge based her ultimate Findings and Order on the evidence presented at trial and found the employer liable for reasonable and necessary medical expenses.  Judge Gordon Ertl’s order to pay outstanding medical bills for treatment to work injuries, excluding the specific medical bills that had earlier been determined non-compensable in a Decision and Order by the designee at the Department of Labor and Industry, is not an error of law under the doctrine of collateral estoppel.  Accordingly, we affirm.

The employer and insurer contend that the employee’s absences without calling on three occasions constitutes misconduct under the employer’s attendance policy and rises to the level of “misconduct” as that term is defined under the workers’ compensation act, which bars recommencement of temporary total disability benefits if an employee is terminated for misconduct.^[11]  In order for temporary total disability benefits to be barred from an otherwise eligible claimant, the employee must have willfully disregarded the employer’s interests and intentionally disregarded certain standards of behavior which the employer has the right to expect.^[12]  Here, the employer asserts that the employee’s repeated and deliberate violation of the employer’s attendance policy met that standard.  The employee’s unexcused absence on more than one occasion resulted in disciplinary measures that began with an oral reprimand and ended with discharge and termination for cause on August 3, 2007.  The employer further disputes the employee’s assertion that the employment termination was a mutual decision between the employer and the employee for reasons related to her work injuries.

The employee denies the charge of misconduct.  The employee asserts that she was terminated from employment after Dr. Elghor released her to return to work with a restricted work schedule that the employer could not accommodate.  In other words, when the employer could no longer provide light-duty work two hours a day folding towels, the employee was discharged from employment.  The compensation judge found that the employee’s conduct did not rise to the level of misconduct contemplated by Minn. Stat. § 176.101, subd. 1(e)(1).

The original rehabilitation plan was to return the employee to full-time work with the pre-injury employer.  The goal to return to work was a mutual goal until August 3, 2007.  All parties were in agreement and the rehabilitation plans did not require the employee to job search.  QRC Paulson testified that when the employer could no longer accommodate the employee’s limited work restrictions, the employer decided to terminate the employment relationship.  QRC Paulson further testified that a job search would not be productive given the employee’s extremely limited work restrictions from the employee’s primary doctor, Dr Hillman.  Dr. Hillman had restricted the employee to sedentary work at two hours a day with no direction towards a future treatment plan.  The QRC therefore put the rehabilitation plan on hold until a medical treatment plan was put into place.

The employer presented evidence by testimony and by document to verify a period of days when the employee failed to call in or show up for work.  However, the documentation by the employer had inconsistencies in the dates of the employee’s alleged misconduct and the disciplinary measures taken.  These inconsistencies could not be reconciled by the judge through testimony at trial.^[13]  The compensation judge noted the lack of documentation by the employer to verify written warnings and further noted contradictory testimony that put into question what happened to end the employment relationship between the employee and employer.  The judge noted that the employee’s actions did not show “willful or wanton disregard of the employer’s interests” as defined by the Minnesota Supreme Court in Tilseth v. Midwest Lumbar Co.^[14]  Judge Gordon Ertl ultimately concluded that the conduct by the employee did not rise to a level of misconduct sufficient to apply the provisions of Minn. Stat. § 176.101, subd. 1(e)(1).  We agree.  Substantial evidence supports the compensation judge’s finding that the employee’s actions do not rise to the level of misconduct contemplated by Minn. Stat. § 176.101, subd. 1(e)(1) so as to bar recommencement of temporary total disability benefits.

The employer and insurer assert that the compensation judge’s finding that the employee is entitled to a trial spinal cord stimulator is unsupported by substantial evidence in the record and is unsupported by the treatment parameters.  Minn. R. 5221.6200, subp. 6.C.(1) of the treatment parameters provides:

The employer contends that neuropathic pain is a condition precedent to the approval and payment for a trial screening period of a spinal cord stimulator.  The employer asserts that the employee did not demonstrate neuropathic pain nor did the judge make a finding on the employee’s neuropathic pain.  Absent such a finding, the employer argues the order to authorize or pay for a trial spinal cord stimulator must be reversed.  We disagree.

As previously held in Brown v. REM Cent. Lakes, 69 W.C.D. 250 (W.C.C.A. 2009), a trial screening for a spinal cord stimulator is not subject to the treatment parameters.  The requirements found in Minn. R. 5221.6200, subp. 6.C.(1) only apply for an award of a spinal cord stimulator, not for a trial screening.  Like Brown, the issue here is not whether the employee meets the requirements of Minn. R. 5221.6200, subp. 6.C.(1).  The issue is whether a trial spinal cord stimulator is reasonable and necessary medical treatment under the substantial evidence rule.  Here, the judge based her decision on the employee’s extensive medical history, conservative medical treatment to date, lack of significant or long term relief, and the fact that the employee was not a surgical candidate.  The judge reviewed the MRI reports, the CT scan, the lumbar discogram with noted concordant pain, and the physical therapy records which reference symptoms of chronic regional pain associated with a neuropathic component.  With this medical history, the judge found the medical opinions and recommendations of Dr. Andrew and Dr. Kim to be more persuasive than Dr. Larkins, and concluded that the employee is entitled to a trial of a spinal cord stimulator.  Substantial evidence supports the compensation judge’s finding that the employee is entitled to a trial screening of a spinal cord stimulator, and we affirm.

The compensation judge determined that the employee was not required to perform a job search and that the employee’s eligibility for wage loss benefits was less dependent on the employee’s job search efforts than on the employee’s cooperation with rehabilitation.  The compensation judge relied on QRC Tod Paulson’s opinions that a job search would not be successful and that the employee was unemployable.  The employer contends that the QRC’s opinions on the job search requirement did not have adequate foundation.  The employer further asserts the compensation judge erred in relying on these opinions and awarding temporary total disability benefits without evidence of a diligent job search.

When an employee has a rehabilitation plan, the issue becomes whether an employee is making a good faith effort to participate in that plan.^[15]  In the present case, there is no dispute that the employee cooperated with rehabilitation services.  Rehabilitation services for the employee started with a rehabilitation plan to coordinate continued employment in her modified housekeeping position with the employer and did not include job search.  Rehabilitation plan amendments prepared over the time in question were submitted to the claims representative and never included a coordination of return to work with a different employer in a different job.  The claims representative did not object to the proposed amendments.^[16]

After the employee was terminated from her modified job with the employer in August 2007, QRC Paulson concluded that a job search would not be successful and the rehabilitation plan continued as a medical management plan.  In making this determination, the QRC considered the limited work restrictions imposed by Dr. Hillman,^[17] the employee’s attempt to return to work in a restricted capacity, and the employer’s inability to accommodate the restrictions.  The QRC also considered the insurer’s refusal to pay for medical treatment, the employee’s symptoms,^[18] the failure to receive the recommended treatment, and the failure to have in place a medical treatment plan.  The QRC’s testimony at hearing was consistent with the rehabilitation records submitted as evidence at the trial.

The weight given by the compensation judge to expert testimony rests in the factors considered and the reasoning used by that expert.  It is the province of the compensation judge to determine the weight and credibility to be given to expert testimony.^[19]  Here, the judge relied on the QRC’s consideration of multiple factors such as the limited work restrictions, the attempt to return to work, failure to receive recommended medical treatment and the employer’s inability to accommodate the employee’s restrictions to explain his rationale to exclude job search from the rehabilitation plan.  The compensation judge could reasonably reject the employee’s testimony, that she could work as a receptionist two hours a day as long as it was within her restrictions, as a determining factor which would defeat the QRC’s expert opinion.  The compensation judge correctly ordered payment of temporary total disability benefits without requiring a job search.  We affirm the compensation judge’s finding that the employee’s eligibility for wage loss benefits was less dependent on the employee’s job search efforts than on the employee’s cooperation with rehabilitation.  We therefore affirm the compensation judge’s order to pay temporary total disability benefits.

We conclude the evidence in this case was sufficient to support the compensation judge’s findings.  We affirm the compensation judge’s findings and order.