PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including the opinions of a neutral physician, supports the compensation judge's award of permanent partial disability.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Where the neutral physician opined that injection treatment was initially reasonable, but that ongoing injections were not reasonable, and did not indicate how long the injections remained reasonable treatment, substantial evidence supports the compensation judge's award of injection treatment through the date of the neutral physician's examination.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the neutral physician had indicated that the employee could work with restrictions and the employee had not conducted a job search, substantial evidence supports the compensation judge's finding that the employee was not entitled to temporary total disability benefits.
ATTORNEY FEES - SUBD. 7 FEES; PENALTIES. Attorney fees awards under Minn. Stat. § 176.081, subd. 7, are reduced by $250 one time per injury. Penalty awards are not reduced by the deduction under Minn. Stat. § 176.081, subd. 7.
PRACTICE & PROCEDURE - MATTERS AT ISSUE. Where the employee had not requested approval for a medical referral, the issue was not before the compensation judge and the denial of the referral is vacated.
Compensation Judge: James F. Cannon
Attorneys: Michael F. Scully, Sieben Carey, P.A., Minneapolis, Minnesota, for the Cross-Appellant. Larry J. Peterson, Peterson, Logren & Kilbury, P.A., St. Paul, Minnesota, for the Appellant.
Affirmed in part, modified in part, reversed in part, and vacated in part.
GARY M. HALL, Judge
Custom Products appeals the award of medical expenses and permanent partial disability benefits. We affirm the award of medical expenses and the award of permanent partial disability benefits. The employee cross-appeals the denial of additional permanent partial disability for RSD/CRPS, the denial of temporary total disability benefits, the denial of a penalty and fees pursuant to Minn. Stat. § 176.081, subd. 7, and the denial of a referral to the Cleveland Clinic. We affirm the denial of additional permanent partial disability for RSD/CRPS and the denial of temporary total disability benefits, reverse the denial of the penalty, modify the decision on subdivision 7 fees, and vacate the compensation judge’s denial of a referral to the Cleveland Clinic.
On July 10, 2011, Janet L. Barrick, the employee, lifted the side of a skid loader and experienced right arm pain while working as a welder for Custom Products of Litchfield, Inc., which was self-insured for workers’ compensation liability with claims administered by Meadowbrook Claims Services. The employee did not seek medical treatment and continued to work her regular job. On August 2, 2011, the employee was operating a drill when the drill jerked and she twisted her arm. The employee was not able to continue working and sought medical treatment.
The employee was evaluated by Dr. Mark Fischer at Twin Cities Orthopedics in February 2012. Dr. Fischer diagnosed the employee with medial and lateral epicondylitis, mild ulnar nerve symptoms, and shoulder sprain. He opined that the employee would have a prolonged recovery and would require restrictions for six months to a year with respect to repetitive lifting and grasping. The employee was evaluated by Dr. Jeffrey Nipper in April 2012 at the employer’s request. Dr. Nipper diagnosed right shoulder low-grade idiopathic subacromial impingement syndrome unrelated to specific work activity, and right elbow lateral and medial epicondylitis that was work related, but had resolved. He opined that the employee had reached maximum medical improvement (MMI) and would have only needed restrictions for six weeks after the injury.
On April 20, 2012, the employee was told that Custom Products had received a report of maximum medical improvement with no work restrictions and was offered a position as a welder. The employee indicated that she was unable to return to work and she was terminated from her position with Custom Products. The parties litigated the employee’s claim for medical expenses and temporary total disability benefits in July 2012. Compensation Judge Jane Gordon Ertl accepted Dr. Fischer’s opinion and awarded temporary total disability benefits and claimed medical expenses, but not chiropractic treatment expenses. The employee began working at Kingston Auto in a full-time office job, but her hours decreased as the work load lessened. In November 2012, the employee stopped working at Kingston Auto and began working at New Beginnings as a chemical dependency technician. The employee voluntarily quit that position on January 30, 2013, but she continued to seek work.
Dr. Fischer referred the employee to the United Pain Center in October 2012. The employee was evaluated there by Dr. Todd Hess on November 30, 2012. Dr. Hess assessed right medial and lateral epicondylitis, right shoulder impingement, and RSD/CRPS of the right upper extremity. Dr. Hess opined that she could only perform left-handed work, with the right hand only helping on an occasional basis at zero to two pounds. He treated the employee with medication, and noted “astounding” improvement by January 2013. The employee returned to Dr. Hess on February 2013 with an increase in symptoms, including pain, significant temperature change, and discoloration. Dr. Hess then treated her with a stellate ganglion block. The employee had some relief, and she began receiving the injections a few weeks to a month apart. The employee had some improvement in her RSD/CRPS symptoms and had pain relief for about a week after each injection. In February 2013, Dr. Hess referred the employee for physical and occupational therapy. The employee began working part time as a health services technician at Vinland National Center on February 25, 2013. The job involved monitoring and helping clients and was within her restrictions. In March 2013, the employee took a second part-time job in customer service.
The employee was again evaluated by Dr. Nipper in early 2013, and his opinions did not change. Given the length of time since the injury, he opined that there was no correlation between the employee’s work injury and RSD/CRPS. The parties litigated the employee’s claim for additional temporary total and temporary partial disability benefits, medical treatment, and the nature and extent of her injury. The same compensation judge accepted Dr. Hess’s opinion and approved his treatment plan, and also awarded the temporary benefits claimed. The judge noted that the employee had conducted a job search and that the employee’s condition had improved. The judge also noted that Dr. Nipper had admitted that the employee’s condition could have improved from treatment from the time she began treatment with Dr. Hess in November 2012 and when he evaluated her in early 2013.
In December 2013 or January 2014, a co-worker at Vinland grabbed and pulled on the employee’s right arm. The employee experienced an exacerbation of her RSD/CRPS symptoms and she was unable to continue working at Vinland. The employee treated with Dr. Hess on January 21, 2014, reporting increased symptoms and pain after a co-worker grabbed her right arm and yanked her into another room. Dr. Hess took the employee off work. He recommended a continued treatment plan including occupational therapy, physical therapy, pool therapy, exercise, activity, stellate ganglion blocks, stress management, and medication.
The employee underwent another medical examination with Dr. Nipper at the request of Custom Products on January 29, 2014. In his February 10, 2014, report, Dr. Nipper opined that the employee had sustained a sprain/strain to her right wrist and hand on July 19, 2011, which caused mild medial and lateral epicondylitis at the elbow. He did not diagnose RSD/CRPS, stating that he did not see the symptoms of that syndrome on examination, and opined that the physical therapy and nerve block treatments were excessive since they did not provide lasting relief. He recommended that the employee be referred for a CRPS evaluation by an expert such as Dr. Matthew Monsein at the Phoenix Pain Center and stated that the employee was incapable of performing unrestricted job activities, but that she was not totally disabled and that the reasons for her inability to work was not clear.
On March 5, 2014, the employee filed a claim petition for temporary total disability benefits, medical expenses, and penalties against Custom Products. The claim petition lists medical expenses from the United Pain Center, Summit Orthopedics, Sister Kenny Sports & Physical Therapy, and reimbursement of out-of-pocket expenses for prescriptions, mileage, meals, and parking. On August 12, 2014, Custom Products moved for joinder of Vinland National Center, alleging that the employee had sustained a new injury at Vinland. Vinland denied that the employee had sustained a work-related injury while working there and denied that the employee provided any notice of any such injury. On September 30, 2014, the compensation judge granted the motion for joinder.
At a May 7, 2014, appointment, Dr. Hess noted discoloration in the employee’s right triceps and bicep areas and swelling in her right hand, and also viewed a photo from the week before showing significant mottling, discoloration, and swelling. He discussed possible use of a spinal cord stimulator with the employee. The employee elected to continue with injections even though the last block was not as effective. Dr. Hess kept the employee off work and indicated that retraining options should be continued since the employee would not be able to return to her welding position. At the next appointment on June 4, 2014, the employee had decided to hold off on the spinal cord stimulator, with Dr. Hess’s support, and she continued to receive injections. The next month, on July 2, 2014, the employee reported better pain relief. Dr. Hess also recommended exploring alternative treatment such as ketamine infusions at the Cleveland Clinic in Ohio. On July 30, 2014, Dr. Hess again mentioned that he could refer the employee to the Cleveland Clinic. The employee continued to report pain and was treated with injections on a monthly basis. Dr. Hess noted that at a September 3, 2014, appointment, the employee requested to be seen at the Cleveland Clinic, and he agreed.
In a letter dated August 15, 2014, Custom Products offered the employee an assembly job at ProWorks, a training center. The employee would be a Custom Products employee and would be paid by that company. The job could be done with one hand. Stan Sizen, the employee’s QRC, stated that this job was not appropriate since it was not competitive employment. The employee did not accept this job offer.
In a September 8, 2014, report, Dr. Hess opined that he continued to diagnose the employee with RSD/CRPS and recommended ongoing treatment. He also recommended a second opinion at the Cleveland Clinic. He rated the employee as having a 40.5 percent permanent partial disability rating. In progress notes from an October 1, 2014, appointment, Dr. Hess stated that the employee’s injury at Vinland was not new, but was an exacerbation of her original injury.
The employee underwent an independent medical examination with Dr. Loren Vorlicky at the request of Vinland on December 2, 2014. During his examination, Dr. Vorlicky measured the employee’s extent of forward flexion and abduction as 140 degrees. In his December 30, 2014, report, Dr. Vorlicky opined that the employee did have lateral or medial epicondylitis of her right elbow, but that it had resolved at the time of his examination, and would have resolved within eight weeks of the injury. He opined that that the employee did not sustain an injury in December 2013 or January 2014, that there was no evidence that her RSD/CRPS diagnosis was attributable to her January 2011 work injury, that the employee did not need any work restrictions, that she had sustained a zero percent permanent partial disability rating, and that her extensive medical treatment was unnecessary and unrelated any of the alleged work injuries.
On December 8, 2014, the employee filed an amended claim petition for 40.5 percent permanent partial disability, relying on Dr. Hess’s opinion. The employee filed another amended claim petition listing Vinland as an employer on December 18, 2014. At a January 14, 2015, appointment, the employee and Dr. Hess again discussed possible use of a spinal cord stimulator. Dr. Hess also wrote a note stating that the employee was unable to work in the competitive job market and make a living wage. On March 25, 2015, Dr. Hess opined that the employee was unable to work due to her medical condition.
On Custom Products’ motion, the compensation judge appointed Dr. Lon Lutz as a neutral physician in March 2015. On April 8, 2015, the employee underwent a neutral medical examination with Dr. Lutz, who diagnosed chronic medial and lateral epicondylitis, chronic supraspinatus tendinopathy, and chronic numbness of the right thumb. Dr. Lutz did not diagnose RSD/CRPS, stating that the employee did not exhibit hypersensitivity, edema, color changes, hyperhidrosis, or significant temperature changes at that time. He opined that if the employee had those symptoms earlier, he agreed with Dr. Hess’s treatment, but would have discontinued the blocks if they were not effective in providing substantial improvement. He did not indicate at what time he would have stopped the injections. He opined that the employee had sustained a temporary aggravation of eight weeks duration in January 2014, but also used language that the January 21, 2014, incident was a temporary exacerbation of a preexisting condition. Dr. Lutz also opined that the employee had reached MMI from both incidents, but recommended treatment including passive range of motion, desensitization techniques, and medication. He assigned restrictions for her right arm including no repetitive tasks such as grabbing, twisting, or carrying, and rated the employee at 18.5 percent permanent partial disability, 10.5 percent for the right thumb and 8 percent for the right shoulder. He based the right shoulder rating on his measurement of the employee’s shoulder as having abduction of 120 degrees. He did not rate the CRPS condition since the employee did not meet the requirements of the rule at that time. Dr. Lutz also opined that the employee was not capable of performing the job duties outlined in the ProWorks job offer since it involved repetitive work sorting and disassembling containers.
In addition to the claims for temporary total disability benefits, 40.5 percent permanent partial disability benefits, penalties for late payment of attorney’s fees, and medical expenses, the employee also claimed an underpayment of temporary partial disability benefits, rehabilitation benefits, and reimbursement to intervenors. On May 29, 2015, the employee filed a third amended claim petition adding another 8 percent permanent partial disability claim pursuant to Dr. Lutz’s opinion. A hearing was held on September 9, 2015, before Compensation Judge James Cannon. The compensation judge ordered payment of the employee’s claim for underpayment of temporary partial disability benefits; awarded 18.5 percent permanent partial disability for her right arm but denied any permanent partial disability for RSD/CRPS; awarded ongoing rehabilitation benefits; awarded medical expenses through April 8, 2015; denied temporary total disability benefits from January 17, 2014, through the date of the hearing; denied the employee’s claim for a penalty and for partial reimbursement of attorney’s fees under Minn. Stat. § 176.081, subd. 7, for late payment of attorney fees; denied a referral to the Cleveland Clinic; and allowed a credit for an erroneous payment. Custom Products appeals the award of medical expenses and permanent partial disability benefits. The employee cross-appeals the denial of temporary total disability benefits; the denial of additional permanent partial disability for RSD/CRPS; the denial of the penalty and subd. 7 fees; and the denial of the referral to the Cleveland Clinic.
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.” Minn. Stat. § 176.421, subd. 1(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.” 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, “unless 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).
Custom Products appeals the compensation judge’s findings that the employee was entitled to 18.5 percent permanent partial disability and that the employee’s medical expenses for injection treatments through April 8, 2015, were reasonable and necessary or causally related to her work injury.
The compensation judge awarded the employee 18.5 percent permanent partial disability, 10.5 percent for numbness of the right thumb under Minn. R. 5223.0410, subp. 6.A.(1)(a), and 8 percent permanent partial disability for loss of shoulder function under Minn. R. 5223.0450, subp. 4.B.(1)(c). Custom Products claims that Dr. Lutz’s opinion that the employee is entitled to permanent partial disability lacks foundation. Dr. Lutz interviewed the employee, examined her, and reviewed her medical records. This level of knowledge affords adequate foundation for a doctor to render an expert medical opinion. See Grunst v. Immanuel–St. Joseph Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130, 1132–33 (Minn. 1988).
Custom Products claims that Dr. Lutz’s rating of 10.5 percent permanent partial disability for loss of sensation for the whole right thumb under Minn. R. 5223.0410, subp. 6.A.(1)(a), is inconsistent with the employee’s medical history since there are minimal references to the thumb in the medical records. On examination, Dr. Lutz noted that the employee demonstrated numbness to light touch on the medial and lateral side of the right thumb when compared to the contralateral side. This evidence substantially supports the judge’s finding of 10.5 percent permanent partial disability for loss of sensation for the whole right thumb under Minn. R. 5223.0410, subp. 6.A.(1)(a), and we affirm this finding.
Custom Products also argues substantial evidence does not support the judge’s award of 8 percent permanent partial disability for loss of shoulder function under Minn. R. 5223.0450, subp. 4.B.(1)(c), as opined by Dr. Lutz. Minn. R. 5223.0450, subp. 4.B.(1)(c), provides for 8 percent permanent partial disability of the shoulder for measurement of the extent of abduction or adduction to between 81 degrees and 120 degrees. Minn. R. 5223.0450, subp. 4, provides that function at the shoulder is measured by the available passive range of motion, including abduction or adduction, and that examination with a goniometer is performed to determine the range of motion. This court has held that establishment of a claim for permanent partial disability must be based on objective medical evidence in compliance with the relevant disability schedule. “To obtain a permanent partial disability rating, the employee must show that each element set forth in the relevant . . . schedule is met.” Lohman v. Pillsbury Co., 40 W.C.D. 45, 51 (W.C.C.A. 1987). Dr. Lutz stated that the employee had an extent of abduction of 120 degrees on examination. Custom Products asserts that Dr. Lutz did not indicate that he used a goniometer to measure the passive range of motion.
This court addressed the requirement of goniometer testing under this rule in Houle v. Abbott Northwestern Hosp., slip op. (W.C.C.A. Jan. 16, 2001), where the court held that it would not require a judge to reject otherwise well-supported evidence of the employee’s passive range of motion merely because a goniometer was not used, and in Eisenschenk v. Anoka Turf Farms, Inc., 74 W.C.D. 215 (W.C.C.A. 2014), where the court reversed the compensation judge’s denial of permanent partial disability based on an opinion that was not supported by the goniometer testing where there was significant evidence to the contrary. In this case, the neutral examiner provided the measurement required under the rule. Further, Custom Products did not raise the requirement of goniometer testing at the hearing before the compensation judge.
Custom Products also points out that Dr. Nipper and Dr. Vorlicky assigned zero percent permanent partial disability for the shoulder and that Dr. Vorlicky indicated that the employee had abduction of 140 degrees. The judge accepted Dr. Lutz’s opinion regarding the permanent partial disability rating, finding the opinion supported by his examination and well-reasoned. As a general rule, where there is adequate foundation for the opinions adopted by the judge, this court will normally uphold the compensation judge’s choice among medical experts. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985). Substantial evidence supports the award of 8 percent permanent partial disability under Minn. R. 5223.0450, subp. 4.B.(1)(c), and we affirm.
Custom Products paid for the employee’s treatment with Dr. Hess, including the injection treatments, through September 2013. The compensation judge awarded payment for additional treatment through April 8, 2015, the date of Dr. Lutz’s examination. Custom Products argues that this treatment stopped being effective long before that date, as opined by Dr. Nipper and Dr. Vorlicky, and that it was not reasonable and necessary.
In its brief on appeal, Custom Products argues that the treatment parameters under Minn. R. 5221.6305, subp. 2.A.(1)(c), limit the number of injections that may be provided, specifically that injection therapy for RSD/CRPS “may be continued as long as injections control symptoms and facilitate objective functional gains, if the period of improvement is progressively longer with each injection.” Custom Products did not raise any issue regarding the treatment parameters at the hearing below. Where the treatment parameters are raised as a defense, the party must identify the treatment parameter at issue before the compensation judge. Pinc v. Stepping Out, Inc., 69 W.C.D. 181, 187 (W.C.C.A. 2009); Lewis v. St. Therese Home, Inc., slip op. (W.C.C.A. Mar. 31, 2004). Issues may not be raised for the first time on appeal. See Brandstrom v. Honeywell, slip op. (W.C.C.A. Mar. 7, 1997); Malinoski v. North Am. Cable Sys., slip op. (W.C.C.A. Dec. 14, 1989). Since Custom Products did not raise the application of the treatment parameters at the hearing, that argument will not be addressed on appeal.
Based on the employee’s testimony and medical records, the judge found that the employee received relief from the nerve block injections for about a week. The judge noted that the two IME physicians and the neutral physician agreed that the ongoing injections were not reasonable and concluded that indefinite continuation of these injections without more lasting relief was not reasonable. The judge approved the nerve block injections through the date of Dr. Lutz’s examination in April 2015 and denied any after that time. The judge did not specify the reason for choosing the date of Dr. Lutz’s examination as the date that injection treatment performed by Dr. Hess stopped being reasonable and necessary. While Dr. Lutz had stated that the injections were not reasonable indefinitely, he did indicate that the treatment was initially reasonable and did not give a length of time which would be considered reasonable. The employee was obtaining some relief, and the judge’s determination of the period of time that the monthly injections were appropriate is reasonable. Substantial evidence supports the compensation judge’s award of the medical expenses for the injections, and we affirm.
On cross-appeal, the employee argues that the doctrine of res judicata bars the compensation judge from addressing the nature and extent of the employee’s 2011 work injury as it applies to permanent partial and temporary total disability benefits. The employee also argues that the judge erred by finding that the employee was not totally disabled from working, by determining that the employee was not entitled to a penalty or subd. 7 fees for late payment of attorney fees, and by denying the employee’s referral for a RSD/CRPS evaluation at a different clinic.
The compensation judge awarded the employee 18.5 percent permanent partial disability for her right arm condition. The employee claims that she should have been awarded a higher amount of permanent partial disability including a rating for RSD/CRPS, arguing that the nature and extent of the employee’s injury had been litigated in April 2013 before Compensation Judge Ertl and that the employee’s permanent partial disability should be based on her condition at that time when she had a diagnosis of RSD/CRPS. In Compensation Judge Ertl’s Findings and Order served and filed May 15, 2013, the judge found that the employee had a diagnosis of RSD/CRPS of the right arm, right medial and lateral epicondylitis, and impingement of the right shoulder following a hearing on April 12, 2013. In the present case, Compensation Judge Cannon did not award permanent partial disability for RSD/CRPS, relying on Dr. Lutz’s opinion that she did not meet the criteria for that diagnosis at the time of his examination in April 2015. The employee argues that the nature and extent of the July 19, 2011, injury was not before Compensation Judge Cannon at the September 3, 2015, hearing since the nature and extent of that injury had been litigated in 2013 and that res judicata should prevent the judge from deviating from the employee’s diagnosis in 2013. Therefore, the employee argues that since the employee’s entire condition, which as diagnosed at the time of the April 2013 hearing would include RSD/CRPS, was eventually rated at 40.5 percent by Dr. Hess in September 2014, that entire amount of permanent partial disability should have been awarded by the judge.
Res judicata is a doctrine bringing finality to legal proceedings in which “a final judgment on the merits bars a second suit for the same claim” by the same parties. Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn. 1984). Principles of res judicata apply to workers’ compensation proceedings. See, e.g., Alexander v. Kenneth R. LaLonde Enters., 288 N.W.2d 18, 20, 31 W.C.D. 407, 410 (Minn. 1980). Res judicata applies in workers’ compensation cases only with respect to issues specifically litigated and decided in prior proceedings. See, e.g., Fischer v. Saga Corp., 498 N.W.2d 449, 450, 48 W.C.D. 368, 369 (Minn. 1993). In this case, permanent partial disability was not at issue at the time of the April 2013 hearing and was not addressed by the compensation judge in the May 2013 findings and order. Dr. Hess did not rate the employee’s condition until September 2014. The compensation judge did not err by declining to apply res judicata regarding the employee’s permanent partial disability claim.
The employee claimed temporary total disability benefits from January 17, 2014, through the date of the hearing. An employee is entitled to temporary total disability benefits when, as a result of a work-related injury, the employee’s “physical condition, in combination with . . . age, training, and experience, and the type of work available in [the] community, causes [the employee] to be unable to secure anything more than sporadic employment resulting in an insubstantial income. A total disability is temporary when it is likely it will exist for a limited period of time only.” Schulte v. C.H. Peterson Constr. Co., 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (Minn. 1967) (footnotes omitted). To remain entitled to temporary total disability benefits, an employee must be subject to physical restrictions related to the work injury. See Kautz v. Setterlin Co., 410 N.W.2d 843, 845, 40 W.C.D. 206, 208 (Minn. 1987).
The employee again claims that res judicata requires the compensation judge to award temporary total disability based on the employee’s condition at the time of the April 2013 hearing. Temporary total disability benefits were at issue at the hearing and were awarded from January 31, 2013, through February 24, 2013. Ongoing temporary partial disability benefits were awarded from February 25, 2013. The res judicata effect of a prior workers' compensation decision is limited to those issues and facts material to, and determinative of, benefit eligibility as of the date of the prior hearing. Generally, principles of res judicata primarily govern with respect to the periods of benefits at issue. Lindberg v. J & D Enters., 543 N.W.2d 90, 90, 54 W.C.D. 44, 52 (Minn. 1996) (order opinion); Gullickson v. Commonwealth Elec. Co., slip op. (W.C.C.A. Nov. 28, 1989) (medical restrictions determined for a prior period were not res judicata for a subsequent period). Res judicata does not apply in this situation.
The compensation judge denied the claim for temporary total disability benefits based on both injuries. Regarding the December 2013 or January 2014 injury while the employee was working at Vinland, the compensation judge noted that Dr. Lutz had given the employee work restrictions related to this temporary aggravation for eight weeks. The judge denied temporary total disability benefits related to this injury because proper notice was not given to Vinland within 180 days. See Minn. Stat. § 176.141. To establish a compensable claim under the Workers’ Compensation Act, an employee must show that the employer had timely notice or knowledge of the occurrence of the employee’s injury. Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 866, 40 W.C.D. 270, 272 (Minn. 1987). Vinland did not have notice of an injury until August 12, 2014, when Custom Products moved for joinder, alleging that the employee had sustained a new injury at Vinland. The employee argues that she is entitled to temporary total disability benefits based on the 2011 injury during that eight-week period since the later injury was only a temporary aggravation.
Regarding the 2011 injury, the compensation judge found that the employee’s restrictions did not support her being completely off work or from conducting a diligent job search.[1] The employee argues that the rehabilitation plan did not include job search. The judge emphasized that Dr. Hess did not explain why the employee was totally disabled from all work when she only had restrictions on one arm and that she had not conducted any job search, “presumably relying on the unfounded medical opinion of Dr. Hess that she was totally disabled from doing any work, even light duty work, during this time period.” (Finding 16, emphasis deleted.) The judge found that there was no rationale or documented medical basis for Dr. Hess taking the employee completely off work when she only had restrictions for one arm. The judge accepted Dr. Lutz’s opinion that the employee had restrictions for her right arm including no repetitive tasks such as grabbing, twisting, or carrying, finding it was more persuasive than Dr. Hess’s opinion that she was not able to work at all. Substantial evidence supports the compensation judge’s finding that the employee was not entitled to temporary total disability benefits as claimed, and we affirm.
At the hearing, the employee requested a penalty and subdivision 7 fees for late payment of attorney fees. Minn. Stat. § 176.081, subd. 7, provides that when an employee’s attorney successfully resolves a dispute, the employee is entitled to an additional award of “an amount equal to 30 percent of that portion of the attorney’s fee which has been awarded pursuant to this section that is in excess of $250.” The compensation judge found that the employer was late in sending the employee’s attorney $421.47 in attorney fees and that the employee was entitled to penalties pursuant to Minn. Stat. § 176.225 for 30 percent of the amount of the payment, $126.44, but also found but that this amount was less than $250.00 and that therefore the employee was not entitled to payment under Minn. Stat. § 176.081, subd. 7.
The employee claims that the compensation judge erred by applying the $250.00 deduction under Minn. Stat. § 176.081, subd. 7, in the award of attorney fees and the resulting denial of subd. 7 fees, claiming that deduction had already been applied in this case. This court has held that the $250.00 deduction is only applied once per injury. Lann v. Stan Koch & Sons Trucking, Inc., 73 W.C.D. 179, 183 (W.C.C.A. 2013).
The employer argues that since the record does not show that the deduction had already been made, the judge did not err by applying the deduction. Attorney fees were awarded to the employee’s attorney upon the award of temporary total disability payments to the employee in the August 28, 2012, Findings and Order by Compensation Judge Ertl. In its brief, the employer claims that the deduction has not been withheld from any of the previous awards of subd. 7 fees. An exhibit listing the payments made to the employee and to the attorney’s law firm shows payments to the law firm but does not specifically indicate that deduction. Without specific evidence, we will not reverse the judge’s decision on this issue. We trust the parties will be able to determine whether the deduction has been made and resolve the issue accordingly. Even with the deduction, however, the employee would be entitled to a partial payment of subd. 7 fees. The reimbursement amount under the statute is 30 percent of the payment amount remaining after subtracting $250.00. In this case, subtracting $250.00 from $421.47 and multiplying the difference by 30 percent results in a reimbursement amount of $51.44. We modify the judge’s award to include this reimbursement amount.
We also note, however, that the compensation judge misapplied the deduction language in Minn. Stat. § 176.081, subd. 7, to the penalty. Minn. Stat. § 176.081, subd. 7, only applies to reimbursement of attorney fees, not to penalties under Minn. Stat. § 176.225. The compensation judge found the employee was entitled to a penalty of $126.44. The penalty amount is up to 30 percent of the total payment amount delayed, without any statutory deduction. We therefore reverse the judge’s denial of the penalty.
The employee also asserts that the compensation judge erred by denying the employee’s claim for a referral to the Cleveland Clinic in Ohio, for ketamine treatment as recommended by Dr. Hess. The employee claims that this referral was not at issue at the hearing. In the pleadings, the employee did not specifically request approval of Dr. Hess’s referral to the Cleveland Clinic. The March 5, 2014, claim petition lists medical expenses from the United Pain Center, which includes Dr. Hess’s treatment. On December 8, 2014, the employee filed an amended claim petition for permanent partial disability benefits and included Dr. Hess’s report with the claim petition. In that report, Dr. Hess stated that he had recommended a second opinion at the Cleveland Clinic. The employer argues that because the referral was included in the documentation for the amended claim petition and that the employee was examined at the hearing regarding her willingness to attend the clinic, the referral was at issue. While the employee agreed she would attend the clinic if the cost was paid and she had requested the referral from Dr. Hess, there was no documented request for approval of this referral by the employee. We note that the judge did not list the referral request in his statement of issues in his findings and order. Under the circumstances of this case, we vacate the compensation judge’s denial of the referral to the Cleveland Clinic.
[1] In August 2014, Custom Products offered the employee an assembly job at ProWorks, a training center, which the employee did not accept. The employee claims that this job was not appropriate since it was not competitive employment. The compensation judge did not rely on this job offer in denying the employee’s claim for temporary total disability benefits.