PENALTIES. Substantial evidence supports the determination that the employer and insurer had at least a colorable defense to the employee’s claims and the compensation judge did not err in denying the claim for penalties.
TEMPORARY BENEFITS - FULLY RECOVERED; PERMANENT PARTIAL DISABILITY. Where there is no basis for the compensation judge’s finding that the claim for permanent partial disability was reserved for later determination, and where the judge’s determination that the employee’s injury had “resolved” is, accordingly, unclear, the matter is remanded for further proceedings.
MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE. Substantial evidence, including the records of the employee’s treating physician, support the compensation judge’s award of medical expenses through June 22, 2015.
Determined by:
David A. Stofferahn, Judge
Patricia J. Milun, Chief Judge
Deborah A. Sundquist, Judge
Compensation Judge: Miriam P. Rykken
Attorneys: Aaron W. Ferguson, Aaron Ferguson Law, St. Paul, Minnesota, for the Appellant. Brent C. Kleffman, Peterson, Logren & Kilbury, P.A., St. Paul, Minnesota, for the Cross Appellants.
Affirmed in part, modified in part, and remanded in part.
DAVID A. STOFFERAHN, Judge
The compensation judge found the employee sustained a work-related back injury on June 11, 2014, that resolved by June 22, 2015. The judge awarded temporary total and temporary partial disability benefits from June 11, 2014, through June 22, 2015, and ordered payment of medical and rehabilitation expenses. The employee’s claim for penalties was denied. The employee appeals the finding that his injury resolved as of June 22, 2015, the denial of his claim for penalties, and the compensation judge’s finding addressing the employee’s weekly wage on the date of injury. The employer and insurer cross-appeal the compensation judge’s award of medical and rehabilitation expenses and the judge’s finding that the issue of permanent partial disability was reserved for a later date. We affirm in part, modify in part, and remand in part.
The employee, Saul Sanchez Marcial, was employed by Atlas Staffing, Inc., (Atlas) on June 11, 2014. He was assigned by Atlas to a position with Consolidated Precision Products (CPP). At CPP, the employee was an inspector, examining cast aluminum parts that had been sandblasted. At the hearing, the employee testified he was lifting a part weighing approximately 40 pounds when he experienced a sharp pain in his low back. The employee reported the incident to his supervisor and was sent by CPP to the Atlas office.
At Atlas he spoke with the office manager, Juan Corrales. Mr. Corrales and Mr. Sanchez Marcial offered differing accounts regarding the discussion in the office, including whether the employee was expected to return to work at CPP and the employee’s status at Atlas.
The employee sought care at Rivera Chiropractic on June 12, 2014, and treated there with some frequency until July 9, 2014. Dr. Alberto Villegas diagnosed muscle spasm and a sprain/strain in the lumbar, sacroiliac, and thoracic areas and took the employee off work.
On July 10, 2014, the employee was seen in the emergency room at Regions Hospital with complaints of low back pain. He was given pain medication and referred to the Regions Hospital Medical Spine Clinic. He treated initially with Dr. Michael Goertz who recommended physical therapy and allowed the employee to return to work. The employee did not return to work until November 18, 2014, when he began light-duty work at the Atlas office.
The employee was evaluated on December 14, 2014, by Dr. David Carlson on behalf of the employer and insurer. The employee reported low back and left leg pain and numbness and stated that his condition was not any better than it had been when he was first injured. Dr. Carlson reported the employee’s exam was normal and concluded the employee’s current diagnosis was a resolved “lumbosacral spine musculoligamentous strain.” According to Dr. Carlson, the employee’s work injury had resolved 6 to 8 weeks after the injury and there was no further need for work restrictions or medical treatment.
The employee continued to treat at Regions Hospital Medical Spine Center and in February 2015 began seeing Dr. Sherief Mikhail. The doctor’s initial assessment was lumbar radiculopathy and deconditioning syndrome. An epidural steroid injection was provided at some point before the employee’s appointment with Dr. Mikhail on April 20, 2015. At that visit, the employee reported a 70% improvement in his leg pain as well as “significant improvement in his usual discomfort.” Dr. Mikhail increased the employee’s lifting restrictions to 40 pounds occasionally.
Mr. Sanchez Marcial returned to Dr. Mikhail on June 22, 2015, after having received two more epidural steroid injections. The employee indicated “100% improvement of his usual symptoms.” On examination, Dr. Mikhail found involuntary muscle tightness in the left lumbosacral region, provided medication for muscle relaxation and pain control, and advised the employee to return to the clinic in three months. Dr. Mikhail also found the employee had reached maximum medical improvement and rated a 12% permanent partial disability pursuant to Minn. R. 5223.0390, subp. 4.D.(1).[1]
Mr. Sanchez Marcial left employment at Atlas Staffing on or about June 22, 2015. He went to work for On-Site Company on June 29, 2015, at a wage of $15.00 an hour. In a July 27, 2015, report, the employee’s QRC stated the employee left that job because of the behavior of his supervisors.
The employer and its insurer denied primary liability for the employee’s claimed work injury of June 11, 2014. The employee filed a claim petition which was heard by a compensation judge at the Office of Administrative Hearings on August 21 and September 17, 2015. The compensation judge issued her Findings and Order on December 18, 2015. Both parties have appealed.
The compensation judge determined that the employee’s June 11, 2014, injury arose out of and in the course of his employment. There has been no appeal from this determination.
The employee asserted a claim for penalties under Minn. Stat. § 176.225 on the ground the employer and insurer frivolously denied payment of benefits. The compensation judge denied the claim, concluding the employer and insurer had “colorable arguments and defenses to the employee’s claim, in view of the varying information received from the employee and employer.” (Finding 32.) The employee asserts the employer and insurer failed to present any well-founded information that the employee did not suffer a work injury, and the compensation judge’s denial of penalties is not supported by substantial evidence.
Whether a penalty is appropriate in a given case is a question of fact for the compensation judge. Larson v. RR Donelley, 74 W.C.D. 703 (W.C.C.A. 2014). The purpose of this court’s review of a factual determination by a compensation judge is to determine whether substantial evidence supports that decision. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
The dispute in this case was whether the employer and insurer had a good faith basis for denying that the employee was hurt on the job on June 11, 2014. This was a major issue at the hearing with extensive direct and cross examination of witnesses accompanied by numerous exhibits. As the compensation judge noted in her memorandum, the employee provided somewhat different histories to his medical providers regarding how his injury happened. Representatives of the employer and insurer testified they received different accounts from the employee on the same issue. We note, for example, that in completing an accident report at the Atlas office on the date of injury, the employee provided no information describing how the injury occurred. We find substantial evidence to support the compensation judge’s determination that the employer and insurer had at least a colorable defense to the claims made by the employee.
The employee argues, however, that, at the least, penalties should have been awarded by the compensation judge once Dr. Carlson saw the employee and found a 6 to 8 week work-related back strain. The employee cites Zwieg v. Pope Douglas Solid Waste, 704 N.W.2d 752, 65 W.C.D. 563 (Minn. 2005), for the proposition that failure to pay after receiving an independent medical examination gives rise to penalties. In contrast to the facts in Zwieg, however, Dr. Carlson only assumed the employee’s history to be correct. Whether that history was correct was one of the disputes at the hearing.
Having carefully reviewed the evidence and the compensation judge’s consideration of the evidence, we are unable to conclude that the compensation judge erred in denying the claim for penalties. The compensation judge’s finding and order on this issue is affirmed.
The compensation judge found the employee earned a weekly wage of $418.40 on the date of injury. (Finding 25.) The employee appealed this finding, referring this court to the parties’ stipulations, including a stipulated average weekly wage of $475.00. (Tr. 7.) The employer and insurer do not dispute the employee’s position. We, accordingly, modify the compensation judge’s finding on this issue to reflect the agreed upon weekly wage of $475.00.
The compensation judge found the employee’s work injury “resolved by June 22, 2015, at which time Dr. Mikhail released the employee from work restrictions.” (Finding 24.) The compensation judge also referenced Dr. Mikhail’s rating of permanent partial disability, stating the “issue of any claim for permanent partial disability benefits was reserved for a later claim.” (Finding 20.)
The employee has appealed the finding that his injury resolved, arguing that while Dr. Mikhail released him without restrictions at the office visit on June 22, 2015, the doctor also recommended continued medical care for the work injury and directed the employee to return in three months. The employee further contends that a permanent partial disability rating of 12% and the compensation judge’s statement that the claim for permanent partial disability was reserved for a later date are inconsistent with a finding that the injury had resolved.
In their cross-appeal, the employer and insurer argue that the correct rating for any permanent partial disability from this injury is zero, relying on the opinion of Dr. Carlson. They also maintain that permanent partial disability could not be awarded given the absence of any stated basis for that rating in the opinion of Dr. Mikhail. The employer and insurer additionally contend that permanent partial disability should have been decided by the compensation judge.
The difficulty here rests in large part on the use of the word “resolved” by the compensation judge. To say that a work injury resolved has a very specific meaning in the workers’ compensation system. If an injury has resolved, the employee is back to whatever baseline existed before the injury and medical care, wage loss, and other potential benefits are not attributable to the work injury. See, e.g., Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987). It may be that the compensation judge simply meant that because the employee was released to work without restrictions by his treating doctor, he was no longer entitled to wage loss benefits, but that is not what was stated in the decision.
Further, we find no basis for reserving the claim for permanent partial disability. The employee states in his brief that he believes he reserved that issue. However, before beginning the hearing on August 21, the compensation judge reviewed the issues for determination and identified as issue eight, “whether Mr. Sanchez Marcial has a 12 percent permanent partial disability rating.” (T. 5-6.) No disagreement was expressed by either attorney at that time.
We conclude these issues must be remanded to the compensation judge for further proceedings. Specifically, the compensation judge should determine:
The compensation judge ordered payment of medical and chiropractic expenses through June 22, 2015. The employer and insurer have cross-appealed from this finding and order.
The employer and insurer argue that Dr. Carlson’s opinion of a temporary injury that resolved after eight weeks is consistent with the initial diagnosis and diagnostic testing of the employee’s providers. The cross-appellants contend that Dr. Carlson’s opinion should have been adopted and the compensation judge erred in ordering payment of medical expenses.
It appears to us that the compensation judge accepted the opinions of Dr. Mikhail reflected in his treatment of the employee up to June 22, 2015. A compensation judge’s choice of medical expert opinion is generally upheld so long as there is adequate foundation. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 363 (Minn. 1985). We conclude the compensation judge’s reliance on Dr. Mikhail’s records provides sufficient evidence to support her award of medical expenses through June 22, 2015. We, therefore, affirm.
The compensation judge ordered payment for the services of the employee’s QRC “through the date the parties agreed to closure of rehabilitation assistance.” (Finding 30.) The compensation judge’s memorandum states she was advised by the parties after the hearing that “they agreed to a closure of rehabilitation assistance due to the employee’s return to work.” However, neither attorney makes reference to any such agreement in their briefs.
In his brief, the employee, in discussing whether the work injury had resolved, raised the question of whether the employee is entitled to temporary partial disability, medical expenses, and rehabilitation benefits after June 22, 2015. On the other hand, the employer and insurer argue in their brief that rehabilitation services should not have been provided after June 22, 2015. It does not appear that there was any agreement on a date of closure of rehabilitation services.
No determination was made by the compensation judge on a date, if any, when rehabilitation services were no longer reasonable. Accordingly, we remand this matter to the compensation judge for a determination of this issue.
[1] This rule provides a permanency rating for lumbar spine radicular syndrome with objective radicular findings and medical imaging evidence with chronic radicular pain or paresthesia persisting despite treatment.