JUDY A. CARDA, Employee/Appellant, v. STATE OF MINN./DEP’T OF HUMAN SERVS., SELF-INSURED, Employer/Respondent.

JULY 11, 2017

No. WC17-6030

EVIDENCE – MEDICAL RECORDS. The compensation judge was not required to continue the hearing or to keep the record open for potential post-hearing medical reports where no party requested that he do so.

APPEALS – SCOPE OF REVIEW; PRACTICE AND PROCEDURE – REOPENING RECORD. This court’s standard of review on an appeal from a findings and order normally limits it to consider only the evidence submitted into the hearing record. It is not clear that this court has the authority to vacate and remand findings to the compensation judge “in the interests of justice” based solely on post-hearing evidence alone.

    Determined by:
  1. Gary M. Hall, Judge
  2. Patricia J. Milun, Chief Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge: Antonio Tejeda

Attorneys: Raymond R. Peterson, McCoy Peterson Ltd., Minneapolis, Minnesota, for the Appellant. Richard W. Schmidt, Natalie K. Lund, Cousineau, Waldhauser & Kieselbach, PA, Mendota Heights, Minnesota, for the Respondent.




The employee appeals from the compensation judge’s finding that the employee was capable of working full time without left upper extremity restrictions, and from the consequential discontinuance of temporary total disability compensation.


The employee, Judy Carda, worked as a behavior modification assistant at the employer’s group home supervising violent mentally ill residents. The employee sustained an admitted personal injury to her left upper extremity on July 30, 2015, when a resident assaulted the employee with a fiberglass pole she was holding like a baseball bat, striking the employee across the back of the left hand. The employee also subsequently struggled with and restrained the resident on the ground.

The employee was seen in the Allina Health emergency room in Cambridge, Minnesota on the same day. She had decreased range of motion in the left first MCP joint and was tender in that area, although no swelling was present. There was no bruising or erythema. The employee had no tingling or numbness of the thumb and no left hand swelling. Range of motion was normal in the left wrist. X-rays of the left hand were negative. The employee was diagnosed with a strain of the left thumb and provided with a thumb spica splint for comfort. She was advised to avoid use of the left hand pending follow up for her injury at Allina’s occupational medicine clinic.

The employee was seen by Dr. William K. Brunell, M.D., an occupational medicine specialist, on August 4, 2015. She reported that she was now having pain extending from her left thumb across the left wrist on the radial side up into the flexor side of the left forearm. She rated her pain as 8/10. Dr. Brunell’s evaluation of her left hand and thumb revealed some minor tenderness over the dorsum of the thumb extending down into the wrist joint. There was no palpable tenderness in the snuffbox and the employee had good motion of the wrist in all directions. The employee’s thumb range of motion was restricted. No abnormalities were noted in the distal forearm or wrist joint and there was good grip strength in the fingers of the left hand. The diagnosis was left thumb/left hand blunt trauma/contusion. The employee was authorized to return to work but with the restriction that she perform mostly right-handed work and used her left hand only as a “helper hand’ lifting no more than two pounds. She was advised to use Tylenol and ibuprofen and was fitted with a removal thumb splint. Hand therapy was ordered.

The employee returned to Dr. Brunell on August 19, 2015, reporting that her pain continued in the left thumb and wrist, and flexor side of the left forearm but was down to 4/10, although she had not yet started hand therapy. She was noted to guard her left hand and wrist and now would not move thumb at all and her wrist range of motion was minimal despite being almost normal at the last visit. Dr. Brunell continued her restrictions and advised that she stop ibuprofen and start prednisone.

The employee returned to the emergency room on August 24, 2015, with concerns that her left arm pain seemed now to spread up to her shoulder. On examination, the emergency room doctor found no left shoulder tenderness, swelling or deformity. Range of motion was normal at both the left shoulder and left elbow. The employee was diagnosed with left arm pain and provided with an ace bandage and narcotic pain medication.

When the employee next saw Dr. Brunell on August 26, 2015, she reported that she now had pain radiating to her left forearm and from her left elbow up to and around the top of her left shoulder. It was noted that the employee appeared quite comfortable while taking off her sweatshirt with her left hand for a blood pressure check, but that her left hand and wrist were held stiffly while she was just sitting. The employee stated that the wrist splint did not significantly reduce her pain and that the prednisone also did not seem to help. Dr. Brunell ordered an EMG of the left upper extremity. In a subsequent notation, Dr. Brunell speculated that the employee’s worsening pain extending up the arm might be due to nerve damage, as “otherwise it would seem too late in the healing process to be developing radiating pain this far proximally.”

On November 10, 2015, Dr. Brunell noted that the employee had been seen by Dr. Donahue, an orthopedic hand specialist, who had initially suspected possible DeQuervain’s tenosynovitis and carpal tunnel syndrome. However, the employee’s left upper extremity EMG had been negative. Dr. Donahue had still considered it possible that the employee might have a carpal tunnel syndrome following the negative EMG, and had treated the employee with wrist and tendon sheath injections; however, the employee obtained no benefit from the injections. Dr. Brunell noted that the employee was apparently having PTSD from the assault at work and needed a psychological evaluation.

On January 6, 2016, the employee was seen by Dr. Brunell, who noted that although EMG studies had suggested no reason to relate the employee’s upper extremity symptoms to a blow to her left hand and wrist, he was now considering the possibility that the employee had sustained a shoulder or neck injury when struggling with the patient during the July 30, 2015, work incident. He recommended that the employee undergo an MR arthrogram of the left shoulder and be seen for an evaluation of the left shoulder by Dr. Leroy McCarty, M.D.

The employee was seen by Dr. McCarty on February 16, 2016, for her complaints of anterior and posterior shoulder pain. The MR study had suggested a mild subscapularis and supraspinatus tendinosis, and Dr. McCarty diagnosed an impingement syndrome of the left shoulder, for which surgery was not indicated. He treated the employee with a subacromial shoulder injection and recommended physical therapy and updated work restrictions.

On March 29, 2016, Dr. Brunell saw the employee in follow up to her left upper extremity problems. She stated that the injection by Dr. McCarty had not helped her shoulder. It was also noted that Dr. Donahue had concluded that the employee’s left hand pain was not due to a surgical condition, and had suggested a referral to a neurologist.

The employee was seen by Dr. Steven D. Stein, a neurologist, on May 11, 2016. She reported persistent left upper extremity pain, including occasional hot pulsating pain in left thumb. She also noted that her palm was sometimes cold, and swollen when she gets up and often appears discolored. Dr. Stein noted visible atrophy and weakness of the left abductor pollicis brevis muscle. No other focal weakness was identified. There was reduced sensation to pinprick in the left hand, particularly in the thumb, index and middle fingers, and some mild swelling of her left forearm and hand was apparent compared with the right. He noted that although her EMG on September 11, 2015, was negative, the study did not include the abductor pollicis brevis muscle. Dr. Stein felt there were several possible conditions to consider. First, he suspected direct trauma to the left abductor pollicis brevis muscle, and recommended another EMG. He also thought if possible the work incident might have involved cervical spine trauma, and recommended a cervical MRI. Finally, he considered a lot of her pain symptoms consistent with a complex regional pain disorder (“CRPS”), and recommended a trial of gabapentin.

On May 19, 2016, the employee returned to Dr. McCarty. Her left shoulder symptoms remained unchanged following the prior shoulder injection and therapy. Dr. McCarty explained to the employee that if her symptoms were related to a shoulder pathology, her pain would have improved with the subacromial injection and PT. He considered a shoulder pathology ruled out and thought her current pain distribution was suggestive of nerve pain. He agreed with Dr. Stein that the employee might have left upper extremity CRPS, and recommended a referral to Dr. Todd Hess at Allina Health’s United Pain Center for evaluation of that presumptive diagnosis.

The employee was seen in follow up by Dr. Brunell on June 3. 2016. Dr. Brunell noted that the employee had been discharged by her psychologist, having done well in treatment for PTSD. Dr. Brunell noted that Dr. Stein and McCarty both suspected CRPS, and that physical therapy and surgery had been ruled out as effective given that diagnosis. He continued the employee on work limitations on the left arm, to include no lifting over 6 pounds, no lifting above the waist, and no repetitive use of left hand arm above shoulder level.

The self-insured employer objected to the referral to Dr. Hess and to the recommendations for further EMG and MRI studies. The employee was seen in July 2016 by Dr. Adam Bakker for an independent medical examination. Dr. Bakker opined that the employee’s work injury had resolved by November 23, 2015, and that she was capable of working full time without restrictions. The self-insured employer also had the employee examined by a psychological expert, Dr. Gratzer, who opined that the employee no longer needed restrictions as a result of a psychological condition.

The employee filed a medical request on July 30, 2015, seeking approval for the evaluation by Dr. Hess and the further diagnostic studies. The self-insured employer filed a notice of intention to discontinue temporary total disability compensation on August 10, 2016, alleging that the employee was capable of working full time without restrictions based on the IME opinions of Dr. Bakker and Dr. Gratzer. These issues were considered together by compensation judge Catherine A. Dallner at an administrative conference pursuant to Minn. Stat. §§ 176.106 and 176.239 on September 9, 2016. The judge concluded that the evaluation by Dr. Hess was reasonable and necessary treatment but denied the request for a repeat EMG and for a cervical MRI scan. With respect to the request for discontinuance, the judge accepted the opinions of the employee’s treating physicians regarding an ongoing need for work restrictions over the views of the IME physicians that the employee was no longer in need of restrictions. She therefore denied the request for discontinuance of temporary total disability benefits.

The employer appealed the administrative denial of discontinuance by filing a petition to discontinue on October 11, 2016, which resulted in the hearing below, on November 16, 2016. The employer did not contest the order awarding an evaluation with Dr. Hess. Because of a lag time for scheduling the evaluation by Dr. Hess, the employee had not yet been evaluated by that physician at the time of the hearing. At the hearing, the compensation judge stated that the issue before him was whether the employer was entitled to discontinuance on the basis of the IME reports which indicated that the employee was capable of working full time without psychiatric and upper extremity restrictions. Both parties agreed that this was a correct statement of the issue. They also stipulated that the employee currently had no restrictions related to her mental health condition. There was testimony by the employee that the evaluation with Dr. Hess had not yet been scheduled. Counsel for the employee did not request a continuance pending the evaluation by Dr. Hess, nor did the employee ask for leave to supplement the record with an anticipated report by that doctor, the record accordingly closed on November 16, 2016, at the close of the hearing below.

In his findings and order, served and filed on December 16, 2016, Judge Tejeda expressly accepted the medical opinion of Dr. Bakker and found that the employee was able to work full time without upper extremity restrictions due to the July 30, 2015, work injury. The judge accordingly found that the self-insured employer had shown sufficient grounds to discontinue temporary total disability compensation.

According to an affidavit attached to the employee’s brief in this matter, the employee’s evaluation with Dr. Hess took place on December 8, 2016. Attached to the affidavit is a letter dated December 8, 2016, by Dr. Hess taking the employee off work for “at least the next 2 months as she will be receiving aggressive treatment for her work related injury severe reflex sympathetic dystrophy/CRPS of the left upper extremity.” Also attached to the affidavit are three documents signed by Dr. Hess and dated December 8, 2016, respectively ordering a Scan-Electromyogram EMG, a consultation to anesthesiology for a series of 3 stellate ganglion blocks, and a consultation with occupational therapy to evaluate the employee for motor imagery/mirror box therapy. The order for an EMG states that “the patient needs complete left upper extremity EMG for severe reflex sympathetic dystrophy/CRPS,” and the two other orders carry a diagnosis of complex regional pain syndrome of the left upper extremity.

No party requested that the compensation judge reopen the record for the receipt of this report.

On December 23, 2016, the employee filed a Notice of Appeal, initiating her appeal to this court from the finding that she was capable of full-time work without upper extremity restrictions, and from the order granting the employer’s petition to discontinue temporary total disability benefits.


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).

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. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).


The employee appeals from the compensation judge’s order discontinuing benefits, arguing that this court should vacate the compensation judge’s findings and order and remand the matter for reconsideration in light of the post-hearing diagnosis and medical restrictions provided by Dr. Hess.

This court’s jurisdiction on appeal is statutory in nature and is provided by Minn. Stat. § 176.421, subd. 1.[1] Pursuant to that statute, a party in interest may appeal to this court from the compensation judge’s findings and order on one of four grounds, specifically, that the order does not conform with Minn. Stat.§ 176; that the compensation judge committed an error of law; that “the findings of fact and order were clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted;” or that “the findings of fact and order were procured by fraud, or coercion, or other improper conduct of a party in interest.”

Generally, this court’s review on appeal from a compensation judge’s findings and order is limited to consideration of the record as submitted below.[2]

The employee’s appeal appears to be predicated on her contention that the compensation judge committed an error of law in failing to order that the record remain open pending the results of Dr. Hess’ examination, which had been authorized by Judge Dallner following the September 9, 2016, administrative conference.

Specifically, the employee argues that, because the judge was aware that an evaluation for CRPS by Dr. Hess had been authorized by Judge Dallner, and because the employer had not appealed that determination in its request for formal hearing, the judge’s failure to continue the hearing or to leave the record open for receipt of a post-hearing report by Dr. Hess was clear error. We disagree. The issue before the compensation judge was one of the work restrictions in effect between the date of the employer’s NOID and the date of hearing. The judge’s determination as to restrictions and eligibility for temporary total disability benefits has no res judicata or collateral estoppel effect on a claim for benefits involving a different, subsequent period.[3]

While we have previously held that a compensation judge has the authority to hold the record open for post-hearing medical evidence,[4] we cannot conclude that a compensation judge is compelled to do so on his own motion where no party has so requested. Accordingly, we decline to hold that the judge committed an error of law in this case.

The employee next argues that even in the absence of an error of law, the interests of justice here require that this court vacate and remand to the compensation judge based on the existence of new evidence which she contends is crucial to a fair determination of the issue decided at the hearing below. The employee cites Horan v. Blake Constr., 453 N.W.2d 52, 42 W.C.D. 791 (Minn. 1990), in support of this proposition.

In Horan, an issue of notice was remanded by the supreme court to the compensation judge "in the interests of justice" for consideration of a post-hearing affidavit which, the court noted, contained "factual allegations which, if proved, would supply the requisite proof of notice." We note, first, that the Minnesota Supreme Court has such equitable powers as are inherent to the judiciary, while this court is an administrative body with a limited, statutory jurisdiction. While the supreme court in Horan did remand vacate and remand the issue of notice based on evidence not offered at the hearing before the compensation judge, it is unclear from that case whether this court has similar authority based on post-hearing evidence alone in the absence of a factual or legal error in the trial record.[5]

We affirm the compensation judge’s findings and order and deny the request to vacate and remand the matter for further consideration.

[1] See Cooper v. Younkin, 339 N.W.2d 552, 36 W.C.D. 277 (Minn. 1983).

[2] See Minn. Stat. § 176.421, subd. 6; Gollop v. Gollop, 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986); Vagts v. Tromco Elec., 48 W.C.D. 622 (W.C.C.A. 1993).

[3] Although unappealed findings on issues specifically decided in a prior proceeding are generally res judicata thereafter, cf. Fischer v. Sega Corp., 498 N.W.2d 449, 48 W.C.D. 368 (Minn. 1993), a factual determination bearing on temporary disability benefits is generally res judicata only with regard to the benefit periods at issue at that prior proceeding. See Saenger v. Liberty Carton Co., 316 N.W.2d 737, 34 W.C.D. 499 (Minn. 1982); Sjerven v. Strite‑Anderson Mfg. Co., 45 W.C.D. 469, 472‑73 (W.C.C.A. 1991) (a prior denial of temporary partial disability compensation has res judicata effect only with respect to the period for which benefits were previously sought); Tottenham v. Easton Char‑Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990) (a finding of earning capacity has res judicata effect only for the period for which benefits were sought). The employee thus retains the right to file a claim petition seeking temporary total benefits for periods subsequent to the date of the hearing below, based on the restrictions offered by Dr. Hess.

[4] See, e.g., Midtling v. Schwan’s Sales Enters., slip op., (W.C.C.A. Sept. 22, 2003); Anderson v. Marvin Windows, slip op., (W.C.C.A. Mar. 7, 1997).

[5] Mansfield v. Gopher Aviation Co., 301 Minn. 36, 221 N.W.2d 135, 27 W.C.D. 520 (Minn. 1974), also cited by the employee, held that it was an abuse of discretion for the Industrial Commission to deny a motion to submit additional evidence following a hearing; however, the Industrial Commission at that time had the statutory authority to rehear factual disputes de novo and to act as a primary finder of fact. The holding in that case thus has no relevance to the present situation, as this court lacks authority to retry issues of fact de novo and acts solely as a court of review.