PRACTICE & PROCEDURE - INDEPENDENT MEDICAL EXAMINATION. Under the circumstances of this case, the compensation judge did not err in admitting into evidence the report of the employer and insurer’s medical examiner, despite the fact that the report was not completed within 120 days of the filing of the employee’s claim petition.
CAUSATION – TEMPORARY INJURY. Substantial evidence, including medical records and expert medical opinion, supported the compensation judge’s finding that that the employee had been capable of work under restrictions from and after June 17, 2020, and that the employee’s work injury was temporary in nature and had fully resolved by August 12, 2020, without further need for restrictions or treatment.
PRACTICE & PROCEDURE – MATTERS AT ISSUE. Where “job abandonment” was not the basis for the denial of benefits, and no finding was made that directly resolves the parties’ disagreement on whether the employee “abandoned” his job, the employee’s appeal on this issue is moot.
PENALTIES – SUBSTANTIAL EVIDENCE. The compensation judge’s denial of the employee’s claim for penalties under Minn. Stat. § 176.225, subds. 1 and 5, is supported by substantial evidence in the record.
Compensation Judge: Kathleen Behounek
Attorneys: Benjamin Heimerl, Heimerl & Lammers, LLC, Minneapolis, Minnesota, for the Appellant. M. Elizabeth Giebel, Lynn, Scharfenberg & Hollick, Minneapolis, Minnesota, for the Respondents.
Affirmed.
PATRICIA J. MILUN, Chief Judge
The employee appeals the compensation judge’s admission into evidence of the report of Dr. Carlson, which was filed more than 120 days after the filing of the claim petition. The employee also appeals the compensation judge’s determinations that the employee had been capable of work under restrictions from and after June 17, 2020, and that the employee’s work injury was temporary in nature and had resolved by August 12, 2020, without further need for restrictions or treatment. Finally, the employee appeals the compensation judge’s denial of his claim for penalties. We affirm.
The employee, Dennis Herron, has an extensive history of injuries prior to the work incident at issue in this claim. Hospital records document treatment for back pain as early as 1993. The employee was subsequently injured in motor vehicle accidents in which he variously sustained combinations of shoulder, neck and/or back injuries. Following one such injury in 2010 the employee was off work for two months. A CT scan of the cervical spine in April 2010 showed a bulging disc at C4-5 without cord contact or stenosis.
The employee also sustained an injury in 2012 while working at a group home and physically restraining a combative resident. He reported persistent complaints of right shoulder pain and right-sided back pain with pain radiating into the bilateral lower extremities. He continued to have complaints of neck, low back and lower extremity complaints into 2013 when he was treated at Courage Kenny and participated in physical therapy.
In 2019, the employee was a passenger in a bus that was rear-ended by an SUV. He was treated for complaints of back pain, muscle spasm and swelling of the lower extremities. He was also diagnosed with a possible traumatic brain injury and was referred to the TBI clinic and for physical therapy.
The employee testified that between August 2019 and January 2020, when he began working for the employer, he had fully recovered from these prior injuries, was without symptoms and did not require further medical treatment or work restrictions. During that period, he initially worked some temporary jobs assembling and disassembling concert stages and setting up flooring for sporting events at local stadiums. Then he worked in the produce department at a Sam’s Club location for about three or four months. His duties in the Sam’s Club job included lifting cases of produce weighing up to 75 pounds.
The employee began working for the employer, the Franklin Street Bakery, in a warehouse position starting on January 20, 2020. The job required frequent lifting up to 50 pounds. The employee testified that he was initially physically able to do this work and remained free of symptoms, treatment, and work restrictions for about six months.
On June 15, 2020, the employee was unloading a semi-trailer at work when its raised door suddenly fell, causing him to twist his body to avoid contact, and he fell to the ground. He was unsure whether the door had struck his head. After this incident, he experienced pain in his neck and low back and in his legs.
The employee was seen the next day in the emergency room at Fairview Southdale Hospital. The diagnosis was acute post-traumatic headache, neck pain, muscle strain of the upper back and acute right-sided low back pain. The employee was provided with a work ability report which indicated that he should be off work for two or three days to recover. He submitted this form to the employer, which passed it along to the insurer’s claims adjuster assigned to the file.
On June 17, 2020, the claims adjuster contacted the employee for an interview about his claim. The employee asked that the adjuster direct any mail to a mailing address in Indiana, although he was currently residing in St. Paul, Minnesota. When the adjuster started to review the first report of injury with him, the employee stopped the interview, told the adjuster to speak to his attorney, and ended the call. The adjuster then filed a Notice of Primary Liability Determination (NOPLD) based on the information in the Fairview work ability report, accepting primary liability but denying wage loss benefits on the basis that the injury “did not cause lost time from work beyond the three-calendar day waiting period.”
On June 23, 2020, the employee was seen at Abbott Northwestern Hospital where he was given a work ability report that took him off work until June 29, 2020. On June 30, 2020, the employee was seen at the Hennepin County Medical Center and obtained a work ability report taking him off work for another week or until seen for a physical therapy evaluation.
The employee provided these further work ability reports to the employer, and they were provided to the insurer. However, according to the hearing testimony of the claims adjuster, because these were from new providers and did not indicate that the restrictions were related to the work injury, the insurer continued to maintain its denial of benefits. An amended NOPLD was filed on July 7, 2020. The adjuster testified that he received a telephone call from the office of the employee’s attorney on July 8, 2020, requesting information about the employee’s claim, and noting that the employee had not yet provided his own counsel with details about the claim.
On July 13, 2020, the employee began treating with Dr. Christine Aas-Larson at the North Loop Clinic of Hennepin Healthcare and continued treating there through the date of hearing below. The employee’s treatment has included physical therapy, chiropractic treatment, medications, acupuncture, and injections.
The employee’s attorney filed a claim petition on July 15, 2020, seeking temporary total disability compensation from June 15, 2020, and continuing, and also seeking rehabilitation services and payment of medical expenses.
The employee returned to work with the employer on July 20, 2020, with restrictions of no lifting over 20 pounds. He alleges that he was at times assigned tasks that went beyond these restrictions, causing him to aggravate his symptoms and to sometimes miss work. In August 2020 the employee began working a second, full-time job as a concierge at a hotel, although he did not disclose this second job to the employer at that time.
An MRI of the lumbar spine on August 12, 2020, showed mild lumbar spondylosis overall, with no significant spinal canal narrowing or nerve root compression at any level.
The employee’s last day of work for the employer was November 23, 2020. The parties dispute whether the employee walked off the job without permission on that date or was unfairly terminated following his leaving work under an alleged implicit understanding that he could do so without notice to the employer whenever he needed to seek medical care for an increased level of symptoms.
The employee was seen for a medical consultation by Dr. Robert Wengler on November 30, 2020. Dr. Wengler acknowledged that the employee likely had degenerative changes in the cervical and lumbar spine prior to the work injury but opined that the work injury had caused destabilization of the degenerated motion segments. He felt it was premature to offer an opinion whether the work injury had resulted in a permanent aggravation to the employee’s pre-existing condition and considered it “a reasonable expectation” that the employee’s symptoms would subside as had been the case following his various prior injuries. He rated the employee’s overall whole-body disability at 10 percent for the cervical spine and 10 percent for the lumbar spine.
Following receipt of Dr. Wengler’s report, the employer and insurer scheduled an examination of the employee with Dr. David Carlson. Dr. Carlson examined the employee on March 4, 2021. Dr. Carlson reviewed the employee’s medical records from before and after the work injury. In his report, Dr. Carlson opined that the work incident could “temporarily [have] manifested symptoms of longstanding pre-existing chronic neck and low back complaints relating to prior incidents and injuries.” He concluded that no new acute or structural injury had been sustained, noting that this was ruled out by the employee’s lumbar MRI on August 12, 2020, and by the medical and diagnostic evaluations directly following the date of the injury. In his opinion, the work injury had at most caused mild cervical and lumbar strains due to the employee twisting his body and possibly a mild concussion if the door had grazed the employee’s head (a point about which the employee was uncertain). Dr. Carlson believed that any effects from the work injury would have resolved by no later than August 12, 2020. He noted that the employee had shown intermittent complaints associated with his medical history prior to the 2019 work injury and felt he would continue to do so. In his view, the 2019 work injury had not resulted in any permanent aggravation to the employee’s pre-existing condition or any need for permanent restrictions.
A hearing on the employee’s claims was held on April 21 and June 30, 2021. At issue were the nature and extent of the work injury, entitlement to wage loss benefits for various periods and to permanent partial disability, the admissibility of the report of Dr. Carlson, and the employee’s claim for penalties based on an alleged failure by the insurer to perform a reasonably diligent investigation of the employee’s claims. Following the employee’s objection to Dr. Carlson’s report on the first day of hearing, the compensation judge initially declined to receive the report because it had been filed more than 120 days after the filing of the claim petition. However, on a motion for reconsideration supported by the testimony of the claims adjuster on the second day of hearing, the judge ruled that an extension to the 120-day requirement was appropriate and allowed the report into evidence.
Following the hearing, the compensation judge denied the employee’s penalty claim, finding that the employer and insurer’s defenses had not been frivolous, vexatious, or imposed for the purpose of delay. The judge found that the employee had been capable of work under restrictions from and after June 17, 2020, and that the employee’s work injury was temporary in nature and had fully resolved by August 12, 2020, without further need for restrictions or treatment. Accordingly, the judge denied the employee’s claim for wage loss benefits. The employee appeals.
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 focuses his initial arguments on the admission of Dr. Carlson’s report, which was filed more than 120 days after the employee filed his claim petition. He relies on Minn. Stat. § 176.155, which provides that no evidence relating to a medical examination by an employer’s physician may be received or considered by a compensation judge unless the examination was completed and any report filed within 120 days of the filing of the claim petition, or a written extension has been granted by the commissioner or compensation judge on a showing of good cause.
The employee suggests that this language should be interpreted so as to require that any extension be granted prior to the expiration of the 120 days, or certainly prior to a hearing. However, our supreme court has specifically pointed out that this statute “. . . does not require application for an extension to be made prior to the expiration of the time for serving and filing the IME report;” and in fact has affirmed the admission of a late IME report where good cause was present for an extension “which the compensation judge granted by acceptance of the report at the . . . hearing.”[1] We decline to depart from this established precedent.
The employee contends that, in any event, good cause was not present to justify an extension. The compensation judge’s memorandum states that the judge considered good cause to have been shown in that Dr. Carlson’s examination was needed to address new claims by the employee that had not been raised in the claim petition or trial statement, and that denying the extension would be prejudicial; in addition, the judge relied on cases in which the supreme court expressed a policy favoring inclusion of relevant evidence in workers’ compensation matters. The employee responds that the judge should not have considered his new claims to constitute good cause where the employer and insurer failed to object to the new claims at the hearing.
As a general rule, evidentiary rulings are within the sound discretion of the compensation judge.[2] There was a reasonable basis for the judge’s conclusion that good cause was present for an extension, and the compensation judge did not abuse her discretion in extending the time the employer and insurer had needed to obtain an IME and file the report, and in admitting the report into evidence. We therefore affirm the compensation judge on this issue.
The employee asserts that the so-called McClellan factors[3] should be applied to the facts of this case. These factors include the nature and severity of the pre-existing injury and the extent of the medical treatment prior to the aggravating incident, the nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom, the nature of the symptoms and the extent of medical treatment following the aggravating incident, the nature and extent of the employee’s work duties and non-work activities during the relevant period, and any medical opinions on the issue. The employee argues that an application of these factors requires a finding that the employee’s injury resulted in a permanent, rather than a temporary, aggravation.
We have previously held that use of those factors is not mandatory.[4] In any event, depending on the weight of the various elements of medical evidence, the evidence supported more than one possible conclusion when applying these factors. The compensation judge’s findings and memorandum demonstrate that the judge was aware of, and weighed the opinions of the medical experts who, in turn, specifically reviewed the employee’s pre-existing history and compared it to his post-injury symptoms. The compensation judge, adopting the expert medical opinion of Dr. Carlson, found that the employee had been capable of work under restrictions from and after June 17, 2020, and that the employee’s work injury was temporary in nature and had fully resolved by August 12, 2020, without further need for restrictions or treatment. “It is well established that a compensation judge’s choice among conflicting expert opinions must be upheld unless the opinion lacked adequate factual foundation.”[5] Substantial evidence in the record as a whole supports the compensation judge’s findings regarding the nature of the injury.
The employee asks that this court reverse a finding that the employee had abandoned his job and hold that he is accordingly entitled to wage loss benefits. However, the compensation judge did not make a finding to that effect, and the denial of benefits was not predicated on such a finding. Finding 12, the only finding related to this question states, in relevant part, that:
The employee left the work facility on November 23, 2020, without communicating with his supervisor. The employer terminated the employee's employment after his last day of work on November 23, 2020.
This finding is consistent with the employee’s own testimony and with the documentary evidence. It does not directly address the question of whether the employee abandoned the job. The denial of benefits followed directly from the findings regarding the nature of the employee’s injury, his ability to work, and the dates and nature of his post-injury employment. Where “job abandonment” was not the basis for the denial of benefits, and no finding was made that directly resolves the parties’ disagreement on whether the employee “abandoned” his job, the employee’s appeal on this issue is moot and we see no reason to reverse or modify the language of Finding 12.
Minn. Stat. § 176.225 requires a compensation judge or appellate court to award a penalty if an employer or insurer has interposed a frivolous defense, unreasonably or vexatiously delayed payment, neglected or refused to pay compensation, or frivolously denied a claim. Whether an award of penalties is appropriate under Minn. Stat. § 176.225 is a question of fact.[6] If the determination of the compensation judge is supported by substantial evidence, it is to be affirmed by this court.[7]
The employee argues that the claims adjuster should have performed a more comprehensive investigation before denying the employee’s claim for wage loss benefits. He argues that the two- to three-day removal from work under the initial work ability form was arguably open-ended, so that when the employee did not return to work, and submitted further off work orders from other providers, the adjuster had an obligation to investigate whether the employee’s continued off work status was due to the work injury.
The claims adjuster testified regarding his handling of the case. It is undisputed that when the claims adjuster contacted the employee for further information about his claim, the employee refused to speak to the adjuster and directed the adjuster to speak to his attorney, even though he did not yet have one. The employee also provided a contact address in another state, although he was living in Minnesota. The adjuster then relied on the only information provided which linked any restrictions to the work injury, since the subsequent forms the employee submitted to the employer were not from the same provider and did not indicate that their restrictions related to the work injury. Based on the testimony, and these and other factors, the compensation judge found that penalties were not warranted.
The compensation judge’s determination on this issue is supported by substantial evidence in the record, is not an abuse of discretion, and is affirmed.
[1] Bey v. Oxford Properties, Inc., 481 N.W.2d 40, 43, 46 W.C.D. 198, 203 (Minn. 1992). See also Christensen v. Burns Manor Nursing Home, No. WC11-5358 (W.C.C.A. Apr. 4, 2012), at 4 (affirming admission of IME report where “[t]here was clearly “good cause” for an extension, which the compensation judge apparently granted by his acceptance of Dr. Biewen’s reports at hearing.”)
[2] Folstrom v. Northgate Liquors, 77 W.C.D. 955 (W.C.C.A. 2017); Welter v. Ray N. Welter Heating Co., 76 W.C.D. 961 (W.C.C.A. 2016); Ziehl v. Vreeman Constr. Co., slip op. (W.C.C.A. Oct. 15, 1991).
[3] McClellan v. Up North Plastics, slip op. (W.C.C.A. Oct. 18, 1994).
[4] See, e.g., Lambert v. City of Duluth, No. WC11-5268 (W.C.C.A. Nov. 18, 2011); Calbillo v. MG Waldrum, No. WC05-235 (W.C.C.A. Jan. 31, 2006).
[5] Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 621, 77 W.C.D. 617, 624 (Minn. 2017).
[6] Zwieg v. Pope Douglas Solid Waste, 704 N.W.2d 752, 758 (Minn. 2005); see also Fishback v. Am. Steel & Indus. Supply, 77 W.C.D. 269, 282 (W.C.C.A. 2017).
[7] Carroll v. Allina Mercy Hosp., 74 W.C.D. 567 (W.C.C.A. 2014); Meyers v. K. Byte-Hibbing Mfg., 66 W.C.D. 148 (W.C.C.A. 2005).