Aguirre v. St. Croix Hospice, et. al, No. WC18-6136 (W.C.C.A. August 14, 2018)
Employee Anna Marie Aguirre worked as a licensed practical nurse for many years. She had a history of low back problems dating back to 1999 when she had a motor vehicle accident; imaging performed around that time showed disk material contacting the nerve root at L3 on the left side, and abnormalities a the L3-L4 level. Her low back problems resolved with conservative care. She also sought care for her low back in 2008 after an unrelated work injury. On April 22, 2008 she was placed at maximum medical improvement with no permanent partial disability for that injury and she stated that her symptoms resolved by April 29, 2008. Despite this, she had recurring back pain. She used over the counter medications and stretching to alleviate the pain.
On February 1, 2013 the employee was performing resident care at St. Croix Hospice when she suffered a low back injury. Prior to this, she did not have any work restrictions and had no ratable permanent partial disability. An MRI showed left paracentral L1-L2 disc herniation with mild bulging at other levels. Her treating physician ordered physical therapy. On August 20, 2013 her treating physician placed her at MMI with no ratable PPD. He also assigned permanent restrictions of frequent lifting of 10 pounds, occasional lifting of 30 pounds, occasional push/pull of 25 pounds, and occasional bending, twisting, kneeling and squatting. On September 24, 2013 Dr. Mikhail, her treating physician, revised his opinion regarding permanent partial disability, stating that she had sustained a 7% PPD rating to her low back.
At the time of the February 1, 2013 injury, the employee also had an on-call position with Accurate Home Health Care. The last shift that she worked for Accurate Home Health Care was in August 2012 and she received her last paycheck in September 2012. Shortly after the February 1, 2013 injury, her employment with St. Croix Hospice ended, for reasons unrelated to the work injury.
Dr. Paul Yellin performed an independent medical examination of the employee on behalf of St. Croix Hospice and insurer SFM on January 14, 2015. He opined that the February 1, 2013 work injury was a temporary aggravation of the employee’s chronic L3-L4 problems; medical care received by the employee was unrelated to the work injury and that although the 7% PPD rating was appropriate it also was not related to the work injury. He also opined that the employee’s work restrictions were reasonable but not related to the work injury.
The employee underwent a neutral medical examination by Dr. Mark Larkins, on November 6, 2015. He opined that there was no objective sign of an ongoing low back condition. He attributed her condition to pain in her hip and tensor fascia latae problems and noted no objective evidence of radiculopathy. He attributed her condition to the February 1, 2013 work injury. He recommended injections and physical therapy. He stated that she was not at MMI. He also believed that her work restrictions were appropriate and caused by the work injury.
The employee suffered another alleged work injury to her low back on November 12, 2015 while working for employer Walker Methodist Health Center, Inc., who was insured by Great American. She treated with Dr. Peter Badroos, who diagnosed her with a lumbar strain and degenerative disc disease without a herniated disc. He recommended conservative care and released her to return to work without restrictions. She later underwent another MRI that showed mild multi-level degenerative changes and an absence of stenosis. She completed another course of physical therapy, and had bilateral medial branch blocks at L3-L5.
On July 14, 2016 Dr. William Simonet performed an independent medical examination of the employee on behalf of employer Walker Methodist Health Center and Great American. He opined that the employee’s low back condition was unrelated to the November 12, 2015 work injury and stated that she had experienced a temporary aggravation of her pre-existing underlying condition. He opined that she reached MMI two weeks after the November 12, 2015 injury and that none of the requested medical care was necessary. He also opined that she did not need any restrictions and did not have any ratable PPD related to that date of injury.
On August 14, 2017 Dr. Eric Deal performed an independent medical examination on behalf of St. Croix Hospice and SFM. He opined that the February 1, 2013 and November 12, 2015 work injuries were temporary lumbosacral sprain/strains that each would have resolved in six weeks. He opined that she was not currently suffering any condition that was caused, aggravated or accelerated by either of those injuries, and no PPD rating was appropriate. He also opined that no future medical care was reasonable or needed arising from those work injuries and no restrictions were appropriate.
An administrative conference on a rehabilitation request filed by Walker Methodist Health Center and Great American to refer the employee’s rehabilitation services to the Vocational Rehabilitation Unit at the Department of Labor and Industry. The mediator determined that her work injury was a substantial contributing factor to her disability and ordered VRU to commence rehabilitation services. The employee filed a request for formal hearing.
The employee filed a claim petition on March 10, 2017; these issues were combined with the request for formal hearing. A hearing was held on November 29, 2017 to determine the nature and extent of the February 1, 2013 and November 12, 2015 injuries, apportionment, the employee’s average weekly wage on February 1, 2013 and whether medical treatment was reasonable, necessary and causally related to one or both work injuries. The compensation judge found, by Findings and Order filed on December 19, 2017, that the employee’s February 1, 2013 injury was temporary and resolved no later than August 20, 2013. The judge also found that the November 12, 2015 injury was temporary in nature and resolved no later than December 24, 2015. Accordingly, the judge also found that the medical treatment at issue was not reasonably required to cure or relieve the effects of either work injury. The judge also determined that the employee’s average weekly wage should include overtime pay, and exclude mileage and any second employment earnings. The employee appealed.
On appeal, the employee argued that the medical opinions of the independent medical examiners lacked foundation and that the compensation judge erred in relying on those opinions. Walker Methodist Health Center and Great American argued that at hearing, the employee objected to the foundation letters provided to obtain the opinions, not the medical reports of the doctors. The employee also argued that the findings by the compensation judge were not credible and drew inferences from the hearing record. The employee additionally argued that the compensation judge erred in the calculation of the employee’s average weekly wage, and not affording res judicata to the 2016 Decision that the employee’s work injury was a substantial contributing factor to her work injury.
On appeal, the W.C.C.A. affirmed the compensation judge’s findings and order. The Workers Compensation Court of Appeals (“W.C.C.A.”), citing Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 801, 77 W.C.D. 117, 123 (Minn. 2017), opined that failure to object to a medical opinion on the basis of foundation at the hearing constitutes forfeiture of the objection on appeal, and that in this matter, the employee objected to the foundation letters rather than to the opinions. The W.C.C.A. also held that the compensation judge had adequate foundation in the form of testimony from the employee, to make her decision. The W.C.C.A. found that on February 1, 2013, the employee was not engaged in regular employment with two employers, since she last worked for the second employer five months prior to the injury, did not work for the second employer five months following the work injury and was not scheduled to work for the second employer at any time over a ten-month period. The compensation judge’s calculation of the employee’s average weekly wage did include overtime at the date of injury employer, and the court determined this accurately reflected her loss of earning power. Lastly, the W.C.C.A. found that the doctrine of res judicata applies to unappealed decisions from administrative conferences; the employee appealed the 2016 Decision, so a de novo hearing before a compensation judge was appropriate, and the doctrine of res judicata was not available to the compensation judge.