ANNA MARIE AGUIRRE, Employee/Appellant,
v.
ST. CROIX HOSPICE and SFM MUTUAL INSURANCE COMPANY, Employer-Insurer/Respondents,
and
WALKER METHODIST HEALTH CENTER, INC., and GREAT AMERICAN/STRATEGIC COMP., Employer-Insurer/Respondents,
and
ABBOTT NW. HOSP., ALLINA MED. CLINIC, SUMMIT ORTHOPEDICS, LTD., and HEALTHPARTNERS, Intervenors.
No. WC18-6136
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
August 14, 2018
SUBSTANTIAL
EVIDENCE. Substantial evidence, including medical records and
expert medical opinion, supports the compensation
judge’s determination that the employee’s work
injuries were temporary and had resolved, and that the
employee’s claimed medical expenses were not causally
related to the employee’s work injuries.
WAGES -
MULTIPLE EMPLOYMENTS. Where the employee did not have any
income or scheduled assignments from a second employer over a
10-month period around the work injury, the compensation
judge did not err by finding that the employee did not
regularly work for multiple employers on the date of injury
and excluding any claim for additional earnings from the
second employer from the determination of the
employee’s average weekly wage.
EVIDENCE
- RES JUDICATA; PRACTICE & PROCEDURE. The compensation
judge properly refused to apply res judicata to any
portion of a Findings and Decision issued under Minn. Stat.
§ 176.106 where the employee appealed that Findings and
Decision. As the hearing in that appeal is de novo,
there is no force or effect in the underlying order appealed
from.
Aaron
W. Ferguson, Aaron Ferguson Law, St. Paul, Minnesota, for the
Appellant.
Andrew
W. Lynn and Aaron D. Schmidt, Lynn, Scharfenberg &
Hollick, Minneapolis, Minnesota, for the Respondents.
Mark
A. Kleinschmidt and Elizabeth R. Cox, Cousineau Waldhauser
& Kieselbach, Mendota Heights, Minnesota, for the
Respondents.
Determined by: Patricia J. Milun, Chief Judge, David A.
Stofferahn, Judge, Sean M. Quinn, Judge.
Compensation Judge: Sandra J. Grove.
Affirmed.
OPINION
PATRICIA J. MILUN, Chief Judge.
The
employee has raised issues regarding adequate foundation for
medical opinions in the record, the lack of substantial
evidence supporting the compensation judge’s findings,
the calculation of an average weekly wage (AWW), and the
application of the doctrine of res judicata arising
from a decision in an administrative conference held under
Minn. Stat. § 176.106. As there is adequate foundation
for the medical opinions offered, substantial evidence for
the compensation judge’s findings, an appropriate basis
for the calculation of the AWW, and the doctrine of res
judicata is inapplicable in this case, we affirm.
BACKGROUND
The
employee is a licensed practical nurse. She has a history of
low back problems for which she received treatment dating
from an automobile accident in 1999. An MRI performed in 2000
showed disk material contacting the nerve root at L3, on the
left side. The employee began treating with Walid Mikhail,
M.D., at this time. An EMG showed abnormalities at L3-L4, on
the left side. Another MRI performed in 2002 was
unremarkable. Those low back problems resolved with
conservative care.
On
March 19, 2008, the employee sought care for an unrelated
work injury causing severe pain in her low back. A CT scan
and MRI were conducted at that time. The employee primarily
complained of low back and right-sided pain, with occasional
right side radiculopathy. On April 22, 2008, the employee was
assessed at maximum medical improvement (MMI) for that
injury, with no ratable permanent partial disability (PPD).
The employee reported that all symptoms had resolved by April
29, 2008.
While
the employee’s low back problems resolved with
conservative care, the employee suffered from recurring back
pain, which she addressed with over-the-counter pain
medications and stretching exercises. As of February 1, 2013,
the employee was under no medical restrictions and she had no
ratable permanent partial disability. In addition to working
for St. Croix Hospice (St. Croix/SFM), an assisted living
facility, the employee had an on-call position providing
patient care with Accurate Home Health Care. The last time
that the employee provided such services with Accurate Home
Health Care was August 2012, and she received her last
paycheck in September 2012. (T. at 74, 78-79;
Employee’s Ex. P.)
On
February 1, 2013, the employee suffered a low back injury
while performing resident care in the employ of St. Croix.
The employee sought medical care for pain arising from the
injury on February 5, 2013, where the employee was diagnosed
with possible sacroiliac (SI) joint strain, left. Dr. Mikhail
ordered an MRI, which showed left paracentral L1-L2 disk
herniation with mild bulging at other levels. Dr. Mikhail
diagnosed disc herniation and ordered a course of physical
therapy (PT). On August 20, 2013, Dr. Mikhail assessed the
employee at MMI for the February 1, 2013, work injury, with
no ratable PPD. Dr. Mikhail imposed 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 revised his opinion, indicating that the
employee had a 7% PPD rating of her low back under Minn. R.
5223.0390, subd. 3.C.(1). As part of the employee’s
ongoing low back care, Dr. Mikhail prescribed use of a TENS
unit.
The
employee’s employment with St. Croix ended following
the work injury. The employee indicated that there was a
difference of opinion regarding appropriate patient care and
reporting that resulted in threats of disciplinary action.
(T. at 69; St. Croix Ex. 10.) The employee began working for
the Minneapolis School District as a school nurse in February
2013. That income was supplemented by additional short-term
positions with other employers beginning in June 2013.
On
January 14, 2015, the employee was...
