Leininger v. Dayton Hudson Corp., 080900 MNWC,

Case Date:August 09, 2000
RHONDA LEININGER, Employee/Appellant,
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
August 9, 2000
HEADNOTES          PRACTICE & PROCEDURE - DISMISSAL; DISCONTINUANCE - NOTICE OF INTENT TO DISCONTINUE; STATUTES CONSTRUED - MINN. STAT. § 176.238, SUBD. 5. Where the employer had supplied some of the pertinent medical records at the administrative conference on its NOID, and where the record was kept open for several months after the hearing before the compensation judge on the employer's petition to discontinue benefits, to permit the employee fuller opportunity to study and develop the medical evidence, the compensation judge did not err in denying the employee's motion to dismiss the employer's Petition to Discontinue on a conclusion that the employer had substantially complied with the requirement in Minn. Stat. § 176.238, subd. 5, that the supporting medical records be actually attached to the Petition to Discontinue.          DISCONTINUANCE; EVIDENCE - BURDEN OF PROOF. Where, at hearing on a Petition to Discontinue benefits, evidence was introduced by the employer to the effect that the employee's work accident had not been a substantial contributing factor in her low back condition, the court concluded as a matter of law that its substance constituted a prima facie case for the proposition for which it was introduced - - that is, that the evidence was sufficient to proving entitlement to discontinuance absent any showing by the employee to the contrary.          PRACTICE & PROCEDURE - MATTERS AT ISSUE. Where, after admitting liability for a work injury and paying benefits for a brief period of time, the employer had filed but not prevailed on an NOID based implicitly on primary liability, where the employee had subsequently filed a Claim Petition for benefits including penalties for noncompliance with the order on the NOID, where that Claim Petition had been consolidated for hearing together with the employer's Petition to Discontinue Benefits but, subsequent to apparently substantial pretrial, had not been expressly mentioned at hearing, the compensation judge did not err by stating the issue in her Findings and Order as whether or not the employee had sustained an injury to her low back arising out of and in the course of her employment.          CAUSATION - SUBSTANTIAL EVIDENCE. Where the compensation judge did not materially misstate or evidently misunderstand or ignore the facts in deciding the case, and where her decision was not unreasonable in light of the entire medical record and as supported by expert medical opinion, the compensation judge's conclusion that the employee did not prove a work injury to her low back arising out of and in the course of her employment was not clearly erroneous and unsupported by substantial evidence.          Affirmed.           Determined by: Pederson, J., Johnson, J. and Wilson, J.           Compensation Judge: Jennifer Patterson           OPINION           WILLIAM R. PEDERSON, Judge          The employee appeals from the compensation judge's refusal to dismiss a petition to discontinue benefits, from the judge's assignment of the burden of proof, from her identification of issues for decision, and from her statement of the evidence.1 We affirm.          BACKGROUND          Rhonda Leininger sustained work-related injuries to her low back in both October 1985 and January 1986, and in May of the latter year she sustained yet a third back injury in a fall down some stairs at the Metrodome. By October of that year, orthopedic surgeon Dr. Paul Cederberg had concluded that Ms. Leininger [the employee] was subject to a 9% whole-body impairment as a result of a herniated disc at L5-S1 of her lumbar spine. In July of 1989, the employee was hospitalized for over a week for radicular symptoms in her right leg, and in October of that year neurosurgeon Dr. Mahmoud Nagib performed a bilateral hemilaminectomy and discectomy at the problematic L5-S1 level of the employee's spine. The employee developed radicular symptoms in her left leg subsequent to that surgery, and in June of 1990, after reporting foot drop symptoms and an inability to sleep due to low back pain, she was hospitalized again for over a week for treatment of her low back. Neurological examination during that hospitalization revealed an absent left ankle reflex, marked weakness of dorsiflexion, and a numb left thigh and calf. Between 1989 and 1997, the employee was treated for injuries sustained in at least six different motor vehicle accidents, several of which involved treatment specifically to her low back. By the spring of 1998, the employee had undergone seven lumbar MRI scans and two lumbar CT scans and had been hospitalized for in-patient conservative treatment of her low back condition several times.          In February of 1998, the employee received two chiropractic treatments at the CorrectCare Chiropractic Center in part for low back pain, where examination confirmed grade 1 lumbosacral paraspinal muscle spasm on the left. She returned for another treatment on April 23, 1998, when her symptoms included "low back discomfort increasingly over the past couple of days." About a week thereafter, on May 2, 1998, after working as a "floating" sales associate for the Dayton Hudson Corporation [the employer], the employee reported to her employer that she had sustained a work-related injury to the right side of her back, with symptoms from the middle of her back down into her buttocks, and was experiencing frequent spasms. She indicated that the injury had occurred consequent to her catching her toe three times that day in some torn carpeting in the course of her job. The employee was about thirty-one years old at the time and was apparently earning an average weekly wage of about $84.00.2 Two days subsequent to the incident, on May 4, 1998, the employee saw Dr. Robert Peterson at the Urgent Care Facility at Park Nicollet Medical Center, to whom she reported spasms in the right lower back and discomfort in the back of her right thigh. Dr. Peterson diagnosed acute low back strain, prescribed medication, and recommended that the employee take some days off work to recover. The employee apparently tried to return to work about two weeks later, but on May 17, 1998, she was taken back off work again with low back pain radiating down the back of her left thigh.          On June 10, 1998, the employee was seen in follow-up by Dr. Robert Gorman, who noted her "[l]ong history of chronic low back pain." The employee indicated to the doctor at that time that she was not interested in going through physical therapy or rehabilitation and wanted instead to see if she could "manage things on her own," and Dr. Gorman released her to return to work without restrictions. By July 29, 1998, the employee was evidently feeling physically able to go on a two-week missionary trip to Guatemala, where she apparently assisted with painting, bending wire, and running a medical clinic. On September 24, 1998, Dr. Gorman noted that the employee had "completed her trip to Guatemala without significant difficulty" but continued to be frustrated by left leg sciatica complaints, and the doctor ordered an MRI scan and referred the employee to rehabilitation specialist Dr. Anne Brutlag. The scan, conducted on October 5, 1998, was read to reveal a broad-based central herniated nucleus pulposus at L4-5 that might be impinging on the L5 nerve rootlet.          The employee subsequently commenced treatment with Dr. Brutlag, and Dr. Brutlag in turn referred the employee for a consultation with Dr. Nagib. In his report to Dr. Brutlag on November 12, 1998, Dr. Nagib indicated that he had recommended a high-volume myelogram-CT to rule out various diagnoses but that the employee "obviously is not interested in pursuing these studies." The employee's problems continued, and on January 21, 1999, she underwent a lumbar myelogram and CT scan as recommended by Dr. Nagib, which were read to reveal a right paracentral herniated disc at L5-S1, in addition to the herniated disc at L4-5. From January 31 to February 2, 1999, the employee was hospitalized for treatment of left flank pain, but on February 2, 1999, Dr. Nagib advised against surgical intervention. On February 9, 1999, Dr. Brutlag indicated that she was referring the employee for a consultation with neurosurgeon Dr. Christine Cox, who also, upon her examination of the employee on February 24, 1999, found no basis for surgical intervention. On March 4, 1999, the employee went off work again, and the employer, self-insured against workers' compensation liability, filed its First Report of a work injury to the employee on May 2, 1998, nearly a year earlier, and...

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