RHONDA LEININGER, Employee/Appellant,
v.
DAYTON HUDSON CORP., SELF-INSURED, Employer.
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...
