Martin v. C.F. Anderson Co., Inc., 040599 MNWC,

Case DateApril 05, 1999
CourtMinnesota
WILLIAM MARTIN, Employee/Appellant,
v.
C.F. ANDERSON CO., INC., and AETNA LIFE & CASUALTY, Employer-Insurer.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
April 5, 1999
         HEADNOTES          PERMANENT PARTIAL DISABILITY - BRAIN; PERMANENT PARTIAL DISABILITY - SCHEDULE. Where the employee apparently fainted and fell and bumped his head as a result of thrombophlebitis and pulmonary embolism consequent to his work-related abdominal hernia, but where a CT scan and EEG testing were normal and psychometric testing failed to confirm an organic dysfunction of the employee's brain, the compensation judge's denial of benefits for a permanent impairment to 30% of the body as a whole under direct application of Minn. R. 5223.0060, subp. 8.D.(2), on grounds that there was no objective evidence of organic brain dysfunction supported by psychometric testing, was neither erroneous as a matter of law nor unsupported by substantial evidence.          PERMANENT PARTIAL DISABILITY - WEBER RATING; PERMANENT PARTIAL DISABILITY - BRAIN. Where the judge reasonably concluded that symptoms of the employee's depression and other emotional problems were treatable and were growing less severe, and where the judge's decision was based in part on expert medical opinion, the compensation judge's conclusion that the employee was not entitled to benefits for a permanent impairment of 30% of the body as a whole under Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990), by analogy to a brain injury under Minn. R. 5223.0060, subp. 8.D.(2), was not clearly erroneous and unsupported by substantial evidence, although there was evidence that the employee fainted and fell and bumped his head as a consequence of thrombophlebitis and pulmonary embolism consequent to his work-related abdominal hernia.          COSTS & DISBURSEMENTS; MEDICAL TREATMENT & EXPENSE. Where there was no report to demonstrate that any diagnostic or otherwise medically related treatment occurred during a .3 hr. "legal consult" billed by a treating psychologist, and where three other disbursements to treating experts evidently pertained only to the employee's failed claim to permanent partial disability benefits and/or to Xerox copying and not to any actual diagnosis or treatment of the employee's condition, the compensation judge's denial of reimbursement for four disbursements on grounds that they were costs of litigation and not treatment expenses was not clearly erroneous and unsupported by substantial evidence.          Affirmed.           Determined by Pederson, J., Johnson, J. and Wheeler, C.J.           Compensation Judge: Cheryl LeClair-Sommer           OPINION           WILLIAM R. PEDERSON, Judge          The employee appeals from the compensation judge's denial of permanent partial disability benefits and consequent attorney fees and from her denial of reimbursement for certain disbursements. We affirm.          BACKGROUND          On about March 26, 1992, William Martin sustained an abdominal hernia in the course and scope of his work as a warehouseman for the C. D. Anderson Company [the employer]. At the time of his injury, Mr. Martin [the employee] was forty-seven years old and was earning a weekly wage of $416.00. The hernia was repaired April 8, 1992. About eight months later, the employee's hernia required further repair, and that was accomplished on December 21, 1992. On December 30, 1992, about a week after his surgery, the employee was seen on an emergency basis for pain in his legs, and his surgeon, Dr. Leonard Schultz, diagnosed possible early phlebitis, apparently related to the employee's surgery. About a week later, on January 6, 1993, the employee sustained a bump on his head when he apparently fainted and fell while walking in his home. He was seen immediately thereafter by Dr. David Lang, who diagnosed pulmonary embolism, also apparently consequent to the employee's surgery. The employee was hospitalized for six days for treatment with anticoagulants, and subsequently he was released with a prescription for continued daily use of oral blood thinners. On March 3, 1993, Dr. Schultz completed a Physician's Report, indicating that the employee had achieved maximum medical improvement [MMI] from his March 26, 1992, work injury on March 1, 1993, subject to a 0% permanent impairment of the body as a whole.          On May 20, 1993, the employee was seen by neurologist Dr. Thomas McPartlin, on referral from Dr. Lang, "for difficulty with memory and difficulty concentrating." Dr. McPartlin made an initial diagnosis of "[d]ifficulty with memory secondary to a postconcussive syndrome and head injury" and referred the employee for psychometric testing, a CT scan, and an EEG examination. The employee underwent the CT and EEG exams on June 2 and June 10, 1993, respectively. Both studies were read as normal. When he saw him again on June 17, 1993, Dr. McPartlin noted that the employee was reporting a worsening in his memory problems. Noting that he had not yet received a report on the employee's psychometric tests, Dr. McPartlin concluded that the employee "still has some post-concussive syndrome."          On September 23, 1993, psychologist Dr. Jon Boller reported to the insurer on his assessment and treatment of the employee, which had commenced on May 26, 1993, on referral from Dr. McPartlin, for the purpose of helping the employee to "deal with ongoing pain, particularly in his L leg, and to overcome a chronic depression - - relatively low level - - that he has developed as a result of all he's been through medically since the original injury." Dr. Boller concluded that there was "nothing that really suggests brain injury at this point," noting that the employee's "[m]emory function is adequate, as is concentration and attention span." He recommended psychotherapy and biofeedback treatment to address the employee's depression, "anticipat[ing] that he will require approximately six months of continuing psychological therapy to help alleviate the . . . symptoms/problems." The employee evidently last saw Dr. Boller on November 16, 1993.          On September 8, 1995, the employee's regular treating physician, Dr. Kenneth Pallas, wrote to the employee's attorney, in response to the attorney's "request concerning follow-up of [the employee's] work comp injuries and subsequent problems." Dr. Pallas indicated that the employee's memory problems were continuing and now included reversal of numbers, forgetting of familiar tasks, episodes of disorientation, occasional vertigo, problems with reading retention, and some sexual dysfunction. Dr. Pallas reported that the employee seemed "very frustrated with seeing physicians and has felt like the neurology care did not help significantly," that the employee had last seen Dr. McPartlin about a week earlier, that he had been off all medication since the beginning of the year, and that he "has been isolating himself from everyone since last fall" and "certainly has [a] significant amount of depression." Dr. Pallas indicated that he had recommended psychotherapy but that the employee had refused. In an addendum on that same date, Dr. Pallas reported that the employee was also having problems with bleeding in the whites of his eyes as a result of the blood thinner that he was taking for prevention of further phlebitis or pulmonary emboli. The doctor indicated, however, that "other than the nuisance," there were no permanent problems associated with this bleeding.          On about March 2, 1996, on referral from a Ron Berk, M.Ed., who had evidently administered an MMPI to the employee, the employee underwent various modes of psychological evaluation and testing by psychologist Dr. David Fisher, "to assess level of functioning related to a possible organic brain injury." In his report two days later, Dr. Fisher indicated that he had included neuropsychological testing...

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