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...