RENEE M. NJOS, Employee/Cross-appellant,
v.
TORGERSON PROPERTIES (PERKINS OF AUSTIN) and AMERICAN COMPENSATION INS. CO./RTW, INC., Employer-Insurer/Appellants,
and
MN DEP'T OF HUMAN SERVS., MN DEP'T OF LABOR AND INDUS./VOCATIONAL REHABILITATION UNIT, and MAYO FOUND., Intervenors.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
March 2, 1999
HEADNOTES
CAUSATION
- GILLETTE INJURY; PERMANENT PARTIAL DISABILITY -
BACK. Where based on the employee's MRI scan and the
history of her low back condition as reported in her medical
records, the compensation judge's findings of a
Gillette-type low-back injury and of permanent
partial disability due to that injury were not clearly
erroneous and unsupported by substantial evidence.
TEMPORARY
PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; REHABILITATION -
ELIGIBILITY; WITHDRAWAL FROM LABOR MARKET. Where the
employee's post-injury schooling to upgrade her clerical
and computer skills was pursuant to a QRC's
rehabilitation plan, but where that plan was not only
unapproved by the insurer on her low back injury, but was
also evidently uncompelled by that injury and related instead
to the employee's earlier neck injury, the compensation
judge's denial of temporary partial and rehabilitation
benefits for insufficient causal relationship and for
withdrawal from the labor market was not clearly erroneous
and unsupported by substantial evidence.
Affirmed.
Determined by Pederson, J., Wilson, J. and Hefte, J.
Compensation Judge: John E. Jansen
OPINION
WILLIAM R. PEDERSON, Judge
The
employer and insurer appeal from the compensation judge's
finding of a Gillette-type injury and liability for
permanent partial disability benefits. The employee
cross-appeals from the judge's denial of temporary
partial disability benefits and reimbursement for
rehabilitation expenses. We affirm.
BACKGROUND
On
January 4, 1994, Renee Njos sustained a work-related injury
to her cervical spine while employed as a waitress by
Torgerson Properties (Perkins of Austin), insured at the time
by Minnesota Assigned Risk Plan/Wausau [Wausau]. Ms.
Njos [the employee] saw a chiropractor for her injury, whose
diagnosis included "[m]ild low back distress. Minor
compared to neck." On August 20 of that same year,
the employee sustained a second work-related injury to her
neck, and Torgerson Properties [the employer] and its
insurer on that date, United States Fidelity and Guaranty
Insurance Company [F&G], paid certain wage-replacement
and medical benefits. Subsequent to that injury, the
employee's orthopedist, Dr. Stephen Kazi, restricted the
employee from performing any overhead work, and the employee
began carrying her food trays against her hip in the course
of her work. A year later, on August 4, 1995, the
employee sustained yet a third injury to her neck while
working for the employer, which was insured on that date by
Mid-Century/Farmers Insurance Company [Farmers]. The
employee lost no time from work and received no medical
treatment immediately subsequent to this injury.
On
January 2, 1996, the employee saw Dr. DuCharme for symptoms
that now included low back pain and radicular leg symptoms,
which the doctor attributed to the employee's manner of
carrying food trays against her hip. Dr. DuCharme
referred the employee for a neurosurgical consultation at the
Mayo Clinic Spine Center, but both Farmers and F&G
declined to approve the consultation. About two weeks
later, on January 17, 1996, the employee sustained yet
another injury working for the employer,1 this to her low
back, as she bent over to pick up a spray can. She lost
no time from work immediately consequent to that injury, but
about two weeks later she returned to Dr. Kazi for
reevaluation of her neck condition and also for "low
back pain with right sided radiation," which she
attributed to her August 1994 work injury. Dr. Kazi
noted positive straight leg raising tests and indicated that
range of motion in the lumbosacral spine was painful, but he
recommended only conservative treatment, concluding that
"most of the symptoms are cervical." On
February 8, 1996, the employee was seen on an emergency basis
at the Mayo Medical Center at St. Mary's Hospital with
complaints of neck and low back pain, and she was again
referred to the Mayo Clinic Spine Center. Again,
however, no insurer would approve the consultation. On
May 7, 1996, following an administrative conference on April
24, 1996, a settlement judge granted the employee's
request for a change of doctors from Dr. Kazi to the Mayo
Clinic Spine Center. The following day, the employee was
seen at the Mayo Medical Center, where records document
complaints of chronic neck and arm pain, without mention of
any low back symptoms. On or about that same date, May
8, 1996, the employer became insured against workers'
compensation liability by American Compensation Insurance
Company/RTW.
On July
13, 1996, the employee wrote to the employer indicating that
her neck condition was causing her "continual and
sometimes unbearable pain" and requesting accommodation
of her condition. On July 23, 1996, the employee filed
an Amended Petition for a Temporary Order and a Claim
Petition against the employer, Wausau, F&G, and
Farmers. The Claim Petition alleged entitlement to
various temporary total disability, temporary partial
disability, and medical benefits, and reserved claim to
permanent partial disability benefits, all consequent to
"cervical spine injuries" on January 4, 1994,
August 20, 1994, and August 4, 1995. On August 1, 1996,
the employee was examined by orthopedist Dr. Robert
Wengler. Dr. Wengler diagnosed discogenic cervical nerve
entrapment syndrome and recommended that the employee limit
her lifting to ten pounds and avoid activities requiring
repetitive bending or stooping or heavy pushing or
pulling. There is no reference in Dr. Wengler's
report to any low back complaints or findings.
On
August 7, 1996, about a week after her appointment with Dr.
Wengler, the employee was seen at the Mayo Clinic,
complaining not only of neck pain but also of stabbing,
burning, and deep ache in her lower back that extended down
into her right leg to the ankle, ending with numbness in her
right toes. On September 1, 1996, the employee was
transferred by the employer out of what had once been
apparently full-time waitressing work, at an average weekly
wage of $213.02, into working only an average of about two
hours a day as a bookkeeper at $6.00 an hour, for an average
weekly wage of about $60.00. The employee was forty-two
years old at the time of this transfer. Although her
wages were substantially reduced as a result of the transfer,
the employee received no workers' compensation wage
replacement or medical benefits, as the employers'
insurers continued to refuse to pay benefits under a
temporary order.
On
September 13, 1996, about two weeks after her transfer out of
waitressing, the employee was examined at the Mayo Clinic
Spine Center, having borrowed money for payment. Records
of that examination indicate that the employee was continuing
to complain of "aching, sharp, burning pain in the low
back area with pain into the posterior lateral right leg and
numbness in the right toes three and four
predominantly." An MRI scan of her lumbar spine on
September 18, 1996, revealed "mild-moderate changes of
lumbar spondylosis throughout the lumbar spine" and
"[d]egenerative-type changes involving the L1, L2, L4
and lumbosacral intervertebral disks." The scan
also revealed a "[s]light bulging anulus fibrosus at the
L2 level" and "a midline focal disk protrusion with
superior migration of extruded disk material along the
posterior L1 body" that resulted in "deformity of
the ventral thecal sac but . . . no significant central canal
narrowing or nerve root compression."
Hearing
on the employee's Amended Petition for a Temporary Order
was held on October 14, 1996. On November 12, 1996, the
employee...
