MARIA A. OLSON, Employee,
v.
CANTERBURY WEST, LTD., and WAUSAU INS. CO., Employer-Insurer/Appellants.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
February 5, 1999
HEADNOTES
MEDICAL
EXPENSES & TREATMENT - SURGERY. Where the
employee's treating physicians recommended a repair of a
failed fusion, where conservative treatment had been
ineffective and where the employee testified the repair
surgery helped her condition, the compensation judge was
supported by substantial evidence in finding the repair
surgery to be reasonable and necessary.
PENALTIES;
SETTLEMENT - INTERPRETATION. Where the employer and
insurer executed a stipulation for settlement which the
compensation judge interpreted to require the employer and
insurer to pay for certain of the employee's medical
expenses, the employer and insurer's failure to pay those
expenses justified the imposition of a penalty, payable to
the assigned risk safety account, under Minn. Stat. §
176.221, subds. 3 and 3a.
Affirmed.
Determined by Wheeler, C.J., Pederson, J., and Hefte, J.
Compensation Judge: Joan G. Hallock.
OPINION
STEVEN
D. WHEELER, Judge
The
employer and insurer appeal from the compensation judge's
determination that the employee had not attained maximum
medical improvement as of April 15, 1997, that the fusion
repair surgery performed on July 3, 1997 was reasonable and
necessary, that the employee was entitled to temporary total
disability benefits after July 15, 1997, and that penalties
were appropriate as a result of the nonpayment of medical
bills by the employer and insurer. We affirm.
BACKGROUND
The
employee, Marie A. Olson, sustained a work-related low back
injury while working for the employer, Canterbury West, as a
live-in caretaker on August 21, 1991. At the time the
employee was 55 years of age. The employee slipped and
fell on some stairs, landing on her buttock and experienced
low back pain with right lower extremity discomfort which
subsequently developed into numbness in both lower
extremities. The employee was seen by her physician, Dr.
Steven McCabe, on August 22, 1991. Dr. McCabe initially
diagnosed a low back strain, but eventually the employee was
referred to Dr. Leo J. de Souza, an orthopedic
surgeon. Initially she was treated conservatively with
physical therapy and medication. The employee received
temporary total disability benefits from August 22, 1991
through February 28, 1992.
In
early March 1992 the employee returned to work as an in-home
caregiver for an elderly woman. This position ended in
late 1992. The employee found another in-home caregiver
position in January 1993. While in this employment, on
November 23, 1993, the employee fell forward, landing on her
stomach, while helping her patient. This incident did
not change the employee's back symptoms. Because the
employee had significant pain and feared putting her patient
at risk, she left this employment on November 23, 1993 and
sought the payment of temporary total disability benefits
from the employer and insurer. (Unappealed Findings and
Order of 7/18/94.) The employer and insurer resisted
this payment, alleging that the 1991 injury was merely a
temporary aggravation of underlying preexisting back problems
which had originated from prior injuries in 1975 and
1977. The disputed matter came on for hearing before a
compensation judge at the Office of Administrative Hearings
on July 12, 1994. In Findings and Order, issued July 18,
1994, which were not appealed by the employer and insurer,
the compensation judge determined that the employee was
entitled to temporary total disability benefits from November
23, 1993 and continuing and that the employer and insurer
were liable for the expenses of a TENS unit as a result of
the August 1991 injury.
In
reaching her decision in 1994, the compensation judge noted
in her memorandum that while the employee did sustain back
injuries in 1975 and 1977, each of which was followed by
fusion surgery, the employee had recovered from these
incidents and indicated that her back was
"fantastic" after the second fusion. The
compensation judge noted that no evidence to the contrary was
presented at the hearing. The compensation judge
specifically indicated that she found the employee's
testimony credible in all respects, including the fact that
following her injury of August 21, 1991 she experienced
constant pain in her low back and numbness and cramping in
her legs, with the right leg being worse than the
left. The employee testified that her toes had felt numb
for at least the last year and that the right leg had no
feeling in it at all. The employee testified that she
was provided with physical therapy which provided no relief
and that two injections had offered her only temporary
relief. The compensation judge further credited the
employee's testimony that her symptoms had become
progressively worse since the date of the 1991 injury and
that she was in constant pain, slept poorly and could move
only slowly. (Findings and Order of 7/18/94, pp. 3-4.)
Following
the compensation judge's order, the employee was paid
temporary total disability benefits from November 23, 1993
continuously through July 25, 1997. (Resp. Ex. 1, NOID
of 7/30/97.)
Following
the compensation judge's decision, the employee continued
to be treated on a conservative basis by Dr. de Souza. A
lumbar discogram and CT scan from July 29, 1994 indicated
that "[a]ll discs were morphologically abnormal and
post-diskography CT scanning revealed a circumferential
annular...
