Kline v. Berg Drywall, Inc.

• Citation: 685 N.W.2d 12
• Decision Date: 05 August 2004
• Docket Number: No. A03-420.,A03-420.
• Parties: Jeffrey KLINE, Relator, v. BERG DRYWALL, INC., and American Compensation Insurance Co./RTW, Inc., Respondents.
• Court: Supreme Court of Minnesota (US)

685 N.W.2d 12

Jeffrey KLINE, Relator, v. BERG DRYWALL, INC., and American Compensation Insurance Co./RTW, Inc., Respondents.

No. A03-420.

Supreme Court of Minnesota.

August 5, 2004.

Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, MN, Russell G. Sundquist, St. Paul, MN, for Relator.

Janet Monson, Kelly M. Brewbaker, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for Respondent.

William K. Ecklund, Karen M. Charlson, Felhaber, Larson, Fenlon & Vogt, P.A., St. Paul, MN, Amicus Curiae for Union Construction Craft Workers' Compensation Fund.

Heard, considered, and decided by the court en banc.

OPINION

PAGE, Justice.

This workers' compensation matter comes before this court by certiorari upon the relation of Jeffrey Kline. Kline seeks review of a decision of the Workers' Compensation Court of Appeals (WCCA) reversing an arbitrator's denial of benefits and remanding for reconsideration. Concluding that Kline is entitled to a new arbitration, we affirm as modified.

On May 8, 2001, Jeffrey Kline sustained a work-related injury to his right lower abdomen while employed as a carpenter for Berg Drywall, Inc. The injury occurred as Kline was lifting a piece of sheetrock that buckled.

On May 17, 2001, Kline sought medical treatment at Park Nicollet Medical Center (PNMC), complaining of right groin pain and pain in the lower quadrant. Dr. Thomas Lohstreter diagnosed a right inguinal hernia or internal ring strain and allowed Kline to return to work with a 20-pound lifting restriction. Dr. Kevin Ose at PNMC examined Kline on May 24 and May 31, 2001, and diagnosed a right groin strain with no evidence of an inguinal hernia. Dr. Ose advised Kline to avoid lifting and strenuous activity. On June 4, 2001, Dr. Robert Gorman at PNMC examined Kline and also diagnosed a right groin strain. Dr. Gorman extended the lifting restrictions and ordered an ultrasound, which showed a normal abdominal wall with no evidence of a hernia. At a follow-up visit with Dr. Gorman on July 3, 2001, the doctor diagnosed a right groin strain and a right adductor thigh strain. On August 15, 2001, Kline returned to Dr. Gorman for further follow-up on his right groin and thigh complaints. During this visit, Kline stated that over the last few weeks he had felt more depressed, lacked interest in usual activities, lacked concentration, and struggled with feelings of guilt and worthlessness. Dr. Gorman diagnosed a chronic right groin strain and right adductor thigh strain and prescribed Paxil for depression. Dr. Gorman recommended an MRI scan and continued restrictions of 20 to 40 pounds of lifting, with limited bending, twisting, and sitting, and the ability to change positions as needed. An MRI scan of Kline's right hip on August 22, 2001, was normal.

On September 18, 2001, Kline saw Dr. Ali Ahmad Hamidi at PNMC with continued complaints of groin pain. Dr. Hamidi found no swelling, but noted severe tenderness over the medial aspect of the inguinal area and tenderness in the groin, testicle, and cords. Dr. Hamidi diagnosed right groin and testicle pain due to the work injury. On October 16, 2001, Kline returned to see Dr. Gorman. The doctor's diagnosis was unchanged and he continued the same restrictions. Dr. Gorman increased Kline's daily Paxil dosage and suggested that Kline contact the mental health department for further evaluation and treatment. At a follow-up visit on November 15, 2001, Dr. Gorman concluded that Kline had reached maximum medical improvement and found no permanent partial disability. However, Dr. Gorman continued lifting restrictions and, in a March 6, 2002, report, Dr. Gorman concluded the May 8, 2001, accident caused a permanent injury to Kline's right lower quadrant. In the same report, Dr. Gorman indicated the work-related injury aggravated Kline's depression.

Berg Drywall and its workers' compensation liability insurer, American Compensation Insurance Co./RTW, accepted liability for the injury. Subsequently, a dispute arose over the nature, extent, and duration of Kline's injury and disability. Pursuant to the collective bargaining agreement between Kline's union and Berg Drywall, work-related-injury disputes were to be resolved through an alternative dispute resolution system permitted under Minn.Stat. § 176.1812 (2002). Under the terms of the agreement, work-related-injury disputes are addressed through the Rules and Regulations of the Union Construction Crafts Workers' Compensation Fund (Fund). The Fund is not an insurance provider or program, but a claim dispute administration service. The Fund is made up of a 12-person board consisting of six members chosen by labor and six members chosen by management. Kevin Gregerson is the administrator and dispute resolution facilitator of the Fund. The rules of the Fund provide for a three-step process for resolving disputes: facilitation, mediation, and arbitration. Fund R. 3.1 (2001).

In September 2001, at the request of the employer and insurer, Gregerson scheduled a dispute resolution examination with Dr. Mark H. Johnson.¹ Gregerson furnished the doctor with Kline's medical records, a "work comp summary" prepared by the employer's office manager, and a copy of the surveillance reports. Kline was examined by Dr. Johnson on November 6, 2001. Dr. Johnson found no medical evidence to indicate that Kline had sustained any significant work injury. He believed that, while Kline may have sustained a strain in the right inguinal area that may have taken several weeks to resolve, there was no indication of any significant damage. The doctor also believed there was symptom magnification and, perhaps, malingering, and noted a great disparity between Kline's reports of what he was able to do "and the actual observation of his physical activities." Dr. Johnson said Kline was not in need of any restrictions for his work injury and that he suffered no permanent partial disability. On November 26, 2001, the employer terminated Kline's employment.²

Kline retained attorney Russell G. Sundquist to represent him at a facilitation scheduled for December 18, 2001. By letter faxed and mailed on December 17, 2001, Sundquist was provided with a copy of the Fund's rules and regulations that provide that "counsel shall not be present during the facilitation unless all parties agree." Id. at R. 3.4. Kline attended the facilitation without legal counsel. Kathy Berg, manager/owner of Berg Drywall, Kris Mitlestaedt, Berg Drywall office manager, and Mary Dennis, American Compensation Insurance Co./RTW claims representative, attended the facilitation on behalf of the employer and insurer. The facilitator's decision, terminating the employee's benefits, was apparently rendered on December 26, 2001. The parties proceeded to mediation; and when that proved unsuccessful, Kline filed an application for arbitration.

While the arbitration was pending, Gregerson scheduled a dispute resolution examination with Dr. Stephen Butzer, a psychiatrist, who examined Kline on May 22, 2002. Gregerson furnished Dr. Butzer with medical records, letters, comments from both parties, and a list of questions for the doctor's response. Dr. Butzer concluded that Kline was malingering and that any mental health problems were unrelated to the work injury.

The arbitration hearing took place on June 24, 2002, before arbitrator Jeffrey W. Jacobs, who affirmed the discontinuance of benefits. Concluding that a dispute resolution examination was to be given greater weight than a traditional independent medical examination under the Fund's arbitration rules, the arbitrator found that Kline's work injury was temporary in nature and had resolved no later than November 21, 2001. The arbitrator also concluded that Kline had not established a psychological injury. Kline appealed to the WCCA, asserting that: (1) the Fund's alternative dispute resolution (ADR) system, by prohibiting legal representation in the early stages of the process, was unconstitutional and also void under Minn.Stat. § 176.1812, subd. 4 (2002); (2) there was an inherent conflict of interest in the arbitration; (3) the arbitrator misconstrued the arbitration rules in giving greater weight to the dispute resolution examination; and (4) the neutral physician process was inherently flawed.

The WCCA rejected Kline's challenges to the ADR system and declined to rule on the constitutional claim, noting that it was not empowered to resolve constitutional issues. Kline v. Berg Drywall, Inc., 2003 WL 1917004, at *4 (Minn. WCCA Mar. 31, 2003) (citing Minn.Stat. § 175A.01, subd. 5 (2002)). The WCCA, however, agreed that the arbitrator misconstrued the Fund's rules in giving greater weight to the dispute resolution examination reports and remanded the matter for reconsideration. Id. at *7. In seeking our review, Kline reasserts his challenges to the validity of the ADR process based on the exclusion of legal counsel in the early stages of the process and also on an inherent conflict of interest. The employer and insurer and the Fund, appearing as amicus curiae, assert that this court does not have jurisdiction to hear, consider, and decide the matter.

I.

"The workers' compensation system in Minnesota is based on a mutual renunciation of common law rights and defenses by employers and employees alike." Minn.Stat. § 176.001 (2002). "[A]n injured employee is guaranteed compensation from his or her employer for work-related injuries regardless of the employee's fault or the employer's lack of fault, in exchange for forfeiting the right to sue the employer in tort." Minnesota Brewing Co. v. Egan & Sons Co., 574 N.W.2d 54, 58 (Minn.1998) (citing Lambertson v. Cincinnati Welding Corp., 312 Minn. 114, 120-21, 257 N.W.2d 679, 684 (1977)). In most other circumstances, the employee retains his or her common law right to recover in tort from a negligent third party. Id. "Strictly speaking, the rights and liabilities created by the Workers' Compensation Act are imposed on the...