Reider v. Anoka-Hennepin School Dist.

• Decision Date: 08 March 2007
• Docket Number: No. A06-1344.,A06-1344.
• Citation: 728 N.W.2d 246
• Parties: Connie C. REIDER, Respondent, v. ANOKA-HENNEPIN SCHOOL DISTRICT NO. 11, Self-Insured, Relator, and Noran Neurological Clinic, and Blaine Chiropractic Center, Intervenors.
• Court: Minnesota Supreme Court

728 N.W.2d 246

Connie C. REIDER, Respondent, v. ANOKA-HENNEPIN SCHOOL DISTRICT NO. 11, Self-Insured, Relator, and Noran Neurological Clinic, and Blaine Chiropractic Center, Intervenors.

No. A06-1344.

Supreme Court of Minnesota.

March 8, 2007.

Kirk C. Thompson, Cronan Pearson Quinlivan P.A., Minneapolis, MN, for Appellant.

Thomas D. Mottaz, David B. Kempston, Law Office of Thomas Mottaz, Anoka, MN, for Respondent.

Andrew W. Lynn, Lynn Scharfenberg & Assoc., Minneapolis, MN, for Amicus.

Heard, considered and decided by the court en banc.

OPINION

GILDEA, Justice.

The Workers' Compensation Court of Appeals (WCCA) affirmed, by panel majority, the denial of the request made by relator, Anoka-Hennepin School No. 11, for a medical examination by a neutral physician pursuant to Minn.Stat. § 176.155, subd. 2 (2006). The school district sought certiorari review in this court. We reverse and remand.

Since 1992, Connie C. Reider has been employed full-time by Anoka-Hennepin School District No. 11 as an American Sign Language (ASL) interpreter. On April 14, 2003, Reider sought chiropractic care from Dr. Thomas Rice for pain in her neck, shoulders, arms and upper and mid-back. Reider reported a gradual onset of symptoms associated with her work-related ASL interpreting activities. After a few weeks of treatment, the chiropractor recommended exercises. Following an aggravation of symptoms in December 2003, Reider continued with chiropractic treatment, increasing to three times per week but eventually decreasing in frequency to an "as-needed" basis.

After initially paying for Reider's chiropractic care, the school district denied primary liability.¹ On July 23, 2004, Reider filed a claim petition, seeking payment of outstanding medical and chiropractic treatment expenses for Gillette-injuries² to the cervical and thoracic spine. Reider also sought compensation for permanent partial disability to the cervical and thoracic spine.

On October 26, 2004, Reider was examined by neurologist Dr. Neil Dahlquist at the request of the school district. Dr. Dahlquist found that Reider had a completely normal range of motion in her spine, including her cervical, thoracic and lumbar spine. He also found that she had normal range of motion in her shoulders, elbows and wrists. Dr. Dahlquist concluded the employee had not sustained "any type of repetitive trauma or Gillette type of injury" and had no permanent injuries as a result of her job as a sign language interpreter.

In February 2005, following a sudden onset of neck pain, Reider was referred to neurologist Dr. Ana Patricia Groeschel. Dr. Groeschel diagnosed a cervical strain causally related to Reider's work as a sign language interpreter. Dr. Groeschel recommended massage therapy, which initially reduced the new symptoms, but when the therapy was no longer effective, Reider discontinued that treatment.

The parties held a settlement conference in February 2005, but no settlement was reached. On March 29, 2005, the school district filed a motion for an examination by a neutral physician pursuant to Minn. Stat. § 176.155, subd. 2. In its request, the school district said "that a dispute exists as to whether the [e]mployee sustained a work injury and, if so, the nature and extent of any such injury." Because "of the disputes herein," the school district argued that Minn.Stat. § 176.155, subd. 2, required the appointment of a neutral physician.³

On April 7, 2005, the Office of Administrative Hearings (OAH) filed and served notice of hearing, scheduling the matter for a merits hearing on August 5, 2005. By letter dated June 13, 2005, the school district requested an order on its motion for a neutral-physician examination, or, in the alternative, a continuance. Reider then objected to the designation of a neutral physician, asserting that "in view of the upcoming hearing, it would be untimely to try to secure this opinion."

By order filed on June 30, 2005, the compensation judge denied the school district's motion. The judge provided three grounds for its decision to deny the request: (1) the motion was "deficient in necessary information in order to trigger" the mandatory designation of a neutral physician; (2) the mandatory provision did not apply because there had been no prehearing conference; and (3) the issues presented did not warrant a neutral examiner.⁴

The merits hearing was held as scheduled. During the hearing, Reider described her work activities and the circumstances of the onset of her symptoms. She testified that her symptoms would increase with work activities and decrease over time away from work, especially during the summer months. Other evidence included the medical records and reports from treating neurologist Groeschel and treating chiropractor Rice, both of whom concluded that Reider's condition was causally related to her work as an ASL interpreter. There was also the report from the school district's medical consultant, neurologist Dahlquist, who "found no evidence" of a Gillette-type injury. He concluded that Reider had incurred no permanent disability as a result of her work activities as an ASL interpreter and would not recommend any kind of restrictions.

Primarily in reliance on the medical records and the opinions of healthcare providers Groeschel and Rice, the compensation judge found that Reider sustained Gillette-type injuries to the cervical and thoracic spine, and awarded compensation for a 12.5 percent permanent partial disability. On appeal, the WCCA affirmed the primary liability determination and the award of permanent partial disability compensation. By panel majority, the WCCA also affirmed the compensation judge's denial of the school district's request for a neutral-physician examination. The school district obtained review by certiorari, challenging only the denial of the neutral-physician examination.

I.

This case requires that we examine provisions within the Workers' Compensation Act regarding the use of neutral physicians. We review de novo this statutory question. See Zurich American Ins. v. Bjelland, 710 N.W.2d 64, 68 (Minn.2006).

At the time of its adoption in 1913, the Workers' Compensation Act provided for the discretionary appointment of a neutral physician to conduct an examination of the injured worker. Act of April 24, 1913, ch. 467, § 21, 1913 Minn. Laws 675, 685 (codified at Minn.Stat. § 8215 (1913)). In 1979, the legislature amended the statute to provide for the mandatory appointment of a neutral physician in cases in which an interested party requested such an appointment at least 30 days before the prehearing conference. Act of June 7, 1979, ch. 3, § 48, 1979 Minn. Laws Ex.Sess. 1256, 1286-87 (codified at Minn.Stat. § 176.155, subd. 2 (Minn.2000)). According to the 1979 legislation, the Commissioner of Labor and Industry "shall develop and maintain a list of neutral physicians available for designation pursuant to this subdivision." Id. In 2002, the statute was amended to delete the requirement for a list of neutral physicians. Act of March 22, 2002, ch. 262, § 15, 2002 Minn. Laws 268, 274 (codified at Minn.Stat. § 176.155, subd. 2 (2004)). The WCCA said it was not aware of any current lists of neutral physicians maintained by the Department of Labor and Industry (DOLI) or OAH; and that neither DOLI, OAH nor the WCCA had rules for an examination by a neutral physician. Reider v. Anoka-Hennepin Sch. Dist. No. 11, No. WC05-276, 2006 WL 1977512, at *7 (Minn. WCCA June 21, 2006).

The neutral physician provisions specifically at issue in this case are contained in Minn.Stat. § 176.155, subd. 2. This subdivision begins by providing that the compensation judge "may with or without the request of any interested party, designate a neutral physician to make an examination of the injured worker and report the findings." (Emphasis added.) The subdivision continues that "when an interested party requests, not later than 30 days prior to a scheduled prehearing conference, that a neutral physician be designated, the compensation judge shall make such a designation." Minn.Stat. § 176.155, subd. 2 (emphasis added).

The school district contends that its request falls within the later, or mandatory, portion of the subdivision and that the compensation judge's refusal to grant the request conflicts with the plain reading of the statute. Reider contends that the mandatory provision did not apply here because there was no prehearing conference in this case. The plain meaning of the statute supports the school district's reading.

The subdivision does not provide that a prehearing conference is a condition precedent as Reider argues. If that is what the legislature meant, it could have written the subdivision to read: "if there is a prehearing conference and an interested party requests, not later than 30 days prior to the scheduled prehearing conference, that a neutral physician be designated, the compensation judge shall make such a designation." The plain language of the statute does not make a prehearing conference such a condition and we cannot add terms that the legislature has omitted. See Genin v. 1996 Mercury Marquis, VIN No. 2MEBP95F9CX644211, License No. MN 225 NSG, 622 N.W.2d 114, 119 (Minn. 2001).⁵

In the alternative, Reider argues, and the WCCA panel majority found, that the two provisions of subdivision 2 are inconsistent thereby creating an ambiguity. Specifically, the WCCA majority noted that the statute provides

that the compensation judge conducting the hearing "may with or without the request of any interested party, designate a neutral physician" and "may request the neutral physician to answer any particular question with reference to the medical phase of the case." (Emphasis added.) These provisions clearly leave whether to seek the assistance of a neutral physician to the discretion of the compensation judge and appear to conflict with the apparent mandatory language.

Reider, 2006 WL 1977512, at *8.⁶...