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Dutton v. Workforce Safety & Insurance

June 10, 2010

MARGARET DUTTON, CLAIMANT AND APPELLANT
v.
WORKFORCE SAFETY & INSURANCE, APPELLEE AND SHEYENNE DAKOTA, INC., RESPONDENT



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

The opinion of the court was delivered by: Maring, Justice.

REVERSED AND REMANDED.

Opinion

[¶1] Margaret Dutton appealed from a district court judgment affirming a final order of Workforce Safety and Insurance ("WSI") that awarded her permanent partial impairment ("PPI") benefits for work-related injuries. We reverse the district court judgment and remand for entry of judgment reversing WSI's final order.

I.

[¶2] In 1986, Dutton sustained a work-related wrist injury. She filed a claim for workers compensation benefits which was accepted by WSI. In 1993, Dutton sustained a work-related back injury. Again, she applied for workers compensation benefits and WSI accepted the claim. Dutton continued to suffer problems with her back and wrists, and ultimately had three back surgeries and carpal tunnel release surgery on both of her wrists. Dutton also suffered from depression related to her back and wrist injuries.

[¶3] In 2003, Dutton underwent evaluations to determine whether she was entitled to a PPI award. Dr. Cooper evaluated Dutton's back and wrists, and Dr. Swenson conducted a psychological evaluation. Based upon the opinions of Dr. Cooper and Dr. Swenson, WSI issued an order determining that Dutton had sustained a combined 53 percent whole body impairment for her back, wrist, and depression problems.

[¶4] Dutton requested a rehearing, arguing that she was entitled to further evaluation and impairment for her chronic pain. At that time, a WSI administrative rule prohibited any separate "rating" for pain when calculating an injured claimant's percentage of impairment for purposes of a PPI award. Because there was another case pending in which the validity of that administrative rule was being challenged, Dutton and WSI agreed to hold Dutton's case in abeyance until the issue was resolved in the other case. Ultimately, an administrative law judge held that the administrative rule was void as a matter of law, and the district court upheld the ruling on appeal.*fn1

[¶5] In May 2005, after the administrative rule had been declared void, counsel for WSI wrote a letter to Dr. Cooper asking whether he had conducted an informal pain assessment when he conducted the PPI evaluations of Dutton's back and wrists in 2003 and whether Dutton was entitled to further evaluation and impairment for her chronic pain. Dr. Cooper responded by letter dated January 13, 2006, stating that he had conducted an informal pain assessment in 2003 and that Dutton's pain was included as a component in his ratings of the impairment to Dutton's back and wrists under the American Medical Association's Guides to the Evaluation of Permanent Impairment (5th ed. 2001) ("the Guides"). Dr. Cooper concluded:

Based on the above information, to a reasonable degree of medical certainty, Ms. Dutton's conventional impairment rating require[s] no additional impairment rating for pain for either the lumbar or the upper extremity regions.

[¶6] Sometime between 2003, when he conducted the initial PPI evaluations of Dutton, and 2005, when he was asked by WSI's counsel for a further opinion, Dr. Cooper was hired as the Medical Director of WSI. Thus, when he gave his opinion that no further evaluation or impairment based upon Dutton's chronic pain was warranted, Dr. Cooper was employed by and serving as the Medical Director of WSI.

[¶7] An administrative law judge ("ALJ") was appointed to conduct the rehearing, and the parties agreed that the issues could be determined on briefs and a stipulated record. Dr. Cooper's letter expressing his opinion that Dutton was not entitled to an additional impairment rating based upon pain was included in the record. Dutton requested that a 2005 deposition taken of Dr. Cooper in an unrelated case, in which he allegedly testified he had never before conducted a pain evaluation under Chapter 18 of the Guides, be included in the stipulated record. WSI objected, and the ALJ ruled that the deposition was inadmissible.

[ΒΆ8] The ALJ issued his findings of fact, conclusions of law, and order recommending that WSI's order awarding PPI benefits for a 53 percent whole body impairment and denying additional PPI benefits be affirmed. WSI adopted the recommended decision of the ALJ as its final order, and Dutton ...


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