CAROLEE M. MOLASH, Employee/Appellant, v. BELTRAMI NURSING HOME and AMERICAN COMP. INS./RTW, INC., Employer-Insurer, and NORTH COUNTRY PHYSICAL THERAPY, DAKOTA CLINIC PARK RAPIDS, and STEMBER CHIROPRACTIC, Intervenors.
WORKERS' COMPENSATION COURT OF APPEALS
APRIL 21, 2000
CAUSATION - TEMPORARY INJURY. Substantial evidence, including medical records and expert medical opinion, supported the compensation judge=s determination that the employee=s work injury resulted in a temporary condition to the employee=s lumbar spine from which maximum medical improvement was reached by May 26, 1998 without permanent partial disability or need for ongoing work restrictions.
Determined by Wilson, J., Pederson, J., and Wheeler, C.J.
Compensation Judge: Harold W. Schultz, II
STEVEN D. WHEELER, Judge
The employee appeals from the compensation judge=s determination that the employee=s July 14, 1996 injury resulted in only a temporary lumbar spine injury and exacerbations from which she recovered by May 1998. We affirm.
The employee, Carolee M. Molash, sustained a work injury to the low back on July 14, 1996 while working for the employer, the Beltrami Nursing Home, as a certified nursing assistant. At the time she was 39 years of age. On that date, the employee was attempting to roll a 200-pound patient to his side in his bed by lifting a loose sheet on which he was lying when the patient unexpectedly resisted the maneuver. The employee experienced a shooting pain and a sensation like someone was stabbing her in the back and shortly afterward had ongoing pain in her back and hips. The employee reported the incident but was able to finish her work shift. (T. 19-24; Finding 6 [unappealed]; Exh. B.)
The employee was not scheduled to work for the next few days and rested at home. She reported for work on July 18, 1996 but was physically unable to perform her duties. The employer sent her for medical treatment at the Walker Clinic in Park Rapids, Minnesota, about 40 miles from the nursing home in Bemidji. At the Walker Clinic, the employee was examined by Dr. William Powers. The employee had marked spasm in the left lumbar area and her forward bending was limited. Straight leg raising was negative and x-rays of the lumbar spine showed normal disk spaces. Dr. Powers diagnosed an acute lumbar strain and prescribed Ibuprofen and lumbar exercises. He advised the employee to rest at home over the coming weekend, to work no more than 2-4 hours without taking a break and to limit her lifting at work to 25 pounds through July 21, 1996, after which the doctor anticipated a full release for unrestricted work. (T. 24-28; Finding 7 [unappealed]; Exh. B.)
The employee was seen again at the Walker Clinic on July 25, 1996 by Sandra Jones, a certified physician=s assistant. Ms. Jones noted that the employee=s back strain had not improved. She restricted the employee to light duty, with regular breaks and no lifting over 20 pounds. The employee was referred to physical therapy and began sessions at Peak Performance in late July 1996.
(Exh. B; Findings 8-10 [unappealed].)
The employee continued to work for the employer in a light-duty job, working only every other day, alternating with physical therapy three days a week. The employee found it difficult to perform her job. Physician=s Assistant Jones referred the employee to the Dakota Clinic in Fargo, North Dakota, for a physical medicine and rehabilitation evaluation and recommendations. An MRI of the lumbar spine was performed on September 18, 1996, and was read as unremarkable. (Exh. B; Findings 11, 14-16 [unappealed].)
The employee was seen at the Dakota Clinic on September 20, 1996 by Dr. Bonnie Dean. Examination findings were Aobligatory paraspinal spasm in the lumbar paraspinals@ and inconsistent findings on straight leg raising. In light of the employee=s history of multiple workers= compensation injuries and exacerbations, Dr. Dean suggested that secondary gain should be considered and that a psychologic referral might be in order. She also recommended a change of medication and a functional capacity evaluation to Ahelp objectively guide her return to work in light of four failures to date.@ No functional capacity evaluation was ever performed. (Exh. D; Finding 16 [unappealed].)
The employee was off work for a few days towards late September, for which the employer and insurer paid her temporary total disability benefits, and thereafter continued in her job with the employer with ongoing symptoms through the end of 1996. Except for a 40-pound lifting restriction, the employee was released to unrestricted work by the Walker Clinic on November 21, 1996. (Exh. B; Findings 17-18 [unappealed.)
When next seen at the Walker Clinic on January 15, 1997 the employee complained that she had recently begun to experience tightening and knife-like pain in the lower back. On examination, the employee was seen to have a small amount of swelling at the S2 area and some paravertebral swelling on the left. Ms. Jones diagnosed an exacerbation of the employee=s lumbar strain and reinstuted restrictions and physical therapy treatment. Physical therapy started on January 15, and ended on February 27. (Exh. B; Findings 19-20 [unappealed].)
On March 8, 1997 the employee was seen by Dr. Clarence D. Henke for an examination on behalf of the employer and insurer. Dr. Henke concluded that, by history, the employee had suffered a lumbar muscular ligaments strain/sprain resulting from the lifting incident at work on July 14, 1996. His examination, however, revealed no ongoing symptoms. He opined that the employee had reached maximum medical improvement from the effects of the injury, needed no additional treatment and could work without restrictions. (Exh. 4.)
In a letter dated March 25, 1997, the insurer wrote to Ms. Jones at the Walker Clinic enclosing the report of Dr. Henke and noting that in light of the doctor=s opinion on maximum medical improvement, the insurer would not authorize payment for further treatment. (Exh. B; Finding 21 [unappealed].)
When seen at the Walker Clinic on March 26, 1997, the employee reported that she had been able to do her light-duty work for the employer. On examination the employee presented with some chronic paravertebral swelling on the lower lumbar area as well as discomfort on palpation over the lumbar spine and to the hips. Her physician=s assistant, Ms. Jones, noted that she had not yet seen the results of the examination by Dr. Henke. She continued the employee on restrictions with modifications to the weight limit on lifting, but noted that the employee should be reevaluated in three weeks and that there could then be Ahopefully removal of more of the restrictions.@ She reiterated a recommendation to the employee to consider obtaining counseling for chronic pain. (Exh. B; Finding 22 [unappealed].)
The employee was terminated from the Beltrami Nursing Home on April 10, 1997 for alleged misconduct. She began looking for other work in early May 1997, but despite a reasonably diligent job search had not found employment through the date of hearing below. (Findings 24-25, 35.)
On April 16, 1997 the employee telephoned the Walker Clinic to cancel her upcoming appointment and request that her treatment records be forwarded to her attorney. She sought no medical care over the next several months, until September 23, 1997, when she began treating chiropractically with Larry Stember, D.C. Dr. Stember diagnosed an Aacute traumatic thoraco lumbar injury resulting in strain/sprain, vertebral subluxation complex and myofascitis.@ The employee was treated by regularly scheduled chiropractic adjustment and Dr. Stember=s notes record gradual improvement within a month or so. On December 2, 1997, Dr. Stember released her from regularly scheduled treatment and noted that she had Aplateaued at a level far less than full recovery.@ In his opinion, the injury had resulted in a ratable permanent partial disability and necessity for ongoing work restrictions. The employee continued to treat chiropractically one to two times per month with Dr. Stember from January, 1998 through the date of hearing. (Exhs. B, F; Finding 26.}
On September 29, 1997 the employee filed a claim petition seeking temporary total disability benefits from April 10, 1997 and continuing, medical expenses in amounts to be determined, rehabilitation services, retraining and permanent partial disability compensation in an amount to be determined. The employer and insurer answered by denying liability and affirmatively alleging that maximum medical improvement had been reached and that the employee had been terminated for misconduct. (Judgment Roll.)
The employee was examined by Dr. Nolan Segal on May 26, 1998 for the employer and insurer. On examination, Dr. Segal found only some limited forward flexion of the lumbar spine which he attributed to hamstring tightness. He recommended that the employee engage in a home exercise program for strengthening and flexibility of the lower back and general conditioning. In his opinion, the employee did not need additional formal treatment or any restrictions or limitations in her activities. Like Dr. Dean, he also suspected functional overlay, based on Amultiple references in the records to anxiety symptoms and possible secondary gain involvement.@ Dr. Segal again examined the employee on April 20, 1999. After this second examination he found no evidence of any significant change since his prior evaluation in May 1998. (Exh. 3; Finding 27.)
On February 16, 1999 the employer filed an amended claim petition which set forth the percentages of permanent partial disability claimed. (Judgment Roll.)
The employee=s claims were heard before a compensation judge of the Office of Administrative Hearings on May 18, 1999 and June 21, 1999. Following the hearing, the compensation judge found, in addition to other findings not relevant to this appeal, that the employee=s injury on July 14, 1996 resulted in a temporary lumbar spine injury and subsequent exacerbations from which the employee had fully recovered by May 26, 1998. The judge found that treatment rendered had been reasonable and necessary through December 1997. Temporary total disability compensation and medical expenses were awarded consistent with these dates. The remainder of the employee=s claims were denied. The employee appeals from the finding of a temporary, rather than a permanent injury.
STANDARD OF REVIEW
On appeal, this court must determine whether the compensation judge's findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1(3) (1992). Substantial evidence supports the findings if, in the context of the record as a whole, they "are supported by evidence that a reasonable mind might accept as adequate." Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Factfindings may not be disturbed, even though this court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Id.
The compensation judge accepted the conclusions of Dr. Nolan Segal and rejected the opinion of Dr. Stember regarding the temporary nature of the employee=s injury. He found that maximum medical improvement had been shown to have occurred by the date of Dr. Segal=s first examination. Based on the chiropractic records, the judge found that the treatment rendered by Dr. Stember through December 1997 was reasonable and necessary, but that treatment after that time was excessive and not beneficial to the employee.
The employee points out that Dr. Segal=s reports state that the employee exhibited guarding behaviors on examination and reported discomfort during portions of the range of motion testing. She argues that these notations, together with examination findings of swelling and spasm by other physicians in 1996 and 1997, form a sufficient basis to support an award of permanent partial disability and contradict Dr. Segal=s opinion of a temporary injury with full recovery. We disagree. It is clear from Dr. Segal=s opinion that he attributed the employee=s guarding behavior and complaints of discomfort to probable functional overlay and secondary gain. We cannot conclude that Dr. Segal=s opinions were contradicted by his examination findings, which revealed a full range of motion and no spasm or swelling. The compensation judge did not err in accepting Dr. Segal=s opinion.
Generally, this court must affirm a compensation judge=s choice between the differing opinions of medical experts unless the opinion relied upon is without adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The opinions of Dr. Segal had sufficient foundation, and we must affirm the compensation judge=s acceptance of that doctor=s opinion over the opinion of Dr. Stember.
Based on the bulk of the employee=s brief in this matter, it appears that the employee=s principal remaining argument is that, if the employee had introduced additional medical opinion supporting her claim, the judge might have reached a different conclusion, and the employee argues that the employee was hampered in obtaining medical care both by the distance to the Walker Clinic to which the employer had initially sent her and by the employer and insurer=s refusal to pay further medical expenses based on the maximum medical improvement opinion of Dr. Henke. Our review is limited to consideration of the evidence in the record. This court cannot consider the employee=s vague and unsupported speculations about what other physicians might have concluded had they been consulted. The employer and insurer reasonably relied upon the medical opinion of Dr. Henke in disputing the employee=s need for further treatment. The employee was at liberty to obtain further medical evaluation to assist her claim. That she did not do so is not here a sufficient cause for reversal.