PEGGY ONSRUD, Employee, v. HONEYWELL, SELF-INSURED/SEDGWICK CLAIMS MGMT., Employer/Appellant, and BLUE CROSS/BLUE SHIELD OF MINN., MEDICAL ADVANCED PAIN SPECIALISTS, UNUM LIFE INS. CO., and MN DEP=T OF LABOR & INDUS./VRU, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 25, 2000
CAUSATION - GILLETTE INJURY. Substantial evidence, including expert opinion, supported the compensation judge=s finding that the employee sustained a Gillette-type injury as a result of her work activities.
MAXIMUM MEDICAL IMPROVEMENT. Where the compensation judge concluded that the employee had not reached MMI because she was a surgical candidate, where substantial evidence did not support the conclusion that the employee was in fact actually a surgical candidate, and where the record would support alternative findings as to whether and, if so, when the employee had reached MMI, the matter was remanded for reconsideration.
Affirmed in part, reversed in part and remanded.
Determined by Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Gary P. Mesna
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge=s decision that the employee sustained a Gillette-type injury on October 12, 1998, and from his finding that the employee has not reached maximum medical improvement as a result of that injury. We affirm the judge=s decision on the first issue but reverse and remand on the second.
The employee began working in the food service department of Honeywell [the employer] in 1977, employed at several different jobs before becoming a banquet service worker in August of 1997. The banquet service job required the employee to load carts with items necessary to fill breakfast and lunch orders in the employer=s facility. Such items might include full 100-cup coffee urns, paperware, plates, serving utensils, food, chafing dishes, and sometimes china. After filling the carts with the appropriate items, the employee would take them from the employer=s kitchen to their destinations elsewhere in the employer=s building, sometimes taking two carts at once by pushing one while pulling the other. Upon reaching her destination, the employee set the food and beverages up before returning to the kitchen for another delivery. Later, after the food was consumed, the employee would return to clean up and bring the carts and leftover items back to the kitchen. The employee considered this to be physical work; the carts were very heavy when full, and loading chafing dishes and especially coffee urns into the carts required heavy lifting, twisting, and bending.
The employee testified that she began to experience periodic dull backaches after beginning the banquet service job, which she would treat with aspirin, but she sought no formal medical care for these symptoms until after October 12, 1998, a vacation day, when she awoke with severe back pain. The following day, she consulted Dr. Merle Mark, her usual family physician, for Aback pain, high in the left flank at the low rib cage with minimal radiation.@ Noting the presence of a rash during a subsequent office visit, Dr. Mark began treating the employee for shingles. However, the employee=s flank and back pain persisted, and Dr. Mark consequently referred the employee to Dr. Scott Schultz. An MRI scan performed on November 10, 1998, revealed disc protrusions or herniations at T10-11 and T8-9. Treatment for this condition included medications, physical therapy, and periodic epidural steroid injections.
Initial treatment records for several weeks after October 12, 1998, contain no mention of the employee=s work activities, and in a statement to the employer dated October 19, 1998, the employee indicated that she had no idea Ahow it [her condition] happened.@ However, in April of 1999, in response to a lengthy written history provided to him by the employee=s attorney, Dr. Schultz related the employee=s thoracic condition to her work activities as a banquet server. In contrast, Dr. Mark Friedland, who examined the employee on the employer=s behalf in May of 1999, indicated that the employee=s thoracic condition was not causally related to her work. Dr. Friedland also reported that the employee was not a candidate for surgery, that she required no further treatment other than exercise, and that she had reached maximum medical improvement [MMI]. The doctor=s report to this effect was served on the employee on May 17, 1999.
In November of 1999, Dr. Schultz referred the employee to Dr. David Kraker for a surgical consultation, indicating to Dr. Kraker that the employee had Ainitially responded well to conservative treatment with thoracic epidural injections and physical therapy [but that] her pain is now becoming refractory to injection therapy.@ In his report of December 10, 1999, Dr. Kraker wrote, in part, that the employee was a Apotential@ surgical candidate, but he recommended that the employee A[live] with her pain@ until the employee felt surgery was necessary to improve her symptoms and functional level. No return appointment with Dr. Kraker was scheduled, and the employee was advised to follow-up with Dr. Schultz.
In his report of January 18, 2000, Dr. Schultz wrote that thoracic surgery Ashould be considered as a last resort@ but that an implanted intrathecal pump might offer effective chronic pain management if the employee=s pain should persist beyond two years post injury. Dr. Schultz also recommended a functional capacities evaluation, indicating, however, that the employee could in the meantime return to work with a fifteen-pound lifting limit and no frequent or repetitive stooping, bending, or twisting.
The employee claimed entitlement to various benefits as a result of a Gillette-type injury culminating on October 12, 1998, and the matter came on for hearing before a compensation judge on February 8, 2000. In a decision issued on March 9, 2000, the compensation judge determined, in relevant part, that the employee had sustained a Gillette injury as claimed and that she had not reached MMI from the effects of her injury. The employer appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey 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 evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[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). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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 employer contends that the compensation judge=s Gillette injury finding is not supported by substantial evidence. In support of this contention, the employer points out that the employee=s medical records do not support her testimony that she experienced periodic backaches prior to October 12, 1998, and that no physician tied the employee=s symptoms to her work for weeks after her treatment began. In fact, as the employer notes, even Dr. Schultz did not connect the employee=s condition to her work activities until he received a letter from the employee=s attorney, seeking medical support for the employee=s claim. However, the truth of these allegations notwithstanding, we find no basis to overturn the judge=s determination.
The compensation judge expressly accepted the opinion of Dr. Schultz over the opinion of Dr. Friedland. Dr. Schultz rendered his opinion in response to a lengthy letter from the employee=s attorney that outlined the employee=s symptoms and explained the nature of the employee=s work in some detail. The fact that Dr. Schultz did not render a causation opinion until asked for one was something for the compensation judge to weigh and constitutes no grounds for reversal. Moreover, the substance of the foundational letter from the employee=s attorney is generally consistent with the employee=s testimony and her treatment records.
A judge=s choice between conflicting expert opinions will not be overturned on appeal unless the facts assumed by the expert are not supported by the record as a whole. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). As we find no basis to overturn the judge=s choice between experts here, and because Dr. Schultz=s opinion constitutes adequate medical evidence to support the judge=s Gillette injury finding, we affirm the judge=s decision on this issue.
MMI is defined as Athe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based on reasonable medical probability.@ Minn. Stat. ' 176.011, subd. 25. The judge=s finding as to MMI in the present case reads, AThe employee has not reached maximum medical improvement. She is a surgical candidate, as indicated by Dr. Kraker, and surgery would likely result in significant improvement.@ The judge did not discuss the issue elsewhere in his findings or memorandum. After review of the record, we are compelled to reverse the judge=s decision.
The pertinent portion of Dr. Kraker=s consultation report reads as follows:
DISCUSSION/PLAN: Peggy appears to be most symptomatic from the herniation at the T10-11 or from disc degeneration at the thoracolumbar junction. She is a potential surgical candidate because of her failure to improve with conservative treatment. Such surgery is purely elective. It needs to be based on her pain or functional level. She notes that her pain is tolerable as long as she lies down frequently and she avoids such activities as vacuuming. She is presently not working as there is no light duty work. Prior to making any definite surgical recommendations, she would need thoracolumbar discography. However, I have recommended she only consider this if she truly is strongly considering surgical treatment to improve her pain and functional level. Otherwise, I would recommend living with her pain until that time arrives. No return appointment scheduled. She can follow up with Dr. Schultz.
(Emphasis added.) When asked at hearing about her appointment with Dr. Kraker, the employee testified, AHe told me basically until I couldn=t get out of bed or tolerate it at all they wouldn=t do surgery because they don=t -- they rarely do thoracic surgery.@ There is no evidence that the employee is Astrongly considering surgical treatment,@ as specified in Dr. Kraker=s report, or that any further investigation of that potential treatment option is planned; Dr. Schultz noted only that he considered surgery a last resort. Given this evidence--the only evidence suggesting surgery as a treatment option--the judge erred in relying on the employee=s arguable status as a Asurgical candidate@ in concluding that the employee had not reached MMI.
The record generally suggests that the employee=s symptoms have remained relatively stable since at least May of 1999, when Dr. Friedland=s MMI report was served, except for occasional flareups that have been treated with epidural injections. There is certainly evidence that would support the conclusion that the employee reached MMI effective with service of Dr. Friedland=s report. However, a reasonable mind might instead conclude that the employee did not reach MMI until the results were in from Dr. Kraker=s surgical consultation. There may also be other considerations, not obvious to us here on appeal, that might bear on the issue of whether, and if so when, the employee reached MMI. Therefore, because MMI is a finding of ultimate fact, see Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989), because the record might well support alternative decisions on the issue, especially as to date, and because we can conclude only that the judge=s rationale--potential surgery--is not supported by the record, we reverse and remand the matter for reconsideration and further findings. The judge=s decision on remand should include any necessary findings as to notice of MMI.