JAMES T. REGAN, Employee/Appellant, v. VOA NAT=L HOUSING and CNA INS. CO./VALLEY FORGE INS., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 20, 2000
PRACTICE & PROCEDURE - ADEQUACY OF FINDINGS. A compensation judge is not required to refer to or discuss every piece of evidence introduced at the hearing. In this case, the compensation judge was clearly aware of all of the evidence bearing on the issue of maximum medical improvement, and her decision comports with the requirements of Minn. Stat. ' 176.371.
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s finding that the employee attained maximum medical improvement effective June 18, 1999, despite a subsequent worsening of his condition in November 1999.
Determined by: Johnson, J., Wheeler, C.J., and Wilson, J.
Compensation Judge: Jeanne E. Knight
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s finding that he reached maximum medical improvement by June 18, 1999, and the compensation judge=s denial of temporary total disability benefits from and after September 13, 1999. We affirm.
James T. Regan, the employee, sustained a personal injury to his neck and upper back on March 30, 1998, while working for VOA National Housing, the employer, insured by CNA Insurance Company/Valley Forge Insurance. The employee was removing a trash container from an elevator when the door closed on his neck, upper back and shoulder and pinned him in the elevator for 15 to 25 seconds. (T. 42.) The employer and insurer admitted liability for the employee=s personal injury.
On April 16, 1998, the employee saw John W. Petersen, D.C., complaining of neck and thoracic pain and pain in his right rib cage following a work injury. On examination, Dr. Petersen noted cervical muscle tenderness and spasm on the right, with limited range of motion and thoracic spine tenderness. X-rays showed a loss of cervical lordosis and disc degeneration. Dr. Petersen diagnosed a cervical and thoracic sprain/strain and commenced chiropractic treatment. (Pet. Ex. H.) The employee continued to work under restrictions imposed by Dr. Petersen until October 6, 1998, when the doctor took the employee completely off work. (T. 53-55.) The employee did not thereafter return to work for the employer. (T. 53.)
On December 9, 1998, Dr. Robert M. Roach, a neurosurgeon, examined the employee at the request of Dr. Petersen. The doctor recorded that the employee=s March 30, 1998 injury resulted in left-sided neck pain with radiation into the right thumb and index finger. On examination, the doctor noted marked tenderness in the neck and paracervical muscles bilaterally, out of proportion to the degree of palpation, minimal muscle spasm and a normal neurologic examination. Dr. Roach reviewed the x-rays taken by Dr. Petersen and a cervical MRI scan performed on October 1, 1998. He interpreted the scan as showing a central disc bulge at C3-4 and C6-7 with no evidence of cord or nerve root compression. Dr. Roach concluded the employee had no surgical lesion, and diagnosed a cervical pain syndrome without evidence of radiculopathy on examination or x-ray. The doctor recommended Flexeril and continued conservative management. (Resp. Ex. 7.)
On December 16, 1998, Dr. Bruce M. Tennebaum, a neurologist, examined the employee on referral from Dr. Petersen. The doctor diagnosed neck pain with pain and numbness radiating down the right arm secondary to a cervical strain and soft tissue injuries. The doctor prescribed Ibuprofen and cervical traction. Dr. Tennebaum stated the employee could work subject to a 34 pound lifting restriction with avoidance of overhead work and avoidance of frequent reaching, stretching, twisting or bending. Dr. Tennebaum re-examined the employee on December 28, 1998. The doctor noted he initially planned to obtain an EMG, but changed his mind because the employee had improved considerably. Dr. Tennebaum reported the employee had shooting pains in his right arm only if he moved his neck forcibly to the left. On examination, the doctor noted a mild limitation of lateral flexion to the left and right with normal strength and reflexes. Dr. Tennebaum recommended the employee return to work within the restrictions previously outlined. (Pet. Ex. G.)
On March 2, 1999, the employee was seen by John J. Meyer, D.C. The doctor diagnosed a probable mild right-side cervical spinal cord irritation/compression at C4-5 and right-sided neck pain. An EMG performed by Dr. Meyer that same day showed evidence of bilateral carpal tunnel syndrome and bilateral ulnar neuropathies. Dr. Meyer concluded the employee might be experiencing some spinal cord irritation and recommended the employee be re-evaluated by Dr. Tennebaum. (Pet. Ex. I.)
Dr. Tennebaum re-examined the employee on April 5, 1999. On examination, the doctor noted moderate limitation of extension and positive finger flexor signs which the doctor did not note before. A repeat MRI scan on April 13, 1999, showed mild central and right-sided bulging discs at C5-6 and C6-7 with a mild left-sided C3-4 foraminal narrowing. Dr. Tennebaum re-examined the employee on April 14, 1999, and found mild cervical muscle spasm and mild limitation of motion in all directions. He diagnosed a chronic cervical strain with some chronic cervical radiculitis but without evidence of nerve root compression. Dr. Tennebaum recommended permanent restrictions of no frequent bending, lifting, twisting or reaching and no overhead work or lifting in excess of 34 pounds. Finally, the doctor stated the employee had reached maximum medical improvement (MMI). (Pet. Ex. G.)
By report dated June 8, 1999, Dr. Tennebaum again stated the employee had reached MMI by April 14, 1999. The doctor rated a 10 percent permanent partial disability secondary to chronic cervical pain syndrome, which he related to the March 10, 1998 personal injury. (Pet. Ex. G.) The parties stipulated Dr. Tennebaum=s report of June 8, 1999 was served on the employee on June 18, 1999. (Finding 21.)
The employee sought no further medical treatment until he returned to see Dr. Tennebaum on August 16, 1999. The employee reported an onset of severe left-sided neck pain a month previously with radiation into his right thumb. Dr. Tennebaum diagnosed an exacerbation of a cervical strain with radicular symptoms, hypertension and restless affect. The doctor questioned whether the employee had an underlying medical problem or a superimposed chronic pain syndrome. He prescribed further physical therapy. On September 13, Dr. Tennebaum reported the employee continued to have symptoms of neck pain on the left with right arm pain and numbness and headaches, blurred vision and left facial numbness. He believed the employee had a significant chronic pain syndrome, and questioned whether the employee was able to work given his chronic pain. The doctor recommended further diagnostic studies and prescribed Zoloft, an antidepressant. Dr. Tennebaum stated he would consider a referral to a chronic pain program if the diagnostic workup was negative. On September 29, 1999, Dr. Tennebaum found marked limitation of cervical motion in all direction with mild muscle spasm. (Pet. Ex. F, G.)
On September 30, 1999, the employee was examined by Dr. Timothy A. Garvey, an orthopedic surgeon. The doctor stated his examination did not support a diagnosis of carpal tunnel syndrome. He recommended a non-operative program emphasizing active range of motion of the cervical spine, aerobic conditioning and upper and lower body strengthening. Dr. Garvey opined the employee was capable of light duty employment. (Pet. Ex. J.)
The employee returned to see Dr. Tennebaum on November 1, 1999, with continued complaints of left-sided neck pain and right arm weakness. The doctor diagnosed a cervical strain, cervical radicular syndrome and chronic pain syndrome. The doctor stated the employee needed a chronic pain program.
On November 16, 1999, the employee was seen by Dr. Matthew Monsein, director of the Chronic Pain Program at the Sister Kenny Institute. Following an examination, the doctor diagnosed a history of cervical strain from degenerative cervical disc disease, moderate depression and hypertension. Dr. Monsein found no obvious functional overlay and felt a pain program was an option. However, the doctor recommended further diagnostic studies to rule out any potentially correctable pathology. (Pet. Ex. K.)
An MRI scan taken on November 18, 1999, was unchanged from the prior study. (Pet. Ex. F at 33.) The employee returned to see Dr. Tennebaum on December 20, 1999. On examination, the doctor found marked limitation of cervical motion in all directions. He recommended an EMG of the right arm and an exercise program. Dr. Tennebaum stated he previously opined the employee had reached MMI in April 1999, but since that time a superimposed chronic pain process had arisen. The doctor stated the employee had not reached MMI from this condition. An EMG on January 13, 2000, was compatible with bilateral carpal tunnel syndrome, right greater than left. On February 8, 2000, Dr. Tennebaum re-examined the employee. The doctor noted that although the EMG was consistent with carpal tunnel syndrome, the employee=s symptoms did not fit a carpal tunnel syndrome. In any event, the doctor testified the personal injury did not cause carpal tunnel syndrome. Rather, the doctor opined the employee had primarily a soft tissue injury with some underlying degree of cervical radiculitis and a superimposed chronic pain syndrome. Dr. Tennebaum recommended a chronic pain program which he opined might significantly improve the employee=s coping ability, that is, the Aability to function at a level which someone with his kind of injury should be expected to function at.@ (Pet. Ex. F at 37-43, Ex. G.) Dr. Tennebaum testified the employee had reached MMI relative to his cervical radiculitis and the soft tissue cervical spine injury, but not from the chronic pain syndrome. (Pet. Ex. F.)
Dr. Paul Yellin examined the employee on January 21, 2000, at the request of the employer and insurer. On examination, the doctor noted limited lateral rotation, questionable findings on flexion and extension and a touch-me-not response to pressure in the cervical area. Dr. Yellin diagnosed cervical pain syndrome with multi-level degenerative disc disease. The doctor opined the employee sustained a cervical strain-type injury on March 30, 1998, which he concluded resolved without any residual problems or permanent disability. He stated the employee=s complaints of hand numbness and tingling might result from carpal tunnel syndrome or ulnar neuropathies, but opined that neither condition was caused by the March 30, 1998 injury. The doctor opined the MRI scans demonstrated long-standing degenerative disc disease at multiple levels which predated the employee=s personal injury. Based solely on the pre-existing disc disease, Dr. Yellin recommended restrictions on the employee=s work activities. Finally, Dr. Yellin agreed with Dr. Tennebaum that the employee had reached MMI from his injuries by June 8, 1999. (Resp. Ex. 5.)
Dr. Monsein re-examined the employee on March 10, 2000. The employee reported his symptoms had worsened, and he was willing to look at a pain rehabilitation program. On examination, Dr. Monsein noted paracervical tenderness and loss of range of cervical motion. The doctor diagnosed multi-level degenerative cervical disc disease, myofascial pain syndrome, chronic pain syndrome and situational depression. The doctor thought it reasonable to obtain another surgical opinion because AI do not think that bringing the patient into the pain program at this point would be reasonable if in the back of the patient=s mind there is this belief that something could be done to >fix= his pain.@ The doctor thought the employee was a candidate for a trial with trigger point injections and physical therapy and a referral to a physiatrist at Sister Kenny. If neither of those approaches was beneficial in eliminating or reducing the employee=s symptoms, then involvement in a pain rehabilitation program would be beneficial. The doctor was concerned, however, that the employee was becoming Amore distressed@ and that anxiety, fear and depression were becoming more significant factors. Dr. Monsein further explained to the employee that Ait is certainly possible for his pain to increase even if his underlying physical condition does not change due to the stress.@ (Pet. Ex. K.)
The employee filed a claim petition in July 1999, seeking payment of temporary total disability benefits and 10 percent permanent partial disability benefits. By an Order on Discontinuance filed October 20, 1999, the employer and insurer were allowed to discontinue temporary total disability benefits effective September 12, 1999. The employee filed an Objection to Discontinuance that was consolidated with his claim petition. The case was heard by a compensation judge at the Office of Administrative Hearings on March 14, 2000. In a Findings and Order dated May 22, 2000, the compensation judge found the employee reached MMI effective June 18, 1999, and denied the employee=s claim for temporary total disability benefits after September 13, 1999. The compensation judge further found the employee became medically disabled from employment on November 1, 1999, based on the opinion of Dr. Tennebaum. The judge, however, denied benefits under Minn. Stat. ' 176.101, subd. 3(j) because the employee was not working at the time he became medically unable to work. The employee appeals the compensation judge=s MMI finding and the denial of temporary total disability benefits.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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, "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 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, findings of fact should not be disturbed, even though the reviewing 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
The employee asserts the compensation judge=s finding of MMI was made in a Aperfunctory fashion without explanation,@ is internally inconsistent with the judge=s other findings, is unsupported by substantial evidence and is based on a misapplication of case law. (Ee Brief, p. 9.) The employee further asserts the compensation judge did not review all of the evidence on the issue, but instead found MMI based simply on the fact that the employee was served with Dr. Tennebaum=s June 8, 1999 report. Accordingly, the employee asks this court to reverse the compensation judge=s MMI finding.
The employee first argues the compensation judge=s MMI finding was Aperfunctory@ and made without review of all of the evidence. We find little merit to this argument. A compensation judge is not required to refer to or discuss every piece of evidence introduced at the hearing. Braun v. St. John's Univ., slip op. (W.C.C.A. July 20, 1992); see Rothwell v. Minnesota Dep't of Natural Resources, slip op. (W.C.C.A. Dec. 6, 1993) (fact that compensation judge did not recite all medical evidence favoring appellant's position in findings and order does not establish that that evidence was overlooked). Moreover, the compensation judge=s decision Ashall include a memorandum only if necessary to delineate the reasons for the decision or to discuss the credibility of witnesses.@ Minn. Stat. ' 176.371. The compensation judge in this case made specific findings of fact with respect to Dr. Tennebaum=s change of opinion regarding MMI and the examinations by Dr. Monsein. (Findings 16-20.) The compensation judge was clearly aware of all of the evidence bearing on MMI and after weighing the evidence concluded the employee had reached MMI. This factual finding resolved a disputed issue and the decision comports with Minn. Stat. ' 176.371.
Maximum medical improvement means Athe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability, irrespective and regardless of subjective complaints of pain.@ Minn. Stat. ' 176.011, subd. 25. Maximum medical improvement Aoccurs upon medical proof that the employee=s condition has stabilized and will likely show little further improvement.@ Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740, 742 (W.C.C.A. 1987). Maximum medical improvement is an issue of ultimate fact to be determined by the compensation judge after considering medical records, medical opinions, and other relevant evidence. Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989).
The compensation judge found the employee reached maximum medical improvement effective June 18, 1999. The compensation judge further found the employee Abecame medically disabled from employment on November 1, 1999, the date Dr. Tennebaum reported he should hold off on return to work until he was seen at the chronic pain program and a repeat MRI was performed.@ (Finding 23.) The employee contends these findings are inherently inconsistent. The judge cannot, the employee asserts, find the employee is totally disabled as a result of his chronic pain syndrome and at the same time find he is at maximum medical improvement. Accordingly, the employee argues the MMI finding must be reversed. In support of this assertion, the employee cites Scheiterlain v. Lantz Lenses, 50 W.C.D. 447 (W.C.C.A. 1994), Merrick v. Chosen Valley Care Center, slip op. (W.C.C.A. Dec. 22, 1997) and Ettedgui v. Master Craft Cabinets, slip op. (W.C.C.A. Jan. 13, 1999).
The fact that the employee became medically unable to work in November 1999 is a factor the judge may consider in deciding whether the employee has reached MMI. However, it is not necessarily a determinative factor. In Hammer, the supreme court in noted an employee may be at MMI even though the employee is totally disabled and unable to return to work. Hammer at 530, 41 W.C.D. at 641. Nor are we persuaded by the cases cited by the employee. Each of the cases is an affirmance, on substantial evidence grounds, of a compensation judge=s decision on the ultimate issue of maximum medical improvement. Such affirmances have little precedential value. Rather, the question is whether the compensation judge=s finding regarding MMI in this case is supported by substantial evidence in view of the entire record as submitted.
The employee argues that his condition worsened after June 1999 and he developed a chronic pain condition. In November 1999, Dr. Tennebaum took the employee off work, diagnosed chronic pain syndrome and recommended treatment. Dr. Monsein recommended further diagnostic tests and a chronic pain program. Since the compensation judge found the employee totally disabled as of November 1, 1999, the employee argues the judge implicitly concluded the employee=s condition had deteriorated. Given his worsened condition and the lack of treatment for the chronic pain syndrome, the employee argues the compensation judge=s finding of MMI must be reversed.
Contrary to the employee=s argument, a change in an employee=s condition for the worse is not necessarily inconsistent with a finding that maximum medical improvement has been reached. Krutsch v. Federal Cartridge, 48 W.C.D. 156 (W.C.C.A. 1992); Wilson v. Decker Lumber Co., 46 W.C.D. 319 (W.C.C.A. 1991). The issue is whether the employee=s condition will significantly improve. In any event, substantial evidence of record supports the compensation judge=s determination.
Dr. Tennebaum has consistently diagnosed a chronic soft tissue injury. On April 14, 1999, he re-examined the employee and noted his condition was essentially unchanged. The doctor concluded the employee had reached maximum medical improvement because Ahis symptoms had been persistent with waxing and waning and fluctuations, but overall persistent since his injury which was March of 1998, so this is over a year later.@ Dr. Tennebaum felt there was nothing further he could do in terms of treatment to help the employee with his symptoms. (Pet. Ex. F at 16-18.) In his June 8, 1999 report, Dr. Tennebaum diagnosed a chronic cervical pain syndrome, and again stated the employee had reached MMI by April 14, 1999. Dr. Yellin examined the employee on January 21, 2000, and found no unusual objective findings to substantiate any residual problems relating to the employee=s injury. Dr. Yellin agreed with Dr. Tennebaum that the employee had reached maximum medical improvement by June 8, 1999. The employee has had three cervical MRI scans. The most recent scan in November 1999 was unchanged from the scan on April 13, 1999. The medical evidence supports a conclusion that the employee=s condition had stabilized by June 8, 1999, and would likely show little further improvement. The compensation judge=s finding that the employee had attained MMI with service of Dr. Tennebaum=s report on June 8, 1999 is, accordingly, affirmed. Temporary total disability benefits cease 90 days after the employee reaches MMI. Minn. Stat. ' 176.101, subd. 1(j).
 See Minn. R. 5223.0370, subp. 3.C.(2).
 Subdivision 3j was repealed in 1995. The correct cite is Minn. Stat. ' 176.101, subds. 1(e)(2) and 1(j).
 Although the employee listed finding 24 (in which the compensation judge concluded he was not entitled to recommencement of temporary total disability benefits) in his notice of appeal, in his brief, the sole argument was that the employee had not reached MMI as of June 18, 1999, thus any issue with respect to the application of Minn. Stat. ' 176.101, subd. 1(j) is deemed waived.