PAMELA SMITH, Employee, v. COUNTRY MANOR HEALTH CARE and ST. PAUL FIRE & MARINE INS. CO., Employer-Insurer, and CIGNA HEALTHCARE, Intervenor.
WORKERS' COMPENSATION COURT OF APPEALS
JANUARY 31, 2000
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES CONSTRUED - MINN. R. 5221.6050, SUBP. 8A. A "medical complication" permitting departure from durational treatment limits under Minn. R. 5221.6050, subp. 8A, is not limited to situations where the work injury has brought about a wholly new, secondary medical condition, but includes situations where a pre-existing condition is affected by the work injury, in combination with which a more complicated course of symptoms, disability and treatment results. Substantial evidence, including medical records, expert medical opinion and the employee=s lay testimony, here supported both a finding of a documented medical complication and the judge=s determination that a departure from the medical treatment parameters was reasonable during the period of chiropractic treatment in dispute.
Determined by Wheeler, C.J., Wilson, J., and Pederson, J.
Compensation Judge: John Ellefson
STEVEN D. WHEELER, Judge
The employer and insurer appeal from the compensation judge's award of chiropractic expenses from September 1996 through November 1997. We affirm.
The employee, Pamela Smith, sustained a work-related injury to the low back on November 7, 1983 while working for the employer, Country Manor Health Care, as a nurse=s aide. (T. 18-19; Finding 3.)
The employee was initially treated by Dr. Thomas L. Wyne who diagnosed an acute back strain. Dr. Wyne took the employee off work entirely for about two weeks, after which she returned to work with the employer under work restrictions in lighter duty work on a part-time basis, gradually increasing to full time. The employee received physical therapy treatments under Dr. Wyne=s direction through January 1984. During March 1984 Dr. Wyne permitted the employee to attempt work without restrictions but the employee experienced a recurrence of her back pain and Dr. Wyne reimposed a 15-pound lifting limitation in April 1984. Dr. Wyne then referred the employee to an orthopedic surgeon, Dr. Jerry A. Iverson. (T. 19-24; 1.A.)
The employee apparently was first seen by Dr. Iverson on July 26, 1984. X-ray studies revealed that the employee had preexisting Scheuermann=s disease of the spine which had been asymptomatic prior to the work-related low back injury. Dr. Iverson=s diagnosis was Scheuermann=s disease with resultant back strain secondary to lifting. He rated the employee=s work-related disability at five percent of the whole body. He recommended that the employee undergo further physical therapy, home exercise training and a low back school. He opined that the employee=s discomfort would clear but would be subject to later recurrences. Dr. Iverson also advised the employee that her occupation as a nursing aide was not physically appropriate for her due to the lifting involved, and recommended that she discontinue that occupation and seek employment which did not require any lifting. The employee continued working in a light-duty job for the employer until she found clerical work in an insurance company some time in November 1984. The employee treated under Dr. Iverson=s direction through November 23, 1984, on which date she had only mild back discomfort and was advised to return only on an as-needed basis. (Exh. 1.A; T. 19-25.)
From November 1984 until September 1993, the employee continued to experience some muscle tightness and moderate back pain on an ongoing basis, as well as periodic flare-ups which she was able to control with her back exercises. The employee did not specifically seek treatment for her low back during this period although she did receive some chiropractic adjustments which included the low back area while she was treating for an unrelated cervical problem. (T. 25-35.)
In the fall of 1993, the employee experienced a flare-up of her low back symptoms which she was unable to control with exercise and over-the-counter medications. She began treating chiropractically with Dennis Woggon, D.C. The employer and insurer initially paid for the chiropractic treatments. After September 25, 1996, however, the insurer denied further payment for chiropractic care on the basis that the employee had exhausted passive treatment to the extent allowed under the medical treatment parameters which came into effect from and after January 1995. The employee continued to treat with Dr. Woggon on an as-needed basis for her low back condition until November 3, 1997, after which date she has not sought further low back treatment through the date of hearing on May 5, 1999. (T. 13, 36, 72.)
On August 5, 1998 the employee filed a medical request seeking reimbursement for the chiropractic treatment from September 25, 1996 through November 3, 1997. The employer and insurer responded by denying liability on the basis that the treatment was unrelated to the injury, was not reasonable and necessary and was in excess of the passive care treatment permitted under the medical treatment parameters. On December 29, 1998 a representative of the Commissioner of Labor and Industry issued an administrative decision and order denying the medical request. The employee filed a request for formal hearing, and a hearing was held before a compensation judge of the Office of Administrative Hearings on May 5, 1999. The compensation judge found that the treatment in dispute was causally related to the employee=s work injury, that the treatment was reasonable and necessary, that the employee=s pre-existing Scheuermann=s disease was asymptomatic until the work injury caused it to become symptomatic, that the combination of the employee=s preexisting Scheuermann=s disease and the superimposed work injury constituted a documented medical complication of the employee=s work-related injury and that a departure from the durational limits on chiropractic care was appropriate. The employer and insurer appeal from the finding of a documented medical complication and from the determination that a departure from the durational limits is appropriate. (Judgment Roll.)
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.
Under Minn. R. 5221.6200, subp. 3A, the use of clinical passive treatment modalities for low back pain is not indicated beyond 12 weeks. However, Minn. R. 5221.6050, subp. 8A, permits a departure from these durational limits where there is a documented medical complication. The compensation judge found that the superimposition of the employee=s low back strain upon her pre-existing Scheuermann=s disease constituted a documented medical complication within the meaning of this rule.
The employer and insurer first argue, in essence, that the term Adocumented medical complication@ may refer only to a situation where a work injury is the precipitating cause of a subsequent complicating condition, not to situations where, as here, a work injury operates on and together with a preexisting condition to render the employee=s care more complicated. We find no basis for this distinction in the context of the treatment parameters.
As a medical term, a Acomplication@ has been defined as Aa disease or diseases concurrent with another disease,@ and as Athe concurrence of two or more diseases in the same patient.@ Dorland's Illustrated Medical Dictionary 363 (28th ed. 1994). This definition does not require that one disease cause the other. Further, it is a long-standing rule of workers= compensation in Minnesota that an employer/insurer is liable if the employment aggravates, accelerates or combines with a pre-existing infirmity to produce a disability. Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200 (1960); Swanson v. American Hoist & Derrick Co., 214 Minn. 323, 8 N.W.2d 24 (1943). This is so because workers' compensation law requires the employer to take the employee as it finds her. E.g., Wallace v. Hanson Silo Co., 305 Minn. 395, 396-97, 235 N.W.2d 363, 363-64 (1975); 1 Larson, The Law of Workmen's Compensation, ' 12.22 (1990). We conclude that the term Amedical complication,@ must also be read within the scope of this broad underlying principle. Accordingly, a medical complication within the rule is not limited to situations where the work injury has brought about a wholly new, secondary medical condition, but includes situations where, as here, a pre-existing condition is affected by the work injury, in combination with which a more complicated course of symptoms, disability and treatment results.
The employer and insurer next appear to argue that the employee=s situation does not constitute a Adocumented@ medical complication because Athe records of the employee=s treating doctors and chiropractor do not refer to the Scheuermann=s disease as a medical complication.@ However, while the medical records do not specifically use the term Amedical complication,@ we note that the records of Dr. Iverson specifically state that
[t]he patient has sustained a back injury on a pre-existing condition which has resulted in the present persisting discomfort . . . [which] is subject to recurrence.
(Exh. 1.C: 7/26/84 letter report at 2.)
Similarly, Dr. Woggon explained the manner in which the employee=s situation was complicated by the superimposition of the low back strain over her pre-existing Scheuermann=s disease:
A pre-existing condition, although dormant and asymptomatic, may be aggravated, activated or accelerated when traumatized. An individual with a precarious disposition, when further subjected to strain or trauma, may become markedly and protractedly symptomatic expressive. In addition, a trauma superimposed upon pre-exi[s]ting condition causes substantially more injury due to the pre-existing instability. This will also cause an acceleration of future degenerative changes due to increased weakness and instability. . . It is common in cases such as these to see remissions and exacerbations for no apparent external reason. Due to a structural weakening of the spinal column, traumatically induced, she can anticipate future recurrence of the pain in the lumbo-sacral regions, from time to time. . .
(Exh. B at 1, 2.)
We conclude that the compensation judge reasonably found that a medical complication was adequately documented, and further conclude that substantial evidence, including medical records, expert medical opinion, and the employee=s lay testimony, supports the judge=s determination that a departure from the medical treatment parameters was reasonable during the period of chiropractic treatment in dispute.
 In their Notice of Appeal, the employer and insurer listed as appealed the judge=s findings regarding causation and the reasonableness and necessity of treatment, among others. However, in their brief, the appellants argue only the issues of whether there is a documented medical complication and whether a departure from the treatment parameters is appropriate. Pursuant to Minn. R. 9800.0900, subps. 1 and 2, issues raised in the notice of appeal but not addressed in the appellants= brief are deemed waived.