ELLIE S. BANKS, Employee, v. AMERICAN BLDG. MAINTENANCE and CAN-RSKCO, Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 24, 2002
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion and the employee=s testimony, supports the compensation judge=s finding that the employee had not reached maximum medical improvement.
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s finding that the employee=s physical restrictions were causally related to her December 2000 work injury.
Determined by Rykken, J., Wilson, J., and Stofferahn, J.
Compensation Judge: Harold W. Schultz II.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal the compensation judge=s denial of the employer and insurer=s petition to discontinue based on his findings that the employee had not reached maximum medical improvement and that the employee had restrictions related to her work injury. We affirm.
Ms. Ellie S. Banks, the employee, began working for American Building Maintenance, the employer, in 1989. She worked as a cleaner, and later was promoted to a supervisory and assistant manager position, but continued to perform janitorial duties. Although this appeal relates to an injury the employee sustained on December 12, 2000, while working for the employer, the employee also sustained previous work-related injuries to her low back while working for the same employer, on February 10, 1989, March 8, 1999, and April 5, 2000. In addition, the employee injured her low back as a result of slipping and falling on three occasions in November and December 1994 and December 1998, and her medical records refer to additional slip and fall incidents. She was also involved in two nonwork-related automobile accidents, one in October 1994, and another on March 19, 1996, which resulted in injuries to her low back, mid-back and neck. After the 1996 accident, an MRI of the employee=s lumbar spine indicated multiple level bulges and degenerative disc disease.
Following her work-related injury on March 8, 1999, the employee consulted Dr. Charlene Ulstad, who had been her primary treating physician since approximately 1994, reporting tenderness over the lower lumbar paraspinal musculature radiating into her left hip. Dr. Ulstad restricted the employee from work for one week, and thereafter provided work restrictions of no repetitive bending or squatting,no lifting over ten pounds and allowance for frequent breaks. On June 22, 1999, the employee consulted Dr. Ulstad, reporting continued pain and advising that she was experiencing difficulty performing her required janitorial duties including carrying trash, cleaning bathrooms, sweeping and mopping. Dr. Ulstad assigned additional restrictions of no carrying trash, no bending to clean toilets, no lifting greater than 10 pounds, no bending, twisting, stooping or repetitive activities. By July 23, 1999, the employee reported to Dr. Ulstad that her employer had followed her work restrictions fairly closely at work. However, the employee at times continued to work beyond these restrictions, as reflected by her medical records and testimony.
The employee continued to treat for low back symptoms with Dr. Ulstad through 2000 for ongoing low back strain, including for symptoms experienced following an injury at work on April 4, 2000, when she slipped on a wet floor, twisting and pulling her low back. An October 25, 2000, MRI of the lumbar spine indicated mild degenerative changes of the L4 disc. On November 1 and December 11, 2000, the employee again consulted Dr. Ulstad for low back pain. Dr. Ulstad recommended physical therapy for strengthening her back.
On December 12, 2000, the employee sustained an admitted work injury when she fell down a flight of 9-10 stairs while working at the Minneapolis-St. Paul International Airport. The employee injured her back, neck and shoulder, and later developed urinary problems she had not experienced before this injury. At the time of this injury, the employee was 52 years old and earned a weekly wage of $540.00. The employee has not returned to work since this injury.
The employee initially treated at an emergency room, and then consulted Dr. Ulstad on December 15, 2000. She reported significant stiffness and soreness in her low back; Dr. Ulstad diagnosed an acute soft tissue injury, restricted the employee from work and prescribed physical therapy. The employee continued to have pain in her abdomen and down her right leg, and received follow-up treatment with Dr. Ulstad. On February 28, 2001, the employee was evaluated by Dr. Ashish Shanbhag, HealthEast Bethesda Pain Center. He recommended intralaminar epidural steroid injections at the L4-5 level, and possibly additional steroid injections and discography, and also suggested an opoid or narcotic pain management regimen for eight weeks. The employee apparently refused to follow his recommendations. On March 5, 2001, Dr. Zohreh Mahdavi conducted a neurological evaluation of the employee at the referral of Dr. Ulstad, primarily to address the employee=s complaints of falling. MRI scans of the brain, cervical and thoracic spine elicited normal results. Dr. Mahdavi recommended an EMG of the employee=s right arm and leg, but the employee refused that testing. Dr. Ulstad=s March 13, 2001, chart note refers to her concerns about the employee=s bowel and bladder issues and Amaybe ataxic gait with more falls not necessarily related to tripping or slipping.@ By June, Dr. Ulstad referred the employee for a chronic pain program consultation.
On July 11, 2001, the employee was evaluated by Dr. Gary Wyard at the request of the employer and insurer. Dr. Wyard concluded that the employee had reached maximum medical improvement from all work injuries, including the December 12, 2000, work injury which he diagnosed as a sprain/strain type injury. Dr. Wyard found that the employee had no specific objective findings to support her subjective complaints, she did not have any physical restrictions as a result of any work injury, she was capable of returning to her pre-injury position on a full time basis, and that she was not in need of any care or treatment, but that she needed to lose weight and be in a conditioning program. On July 23, 2001, the employer and insurer served Dr. Wyard=s report on the employee along with notice of maximum medical improvement.
On July 16, 2001, Dr. Lon Lutz, HealthEast Midway Pain Clinic, examined the employee at the referral of Dr. Ulstad, at which time the employee reported neck, shoulder and low back pain radiating into her legs. Dr. Lutz initially recommended conservative treatment for reconditioning, including warm pool therapy and amitriptyline to help facilitate sleep. Dr. Lutz also treated the employee with an epidural injection with no significant relief.
In August 2001, the employee began a pool therapy program at Regions Physical Therapy, upon referral from Dr. Lutz. In a letter from Dr. Ulstad dated September 12, 2001, she stated as follows:
Ms. Banks sustained an injury at work on December 12, 2000. Since that time she has remained unable to return to work. She continues to struggle just to do small tasks at home, unable to accomplish all her cleaning and home tasks. She is currently enrolled in a strengthening program/pool therapy and making very slow progress. She continues to have chronic pain.
She remains unable to return to work at this time, but I am hopeful that with this intensive strengthening program that she will continue to make progress. We continue to treat for pain control and support her needs beyond this.
In a September 27, 2001, chart note, the employee=s physical therapist noted that the employee was progressing, but that her goals had not yet been met. The employee did not continue in this program apparently due to the employer and insurer=s denial of payment for ongoing therapy.
In a letter dated October 3, 2001, Dr. Ulstad stated that she had reviewed the employee=s recent job description proposal, and concluded that the employee was unable to carry out the duties outlined in that proposal. Dr. Ulstad also stated as follows:
I have been hopeful in the past of her ability to recover more fully, but I am beginning to believe that she will continue to deal with chronic pain and decreased mobility. Certainly she deserves a chance to complete her pool therapy strengthening program, and I am hopeful that this will at least decrease her need for pain medications into the future.
In his report of December 1, 2001, Dr. Lutz stated that the employee was not at maximum medical improvement and that the employee would benefit from the pool therapy program, improving her ability to stand, walk, and perform sedentary tasks. Dr. Lutz also indicated that the employee had restrictions related to the December 12, 2000, injury, including sedentary tasks only, no lifting over 15 pounds, no repetitive activities without stretching of her upper extremity, overhead work, only occasional bending, twisting or extending of the lumbar spine, and changing positions every 30 minutes.
On October 5, 2001, the employer and insurer filed a petition to discontinue benefits based upon Dr. Wyard=s opinion, alleging that the employee had reached maximum medical improvement and that the employee had no physical restrictions related to her December 12, 2000, work injury. The employee filed an objection to discontinuance on November 13, 2001, and a formal hearing was held on December 5, 2001. In findings and order served and filed on January 4, 2002, the compensation judge denied the employer and insurer=s petition to discontinue, finding that the employee had not reached maximum medical improvement from her December 12, 2000, work injury and that she has physical restrictions causally related to that injury. The employer and insurer appeal.
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. 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 and insurer argue that substantial evidence does not support the compensation judge=s finding that the employee had not yet reached maximum medical improvement. Maximum medical improvement is defined as "the 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." Minn. Stat. '176.011, subd. 25. Maximum medical improvement "occurs 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). Whether maximum medical improvement has been reached is a question of ultimate fact for the compensation judge to decide. Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989). The burden of proving maximum medical improvement is normally on the employer and insurer. Burns v. Firestone Tire & Rubber, slip op. (W.C.C.A. June 29, 1993).
The compensation judge found the employee had not reached maximum medical improvement from her December 12, 2000, work injury and that she has physical restrictions causally related to that injury. The employer and insurer argue that the December 12, 2000, work injury should be considered a temporary aggravation, that the employee had reached maximum medical improvement for the injury, and that any continuing restrictions are related to her pre-existing conditions resulting from prior incidents. The compensation judge relied upon the opinions of Dr. Ulstad and Dr. Lutz, and also considered the employee=s testimony regarding her symptoms. Dr. Ulstad had noted that the employee was unable to work in September 2001, but that an intensive strengthening program could help her progress and decrease her need for pain medication. The compensation judge noted that the employee had been making progress in her strengthening program.
It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). The compensation judge chose not to accept Dr. Wyard=s opinion, and instead relied upon the medical opinions of Drs. Lutz and Ulstad. While there is evidence that the employee had prior low back symptoms due to multiple causes, the compensation judge emphasized that the employee had continued to work on a full-time basis, even beyond her restrictions, until the December 12, 2000, injury. Further, Dr. Lutz specifically related the employee=s need for work restrictions to the December 12, 2000, injury. The compensation judge concluded that the employee may be able to do sedentary work after completion of her pool therapy. Substantial evidence supports the compensation judge=s finding that the employee had not reached maximum medical improvement from the December 12, 2000, work injury and that she has physical restrictions causally related to that injury. Accordingly, we affirm those findings and his denial of the employer and insurer=s petition to discontinue benefits.