DEBORAH J. BUSSE, Employee, vs. HEALTHEAST, SELF-INSURED/BERKLEY RISK ADM=RS CO., Employer-Insurer, and PRIMARY BEHAVIORAL HEALTH CLINICS, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 14, 2002
CAUSATION - AGGRAVATION; CAUSATION - PSYCHOLOGICAL INJURY. Substantial evidence, including medical records and witness testimony, supports the compensation judge=s conclusion that the employee=s work injury substantially aggravated the employee=s pre-existing psychological condition.
Determined by: Rykken, J., Johnson, J., and Pederson, J.
Compensation Judge: Gary M. Hall
MIRIAM P. RYKKEN, Judge
The self-insured employer appeals from the compensation judge=s conclusion that the employee=s work-related injury substantially aggravated her pre-existing psychological condition, and his resulting award of payment for medical expenses related to psychological treatment. The self-insured employer also appeals from the compensation judge=s conclusion that as a result of her injury, the employee requires reasonable physical work restrictions, and that the employee has not made a fraudulent claim for benefits. We affirm.
On June 13, 1998, Deborah Busse, the employee, was employed by HealthEast, self-insured employer, as a nurse. On that date, she sustained an admitted injury to her low back, while assisting a patient. On that date, the employee was 34 years old and earned a weekly wage stipulated by the parties to be sufficient to entitle her to the maximum compensation rate.
Following this injury, the employer paid temporary total and temporary partial disability benefits for various periods of time through June 29, 2000, in addition to rehabilitation expenses and medical expenses related to treatment for the employee=s low back. The employee has received conservative care for her low back symptoms since her injury, including epidural steroid injections, pain medication, chiropractic treatment, and exercise. Post-injury, the employee attempted to continue working within physical work restrictions assigned by her treating physicians, and the employer provided light-duty work during various periods of time, but the employee was unable to return to her same job duties and at times was unable to work.
By June 1999, the employee=s treating physician, Dr. Michael Messieh, referred her to Dr. Paul Hartleben for an orthopedic evaluation due to her persistent symptoms. Dr. Hartleben diagnosed Achronic low back pain very characteristic of discogenic or symptomatic annular tear.@ He recommended treatment options, including permanent activity modification, epidural steroid injections, or spinal surgery, with surgery conditioned upon discography and further counseling. (Er. Ex. 3.) A discogram conducted on October 25, 1999, showed severe symptomatic annular tearing at the L5-S1 level, with symptoms unresolved by standard nonsurgical treatment. Dr. Hartleben thereafter recommended spinal fusion surgery. He alternatively suggested intradiscal electrothermal annuloplasty (IDET) treatment, and referred the employee to Dr. Lon Lutz, Medical Advanced Pain Specialists (MAPS) for consultation on the IDET procedure.
On December 8, 1999, the employee underwent a neurological examination with Dr. Daniel Randa at the request of the employer. Dr. Randa diagnosed Alumbar strain superimposed upon degenerative lumbar spondylolsis at L5-S1" as a result of the work-related injury on June 13, 1998. He concluded that the changes noted on the employee=s MRI scan were minimal, and were of the type and magnitude frequently found in the asymptomatic population. As a result, Dr. Randa concluded that aggressive surgical intervention with IDET or spinal fusion would be inappropriately invasive and aggressive, and recommended against surgical intervention of any type. Dr. Randa recommended conservative treatment, including cessation of smoking, an attempt to taper off narcotic analgesics, amitriptyline to assist with pain control, and a regular exercise program. Dr. Randa concluded that the employee could return to work eight hours per day, with restrictions of avoiding lifting more than 30 to 40 pounds on a regular basis, and that she Ashould simply use good judgment and avoid any exercises that would seem to aggravate her pain.@ Dr. Randa also concluded that the degenerative changes of the employee=s lumbar spine were asymptomatic, pre-existing, and unrelated to her pain complaints. (Er. Ex. 2.)
The employee=s medical records include repeated references to the stress she reported experiencing due to her work injury and the resulting pain. In July 1999, the employee complained of lack of sleep, continued pain, and side effects from pain medication. In August 1999, the employee=s nurse practitioner increased the employee=s Paxil prescription as the employee reported depression with ongoing back pain and delays with proposed surgery; in October 1999, the nurse diagnosed depressive anxiety symptoms related to the employee in anticipation of smoking cessation as well as chronic pain issues, and again increased her Paxil prescription. In October 1999, United Hospital records show that the employee was tearful and Afrustrated with the system,@ and reported that although she enjoyed her work as a case manager for HealthEast home care, and would love to do her job, she cannot sit or be active as required by her job. She also reported that her family was frustrated with her condition. In February 2000, the employee reported uncontrollable crying spells when an MRI scan was taken. The evidence also shows, and the employee=s testimony corroborates, that additional personal stressors existed, such as financial problems, marital distress, and an investigation conducted to address allegations of bank fraud conducted by the employee.
Between January and April 2000, the employee participated in a rehabilitation program supervised by Dr. Joseph Wegner, Physicians Neck and Back Clinic, while she continued to work for the employer on a part-time basis. Dr. Wegner then referred her to United Pain Center for management and coordination of her pain medication, and also discussed the possibility of a psychological consultation if the employee felt Aher coping skills [were] eroding.@ (Ee. Ex. 4.) On May 9, 2000, the employee consulted with John Patrick Cronin, Ph.D., licensed psychologist, Primary Behavioral Health Clinics, Inc. He diagnosed the employee as having a chronic pain syndrome and a major depressive disorder, recurrent in nature. He recommended individual psychotherapy and clinical biofeedback and provided psychotherapy counseling to the employee through January 22, 2001. Dr. Cronin consulted with Drs. Hartleben and Lutz concerning the employee=s treatment and medications prescribed by other physicians. (T. 140-141.)
On May 26, 2000, the employee consulted with Dr. Bruce Bartie, D.O., for further treatment recommendations. Dr. Bartie recommended against surgery but suggested consideration of the IDET procedure.
On June 5, 2000, the employee underwent a psychiatric evaluation with Thomas Gratzer, M.D., at the employer=s request. Dr. Gratzer diagnosed Apain disorder associated with psychological factors and a general medical condition,@ along with Apersonality disorder with histrionic and dependent features.@ He noted that the employee had developed an addiction to narcotic pain medication and recommended chemical dependency evaluation with more general chronic pain management. Dr. Gratzer also concluded that the employee would benefit from a multi-disciplinary chronic pain management program to address her medical problems, psychological issues and pain management skills. Dr. Gratzer also recommended that the employee=s psychiatric concerns be fully addressed prior to proceeding with any surgery.
Drs. Randa and Gratzer both issued supplemental reports, after reviewing updated medical records. In his report of June 23, 2000, Dr. Randa again concluded that the employee was not a surgical candidate. He concluded that psychological factors were likely the predominant basis for her recalcitrant pain complaints, and that the employee=s Aclinical picture [was] most compatible with psychogenic chronic pain complaints.@ He again determined the employee was not totally disabled from work, that she could lift up to 40 to 50 pounds, but that she should not work with patients who require considerable moving and lifting.
In his supplemental report of August 22, 2000, Dr. Gratzer again concluded that the employee was able to function vocationally from a psychiatric perspective. Dr. Gratzer again recommended a multi-disciplinary approach, including a chronic pain evaluation at a site that provided multi-disciplinary coordination of treatment with adjunct psychiatric medication evaluation and treatment by a psychiatrist. He commented that weekly pain management treatment with Dr. Cronin, in the absence of intervention by other disciplines, would not be sufficient to address the employee=s current psychiatric needs. Dr. Gratzer concluded that there was a functional component to the employee=s presentation, and that psychological testing indicated a strong somatic focus.
The employer denied primary liability for any consequential psychological injury, and therefore denied payment for medical expenses related to psychological or psychiatric treatment. On July 3, 2000, the employer filed a Notice of Intention to Discontinue Workers= Compensation Benefits (NOID), advising of discontinuance of temporary partial disability benefits. The employer alleged that there was no causal relationship between the employee=s June 13, 1998 injury and her psychological condition, and alleged that the employee was able to work on a full-time basis. Following an administrative conference held on August 23, 2000, a compensation judge concluded that there was insufficient medical evidence to support the employee=s removal from work, and concluded that no temporary partial disability benefits were owed, as the employee was not working, and that no grounds existed for reinstatement of temporary total disability benefits.
The employee filed an objection to discontinuance and on November 7, 2000, she also filed a claim petition, alleging payment for temporary total disability benefits from June 30, 2000, along with payment for psychological treatment expenses, based on a consequential psychological/psychiatric injury in the nature of depression resulting from her admitted low back injury on June 13, 1998. On November 8, 2000, the self-insured employer petitioned to discontinue benefits, alleging that since at least October 21, 2000, the employee had feigned psychological and physical symptoms for the purpose of obtaining workers= compensation benefits. The employer also alleged that the employer had work available for the employee within her physical work restrictions, that the employee had no loss of earning capacity as a result of her low back injury, and that she required no additional medical care of any type as a result of that injury.
The employee=s objection to discontinuance and claim petition were consolidated with the employer=s petition to discontinue and were addressed at hearing held on February 28, 2001. In Findings and Order served and filed April 26, 2001, the compensation judge found that the employee=s pre-existing psychological condition was significantly aggravated by her June 13, 1998 low back injury, and that the disputed psychological treatment was reasonable and necessary and causally related to the employee=s work injury. The compensation judge denied the employee=s claim for temporary total disability between June 3 and November 22, 2000, finding that she was able to work on a full-time light-duty basis. The compensation judge also found that the employee had not made a fraudulent claim for benefits. The self-insured 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.
Consequential Psychological Injury
The compensation judge found that the employee=s pre-existing psychological condition was significantly aggravated by her low back work injury and the pain resulting from that injury. Based on this finding, the compensation judge found that the disputed psychological treatment, rendered by Primary Behavioral Health Clinics and John Patrick Cronin, Ph.D., was compensable. The self-insured employer appeals, arguing that it was her personal non work-related circumstances, and not the employee=s low back injury, that aggravated the employee=s psychological condition, specifically, financial and family-related stressors and a fraud investigation related to the employee=s banking accounts.
Questions of medical causation fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). It is well settled that injuries are compensable if the employment is a substantial contributing factor not only to the cause of the condition but also to the aggravation or acceleration of a pre-existing condition. Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975). An employee need not prove that the employment was the sole cause, only a substantial contributing cause of the disability for which benefits are sought. Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989).
Medical reports in evidence refer to depression and anxiety experienced by the employee prior to her injury, and also refer to her ongoing reports of emotional stress following that injury. The employee testified that in 1983 or 1984, she received chemical dependency treatment due to alcohol use. (T. 34-35.) In May 1997, the employee requested prescription medication to attempt smoking cessation, as she previously experienced crying jags and depression while trying to quit smoking. In November 1997, the employee reported shortness of breath and poor sleep patterns, and was diagnosed with tachycardia, which her doctor attributed to stress resulting from the employee working 60-70 hours per week while attending school and providing care for her three children. In August 1998, the employee reported that she had depression symptoms for approximately one year, and that due to marital issues, she had been feeling sad, crying, gaining weight and had trouble sleeping. Her physician prescribed Paxil, an antidepressant, and discussed counseling and family therapy. (Ee. Ex. 4(1).)
The employee also testified about the stress resulting from her ongoing low back pain and the financial and emotional impact caused by her work injury. It is the compensation judge=s responsibility to assess the credibility of the employee=s testimony concerning the personal stress resulting from the after-effects of her injury. Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)). In his findings, the compensation judge referred to the potential effect of personal issues and pre-existing problems on the employee=s psychological condition. In an unappealed finding, he found:
The employee=s medical history reflects a preexisting psychological condition which has manifested itself in complaints of stress, depression, and difficulty sleeping. These complaints were associated with interpersonal relationships including a rocky marriage, the stress of finishing her nursing degree, the stress of attempting to quit smoking, and the death of her father. She has also been diagnosed with a personality disorder which makes it difficult for her to handle these stressors.
In his memorandum the compensation judge acknowledged that the employer questioned the employee=s credibility, and stated:
Although the employee=s credibility has been successfully called into question here, I am convinced that she sustained a L5-S1 herniated disc on June 13, 1998. I am primarily persuaded by the MRI scans and the consistency of the employee=s initial complaints to her doctors. Of significant interest is her repeated right-sided complaints before there was MRI confirmation of right nerve root involvement.
The psychological condition is a closer call because of the possibility that personal issues and preexisting problems may have only coincidentally attended the work injury. However, I am convinced by a preponderance of the medical evidence that the work injury and resultant pain is a significant contributing factor in the employee=s current psychological condition. It is also clear the psychological issues need to be addressed prior to any invasive therapy.
(Memo. p. 4.)
The employer argues that the evidence of record, including the employee=s testimony, shows that the employee=s personal issues and related stress led to the employee=s need for psychological treatment. However, the employee=s testimony and medical records support the compensation judge=s conclusion that the employee=s work injury and resultant pain significantly contributed to the employee=s current psychological condition. As it is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge, Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990), we will not disturb the inferences reached by the compensation judge concerning the psychological impact of the employee=s injury. There are multiple references in the employee=s medical records concerning her depression and emotional stress related to her low back injury and ongoing symptoms. In view of the evidence of record, and in deference to the compensation judge=s assessment of the credibility of the employee=s testimony, we affirm the compensation judge=s finding that the employee=s work injury of June 13, 1998, significantly aggravated her pre-existing psychological condition. We therefore also affirm the compensation judge=s award for payment of the resulting psychological treatment through Primary Behavioral Health Clinics and John Patrick Cronin, Ph.D.
At hearing, the self-insured employer alleged that the employee fraudulently claimed benefits. In that we have affirmed the compensation judge=s finding that the employee sustained a consequential psychological injury as a result of her 1998 low back injury, and his finding that medical expenses related to psychological treatment are compensable, we need not further address this issue.
Physical Work Restrictions
The compensation judge found that although the employee is able to work on a full-time basis, she is subject to restrictions. He found as follows:
The employee=s physical condition does require reasonable physical restrictions. A preponderance of the evidence supports the need for Amoderate@ restrictions as set forth in Dr. Bartie=s May 26, 2000 Report of Workability. It does not support the need for restrictions on her normal full-time work schedule. Full-time light duty work would be appropriate in this case.
(Finding 8.) The employer appeals, arguing that the employee requires no physical work restrictions related to her low back condition, and that in so deciding, the compensation judge erroneously relied on the treating physician=s opinions.
Medical records prepared since the employee=s 1998 injury repeatedly refer to physical work restrictions assigned by various treating physicians. In 2000, Drs. Wegner, Hartleben and Cronin all restricted the employee to less than full-time work. Similarly, Dr. Bartie, on whom the compensation judge relied, concluded that the employee could work three one-half days per week with moderate restrictions for her back. Considering those restrictions, and in view of the entire record in this matter, it was not unreasonable for the compensation judge to conclude that the employee=s physical condition requires reasonable physical restrictions. Accordingly, we affirm.
The employer also argues that surveillance tapes clearly demonstrated that the employee was not physically restricted. One of the private investigators who prepared the videotape testified at the hearing about his observations of the employee=s activities; he admitted that he could not state with certainty that he observed the employee lifting anything weighing more than twenty pounds, the weight limit to which she was restricted by Dr. Bartie. (T. 125.)
In his memorandum, the compensation judge referred to the surveillance videotape and testimony presented by the investigator, and concluded that such evidence Awas not persuasive with regard to any allegation of malingering, allegations of fraud, or as evidence in opposition to her physical and psychological diagnoses.@ He also concluded that such evidence did not establish that the employee engaged in lifting activities outside her restrictions. The compensation judge concluded that such testimony and videotape, however, Awere persuasive with regard to the inappropriateness of any restriction on work hours, and in raising the issue of whether she had alternative sources of income.@
Inherent in his finding concerning the employee=s physical work restrictions are the compensation judge=s assessments of the credibility of the employee=s and the investigator=s testimony. We conclude that the compensation judge=s findings concerning the employee=s physical work restrictions are supported by substantial evidence of record, including medical evidence and witness testimony. In view of that evidence and the compensation judge=s assessment of credibility of witness testimony, we affirm the compensation judge=s finding that the employee requires reasonable physical restrictions.
 The record does not identify the employee=s weekly wage on the date of injury, but shows that the employer paid temporary total disability benefits at the compensation rate of $615.00 per week. (Judgment Roll.)
 An MRI scan taken on October 27, 1998, showed mild degenerative disc disease at L5-S1 with mild central focal protrusion. A repeat MRI scan taken on February 21, 2000, showed a worsening of the employee=s condition with a slight increase in the size of her disc extrusion at the L5-S1 level with some contact on the exiting right S1 nerve root. (Ee. Ex. 4, Finding No. 2.)
 Dr. Cronin testified that according to Diagnostic Statistics Manual IV, American Psychiatric Association, the actual diagnosis for chronic pain syndrome is described as Apain disorder associated with both psychological factors and a general medical condition.@ (Cronin Depo., p. 134.)
 The judgment roll does not contain an answer to the employee=s claim petition filed by the employer and insurer.