LESLIE HENSCHEL, Employee, v. IDS #196 - ROSEMOUNT, SELF-INSURED/BERKLEY ADMR'S, Employer, and HEALTHPARTNERS, INC., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 22, 2002
CAUSATION - PERMANENT INJURY. Substantial evidence, including the opinion of the employee=s treating physician, supports the compensation judge=s finding that the employee=s work injury on October 16, 1995, was in the nature of a permanent injury.
PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the employer=s medical expert determined that the employee had not sustained a permanent injury as a result of her work-related injury, and where the employee=s medical records, as found by the compensation judge, do not contain the elements outlined in Minn. R. 5223.0370, subp. 3.B., the compensation judge=s finding that the employee sustained a rating of zero percent permanent partial disability of the whole body was supported by substantial evidence of record.
APPORTIONMENT - PERMANENT PARTIAL DISABILITY. Where the employee had a pre-existing medical condition relative to her cervical spine, and where the employee later sustained a permanent injury to her cervical spine as a result of a work-related injury but was assigned a rating of zero percent permanent partial disability to the whole body as a result of that work-related injury, no apportionment of that rating is appropriate pursuant to Minn. Stat. ' 176.101, subd. 4a, as there is no level of permanency that can be apportioned.
MEDICAL TREATMENT & EXPENSE - MEDICAL MILEAGE. Substantial evidence, including the opinion of the employee=s treating physician, supports the compensation judge=s award of a portion of claimed medical expenses and medical mileage.
Determined by: Rykken, J., Johnson, J., and Pederson, J.
Compensation Judge: Cheryl LeClair-Sommer
MIRIAM P. RYKKEN, Judge
The self-insured employer appeals from the compensation judge=s finding that the employee sustained a permanent injury on October 16, 1995, from the compensation judge=s assignment of a zero percent permanency rating, and from the compensation judge=s conclusion that no apportionment of that rating is appropriate pursuant to Minn. Stat. ' 176.101, subd. 4a. The employer also appeals from the compensation judge=s award of payment for certain medical expenses and medical mileage, and her award of provision of a rehabilitation consultation. We affirm.
On October 16, 1995, Leslie Henschel, the employee, sustained an admitted injury to her cervical spine, in the nature of a cervical sprain, while employed by Independent School District #196, the employer. On that date, the employer was self-insured for workers= compensation liability in the state of Minnesota. Born in 1947, the employee was 48 at the time of her injury.
The employee has worked for the employer for approximately 17 years. For the past 16 years, she has been employed in the PACE Program, working with EBD (emotionally or behaviorally disturbed) students. She works as a classroom aide and program support assistant, tutoring students. During the 1995-1996 school year, her duties expanded to include data entry. She worked at a computer for two and a half hours during the school day, during the first and second periods and fifth periods of the school day. Due to the configuration of the computer and monitor screen set-up, the employee experienced neck pain after looking up at the monitor and working on the keyboard. The employee first consulted her physician at the Park Nicollet Medical Center on October 31, 1995, complaining of neck pain and left shoulder blade area pain commencing on October 16, 1995, which developed when she utilized the computer. Dr. Walcher diagnosed a cervical strain. The employee initially underwent ultrasound and massage therapy and cervical traction through Park Nicollet, and has received ongoing medical treatment; the employee=s medical records since 1995 indicate ongoing symptoms, which her physicians related to her work-related injury.
The employee has a significant medical history relative to her cervical spine. In 1963, at age 16, the employee was involved in an automobile accident in which she sustained a herniated disc in her cervical spine. She underwent two cervical fusion surgeries in 1963 and 1964; following those surgeries, the employee received medical treatment until approximately 1967 or 1968, in the nature of physical therapy, cortisone injections and wearing of a neck brace. Between 1968 and 1995, the employee received medical treatment during two different periods. She fell while playing racquetball, in the late 1980s or early 1990s, and consulted an emergency room physician, who prescribed three days of muscle relaxants. The employee=s symptoms resolved, and she was able to resume her usual activities, including racquetball. In 1994, the employee noticed a recurrence of her symptoms in her neck and shoulder area, after spring cleaning and gardening. She consulted her treating physician, Dr. David Walcher, who prescribed physical therapy. She performed home exercises, and resumed her usual activities, testifying that she was able to do Awhatever I wanted to do.@ (T. 42-44.)
As of February 1996, Dr. Walcher diagnosed the employee=s condition as a cervical strain with history of cervical spine fusion and possible degenerative joint disease of the cervical spine. At her physician=s recommendation, she performed pool exercises and underwent physical therapy at Courage Center between February and April 1996. Due to her ongoing symptoms in her neck, shoulder and radiating pain in her hand, the employee was prescribed Prednisone therapy, trigger point injections and electroacupuncture. As of September 4, 1997, the employee reported Afair ability to sleep and do her regular job, poor ability to do heavy housework and yard work.@ By January 15, 1998, the employee was diagnosed with A[c]hronic pain disorder associated with both psychological factors and cervical pain.@ The employee underwent an evaluation at the Physician=s Neck and Back Clinic on April 8, 1998. The assessing physical therapist and doctor recommended a short-term, active rehabilitation program to restore the employee to optimal functioning, and advised that the employee could continue to work during this rehabilitation program. She attended 27 rehabilitation sessions in 1998.
On August 21, 1998, the employee first consulted Dr. Marlon Rimando, in the physical medicine and rehabilitation department at Park Nicollet Clinic. In Dr. Rimando=s report of April 19, 1999, he outlined the type of treatment the employee underwent through the Park Nicollet Clinic, stating:
She has had physical therapy evaluation by Rehabilitation Psychology, Lifestyle, Renewal Program, Med-X Program, used a neck brace, Theracane, Accupoint Stimulator, TENS Unit and various medications for pain control. Additional treatments included Prolo Therapy, trigger point injection, spray-stretch techniques, acupuncture, chiropractic and massage therapies. I believe that the treatments that she has received thus far by me were reasonable and medically necessary to relieve the effects of her injury.
(Ee. Ex. 1.)
Dr. Rimando assigned physical work restrictions, and specifically concluded that the employee was unable to return to her previous type of work that involved computer use for extended periods of time. He concluded that the employee had sustained 3.5 percent permanent partial disability of the body as a whole, and concluded that the employee=s work-related injury was a substantial contributing cause of that permanent disability. Dr. Rimando concluded that the employee had reached maximum medical improvement at the time of his April 19, 1999 report, and recommended future medical treatment including pain medications, trigger point injections, acupuncture and chiropractic care.
Dr. Rimando referred the employee to Dr. Mary Ryken for a second opinion. On May 24, 1999, Dr. Ryken conducted a neurological evaluation of the employee, and diagnosed the employee with chronic neck and shoulder pain with myofascial pain syndrome, and medial and lateral epicondylitis. Dr. Ryken concluded that the employee would benefit from prolotherapy.
On January 25, 1999, the employee underwent an independent orthopedic examination with Dr. Mark Wikenheiser, at the request of the self-insured employer. Dr. Wikenheiser diagnosed the employee as being post-fusion surgery at the C5-6 and C6-7 levels, with mild degenerative changes noted throughout the cervical spine related to that fusion, and also diagnosed a cervical strain in October 1995. Dr. Wikenheiser concluded that the employee=s ongoing symptoms primarily related to the degenerative changes which resulted from her prior trauma, and concluded that the employee sustained a soft tissue cervical strain in October 1995, which lasted for a 6 to 12 week period. He concluded that the employee would have required treatment, in the nature of chiropractic or physical therapy, for a period of 6 to 12 weeks, and that any treatment beyond that time period was not causally related to the employee=s 1995 work injury. He determined that the employee had reached maximum medical improvement by approximately October 1996, and sustained no permanency as a result of her October 1995 injury. He also concluded that additional medical care may be necessary, but that none would be related to the employee=s October 1995 injury. (Er. Ex. 1.)
On July 12, 1999, the employee was involved in an automobile accident when her automobile was rear-ended. She obtained chiropractic treatment from July 20, 1999, through at least September 10, 1999. The employee testified that following her automobile accident in July 1999, she reported a neck injury to her no-fault insurance carrier, and that although she received chiropractic treatment for both neck and low back pain, her treatment was primarily to her back. She also testified that she was involved in a pedestrian accident on October 4, 2000, when she was in the school parking lot and a student Aclipped her with his car.@ She was not knocked down, but her lower back was hit. She received medical treatment for her low back following this accident.
As of February 19, 2001, Dr. John Dunne, Park Nicollet Clinic, concluded that the employee could work within physical work restrictions of no lifting over ten pounds and no climbing and sitting, standing and walking with change in posture every half hour as needed. He recommended pain medication and additional physical therapy.
On August 30, 1999, the employee filed a claim petition, alleging entitlement to a 3.5 percent permanent partial disability of the body as a whole and payment for medical expenses received at Park Nicollet Medical Center and Physicians Neck and Back Clinic. The employee also requested approval for prolotherapy treatments. In its answer, the self-insured employer alleged that the employee=s injury of October 16, 1995, was temporary in nature, with a duration of 6 to 12 weeks, and that the employee=s current condition and disability solely related to her pre-existing nonwork-related disability. HealthPartners, Inc., intervened, claiming entitlement to reimbursement for medical expenses in the amount of $1,797.50.
A hearing was held on March 28, 2001. In Findings and Order served and filed June 26, 2001, the compensation judge found that the employee=s October 16, 1995, work injury resulted in a permanent injury to the cervical spine in the nature of a cervical sprain and that the employee=s injury was not attributable to her pre-existing condition. She found that the employee sustained a permanent partial disability of zero percent pursuant to Minn. R. 5223.0370, subp. 3.A. The compensation judge awarded a portion of the intervenor=s request for reimbursement, but denied payment for seven medical treatments rendered at Park Nicollet Medical Center in 1998 and 2000, related to psychogenic pain and shoulder symptoms, as they were not causally related to the employee=s October 16, 1995 injury. The compensation judge also denied payment for the claimed medical mileage expenses related to those denied treatment dates, and awarded the remaining mileage of 3,969.5 miles, corresponding to medical treatment the employee received between January 1996 and March 2001. In an unappealed finding, the compensation judge also denied the employee=s claim for recommended prolotherapy treatments. 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.
"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo." Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).
Permanent Nature of Injury
The compensation judge found that as a result of the October 16, 1995, work injury, the employee sustained a permanent injury to her cervical spine in the nature of a cervical sprain. The compensation judge also found that the employee has sustained a permanent partial disability rating of zero percent, pursuant to Minn. R. 5223.0370, subp. 3.A. The employer appeals, arguing that the compensation judge erred in concluding that the employee sustained a permanent injury on October 16, 1995. The employer apparently also appeals from the judge=s assignment of a zero percent permanency rating, arguing that the compensation judge exceeded her scope of authority by finding that the employee sustained a permanent injury pursuant to the decision in Weber v. Inver Grove Heights, 461 N.W.2d, 43 W.C.D. 471 (Minn. 1990), when no Weber claim was pled by the employee.
We first address the issue of the permanent nature of the employee=s injury on October 16, 1995. The employer argues that the compensation judge erred by finding a permanent injury, and that the evidence of record does not support that finding. The employer argues that none of the employee=s medical providers determined that the employee had sustained a permanent injury. We disagree. Although there is conflicting medical evidence concerning the nature of the employee=s injury, the record contains medical support for the judge=s conclusion that the employee sustained a permanent injury to her cervical spine. In his report of April 19, 1999, Dr. Rimando stated that the employee=s October 16, 1995, injury was a substantial factor in her current condition, and that the employee sustained a permanent aggravation of her chronic pain as a result of that injury. The compensation judge referred to Dr. Rimando=s medical opinion in her memorandum, and concluded that his opinion is substantiated by the medical records and the employee=s testimony. By contrast, Dr. Wikenheiser, who examined the employee in January 1999, determined that the employee sustained a temporary strain which lasted six to twelve weeks. The compensation judge states in her memorandum that ADr. Wikenheiser does not explain his reasoning in light of the significant, ongoing pain subsequent to the work injury which was not present prior to the work injury.@ (Memo. p. 5.)
The employer argues that Dr. Rimando offers no further explanation as to how the employee=s 1995 injury relates to her current condition or what symptoms may be attributed to that injury, and argues that his April 19, 1999 report is inconsistent with his ongoing diagnosis listed in his chart notes. Adequate foundation is necessary for a medical opinion to be afforded evidentiary value. Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991). In his chart notes, Dr. Rimando refers to the employee=s ongoing symptoms and the causal relationship between the employee=s symptoms and her work injury. We conclude that Dr. Rimando=s opinion is adequately founded and that it was not unreasonable for the compensation judge to rely upon his opinion. In addition, we note that 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), and therefore conclude that it was reasonable for the compensation judge to rely upon Dr. Rimando=s opinion.
The employer argues that the compensation judge erroneously concluded that the employee=s functional limitations increased after her October 16, 1995, injury. The compensation judge relied on the employee=s testimony comparing her neck symptoms before and after her 1995 injury. The employee testified that she received medical treatment following her cervical spine injuries Aprobably until 1967 or 68.@ (T. 42.) She also testified that in addition to the symptom flare-ups she noticed in the 1980s or early 1990s, and again in 1994, she noticed pain when she looked up due to her limited range of motion. The employee also testified that prior to her 1995 injury, she was able to perform various physical activities, including painting, gardening and shoveling snow, and that since her 1995 injury there are many activities she cannot perform, such as washing or blow drying her hair, vacuuming, scrubbing the bathtub, lifting grocery bags, emptying the dishwasher, picking up a 20-month-old grandson, and rolling down her car window. (T. 44-46.)
In her memorandum, the compensation judge explained that the employee experienced intermittent flare-ups of neck pain prior to her 1995 injury, and that those flare-ups resolved with conservative treatment. She further explained that
Although the preexisting two level fusion periodically flared up requiring sporadic medical treatment, the employee was able to function within normal limits performing normal household tasks and active recreational activities prior to the work injury. Although the employee minimized the extent of pain and medical treatment which [she] incurred prior to October of 1995, medical records reveal intermittent flare ups of neck pain prior to the work injury resolved with conservative treatment. Subsequent to the October 16, 1995 work injury, the neck pain has continued with ongoing medical treatment and limitations on both the household and recreational tasks due to significant, ongoing pain. Subsequent to the October 16, 1995 work injury, various physicians have imposed physical restrictions which have been greater than prior to the work injury, which limited looking up, the medical treatment, pain symptoms, and disability subsequent to the work injury have continued through the date of the hearing.
(Memo. p. 5.)
The employee=s testimony corroborated the extensive references in medical records to her ongoing symptoms since 1995. Substantial evidence of record, including the employee=s medical records and her testimony, adequately supports the compensation judge=s conclusions that the employee=s symptoms and functional limitations increased as a result of her October 16, 1995, injury, and that she sustained a permanent injury to her cervical spine as a result of that injury. Accordingly, we affirm.
Permanent Partial Disability Rating
The employee claimed that she sustained a 3.5 percent permanent partial disability of the whole body, as a result of her cervical spine injury on October 16, 1995, relying upon Minn. R. 5223.0370, subp.3.B. The compensation judge found that the employee sustained no permanent partial disability as a result of that injury, and assigned a rating of zero percent permanent partial disability of the whole body, based upon Minn. R. 5223.0370, subp.3.A. The employer appeals from this zero percent rating, arguing that the compensation judge exceeded her scope of authority by finding that the employee sustained a permanent injury pursuant to the Weber decision when no Weber claim was pled by the employee.
We conclude that there is no basis for this portion of the employer=s appeal. The compensation judge awarded no permanency benefits. The compensation judge=s decision reveals that she did not award a Weber rating, as argued by the employer; there is no reference in the findings and order to a Weber rating. Once the compensation judge concluded that the employee had not sustained a permanency, she applied that portion of the permanency schedules within the Acervical pain syndrome@ section, Minn. R. 5223.0370, subp. 3.A., which refers to a zero percent rating. The compensation judge concluded that the employee=s medical records do not substantiate persistent objective clinical findings of involuntary tightness in the paracervical muscles, as required by Minn. R. 5223.0370, Subp. 3.B. This does not equate with a Weber rating, as argued by the employer. Accordingly, we affirm the compensation judge=s finding that the employee has sustained a zero percent permanent partial disability of the whole body.
Apportionment of Pre-existing Permanency Ratings
The compensation judge found that apportionment pursuant to Minn. Stat. ' 176.101, subd. 4a is not appropriate. The employer appeals, arguing that the employee=s pre-existing cervical problems satisfy the requirements of Minn. Stat. ' 176.101, subd. 4a. The employer argues that the employee=s injury in 1963, and her related two cervical fusion surgeries, satisfy the statutory elements necessary for apportionment. The employer further argues that a rating of 15 percent could be assigned to the employee=s pre-existing condition, pursuant to Minn. R. 5223.0370, and that the employer is entitled to apportionment consistent with that imputed rating. The employer argues that the employee was barred as a matter of law from being awarded any new permanency benefits, since she had already had an injury due to her pre-existing condition, and that the compensation judge erred in refusing to apportion for the employee=s current disability rating. The employer also argues that the employee=s pre-existing cervical fusion surgery permanently precludes her from claiming 3.5 percent permanent partial disability of the body as a whole.
In view of the fact that the compensation judge determined that the employee had sustained a zero percent permanent partial disability attributable to her injury of October 16, 1995, we see no basis for the employer=s argument that apportionment is appropriate. We therefore affirm the compensation judge=s finding that apportionment pursuant to Minn. Stat. ' 176.101, subd. 4a is inapplicable in this matter.
Medical Treatment and Mileage Expenses
The intervenor, HealthPartners, petitioned for reimbursement of medical expenses related to a portion of the treatment the employee received at Park Nicollet Medical Center between October 1995 and October 2000. The compensation judge found that a portion of the intervention claim was compensable, as certain treatments were related to the employee=s October 1995 work injury, but denied the remainder based on no causal relationship to the employee=s work injury. The compensation judge denied payment for seven treatments related to psychogenic pain and shoulder symptoms, which she found to be unrelated to the employee=s 1995 work-related injury. The compensation judge therefore denied payment of medical mileage expenses related to these seven treatments, and awarded the remainder of the employee=s claim for mileage expenses.
The employer appeals, arguing that no evidence of record exists to support a finding that the employee sustained a permanent injury, and therefore any medical treatment beyond a temporary period of 6 to 12 weeks is not compensable. The employer further argues that no medical treatment rendered after the employee=s motor vehicle accidents in July 1999 and October 2000 should be compensable, and that because the employee=s no-fault insurance carrier paid medical and chiropractic treatment to the employee=s neck following the July 1999 accident, the employer is not liable for payment of medical expenses after July 1999.
The only basis for the argument made by the employer on appeal is that no medical expenses are payable for treatment rendered beyond 6-12 weeks post-injury since the employee=s injury was temporary in nature. Since we have affirmed the compensation judge=s finding that the employee=s injury was permanent in nature, there is no further basis for the employer=s appeal on this issue, and accordingly we affirm the award of medical mileage expenses and the award of a portion of the intervenor=s claim.
In addition, our review of the medical records and medical claims reveals that no payment was awarded for treatment rendered following the employee=s 1999 and 2000 automobile accidents, so we find that portion of the employer=s appeal argument to be moot.
 The employer appealed from Finding No. 9, which states as follows: AThe employer and insurer stipulated that, should the employee sustain a permanent injury on October 16, 1995, the employee was entitled to a rehabilitation consultation.@ That issue was not addressed in the employer=s brief on appeal. Pursuant to Minn. R. 9800.0900, subp. 1, issues raised in the Notice of Appeal but not briefed are deemed waived. Therefore, that issue is waived and will not be addressed. In addition, we find that this issue is moot, as we have affirmed the compensation judge=s finding that the employee sustained a permanent injury on October 16, 1995. The employer also argues that the employee=s brief should not be considered on appeal as it was not timely filed. In view of the discretion afforded to this court under Minn. R. 9800.0900, the employee=s brief was considered on appeal.
 The employee reported pain in her neck, back and head following that automobile accident, as well as pain extending into her legs and her left thumb.
 Minn. R. 5223.0370, subp. 3A., provides as follows:
Subpart 3. Cervical pain syndrome.
1. Symptoms of pain or stiffness in the region of the cervical spine not substantiated by persistent objective clinical findings, regardless of radiographic findings, zero percent.
 Minn. Stat. ' 176.101, Subd. 4a(a) provides as follows:
Subd. 4a. Preexisting condition or disability; apportionment. (a) If a personal injury results in a disability which is attributable in part to a preexisting disability that arises from a congenital condition or is the result of a traumatic injury or incident, whether or not compensable under this chapter, the compensation payable for the permanent partial disability pursuant to this section shall be reduced by the proportion of the disability which is attributable only to the preexisting disability. An apportionment of a permanent partial disability under this subdivision shall be made only if the preexisting disability is clearly evidence in a medical report or record made prior to the current personal injury.