TAMMY BUSHONG, Employee/Appellant, v. GEORGIA PACIFIC CORP., SELF-INSURED, Employer, and NORTH COUNTRY REGIONAL HOSP., and MN DEP=T OF LABOR & INDUS./VRU, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 14, 2003
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion and medical and other records, supports the compensation judge=s finding that the employee did not sustain an injury to her cervical spine in addition to an admitted right shoulder injury.
PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion and medical records, supports the compensation judge=s finding that the employee did not sustain any permanent partial disability as a result of her November 11, 1998 work injury.
TEMPORARY BENEFITS - FULLY RECOVERED. Substantial evidence supported the compensation judge=s finding that the employee had fully recovered from her work injury without permanent partial disability or restrictions by May 1, 1999. As such, the employee was ineligible for further wage loss or retraining benefits pursuant to Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987).
Determined by Pederson, J, Rykken, J., and Stofferahn, J.
Compensation Judge: William R. Johnson
DAVID A. STOFFERAHN, Judge
The employee appeals from the judge=s denial of her claims for temporary partial disability, permanent partial disability, retraining, and reimbursement for certain medical expenses based on findings that she did not sustain a cervical injury and that her right shoulder injury was temporary in nature and had resolved by May 1, 1999 without permanent disability or restrictions. We affirm.
The employee, Tammy A. Bushong, graduated from high school in 1985. After high school she worked in a variety of jobs, including as a waitress, liquor store cashier, mail clerk, secretary/receptionist, tool crib attendant, store cashier, and as a Ascanner@ typing invoices and scanning magazine and credit accounts.
The employee had been in motor vehicle accidents in 1984 and 1989 and was in a snowmobile accident in February 1991 and an automobile rollover accident in December 1991. Following the February 1991 snowmobile accident the employee was seen by a chiropractor with symptoms including low back, mid back and tailbone pain as well as cervical pain. She was diagnosed with cervical and lumbar subluxation and continued to receive chiropractic treatments for these complaints, including cervical chiropractic manipulation, regularly on a decreasing basis through July 23, 1991. Following her December 1991 automobile accident the employee again treated with a chiropractor, principally for right shoulder pain, but also for neck pain, through April 14, 1992.
In 1992 the employee began working for the employer, Georgia-Pacific Corporation, a wood products plant. Over the next half-dozen years the employee worked for the employer in a variety of jobs, all requiring a degree of upper body strength.
On November 11, 1998 the employee sustained a work injury when she slipped while walking on a metal floor at work and fell, landing on her right shoulder. She went back to her duties on a production line until her next break, when she informed a foreman that she had fallen and that her shoulder, hip and ear hurt. The employee did not mention any neck pain associated with this injury at the time that she reported it to her foreman. The employer permitted the employee to work for the next several days in a light-duty job.
The employee was first seen medically for her November 11, 1998 work injury on November 17, 1998 by Dr. W. Craig Benson at the MeritCare Clinic in Bemidji. She explained that she had fallen at work landing on her right shoulder, was able to work light duty, and now was experiencing increased right shoulder pain after attempting to return to her regular job. Dr. Benson noted tenderness on the anterior portion of the employee=s right shoulder, without bruising or swelling. The employee also had modest swelling of the right hand, with which she had slapped the floor on falling. Internal and external rotation and abduction of the right shoulder was limited. X-rays failed to show any fracture. Dr. Benson diagnosed a contusion of the right shoulder and took the employee off work for one week, at which time she was to follow up with Dr. William G. Muller, the employee=s usual physician.
The employee returned to see Dr. Muller on December 3, 1998. She stated that she continued to have right shoulder pain and had developed a lump on the lateral aspect of her right clavicle, but had no other concerns or difficulties. There was some tenderness over the right acromioclavicular (AC) joint, and Dr. Muller did detect a slight bump on the employee=s right clavicle. He diagnosed AC bursitis and a healing slight fracture of the right clavicle. The AC joint was injected with Aristospan and Lidocaine. The employee was released to sedentary work under a ten-pound lifting restriction and authorized to return to full duties thereafter.
When the employee returned to Dr. Muller on December 10, 1998 she reported that her right shoulder had improved initially but was now more sore, with spasm into her trapezius muscle and decreased range of motion of the right arm. Dr. Muller noted that the employee had no other concerns. He started the employee on Flexeril and Relafen and prescribed six sessions of physical therapy, limiting the employee to light duty work in the interval.
On December 28, 1998, the employee had her first session of physical therapy. She also returned to Dr. Muller the same day reporting continued right shoulder pain and difficulty in abducting or anteriorly lifting her right arm. Because of the employee=s inability to improve with conservative treatment, Dr. Muller scheduled the employee to see an orthopedist.
When the employee was first evaluated by the physical therapist, she was noted to exhibit decreased cervical range of motion as well as her shoulder and arm difficulties. However, on the second visit to the physical therapist the employee reported that her neck was feeling better and the exercises had helped her mobility, though her shoulder was still quite sore. Thereafter no neck symptoms or problems are mentioned in the physical therapy records through February 11, 1999 when the employee was discharged from the therapy program prescribed for her shoulder symptoms.
The employee was seen on referral from Dr. Muller by Thomas E. Miller, an orthopaedic physician at Lake Region Bone & Joint Surgeons, P.A., on January 6, 1999. Dr. Miller found no crepitation in the employee=s shoulder but there was a positive anterior impingement sign and tenderness over the distal clavicle. Dr. Miller thought that the employee might have either an impingement rotator cuff problem or an AC joint distal clavicle problem. He injected the employee=s right shoulder subacromial space with Celestone and Xylocaine, continued her physical therapy program, and kept her limited to light duty work.
When the employee returned to Dr. Miller on January 11, 1999 she had not experienced any relief of pain in her shoulder, so Dr. Miller requested an MRI scan of the employee=s shoulder to determine whether there was any specific lesion. The MRI scan was normal. On January 25, 1999 the employee again returned to Dr. Miller and reported that she was having more numbness and a heavy feeling throughout her right arm. Dr. Miller noted that testing to date suggested that the employee=s problem was not mechanical and might be instead neurological. He recommended evaluation by a neurologist and an EMG scan of the right arm.
The employee was seen by a neurologist, Dr. Richard C. Bailly, on February 16, 1999. Dr. Bailly noted that the employee had been referred because of continuing discomfort in her right shoulder, numbness in the shoulder and in her right third digit. As she also complained of some neck pain and stiffness, the question had arisen whether she could have a cervical radiculopathy in addition to shoulder problems. Dr. Bailly=s examination found that the employee exhibited no obvious cranial nerve difficulty or cerebellar dysfunction. Her neck motions were full, the neck was supple, and neck musculature was strong. Motor examination of the upper extremities was considered normal although there was Agiveaway@ on the right side. The employee did report right shoulder pain during much of the muscle strength testing. Dr. Bailly opined that the employee=s neurological examination was unremarkable. EMG tests were performed which were also normal. Dr. Bailly concluded that the employee=s right upper extremity symptoms were likely musculoskeletal, with perhaps an element of fibromyalgia.
The employee returned to Dr. Miller on March 1, 1999. Dr. Miller noted that the only fairly consistent findings he had to work with were of pain in the distal clavicle, and since the employee=s x-ray results and MRI findings were normal, he suggested a bone scan to evaluate the possibility of an occult fracture or lesion of the distal clavicle. The bone scan was done on March 25, 1999 and failed to reveal any abnormalities. On March 29, 1999 Dr. Miller again saw the employee. He considered her symptoms consistent with an impingement or contusion-type problem, thought no arthroscopy or other surgical intervention to be warranted, and put the employee on work restrictions of no activity at or above shoulder level, to be reevaluated in Aseveral@ months. He recommended that she discuss possible treatment for fibromyalgia with her family physician.
On April 7, 1999 the employee saw Dr. Muller and reported continued soreness and occasional paresthesias but no complete numbness in the anterior part of her right shoulder and in her posterior upper arm. She indicated no other difficulties or problems. Dr. Muller noted that he was unsure what further treatment to suggest.
Later the same day, the employee was seen at the North Country Regional Hospital emergency room where she reported that, while she was driving her automobile at 50 miles per hour, she had struck a deer and that she now was experiencing pain in her neck and low back. Cervical and lumbar x-rays were unremarkable. She was diagnosed with a cervical and a lumbar strain and was given a cervical collar.
The employee returned to Dr. Muller on May 5, 1999 for follow up of her right shoulder pain. Dr. Muller decided to refer the employee for a second orthopedic opinion.
On May 25, 1999 the employee was examined on behalf of the self-insured employer by Dr. Nolan M. Segal. Dr. Segal found no evidence of any structural problem with the employee=s right shoulder and concluded that there was significant evidence suggesting functional overlay. He stated that the employee=s work injury could have resulted in a contusion to her right shoulder which would have been a temporary condition from which she had reached maximum medical improvement without permanent partial disability or need for work restrictions.
The following day, May 26, 1999 the employee went to the MeritCare Clinic and reported that, during her medical examination with Dr. Segal, the doctor had applied pressure to her upper back and neck and caused her to experience significant pain and headaches. On examination, the employee was found to wince with any palpation anywhere in her neck. She was advised to apply ice or heat to her neck and do neck exercises. The doctor noted that he had reassured her that her examination the previous day had not caused any new problems.
On August 17, 1999 the employee sought evaluation from Dr. Larry N. Stember, D.C., at the suggestion of her attorney. The employee told Dr. Stember that she had experienced both ongoing right upper extremity problems and ongoing neck stiffness with dull pain ever since the November 1998 work injury. She told the doctor that her neck complaints had recently been exacerbated when she struck a deer with her automobile. Dr. Stember performed an examination and diagnosed a right clavicle fracture with accompanying chronic right shoulder strain/sprain, and an acute traumatic cervical injury resulting in subluxation complex with strain/sprain, myofascitis and resulting right upper extremity motor weakness and headaches. In his opinion these conditions were a direct result of the November 1998 work injury, while the automobile accident in which the employee=s car struck a deer had resulted in only a temporary aggravation of the employee=s cervical condition. Dr. Stember rated the employee=s cervical spine condition at seven percent permanent partial disability. He felt that work limitations were appropriate.
The employee returned to Dr. Muller on August 30, 1999 for recheck of her right arm. She reported that she continued to have problems with neck pain and headache, as well as anterior shoulder pain and arm weakness. Dr. Muller noted that he could give no reasonable explanation or treatment recommendation for the employee=s symptoms. He recommended that the employee see an upper extremity specialist, Dr. Robert Clayburgh.
The employee saw Dr. Clayburgh on September 10, 1999. Dr. Clayburgh noted that the employee had full range of motion of the right shoulder but was tender on palpation over the AC joint and had a positive impingement sign. He diagnosed right shoulder pain of undetermined etiology, which he suspected was primarily coming from the AC joint. He recommended selective cortisone injection into the AC joint, which would be diagnostic if it diminished the employee=s pain. He had no opinion regarding the employee=s neck as this was not the primary purpose of the employee=s referral by Dr. Muller.
The employee returned to Dr. Muller in November and December 1999. Dr. Muller noted that no abnormalities had so far been found despite two injections into the AC joint and an MRI examination of the employee=s right shoulder with an arthrogram. He noted that the employee continued to report functional disability and symptoms though currently employed, and expressed the view that he had Ano reason to believe she is not being honest.@ Dr. Muller accepted the suggestion of Dr. Stember that an MRI scan of the employee=s cervical spine might be helpful.
Dr. Seth Rosenbaum, a physical medicine and rehabilitation specialist also evaluated the employee on November 30, 1999 at the suggestion of her attorney. Dr. Rosenbaum attributed both the employee=s cervical and shoulder complaints to the 1998 work injury. He opined that she had sustained a 12 percent permanent partial disability of the whole body for the right shoulder, as well as permanent disability in an undetermined amount for her cervical spine, the exact amount of which would depend on the results of further testing and treatment not yet performed, including a cervical MRI scan. The MRI scan was performed on January 2, 2000 and showed minimal disc bulging at the C5-6 level without apparent nerve root impingement and no disc herniation or spinal stenosis.
On March 28, 2000 Dr. Muller recommended that the employee undergo a functional capacity evaluation. Following the functional capacity evaluations Dr. Muller limited the employee from heavy lifting and from working above her head, but further stated that she was Anot limited from any employment.@ He felt that cervical radiculopathy and suprascapular neuropathy could be ruled out as etiology for the employee=s shoulder and arm pain, but still thought that the employee might have a shoulder impingement or labrum tear, and recommended that she undergo a repeat MRI scan, with gadolinium enhancement and that she be followed by a shoulder specialist.
In supplemental reports dated November 2 and December 17, 1999 and November 14, 2000, Dr. Segal responded to the opinions of Drs. Stember and Rosenbaum and updated his opinions based on the employee=s recent medical history. Dr. Segal disagreed with Dr. Stember=s seven percent disability rating for the employee=s cervical spine, noting that the employee during his own examination exhibited a full range of motion in the cervical spine with no evidence of any rigidity or spasm, and that there were no radiological findings of any cervical abnormality. Further, Dr. Segal opined that as the employee did not complain of neck injury at the time of her November 1998 work injury, any cervical complaints were unrelated to that injury. Dr. Segal also explained at length the basis of his opinion that the employee=s 1998 work injury did not cause either a fracture of the clavicle, a nerve injury, or any structural injury to her right shoulder or shoulder girdle. Dr. Segal suggested that many of the employee=s symptoms appeared to be the result of functional overlay and that results of a functional capacity evaluation would not likely be a valid indication of the employee=s restrictions. He concluded that the employee could work without restrictions and did not need any further medical care.
The employee had continued to work for the employer at her regular rate of pay following the injury through about March 1, 1999, when her employment was terminated as the result of the employer=s plant closure. In May 1999 the employee worked briefly for Anderson Fabrics at a wage loss, earning about $7.00 per hour. She felt that she could not tolerate the work and decided to go on medical leave at the advice of her QRC, who considered the work outside the medical restrictions set by her treating physician. From sometime in May 1999 through the first week in September 1999, the employee worked part time at a lodge as a front desk receptionist. Beginning on June 29, 1999, the employee started working for Arrowhead Glass and Total RV Sales nominally as a bookkeeper but with various additional clerical duties. This job started at $7.00 per hour and on July 22, 2000 the employee received a raise to $8.50 per hour as a full-time employee.
The employee continued in that job through the date of the hearing below, March 13, 2002.
The employee began receiving QRC services through the Vocational Rehabilitation Unit of the Department of Labor and Industry in February 1999. In September 2000, the employee met with Mr. L. James Jackson, a QRC with Mesabi Rehabilitation Services, Inc., for a vocational assessment at the request of her attorney. After meeting with the employee, Mr. Jackson assisted the employee in developing a retraining plan based on the employee=s expressed interest in medical laboratory technician training.
On March 13, 2002 a hearing was held before a compensation judge to consider the initial and amended claim petitions filed by the employee. The principal issues before the compensation judge as of the date of hearing were whether the employee had sustained a cervical injury on November 11, 1998 in addition to the admitted right shoulder injury, whether the employee was temporarily partially disabled from and after May 1, 1999, whether the employee had sustained a permanent partial disability, and whether the employee=s proposed retraining plan should be approved. The compensation judge found that the employee had not sustained a cervical injury and that her right shoulder injury was temporary in nature and had resolved by May 1, 1999 without permanent disability or restrictions. The judge accordingly denied the claims for temporary partial disability, permanent partial disability, retraining, and reimbursement for certain medical expenses. The employee appeals.
1. Cervical Injury.
The employee appeals from the compensation judge=s finding that the employee failed to prove by a preponderance of the evidence that she sustained an injury to her cervical spine on November 11, 1998. As the basis for her appeal, the employee points to certain language in the compensation judge=s findings and memorandum which she contends indicates that the judge either overlooked, disregarded or misconstrued certain evidence.
Specifically, the employee objects to language in Finding 2 in which the judge stated that Athere is nothing in the contemporaneous records to show the employee sustained any neck injury at that time.@ The employee points out that a nurse=s note on November 17, 1998, about one week after the work injury, relates that the employee=s right arm Ahurts into her shoulder and neck.@ The employee further points out that her physical therapist noted a decreased cervical range of motion and complaints of neck tightness on December 28, 1998, and that there were further mentions of neck pain during the next several months.
The employee also points out that while the compensation judge took note of the employee=s prior history of cervical problems, he failed to comment on the employee=s testimony that she went for about three years without neck problems prior to the November 1998 work injury.
The employee argues that in reaching his findings, the compensation judge must have overlooked the cited references to neck pain as well as the employee=s testimony that she was free of any neck symptoms for several years prior to the work injury. She contends that this court should therefore either reverse the finding that the employee failed to prove a neck injury, or remand that finding for redetermination.
We disagree. This court must affirm a compensation judge=s factual findings where supported by substantial evidence, unless clearly erroneous. Minn. Stat. § 176.421, subd. 1; Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). In some cases, a reversal or remand may be appropriate where it is patently clear that the compensation judge misconstrued or overlooked significant material evidence or applied an erroneous legal standard to the issue decided. Cf., e.g., Lanigan v. Superwood Corp., slip op. (W.C.C.A. April 25, 2001) (compensation judge undeniably overlooked critical medical treatment records and apparently misconstrued other evidence relating to the issue of employee's medical treatment and restrictions); Waddell v. Queen Care Ctr., 45 W.C.D. 268 (W.C.C.A. 1991) (improper standard of business purpose was applied to issue of workplace stress); Scharber v. Honeywell, slip op. (W.C.C.A. May 22, 2000) (judge applied legal standard which had been overturned by supreme court). However, there is no requirement that a compensation judge=s findings specifically catalog, chronicle or comment on all of the evidence in the case. A compensation judge is not required to relate 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. State, 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 does not establish that the evidence was overlooked).
Here, other than the judge=s failure to comment on certain items of evidence, the only support for the employee=s contention is the judge=s statement that there were no contemporaneous records demonstrating that the employee sustained an injury to her neck. Complaints of pain or stiffness into the neck do not necessarily establish injury to the neck itself, but can be a matter of referred pain, particularly here where the employee reported that she had injured her shoulder. The medical records cited by the employee do not establish that the employee sustained a neck injury in addition to her admitted right shoulder injury. In addition, whether these cited records are Acontemporaneous@ to the date of the work injury depends on the scope of proximity the judge had in mind in using that term. It is uncontroverted that the employee reported only a shoulder injury to her foreman on the date of injury, and we note also that on at least two occasions in December 1999 the employee apparently expressly denied complaints other than shoulder and right upper extremity symptoms when seen by Dr. Muller.
The employee also argues that the compensation judge applied an incorrect legal standard. She points to case precedent holding that an employee=s testimony of subjective complaints, coupled with a medical opinion, may be sufficient to establish a work-related injury. However, this precedent does not require a compensation judge to find the existence of an injury on such evidence. In part, the decision to base a finding of injury on subjective evidence is a matter of the weight afforded to the various elements of evidence in the case, and in further part it is a matter of witness credibility. Both weight and credibility are matters entrusted to the finder of fact, and ones which this court will not disturb absent clear error.
On review of the evidence herein, we conclude that the compensation judge=s finding denying the employee=s alleged cervical injury is supported by substantial evidence, and is not clearly erroneous. Among other support for the finding is the compensation judge=s decision to accept the opinion of Dr. Segal. The employee has not challenged the foundation for that opinion, and we see no foundational defect. This court will not reverse a finding based on a compensation judge=s choice among differing expert opinions unless the opinion relied upon has insufficient foundation. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985). We therefore affirm.
2. Permanent Partial Disability.
The employee next appeals from the compensation judge=s findings that the employee failed to prove that she sustained a permanent partial disability as a result of either her admitted shoulder injury or her alleged cervical injury. As we have affirmed the judge=s finding denying the occurrence of a cervical injury, we need not reach the employee=s appeal from the denial of permanent partial disability for such an injury.
The employee=s claim for permanent partial disability relative to her right shoulder injury was based solely on the rating provided by Dr. Rosenbaum. Dr. Segal, on the other hand, opined that the employee did not meet the requirements of the permanent partial disability schedules for a shoulder permanency rating. The compensation judge denied the employee=s permanency claim, accepting the opinion of Dr. Segal and noting particularly that there were no objective medical test findings supporting a right shoulder disability rating. Specifically, the compensation judge noted that x-rays, MRI scanning, and a bone scan were all negative. The judge dismissed Dr. Rosenbaum=s basis for a rating based on loss of function because Dr. Rosenbaum did not indicate that he had measured range of shoulder motion using a goniometer, a requirement of the applicable permanency rule. Further, the judge noted that Dr. Rosenbaum described assessing only the points at which the employee complained of pain, rather than her actual capabilities. The employee argues that there were other objective medical findings supporting a disability rating, specifically, a one-time reference to a Aclick@ in the employee=s shoulder during an examination; the employee=s testimony that her shoulder sometimes made a Apopping@ noise; and finally, other occasional examination findings of decreased shoulder motion found sporadically in her medical records. However, we note that physicians examining the employee at various other times frequently noted that the employee had a full shoulder range of motion. We do not think the compensation judge clearly erred in concluding that there was insufficient objective evidence of disability to support a permanency rating in this case.
The employee complains that the compensation judge should have disregarded the requirement for measurement with a goniometer where there was no evidence that Dr. Segal had employed one in his measurements either. We note, however, that it is the employee who bears the burden of proving each element necessary to the application of a permanency rating.
The compensation judge accepted the expert medical opinions of Dr. Segal over those of Dr. Rosenbaum. As there is no indication that Dr. Segal=s opinions lacked adequate foundation, we affirm. Nord v. City of Cook, supra, 360 N.W.2d 337, 37 W.C.D. 364.
The employee next contends that, in any event, the employee=s claimed functional loss should be compensable as resulting from a psychological injury. In support of this contention, the employee points to comments by the compensation judge noting that several physicians had suggested that the employee=s complaints seemed to be consistent with functional overlay. We note, however, that the employee=s claim petition did not assert a claim based on a psychological injury, and that no psychological evidence was offered by the employee to support such a claim.
3. Temporary Partial Disability; Retraining.
Temporary partial disability was at issue for the period from May 1, 1999 to the date of hearing. The compensation judge relied upon the May 25, 1999 examination and report of Dr. Segal, in addition to the other evidence in the case, in concluding that the employee=s admitted right shoulder injury had resolved by May 1, 1999 with no restrictions or permanent disability. This determination is, again, supported by substantial evidence. As such, the employee was ineligible for further wage loss or retraining benefits pursuant to Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987).
4. Medical Expenses.
The employee also appeals from the denial of certain medical expenses, particularly medical expenses for treatment of her right shoulder after May 1999, and medical expenses incurred at the North Country Regional Hospital for treatment of her cervical complaints. The findings denying a cervical injury and determining that the employee had fully recovered from the right shoulder injury by May 1, 1999 have been discussed above. As we have affirmed these findings, we similarly affirm the denial of the medical expenses in question.