RANDY C. FORSLUND, Employee/Appellant, v. STS CONSULTANTS and CNA COMMERCIAL INS., Employer-Insurer, and PAIN ASSESSMENT & REHABILITATION CTR., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 21, 2003
CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE. Substantial evidence, including expert opinion, support the compensation judge=s denial of benefits related to the employee=s cervical and thoracic conditions.
MEDICAL TREATMENT & EXPENSES - REASONABLE AND NECESSARY. Substantial evidence, including expert opinion, supported the compensation judge=s decision that certain treatment, including narcotic medication, was not reasonably required to treat the employee=s admitted low back condition.
Affirmed, as Modified
Determined by Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: William R. Johnson
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s decision that the employee failed to prove a work-related injury to his neck and that medical treatment provided after November 9, 2000, and all prescribed narcotic medications, were not reasonable or necessary to cure or relieve the effects of the work-related injuries to the employee=s lumbar spine. We affirm, as modified.
The employee sustained an admitted work-related injury to his low back on September 2, 1983, while working for STS Consultants [the employer]. He missed approximately 26 weeks from work, was paid temporary total disability benefits, and eventually returned to work for the employer. The employee was also paid benefits for a 10% permanent partial disability of the spine for this injury.
On November 28, 1987, the employee sustained a second admitted work injury to his low back while working for the employer. The employee was off of work for 10 weeks, was paid temporary total disability benefits, and again returned to work for the employer.
On August 24, 1990, the employee sustained yet another admitted work injury while working for the employer. The First Report of Injury indicates injuries to the employee=s lower back and neck. The employee treated with Dr. Patrick Kraft on August 31, 1990, with complaints of low back pain and pain and stiffness in the neck. Some paravertebral muscle spasms were present in the mid-cervical spine, but cervical spine x-rays were interpreted as normal, and Dr. Kraft diagnosed a cervical strain. However, a CT scan of the lumbar spine taken on the date of injury revealed a herniated disc at L4-5, and, on December 6, 1990, the employee underwent an L4-5 disc excision, performed by Dr. Paul Crowe. The employee was off of work for almost 21 weeks following that injury and was paid wage loss benefits and impairment compensation for an 11% whole body impairment, for the surgery to his low back. The employee again returned to work for the employer.
On June 16, 1998, the employee was putting away his shaving kit at home when he had an onset of significant low back pain. He was treated at the Park Nicollet Clinic on June 17, 1998, with complaints of pain in his back and down his left leg. On exam, it was noted that he had normal neck and upper extremity range of motion but exquisite tenderness over L4-5 and L5-S1. An MRI scan showed a new lateral disc herniation at L5-S1 on the left, impinging the L5 nerve root. The scan also disclosed a mild broad-based disc bulge or herniation at L5-S1 to the right side. A First Report of Injury was filed regarding this incident, but the employer and insurer denied liability.
The employee began treatment with Dr. A. V. Anderson on September 17, 1998. At that time, the employee was complaining of bilateral low back symptoms, with pain in both the left and right leg.. Dr. Anderson prescribed Neurontin and OxyContin. The employee returned to Dr. Anderson on October 12, 1998, with low back, left and right leg pain, and headaches. The employee stated that he had experienced an increase in pain due to Aremoving his dock yesterday.@ Dr. Anderson increased the dosage of Neurontin and also prescribed Percocet and Butalbital. The employer continued to treat with Dr. Anderson and to receive prescriptions from him. Park Nicollet Clinic records from a December 2, 1998, office visit for headaches reflect that the employee was taking Fiorinal and Wigraine for his headaches and as many as 12 Tylenol per week for low back problems. The Fiorinal and Wigraine prescriptions were refilled, and the employee was advised to reduce his intake of Tylenol.
On January 14, 1999, the employee underwent a hemilaminectomy and discectomy at L5-S1 and decompression of the L5 and S1 nerve roots. He resumed treatment with Dr. Anderson in February of 1999 and eventually returned to work with the employer.
The employee sustained an additional injury on August 18, 1999, while lifting concrete cylinders at work. He was treated by Dr. Anderson the following day, complaining of increased pain through the low back, radiating into both legs. Dr. Anderson diagnosed probable acute strain/sprain of the lumbar spine and possible lumbar spine disc herniation with nerve compression. In a follow-up visit to Dr. Anderson on September 2, 1999, the employee complained of lower back pain and Aneck and back of head pain.@ Dr. Anderson=s diagnoses remained the same. On October 5, 1999, Dr. Anderson diagnosed, for the first time, Alate acute musculoligamentous sprain/strain, cervical, thoracic, and lumbar spine, secondary to motor vehicle accident.@ Three weeks later, on October 26, 1999, Dr. Anderson related the Alate acute musculoligamentous sprain/strain@ to the work injury of August 18, 1999. Dr. Anderson continued to treat the employee=s cervical, thoracic, and lumbar spine and to prescribe medications, including medications for headaches. The employee was off work from August 19 through September 1, 1999, and again from November 16, 2000, through November 26, 2000. He received temporary total disability benefits during those periods.
On November 9, 2000, the employee was examined by independent medical examiner Dr. Robert Hartman. In a report dated November 27, 2000, Dr. Hartman opined that the employee had sustained a permanent aggravation of a pre-existing lumbar condition on August 18, 1999, but that there was no evidence that the employee suffered injuries to his neck and upper back on that date. Dr. Hartman noted that the employee=s neck and upper back exams were completely normal. Dr. Hartman opined that the employee initially received appropriate investigation and treatment from Dr. Anderson, specifically the use of anti-inflammatory medications, reduced activity, a rehabilitation program, and an MRI scan. However, it was Dr. Hartman=s opinion that the persistent use of Percocet, Phrenilin Forte, and other Adependency creating medications@ was neither indicated or warranted and that A[f]urther supervised medical treatment is not necessary.@ Dr. Hartman also indicated that all treatment for the employee=s neck and upper back symptoms was not reasonable or necessary with regard to the August 18, 1999, injury.
In March of 2001, Dr. Hartman reviewed additional office notes of Dr. Anderson and issued another report, dated March 16, 2001. In that report, Dr. Hartman reiterated that the employee=s middle back and neck complaints were completely unrelated to the August 18, 1999, injury, that the employee should not use habit-forming medications, and that, because there were no significant objective physical abnormalities on exam, the employee did not require ongoing treatment with Dr. Anderson.
The employee filed a claim petition on July 30, 2001, seeking benefits for a 7% whole body impairment due to his cervical spine condition and an 18% whole body impairment due to his lumbar spine condition allegedly resulting from injuries occurring on September 2, 1983, November 28, 1987, August 24, 1990, June 16, 1998, and August 18, 1999. When the matter proceeded to hearing on September 19, 2002, the employee was also claiming that his headaches and depression were related to his cervical spine injuries. In Findings and Order filed on November 27, 2002, the compensation judge found, in part, that the employee had failed to prove that he had sustained any work-related injuries to his cervical or thoracic spine, that he did not have any permanent partial disability of the cervical spine, and that the employer and insurer were not liable for any treatment to the cervical or thoracic spine or any narcotic medications or treatment rendered by Dr. Anderson after November 9, 2000. The employee 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.
1. Causation for Cervical and Thoracic Spine
The compensation judge found, at Finding Three, that the employee had sustained a personal injury to his lumbar spine on August 24, 1990, and, at Finding Six, that the employee had not proven that he had sustained any work-related injuries to either his cervical or thoracic spine at the time of the August 18, 1999, injury or any of the other work injuries.
The employee first contends that the compensation judge erred in finding that the employee did not sustain an injury to his neck and upper back on August 24, 1990. The First Report of Injury for that date describes the injury as low back and neck. When Dr. Kraft examined the employee on August 31, 1990, he found muscle spasms present in the mid-cervical spine, ordered cervical spine x-rays and diagnosed, in part, a cervical strain. The employer and insurer have not specifically denied an injury to the neck on August 24, 1990, and state in their brief, A[t]he records document at worst the neck symptoms of August, 1990 were a temporary condition.@ Finding Three is therefore modified to reflect an injury to the employee=s low back and neck on August 24, 1990. This modification, however, does not change the judge=s ultimate conclusion that the employee is not entitled to permanent partial disability benefits or medical expenses, relative to the cervical spine, as a result of the 1990 injury. The cervical x-ray taken on August 31, 1990, was normal, and, while the employee continued to treat for his low back after August 31, 1990, he received no ongoing treatment for neck or thoracic spine complaints. In addition, when the employee was seen at the Park Nicollet Clinic on September 9, 1991, the doctor noted that there was no cervical spine tenderness and that the employee=s neck had full range of motion, without symptoms. Dr. Anderson was the only doctor to rate permanent partial disability for the employee=s cervical spine condition, and he did not relate it to the 1990 work injury.
The employee also contends that substantial evidence does not support the judge=s finding that the employee did not injure his cervical spine on August 18, 1999. We are not convinced. When the employee was seen by Dr. Anderson on August 19, 1999, he made no complaints of neck pain or headaches. In his office note of November 18, 1999, Dr. Anderson reported,
[t]he mechanism of injury of 8-18-99 is that of injuries to the neck and upper back. He was picking up 30 pound cylinders, bring[ing] them toward him, putting them down on the bed of a truck. This constitutes injury to the neck and upper back as well as the lower back.
The employee=s testimony, however, does not support Dr. Anderson=s conclusions. The employee did not testify to an injury to his neck or upper back; rather, he testified to the onset of intense leg and low back pain on August 18, 1999, while bending and lifting heavy cylinders. He further testified that, over the next few days, the pain from his lower back and legs Astarted creeping upwards into my midback, shoulder blade type area, up into my neck, and that=s Bthat=s how it happened.@ He also testified that when his neck goes into spasm it triggers headaches. The compensation judge, however, found that the employee was not a credible witness and that it Ais difficult to rely on anything other than the documented medical records.@ The medical records reflect ongoing treatment for headaches going back to at least 1985.
Dr. Hartman opined that the employee was definitive in his description of the injury and did not mention injury to the middle back or neck at the time of the August 18, 1999, work injury. In his report of March 16, 2001, Dr. Hartman stated that it was an Aunreasonable assumption@ that a low back injury could cause middle back and neck pain. Dr. Hartman also opined that there was no injury to the cervical or thoracic spine because on each of the occasions that he examined the employee, the thoracic and cervical spine was non-tender, there was no observed or palpated muscle spasm, and there were no abnormal findings.
The employee contends that Dr. Hartman=s opinions lack foundation, because they are based on inaccurate information, and he points to Dr. Hartman=s report of November 27, 2000, in which the doctor stated that the employee had denied injuries to his neck and upper back. The employee, however, did not testify that he told Dr. Hartman that he had sustained injuries to his neck and upper back. In fact, we find the employee=s testimony at hearing to be consistent with Dr. Hartman=s statement that the employee denied a specific injury to his neck or upper back. The compensation judge expressly adopted the opinion of Dr. Hartman over that of Dr. Anderson. A judge=s choice between expert opinions is generally upheld unless the facts relied upon by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d337, 37 W.C.D. 364 (Minn. 1985). Because the medical records and the opinions of Dr. Hartman support the judge=s findings regarding causation of the employee=s cervical and thoracic complaints, we affirm the compensation judge in that regard.
2. Medical Expenses
Because we have affirmed the judge=s findings regarding liability for the employee=s cervical and thoracic spine conditions, we also affirm his findings denying medical expenses for treatment of those conditions. The employee also appeals from the judge=s denial of medical expenses for treatment of his low back after November 9, 2000, contending A[t]here is no support for the Compensation Judge=s unilateral decision to cut off the Employee=s medical care and treatment for an admitted low back injury.@ The only medical expenses before the compensation judge were the employee=s office visits to Dr. Anderson, prescription drugs prescribed by Dr. Anderson, and testing done by Quest Diagnostics. A compensation judge may make findings only on the issues before him, in this case, the medical expenses to date of hearing.
Dr. Anderson has been prescribing narcotic medications to the employee for over six years. At the time of trial, the employee was receiving prescriptions from Dr. Anderson for Oxycontin, Diazepam (Valium), Roxicodone, Provigil, Phrenilin and Celexa. Through July of 2001, Dr. Anderson had also prescribed Percocet. Dr. Anderson testified that all of the medications since November of 2000 were prescribed to increase the employee=s ability to function and allow him to stay on the job. Some of the medical articles introduced at Dr. Anderson=s deposition support his opinion that pain should be treated aggressively and that narcotic medications may be an appropriate treatment. The employee himself testified that he thought the medications at issue allow him to function and to continue working. The issue on appeal, however, is not whether evidence exists which would support an alternative finding, but whether substantial evidence supports the finding made by the judge. Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235.
According to Dr. Hartman, the employee has a history of alcohol and tobacco abuse, anxiety, and depression that predisposes him to Aabuse, psychological and physical dependence@ on narcotic pain medications. As such, Dr. Hartman opined, the employee should not utilize Ahabit-forming medication such as Percocet or other narcotic analgesics in the management of his chronic pain syndrome.@ Again, a compensation judge=s choice between expert opinions is generally upheld. Nord, 360 N.W.2d 337, 37 W.C.D. 364. The employee, in his brief, claims only that the opinion of Dr. Anderson should be accepted over that of Dr. Hartman because Dr. Anderson is an expert in chronic pain management, while Dr. Hartman is not. However, a doctor=s qualifications are a factor for the judge to weigh, and a judge need not accept the opinion of one kind of medical specialist over that of another. As the employee has pointed to no specific facts assumed by Dr. Hartman that were not supported by the evidence, we will not reverse the judge=s decision based on his choice between expert opinions.
The employee has substantial permanent partial disability related to his low back, and Dr. Timothy Garvey, who examined the employee on August 5, 2002, opined that the employee Amay be a candidate for lumbar discectomy and fusion.@ For these reasons, the judge=s decision as to the disputed medical expenses is somewhat troubling. However, the opinions of Dr. Hartman provide substantial evidence to support the judge=s findings that narcotic medications and the treatments rendered by Dr. Anderson from November 2000 to the hearing date were not reasonable or necessary to cure or relieve the effects of the employee=s low back injuries. We therefore affirm the judge=s decision on this issue as well.
 The employee was also receiving prescriptions for headaches from the Park Nicollet Clinic, going back to at least 1985.
 The compensation judge also found that the employee had sustained a permanent injury to his lumbar spine in June of 1998, that the 1983 work injury was a substantial contributing factor to that injury and the employee=s resulting disability, that the employee had a 5.9% permanent partial disability as a result of the 1998 injury, and that the employee had no additional permanency as a result of the 1999 injury. No appeal was taken from these findings.
At his deposition taken on September 17, 2002, when Dr. Anderson was asked Ato what incident or work injury do you attribute cervical problems?@ he responded, Athe one that brought it on the most acute and severe would be the lifting type of incident that occurred in 1999, 8-18-99, in which he actually had to lift an object off the back of a pickup truck and subsequently suffered a strain-sprain mechanism to the neck and upper back.@
 The employee also appealed from the judge=s finding that the employee had no permanent partial disability related to the cervical spine. Given our affirmance of the judge=s finding on causation, we need not address this issue.
 The compensation judge also found that the employee=s headaches and depression were not related to any of his work injuries. Because the employee did not specifically address this issue in his brief, the issue is deemed waived. Minn. R. 9800.0900, subp. 1. Medications prescribed for these conditions are therefore not compensable.
 The only specific evidence about this testing was Dr. Anderson=s testimony that this test was ordered because the employee was concerned about the effects of Tylenol on his liver. The employee did not specifically address this bill on appeal, and the issue is therefore deemed waived. Minn. R. 9800.0900, subp. 1. .