CAROLEE NORMAN, Employee/Appellant, v. CHISHOLM HOUSING AUTH. and MINN. ASSIGNED RISK/BERKLEY RISK ADM=RS., Employer-Insurer, and FINGERHUT/MINN. TELEMARKETING, INC. and TRAVELERS PROPERTY & CASUALTY, Employer-Insurer/Cross-Appellants, and DULUTH CLINIC/VIRGINIA and BLUE CROSS/BLUE SHIELD OF MINN., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 7, 2003
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinions, supported the compensation judge=s decision that the employee=s work injury was merely temporary.
EVIDENCE - EXPERT MEDICAL OPINION. The fact that the independent medical examiners had not examined the employee at the point at which the employee=s work injury had allegedly resolved is a factor for the compensation judge to weigh and provides inadequate justification for reversal.
Determined by Wilson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Cheryl LeClair-Sommer.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s decision that her May 1997 work injury was merely temporary. We affirm.
On December 16, 1994, the employee sustained a low back injury in the course and scope of her employment with Chisholm Housing Authority [Chisholm]. She subsequently received treatment, including chiropractic care, for low back, hip, and radiating leg pain, but she was able to continue working for Chisholm on a full-time basis. Chisholm and its insurer evidently admitted liability for a temporary injury and apparently paid certain benefits.
Sometime in 1995, the employee voluntarily left her job with Chisholm for reasons unrelated to the December 1994 injury. Later that year, in about November of 1995, she began a part-time telemarketing position with Fingerhut/Minnesota Telemarketing [Fingerhut]. She testified that she continued to experience low back and leg symptoms after beginning the job at Fingerhut but that she was nevertheless able to perform the work. In May of 1996, the employee underwent a lumbar MRI, which disclosed degenerative changes and/or disc bulges at several levels. Her treating physician referred her for physical therapy a few months later.
On May 23, 1997, the employee experienced low and mid back pain when she sat down in an adjustable chair at her Fingerhut job and the chair suddenly dropped to its lowest level. She subsequently received treatment from Dr. T. Scott Douglass for what the doctor described as an exacerbation of her preexisting back and leg symptoms along with signs consistent with bursitis and myofascial pain in the right hip and piriformis irritation. The doctor prescribed medication and referred the employee for physical therapy. In a report dated August 19, 1997, Dr. Douglass indicated that the employee was Anearly back to her preinjury state at this point. Trochanteric bursitis, resolved.@ He also reported that the employee=s physical therapist had recommended five or six more visits and that, after that, the employee would Abe considered to be at maximal medical improvement related to her injury@ of May 1997. No follow-up appointment was scheduled. However, the employee testified that she did not receive the recommended additional physical therapy. Dr. Douglass later reported that the employee had reached maximum medical improvement, with no permanent partial disability, as of August 1, 1997.
Also in June of 1997, at about the same time as the employee commenced treatment with Dr. Douglass, the employee and Chisholm settled most of the employee=s claims against Chisholm on a to-date basis, including claims for benefits for up to a 10% whole body impairment. All chiropractic expense claims against Chisholm, including future claims, were settled on a full, final, and complete basis.
At some point in 1998, the employee resumed chiropractic treatment with Dr. Michael Quirk, who had treated her following her injury at Chisholm. Dr. Quirk ultimately concluded that the employee had permanently injured her neck, mid back, and low back in the May 1997 incident at Fingerhut, and he provided regular chiropractic care and recommended significant limitations on the employee=s work activities, which Fingerhut accommodated until Dr. Quirk took the employee off work entirely in late May of 1999. Dr. Quirk continued to indicate that the employee was totally disabled from work until about January of 2001, when he wrote that she was capable of employment within certain restrictions and that she should be provided with the services of a QRC to help her obtain appropriate work. No rehabilitation assistance was provided, however, because both employers and insurers were taking the position that the employee was not disabled as a result of her 1994 and/or 1997 work injuries.
The matter ultimately came on for hearing before a compensation judge for resolution of the employee=s claim for a rehabilitation consultation, temporary total disability benefits from May 27, 1999, through November 28, 2000, and certain treatment expenses. During the hearing, the employee withdrew a prior claim for permanent partial disability benefits and clarified that she was seeking benefits from Fingerhut and its insurer, alone, due solely to the 1997 injury. Fingerhut=s primary defense was that the 1997 injury was merely temporary and had resolved well prior to the period for which benefits were claimed. Other issues included whether the employee had withdrawn from the labor market and whether the rights of certain medical providers should be extinguished based on the providers= failure to intervene. Evidence included the employee=s treatment records and the reports of independent medical examiners Drs. Robert Hartman and Larry Stern.
In a decision issued on July 22, 2002, the compensation judge denied the employee=s claims in their entirety, concluding, in relevant part, that the employee=s May 23, 1997, work injury was merely temporary and had resolved by August 19, 1997. 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.
Three physicians offered express opinions on the nature and extent of the employee=s 1997 work injury. Dr. Quirk, the employee=s treating chiropractor, reported that the May 23, 1997, injury had been a permanent acceleration/deceleration injury to the employee=s lower cervical, lower thoracic, and upper lumbar spine, resulting in probable accelerated spinal degenerative changes and chronic muscle spasm and necessitating continued treatment and work restrictions. Both Drs. Hartman and Stern, on the other hand, reported that the May 1997 injury was merely temporary, lasting no longer than 90 days, according to Dr. Stern, or 12 weeks, according to Dr. Hartman. The compensation judge expressly accepted the opinions of Drs. Stern and Hartman and, also referencing the treatment reports of Dr. Douglass, concluded that the employee=s May 1997 work injury had resolved by August 19, 1997. The judge also noted that she was unpersuaded by the employee=s attempt to differentiate between the symptoms resulting from her 1994 work injury and those resulting from the 1997 injury.
Virtually all of the employee=s arguments on appeal are based on the premise that the opinions of Drs. Stern and Hartman have no evidentiary value because neither doctor had examined the employee at the time that the employee=s alleged temporary aggravation had, in their opinion, ended. As the employee puts it, A[t]o inject any credibility into their determinations of what [the employee=s] condition was prior to the dates of [the doctors=] examinations is ludicrous.@ Rather, the employee argues, the only credible source of information regarding her status as of August 19, 1997 -- the date the judge chose as the end of the temporary injury -- is contemporaneous treatment records. We are not persuaded that the judge=s decision is clearly erroneous or unsupported by substantial evidence in the record as a whole.
We note initially that the compensation judge did in fact rely in part on the August 19, 1997, report of treating physician Dr. Douglass, wherein he indicated that the employee was at that time Anearly back to her preinjury state,@ with Ano follow-up appointment scheduled.@ We note also that the reports of Drs. Stern and Hartman indicate that both doctors reviewed the employee=s treatment records in connection with their examinations, and Dr. Hartman explained in some detail why he found the employee=s injury to be temporary, writing in part as follows:
Dr. Douglass evaluated Ms. Norman on August 19, 1997, and determined a normal physical examination. In fact, Douglass, M.D. opined that Ms. Norman was nearly back to her pre-injury status. Finally, radiographs of the lumbar spine obtained by Douglass, M.D. in June of 1997, were felt to be normal. That is, no structural injuries such as fractures or dislocations were identified. Considering the mechanism of Ms. Norman=s injury, the lack of objective physical examination abnormalities determined by at least two medical doctors, and the lack of radiographic abnormalities determined within one month of the alleged injury, it can be stated within a reasonable degree of medical certainty, that Ms. Norman suffered soft tissue injuries to her cervical, thoracic, and lumbar spines. Furthermore, it can be stated within a reasonable degree of medical certainty, that Ms. Norman suffered an exacerbation of Ms. Norman=s chronic, pre-existing low back pain. Again, the basis for this opinion is the mechanism of injury, a minor acceleration/deceleration force, the lack of objective physical examination abnormalities determined by Dr. Douglass soon after the alleged injury, and by the present examiner on two examinations spaced one year apart, and the lack of radiographic abnormalities on lumbar spine radiographs taken within one month of the alleged date of injury.
Consistent with the natural history of soft tissue injuries, Ms. Norman recovered maximally 12 weeks following the alleged date of injury. That is, Ms. Norman reached maximum medical improvement on or around August 23, 1997. Ms. Norman=s ongoing complaints are undeniably related to mild to moderate obesity, deconditioning, muscular weakness, and finally to malingering and symptom magnification. Indeed, the only positive physical examination abnormalities were the Waddell findings, a positive head-tap test, and a positive truncal rotation test. The Waddell findings indicate the presence of symptom magnification and malingering. Although Chiropractor Quirk in his letter dated January 5, 2001, indicates the presence of muscle spasm, no muscle spasm was determined on the present physical examination, nor was any determined in August of 2000, nor was there any determined by Douglass, M.D. when he opined on August 19, 1997, that Ms. Norman recovered to her pre-injury status.
The employee=s objections to the opinions of Drs. Hartman and Stern are not entirely unreasonable. However, those concerns were for the compensation judge to weigh in resolving the conflicting medical opinions and provide insufficient justification to reverse the judge=s decision. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
Substantial evidence, including adequately founded expert opinion, supports the compensation judge=s decision that the employee=s May 23, 1997, injury had resolved by about August 19, 1997. Because the judge=s finding of a temporary injury resolves all claims against Fingerhut and its insurer, we affirm the judge=s decision in its entirety.
 Fingerhut and its insurer cross-appeal from the judge=s decision denying their request to extinguish the rights of medical providers that failed to intervene in this matter, asking this court to reverse the judge=s decision on this issue in the event the employee prevails on the temporary injury issue. Because we affirm the judge=s decision as to the temporary nature of the May 1997 injury, we need not address the cross appeal.
 November 28, 2000, is the 90th day after the date on which the employee stipulated to having reached maximum medical improvement, effective with service of the report of Dr. Robert Hartman.
 Chisholm and its insurer nevertheless took part in the hearing due to Fingerhut=s contention that apportionment might be necessary depending on the judge=s findings as to liability.
 Dr. Hartman first examined the employee on August 3, 2000, and then again on August 16, 2001. Dr. Stern examined the employee on December 6, 2001.