TAMERA M. PETERSON, Employee/Appellant, v. CAMILIA ROSE CONVALESCENT CTR. (n/k/a WILLOWS CONVALESCENT CTR.) and LUMBERMEN=S UNDERWRITING ALLIANCE, Employer-Insurer, and ORTHOPEDIC MEDICINE & SURGERY, LTD., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 18, 2003
CAUSATION. Where the compensation judge=s findings are inconsistent with a prior findings and order finding compensable treatment for neck and shoulder symptoms as a result of a September 4, 1990 Gillette injury, and where the compensation judge failed to explain her apparent reliance on the conflicting medical opinions of both the employee=s treating physician and the independent medical examiner, the findings and order are vacated and remanded for redetermination.
REHABILITATION - ELIGIBILITY. Where the employee was permanently precluded from returning to her pre-injury job as a certified nursing assistant (CNA), and had permanent work restrictions, the denial of the employee=s request for rehabilitation services/medical management is vacated and remanded for a determination of whether the employee could benefit from medical management or other rehabilitation services during the period in dispute.
Vacated and remanded.
Determined by Johnson, C.J., Rykken, J. and Stofferahn, J.
Compensation Judge: Joan G. Hallock
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s determination that the employee=s current shoulder symptoms and need for medical treatment are not causally related to her September 4, 1990 personal injury, and from the compensation judge=s denial of rehabilitation services. We vacate and remand for redetermination in accordance with this decision.
Tamera M. Peterson, the employee, worked for twelve years as a certified nursing assistant (CNA) for the employer, Camilia Rose Convalescent Center. In the spring and summer of 1990, the employee noticed a gradual onset of neck and shoulder symptoms associated with her work activities. (5/5/93 F&O, finding 7.) In late August and early September, 1990, the employee sought treatment from James Brandt, D.C., and Dr. Peter Holmberg for neck and right arm complaints. The diagnosis was a possible rotator cuff strain.
The employee was then referred to Dr. Richard Bertie who provided work restrictions and prescribed physical therapy. The employer accommodated the employee=s restrictions, transferring the employee to a medical receptionist/secretary position. On February 13, 1991, Dr. Bertie noted the employee continued to experience pain in the right arm and into her shoulder. He referred her for an EMG of the right upper extremity, which was within normal limits.
The employee began treating with Dr. Steven Lebow, a neurologist, on March 1, 1991. Dr. Lebow noted bilateral trapezius spasm with loss of lateral flexion in the neck bilaterally. He diagnosed a cervical strain/sprain with radiating pain into the right upper extremity, and recommended an aggressive conditioning program. The employee continued to treat with Dr. Lebow through April 1992. The doctor eventually diagnosed a chronic musculoligamentous condition, noting persistent symptoms and pain in the neck and right shoulder and arm. On January 28, 1992, Dr. Lebow concluded the employee had reached maximum medical improvement, and imposed permanent work restrictions precluding the employee from returning to work as a CNA. (5/5/93 F&O, finding 11.)
In July 1992, the employee returned to Dr. Lebow with complaints of increased neck pain with right shoulder and arm pain. Concerned about possible pathology in the shoulder, the doctor requested an MRI scan. No significant abnormalities were noted in the right shoulder. By January 1993, Dr. Lebow indicated the employee had returned to her pre-exacerbation baseline.
The employee had filed a Claim Petition on May 23, 1991, alleging a personal injury to the Aback,@ seeking payment of medical expenses and a change of physician to Dr. Lebow. The employee later added claims for permanent partial disability benefits, approval for a health club membership and rehabilitation services. The employee=s consolidated claims were heard on March 3, 1993 by Compensation Judge Nancy Olson. In a decision issued May 5, 1993, Judge Olson found the employee=s Aneck complaints@ were due to a Gillette-type injury culminating on September 4, 1990, and awarded benefits to the employee.
The employee sought no treatment from 1993 through the summer of 2000. In July 2000, the employee complained of increasing right arm pain during a general physical examination by a family physician in Manitowoc, Wisconsin. She was then seen by Dr. Philip Haley, an orthopedist, on August 7, 2000 complaining of right upper extremity pain. Dr. Haley concluded her problems were coming from the shoulder, rather than the arm or cervical spine, and referred the employee for an MRI scan. The scan showed degenerative changes in the acromioclavicular and glenohumeral joints. The employee then returned to Dr. Lebow on November 14, 2000 complaining of neck and shoulder pain. On exam, the doctor noted bilateral trapezius spasm, poor lateral mobility of the neck and poor rotation in the shoulders. He noted the employee had a musculoligamentous injury from 1990, with recent progression likely representing degenerative arthritis in the shoulders superimposed on the prior injury. Dr. Lebow referred the employee to Dr. Jay Johnson, an orthopedist specializing in shoulder conditions. Dr. Johnson examined the employee on January 17, 2001, noting significant decreased rotation of the right shoulder and expressing concerns about a possible frozen shoulder.
The employee was examined by Dr. Jack Drogt, an orthopedist, at the request of the employer and insurer on May 22, 2001. Dr. Drogt diagnosed diffuse musculoligamentous findings with chronic neck and shoulder pain. He concluded, however, given the seven-year hiatus in care, that the employee=s current right shoulder problems were not related to her 1990 work injury, and were, more likely than not, age specific.
The employee filed a new Claim Petition on January 29, 2001, seeking temporary total disability benefits and payment of medical bills. The temporary total claim was dropped prior to the hearing, at which time the issues were whether medical expenses incurred by the employee for the treatment of neck and Ashoulder pain@ were causally related to her September 4, 1990 Gillette injury, whether the employee was a qualified employee for the purpose of receiving rehabilitation benefits, and payment for rehabilitation services. The case was tried by a compensation judge at the Office of Administrative Hearings on April 2, 2002. In a Findings and Order issued June 25, 2002, the compensation judge concluded the May 5, 1993 Findings and Order established solely a neck injury in 1990, and denied the employee=s claim for benefits related to her shoulder symptoms. The employee appeals.
The compensation judge found no mention of a Ashoulder injury@ in the May 5, 1993 Findings and Order, and concluded the prior findings and order established solely a Gillette injury to the Aneck.@ (Findings 3, 5.) The judge further found that both Dr. Drogt and Dr. Lebow opined the employee had musculoligamentous problems with her shoulder, that Dr. Drogt opined the shoulder problems were not related to the work injury, and concluded, A[t]he Compensation Judge accepts and relies upon these opinions.@ (Finding 5.)
The employee asserts the compensation judge misinterpreted and misunderstood the original findings of Compensation Judge Olson. She seeks a reversal of the compensation judge=s order, arguing the appeal involves a matter of law and, properly interpreted, the May 5, 1993 Findings and Order requires a finding of causation and an award of benefits. The employer and insurer argue the appeal involves a purely factual issue, and the finding of no causation must be affirmed based on the compensation judge=s choice of experts, asserting the compensation judge rejected Dr. Lebow=s opinion and accepted the opinion of Dr. Drogt.
We disagree. Although characterized as a personal injury to the Aneck,@ the employee=s complaints and symptoms from 1990 through 1993 included, from the very beginning, repeated references to right shoulder complaints and symptoms. Findings on examination included spasm in the trapezius musculature and loss of motion in the right shoulder, particularly with internal and external rotation. In July 1992, the employee=s medical providers were particularly concerned about the employee=s right shoulder pain. An MRI scan of the shoulder was performed, which was negative. Dr. Lebow concluded the employee=s condition was essentially a chronic musculoligamentous sprain/strain, involving the neck and right upper extremity.
In her May 5, 1993 Findings and Order, Judge Olson specifically found that in the spring and summer Athe employee noticed a gradual onset of symptoms in the neck and shoulder area,@ and that the employee noticed increased Aneck and shoulder symptoms when she would be making beds, lifting patients and pushing wheelchairs.@ (Finding 7.) The compensation judge did not find a Aneck injury,@ but found the employee=s Aneck complaints@ constituted a Gillette injury as a result of her work activities for the employer.
Although the employer and insurer argue otherwise, it is clear the compensation judge=s June 25, 2002 decision rests in large part on her conclusion that Judge Olson, in her May 5, 1993 Findings and Order, found solely a Aneck injury@ and the employee=s 1990 Gillette injury did not encompass or include a Ashoulder injury.@ It is important, however, to distinguish between a Apersonal injury@ and the symptoms and complaints caused by that personal injury. In this case, Judge Olson=s decision does not reflect solely an injury to the cervical spine. Rather, it is reasonable to interpret the May 5, 1993 Gillette injury as encompassing a soft-tissue injury to the cervical or neck area. There need not be a specific shoulder Ainjury@ for treatment for the condition to be compensable. The question is whether the symptoms, findings and complaints included in the employee=s musculoligamentous Aneck condition@ in 1993 included right shoulder symptoms. The employer and insurer essentially admit that they did (see Er-Insr Brief, p. 7), and it would be difficult to interpret the medical evidence covering the period from 1990 to 1993 in any other way.
Nor does the compensation judge clearly reject Dr. Lebow=s opinions and accept Dr. Drogt=s opinions. Rather, the compensation judge states she Arelies upon these opinions.@ (Finding 5.) It is not clear how she reconciled or interpreted these opinions. In his November 14, 2000 chart note, Dr. Lebow noted the employee was seen in consultation for problems with shoulder pain and neck pain and that, A[s]he had neck, right shoulder, arm and back pain from a 1990 injury.@ On examination, the doctor reported trapezius spasm, poor lateral mobility of the neck, and poor external rotation in the shoulders. Dr. Lebow concluded the employee had an old injury that was essentially musculoligamentous with recent progression reflecting degenerative arthritic changes in the shoulder superimposed on her prior injury. It is clear that Dr. Lebow believed the employee=s right shoulder problems were related to her September 4, 1990 work injury. (Pet. Ex. C, 12/12/00 letter; Pet. Ex. D, 11/14/00.)
In his report of May 22, 2001, Dr. Drogt acknowledged the employee had a work-related, Gillette injury to the neck, shoulder and right arm in 1990, observing the employee continued to experience shoulder pain. The doctor stated he believed, Aas does Dr. Lebow,@ that the employee had Adiffuse musculoligamentous findings@ without specific relation to the findings on the August 8, 2000 MRI scan. Dr. Drogt, on the other hand, noting the Aseven-year hiatus@ in treatment, opined the employee=s current shoulder symptoms were not causally related to her September 4, 1990 injury, but were more likely than not age-related. (Resp. Ex. 6.)
It is difficult, if not impossible, to reconcile these opinions with each other and with the judge=s conclusion that the 1990 injury did not include shoulder problems. We, accordingly, vacate and remand for redetermination of the causation issue, that is, whether the employee=s current shoulder condition is causally related to the personal injury for which the employer and insurer were found liable in 1993. The reconsideration shall be based on the existing record.
2. Rehabilitation Services - Medical Management
The employee also appeals from the compensation judge=s denial of rehabilitation services. The employee requested medical management by a qualified rehabilitation consultant (QRC). The compensation judge found the employee was not a Aqualified employee@ on two bases: (1) that the claimed shoulder problems were not causally related; and (2) that the employee was working full-time and was not in need of a QRC for vocational purposes.
Rehabilitation services include medical management by a QRC, and may include assisting communication among parties about the employee=s medical condition, treatment or physical restrictions, and coordination of medical treatment with vocational services necessary to facilitate the employee=s return to or retention of post-injury employment. See Minn. R. 5220.0100, subps. 20, 29. The fact that an employee is working does not necessarily preclude rehabilitation assistance. To be a Aqualified employee,@ the employee must be permanently precluded from engaging in the date-of-injury occupation or job, cannot be reasonably expected to return to employment with the date-of-injury employer, and can be expected to benefit from rehabilitation services. See Minn. R. 5220.0130, subp. 22.
The employee continued to work for the employer, through approximately 1996, as a medical receptionist/secretary. Since then, she has worked as a receptionist/secretary for various employers. At the time of the hearing in this matter, on April 2, 2002, the employee was working full time as a receptionist/scheduler for the Allina Medical Group Clinic in Coon Rapids. The employee is, however, permanently precluded from returning to her date-of-injury occupation as a CNA as a result of her 1990 work injury, and has permanent work restrictions. At the time of the hearing, she was undergoing treatment for increasing shoulder symptoms. The compensation judge failed, nonetheless, to determine whether the employee could be expected to benefit from medical management or other rehabilitation services during the period in dispute. We, therefore, vacate and remand the employee=s claim for rehabilitation services as well.