DORIS A. TRETTEL, Employee/Appellant, v. CAMBRIDGE REGIONAL CTR., and SELF-INSURED/STATE OF MN, Employer-Insurer, and ABBOTT NORTHWESTERN HOSP., TWIN CITIES FLOOR COVERING INDUS. HEALTH & WELFARE FUND, and THE INST. FOR LOW BACK CARE, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 17, 2003
CAUSATION - INTERVENING CAUSE. The compensation judge erred in concluding that the employee=s need for medical care was necessitated by a superseding intervening cause where there was no evidence that the employee=s conduct was unreasonable, negligent, dangerous or abnormal.
APPEALS - RECORD. Where the findings prepared by the compensation judge consisted of summaries of evidence presented in the case and where the compensation judge failed to provide a basis in her findings for the conclusions reached in this matter, the Findings and Order is vacated and remanded for further findings on the record.
Vacated and remanded.
Determined by Stofferahn, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Carol A. Eckersen
Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Appellant. Kenneth H. Chun, Department of Employee Relations Employee Insurance Division Workers= Compensation, St. Paul, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the determination of the compensation judge that the claimed medical expenses were the result of a superseding intervening cause. We vacate and remand.
Doris Trettel, the employee, sustained a work related injury to her low back on April 4, 1980 while employed at the Cambridge Regional Center. While making a bed, she leaned over to put on a pillow case and could not straighten up because of pain on the left side of her low back. Her initial treatment was at the Cambridge Clinic where she was diagnosed as having sustained a low back strain and was given Robaxin and Tylenol 3. The employee testified that she was off work for about three weeks and that she does not recall if she had restrictions when she returned to work. She worked at Cambridge Regional Center for about another year before she voluntarily resigned her position.
While the employee testified that she had continuing low back pain from the time of her injury, there is no reference to additional medical treatment for her low back until November 1985 when she developed pain in the low back after doing vacuuming at home. She received physical therapy and was referred to a neurologist, Dr. Steven Noran, who ordered a CT scan which was done on February 28, 1986. The CT scan was interpreted as showing mild degenerative articular facet changes at L4-5 and L5-S1 with no evidence of herniated discs or spinal stenosis.
The employee was evaluated by Dr. Mark Engasser on August 4, 1986 at the request of the employer. The employee said she had low back pain approximately 75 percent of the day and she was awakened at night by back pain every one and one half to two hours. She had no symptoms in her lower extremities. The physical examination was reported as normal other than some limits on her range of motion. Dr. Engasser diagnosed a chronic myoligamentous strain, lumbosacral spine. He concluded she had a five percent permanent partial disability of the spine and recommended work restrictions of occasional lifting and carrying of 24 pounds.
After she left her employment at Cambridge Regional Center, the employee did not work full-time for some years, instead assisting her husband who was selling furniture. In 1987 she settled her workers= compensation case with the employer, closing out all claims except for medical expenses. Thereafter the employee went to beauty school and then began working as a beautician in 1988. She worked full-time in that capacity for about seven years.
In July 1989 she saw Dr. Charles Cooley for an acute exacerbation of chronic back problems. She indicated that her low back pains would come and go and she had pain in her low back and into her buttocks the night before her appointment. She was brought into Dr. Cooley=s office in a wheelchair. There were no objective findings on examination and Dr. Cooley prescribed physical therapy and Percodan. She had another exacerbation in August 1990 for which she saw Dr. Cooley. He gave her a prescription for Darvocet and took her off work. A CT scan done at Dr. Cooley=s direction in August 1990 showed minimal bulging at L4-5 and L5-S1. The employee indicated that the origin of her back problems was the work injury in 1980.
The employee did not see Dr. Cooley again until May 1992. In her history at that time, she indicated receiving treatment from Dr. Zapf and from a chiropractor. She complained of constant pain in her low back sometimes radiating toward her upper posterior thighs. On examination Dr. Cooley saw no evidence of a disc syndrome. His examination of her back was normal except for stiffness in her range of motion and tenderness in the posterior superior spine. Dr. Cooley diagnosed bursitis of the spine and injected Marcaine and Dalalone into the area. He recommended physical therapy if the injections were not helpful. The employee did not see Dr. Cooley again.
The employee testified that she treated fairly regularly for her low back up to 1994 but there are no records of that treatment in evidence. She also stated at the hearing that she did not treat for her low back between 1994 and 1998 because her doctors told her there was nothing they could do for her and she would have to live with her condition. During this time, the employee stopped working as a beautician and was employed at various full-time jobs including running a labeling machine in a plastics factory, working as a cocktail waitress, doing computer work, and telephone debt collection.
The employee sought treatment for her low back at RiverPlace Physicians on November 30, 1998. The employee stated that her low back problems began in 1980 with her work injury. Her history was of low back pain with the onset being two days previously. The examination showed tenderness with pressure over the low back and pain with extended thigh rotation and straight leg raising. She was given a prescription for Methocarbamol and Percocet. The employee visited the emergency room at Monticello Big Lake Hospital on March 15, 1999, indicating that she had done some moving over the weekend and although she had not lifted very much, she exceeded her restrictions and had an exacerbation of her pain. The examination showed tenderness in the lumbar spine and some limitation in her range of motion. She was given injections of Demerol and Vistaril and a prescription for Percocet. She saw Dr. Zapf at RiverPlace Physicians again four days later for low back pain, had a normal examination and was given Vicodin. The office note contains no reference to the emergency room visit. When she returned in July, Dr. Zapf referred her to Dr. Engasser and ordered a CT scan. The CT scan, which was done on July 14, 1999, was read as showing degenerative disc disease at L4-5 and L5-S1 with no evidence of central stenosis, nerve root compression, or neural foraminal narrowing.
The employee saw Dr. Engasser on July 28, 1999. The employee related having low back problems since her injury of April 4, 1980 with the pain becoming worse over time. Dr. Engasser diagnosed lumbar degenerative disc disease at L4-5 and L5-S1. He placed the employee on Ketrofen and Vicodin and stated AThere is obviously not an easy answer to her overall problem.@ The employee followed-up with Dr. Engasser on August 25, 1999 and indicated that her low back symptoms were basically unchanged. Dr. Engasser continued the employee=s pain medication. He also stated, with regard to the employee=s symptoms, ASome of these problems are related to her original injury since the symptoms are exactly the same. It appears that she has had progression of symptoms although the underlying diagnosis remains unchanged.@ One month later Dr. Engasser recommended an epidural block. The employee had the block done but testified at the hearing that it had not been of any help to her.
The employee stopped working in 1999 and has not been employed since. She was placed on Social Security disability benefits in November 1999 for a medical condition not related to any back problems or to her employment.
The employee did not see Dr. Engasser again until 2001. In 2000 she consulted with her family doctors in Monticello and made at least eight visits to the emergency room at Monticello Big Lake Hospital. Each time she complained of an exacerbation of low back pain and on each occasion she was provided with injections of Demerol and Vistaril and a prescription for Percocet. On no visit were there any findings on examination other than limited range of motion and tenderness in the low back. On February 1, 2001 the employee visited the emergency room at Monticello Big Lake Hospital and stated that she had been doing fairly well for several weeks but that she had slipped on the ice earlier in the week and her pain had gradually worsened since then. The examination was charted as being Afairly unremarkable@ except for tenderness in the paraspinous muscles on the left side. The straight leg raising test was mildly positive on the right. The employee was given Demerol and Vistaril as well as a prescription for Robaxin and Percocet. The employee has not argued that the January 2001 slip and fall was in some way related to her work injury.
On February 8, 2001 she consulted with Dr. Mark Thibault, a rehabilitation medicine specialist, at the recommendation of Dr. Engasser. No history of the slip on the ice was given to Dr. Thibault. With regard to her back complaints, Dr. Thibault=s diagnosis was of degenerative disc disease at L4-5 and L5-S1, chronic pain syndrome, mechanical low back pain, and deconditioning syndrome. He recommended a spine strengthening rehabilitation program which would last eight to twelve weeks. Dr. Thibault provided a prescription for Oxycontin but advised the employee that she should not receive pain medication from any other doctor. The employee did not see Dr. Thibault thereafter.
On April 11, 2001 the employee returned to Dr. Engasser and told him that her symptoms were severe and that she had radiating pain in both legs with the right leg having pain to the foot. No history of the slip on the ice in January 2001 was recorded by Dr. Engasser. The employee also advised Dr. Engasser that since he had last seen her, she had fractured her left clavicle and had required surgery. There is no record of the circumstances leading to this fracture and no record of the treatment of the fracture. Dr. Engasser found no motor loss in the lower extremities but did note a positive straight leg raising on the right with the employee in both the supine and seated positions. Dr. Engasser diagnosed lumbar radiculitis and prescribed Ultram. The employee returned two weeks later with improvement in her symptoms, although she still had discomfort in her buttocks. Dr. Engasser recommended an MRI.
The MRI was done on May 2, 2001 at Monticello Big Lake Hospital. It showed mild central stenosis, L4-5 secondary to degenerative changes with broad based disc bulge and mild foraminal narrowing. A small central disc protrusion at L5-S1 was also noted with mild left sided neural foraminal narrowing.
On May 9, 2001 the employee returned to Dr. Engasser with pain in her low back and legs primarily on the right side. Dr. Engasser recommended an epidural block. The employee was unable to complete the block on May 11, 2001 because of discomfort. The employee went to the emergency room later that day because of low back pain and the doctor recommended follow-up with Dr. Engasser.
The employee saw Dr. Engasser again on June 20, 2001. She advised the doctor that she had some relief of her symptoms from the epidural blocks but still had low back pain and pain into both legs, worse on the right. Dr. Engasser indicated again that there was not an easy answer to her condition in his opinion. He did not feel the symptoms were severe enough to justify surgery and instead recommended walking for exercise and a weight loss program. The employee did not see Dr. Engasser thereafter.
On July 22, 2001 the employee consulted with Dr. Sunny Kim at the Institute for Low Back and Neck Care. In her pain drawing, the employee illustrated pain in her low back with sharp stabbing pain down her right leg. Four days earlier the employee had gone to the emergency room with a history of exacerbation of low back pain and an indication that she had been doing moderately well until she slipped at home. The employee testified at the hearing that she had been on stairs at home and had missed a step, grabbing the railing so she did not fall. This incident is not noted in Dr. Kim=s records.
In her history to Dr. Kim she dated the onset of her Asevere sciatica@ as being February 2001. Dr. Kim reviewed the May 2001 MRI and concluded that it showed a severe impingement on the right L4 nerve root. Dr. Kim stated that the employee was an excellent candidate for foraminal discectomy right L4-5 for decompression of the right L4 nerve root.
The employee was admitted to Abbott Northwestern Hospital on July 23, 2001 and surgery was done that day. The employee testified that she had immediate relief from her symptoms but that after a few months, her situation was Aback to the same old, same old,@ meaning that she continued to have low back pain for which she sought frequent treatment. Dr. Kim referred the employee to Medical Advanced Pain Specialists (MAPS) for pain treatment.
The employee did not consult with MAPS until November 4, 2002. By that time the employee had also had an anterior fusion performed at the C5-6 level by Dr. Kim. The employee has not claimed this procedure to be related to her April 4, 1980 work injury. Her complaints at MAPS were of cervical and lumbar back pain. Physical therapy and the chronic pain program were recommended by the physician who met with her. The employee continued to treat with MAPS thereafter for her back pain. After completing the physical therapy program with no significant improvement, the employee was treated with Methadone.
The employee=s claim petition was heard by Compensation Judge Carol Eckersen on April 24, 2003. At the hearing, the parties agreed that the issue was whether the employee was entitled to payment of medical expenses. Twin City Floor Covering Industry Health and Welfare Fund had intervened, seeking reimbursement of $13,238.74 in medical expenses it had paid, covering services from various providers from March 28, 2001 to July 7, 2002. There were two other intervenors and other health care providers with unpaid bills from 2001. The bulk of the claimed expenses related to the employee=s low back surgery in July 2001.
In her Findings and Order, served and filed June 23, 2003, the compensation judge determined that the employee had not shown by a preponderance of the evidence that the work injury was a substantial contributing cause of her need for treatment. The compensation judge found the employee=s slip and fall in January 2001 to be a superseding intervening cause of her need for treatment. The employee appeals.
The employee argues on appeal that the compensation judge erred in concluding that the employer was not liable for the claimed medical bills because the slip and fall in January 2001 was a superseding intervening cause of the employee=s need for treatment.
An employer is responsible for medical expense if the employee=s need for treatment is due in substantial part to the work injury. The work injury need not be the sole cause of the need for treatment but may be a substantial contributing factor in the employee=s condition. Roman v. Minneapolis Street Railway Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1974). Thus, medical expenses incurred as a result of an aggravation of the work injury continues to be the responsibility of the employer if the work injury remains a substantial contributing factor in the need for treatment. The causal relationship with a work injury may be broken by a superseding intervening cause of the aggravation but in order to constitute a superseding intervening cause, the aggravation must be the result of conduct by the employee which is unreasonable, negligent, dangerous or abnormal. Eide v. Whirlpool Seeger Corp., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961). The burden of proving an intervening cause is on the employer. Hughes v. Karps Twin City Supply, slip op. (W.C.C.A. Nov. 27, 1996); Johnson v. Waseca ISD #829, slip op. (W.C.C.A. Aug. 21, 2003).
In the present case the employer presented no evidence that the employee=s conduct when she slipped and fell on ice was unreasonable, negligent, dangerous or abnormal. In the absence of such evidence we conclude that the compensation judge erred in finding the January 2001 slip and fall to be a superseding intervening cause.
We have held in at least one other case that an erroneous conclusion by a compensation judge that an aggravation represented a superseding intervening cause was harmless error where it was clear that the compensation judge had concluded that the work injury had resolved and that the aggravation was a new injury and a totally separate cause of the need for medical care. Minier v. Ernst Forest Prods., slip op. (W.C.C.A. Feb. 14, 2003). However, in the present case, the employee had previously been rated as having sustained a permanent impairment to her low back from the work injury and the compensation judge made no finding that the employee=s April 4, 1980 work injury had resolved.
The compensation judge determined that the employee failed to establish by a preponderance of the evidence that her need for treatment was related to her work injury. Preponderance of the evidence is defined in Minn. Stat. ' 176.021, subd. 1a as Aevidence produced in substantiation of a fact which, when weighed against the evidence opposing the fact, has more convincing force and greater probability of truth.@ The present case is unusual in that neither party introduced a report with a medical opinion on the key issue of the case. The compensation judge does not provide any explanation as to why the employee was found not to have met her burden of proof. The findings in the compensation judge=s decision are summaries of the evidence provided by the parties but there is no indication by the compensation judge as to what conclusions were drawn from the evidence.
A compensation judge is required to make a determination of all contested issues of fact and law. Minn. Stat. ' 176.371. In order for this court to perform its function of review in a meaningful way, the compensation judge must provide the basis upon which the ultimate conclusion was reached. Hassan v. Spherion Corp., slip op. (W.C.C.A. June 9, 2003). That information is not available to this court in this case.
This matter is remanded to the compensation judge to make specific and detailed factual Findings and Order, on the existing record, consistent with this decision.