MINERVA CIRIACO CRUZ, Employee/Appellant, v. DELI EXPRESS and SENTRY INS. GROUP, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 10, 2004
CAUSATION - TEMPORARY AGGRAVATION. Substantial evidence supports the compensation judge=s determination that the employee=s injury was temporary and had resolved by July 7, 2003.
Affirmed in part, vacated in part.
Determined by: Stofferahn, J., Peterson, J., and Rykken, J.
Compensation Judge: Harold W. Schultz II
Attorneys: William H. Getts, William H. Getts, P.A., Minneapolis, MN, for the Appellant. Krista L. Twesme, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The compensation judge denied the employee=s claim for medical expenses after July 7, 2003, finding that the employee sustained a temporary injury which had resolved by that date. The employee appeals. We affirm in part and vacate in part.
The employee, Minerva Ciriaco Cruz, was employed as an assembler by the employer, Deli Express, when she sustained a work injury on April 23, 2002. The employee was seated on a stool which broke and the employee fell to the floor, striking her head. The employee=s initial complaint was of pain in her left elbow and she was taken by the employer to the Crossroads Medical Center for treatment.
At Crossroads, the employee noted pain in her right neck and shoulder area as well as a bruised left elbow. An assessment of myofascial neck pain was made and the use of Advil and ice was recommended. The employee was also advised to avoid reaching overhead. At the hearing the employee testified that she had pain in her low back at that time as well. The employer and its insurer, Sentry Insurance Group, admitted liability for the injury but denied that the employee had injured her low back.
The employee began treating at International Chiropractic Clinic on April 30, 2002. Her initial complaints were of left elbow pain, neck pain, headaches, left shoulder pain and upper, mid, and low back pain. The employee received a variety of chiropractic treatments through June, 19, 2002. The chiropractic records indicate the employee reported an improvement in symptoms over the period of her treatment. The employee testified that she stopped treating at International Chiropractic Clinic because of communication difficulties. The employee speaks Spanish but not English. The employee transferred her care to Health Community Center on June 30, 2002, seeing Dr. Eric Koehler on that date. On her initial visit, she indicated that she had neck stiffness and mid and low back pain. The employee began receiving chiropractic treatment from Dr. Koehler or from his colleagues at the clinic, Dr. Adan Perez, Dr. Hans Castro, Dr. Matthew Hayda, and Dr. Hai Chau. The employee received treatment in the form of various chiropractic modalities and treated regularly, generally once or twice a week through March 25, 2004.
The employee also treated with Dr. Alfonso Morales at Central Medical Clinic but the dates of care are not in the record. Dr. Morales apparently referred the employee for cervical and lumbar MRI scans in July 2002, which showed a widely patent canal and foramen at L-2, L-3, L3-4, L4-5, and L5-S1. The cervical MRI was read as showing a central left paracentral herniation at T1-2, a small central herniation at C7-1, a small central annular bulge at C6-7 and mild marginal spurs at C5-6 with mild canal stenosis. In a letter of April 1, 2004, Dr. Morales indicated his diagnosis was cervicalgia, myofascial pain, and cervicogenic headaches due to cervicalgia.
At some point, the employee was referred to Dr. Mark Engasser and she began treating with him on November 25, 2002. Dr. Engasser took a history that the employee had cervical and thoracic pain but no pain in her low back or legs. Dr. Engasser examined the employee and reviewed the July, 2002 MRI scans. His diagnosis was of myoligamentous strain of the cervical and upper thoracic spine, with underlying cervical and upper thoracic degenerative disc disease. He restricted the employee to non-production work with no lifting over 10 pounds. Dr. Engasser recommended a neck and upper back strengthening and flexibility program and started a course of Bextra, an anti-inflammatory medication.
The employee returned to Dr. Engasser for follow up on December 27, 2002. She noted some improvement in symptoms from the medicine but had not yet been able to start the physical therapy recommended by Dr. Engasser. Dr. Engasser continued to recommend physical therapy and medication. The employee began a course of physical therapy in January 2003. When Dr. Engasser saw the employee on January 17, the employee reported that therapy had been helpful. Dr. Engasser released the employee to light assembly work four hours a day.
At her appointment on February 3, Dr. Engasser stated that the employee was making definite progress. On February 17, Dr. Engasser changed the employee=s medication to Naprosyn, recommended that the employee continue physical therapy, and modified the employee=s work restrictions to allow six hours of work per day. On March 7, 2003, Dr. Engasser allowed the employee to work full time but with restrictions. The employee returned to full time work with the employer at that point and was no longer working at a wage loss.
The employee was seen for an IME on behalf of the employer and insurer with Dr. Loren Vorlicky on March 18, 2003. Dr. Vorlicky concluded in his report, after viewing records and conducting a physical examination, that the employee had sustained a contusion of her elbow, a strain of the cervical spine, and a possible head contusion and lumbar strain as the result of her April 23, 2002, work injury. He opined that these were minor injuries which should have resolved within eight weeks. He stated that the employee was capable of returning to unrestrictive work, that she had reached maximum medical improvement, that she needed no further care or treatment for her work injury, and that she had no permanent partial disability.
The employee continued to treat with the chiropractors at Health Community Center once or twice a week. She also treated with Dr. Engasser. On April 18, 2003, Dr. Engasser stated that the employee reported she was able to handle her current job quite well but when she did repetitive work she had pain in her neck, right shoulder and upper back. Dr. Engasser recommended that the employee continue her home exercise program and her medications. After the employee=s appointment with Dr. Engasser on May 9, he allowed additional assembly work.
The last chart note from Dr. Engasser is dated July 7, 2003. Dr. Engasser noted that the employee did not have significant objective findings and that he Acould not keep her on any specific restrictions.@ Dr. Engasser did not identify any treatment recommendations other than for the employee to return to see him in six weeks. No further records from Dr. Engasser regarding treatment are in evidence. In a report of September 17, 2003, to the employee=s attorney, Dr. Engasser concluded that the employee had a 7 percent permanent partial disability pursuant to Minn. Rule 5223.0370, subp. 3.C. (1).
The employee filed a claim petition on January 2, 2003, seeking wage loss benefits from the April 23, 2002, injury. The employee=s claims were heard by Compensation Judge Harold Schultz on April 2, 2004. Issues for determination relevant to this appeal were the nature and extent of the employee=s work injury and payment of the employee=s medical and chiropractic bills. In his Findings and Order served and filed on May 13, 2004, the compensation judge denied the employee=s claims for chiropractic expense after July 23, 2002, and denied the claims for medical expense after July 7, 2003. In his memorandum, the compensation judge stated that he accepted the opinion of the IME that the employee sustained a temporary injury on April 23, 2002, but the Aextent of the temporary aggravation is more than what Dr. Vorlicky determined. The employee, acting pro se, appealed from the compensation judge=s decision that she had sustained a temporary injury to her cervical and thoracic spine and that she did not have a permanent injury or an injury to her lumbar spine.
Extent of Injury
On appeal, the employee contends that the compensation judge erred in terminating her medical treatment as of July 7, 2003, on the grounds that her injury of April 23, 2002, was temporary. In support of her position, the employee points to Dr. Engasser=s September 17, 2003, report in which Dr. Engasser recommended against certain activities and provided the employee with a rating of permanent partial disability. The question before this court, however, is not whether there is evidence in favor of the employee=s argument but whether there is substantial evidence to support the decision of the compensation judge. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37, W.C.D. 235 (Minn. 1984).
In determining that the employee=s injury was a temporary aggravation, the compensation judge relied on the opinion of the IME, Dr. Vorlicky. No objection has been made to the foundation for Dr. Vorlicky=s opinion and in such circumstances, the compensation judge=s decision, based upon a choice of medical opinions, will not be reversed. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Nini v. Gold=N Plump, slip op. (W.C.C.A. Mar. 15, 2004). The compensation judge did not accept Dr. Vorlicky=s opinion as to when the temporary aggravation ended but a compensation judge is not obligated to accept all of a medical opinion and may accept only a part of it. Koecher v. Great Frame Up of Edina, slip op (W.C.C.A. Dec. 30, 2003). In using the date of July 7, 2003, for the end of the temporary aggravation, the compensation judge obviously relied upon the records from Dr. Engasser in which the employee was released to work without restrictions on that date. Although in his September 17, 2003, report, Dr. Engasser recommended against certain activities, he stated again that he would not place any specific restrictions on the employee. We find substantial evidence supports the decision of the compensation judge that the employee=s injury of April 23, 2002, was resolved by July 7, 2003.
Admission of Medical Records
The employee argues that the compensation judge erred in admitting medical records from Central Medical Clinic. The records in question refer to treatment from an auto accident for a woman with the same last name but a different name and date of birth than that of the employee. The compensation judge summarized the records in Finding 5.
The employee does not explain why those records were prejudicial. The compensation judge did not conclude that the auto accident was involved in any way in the employee=s current symptoms or need for treatment nor did he determine that the employee=s work injury was a temporary aggravation of the auto accident. We note also that these records were introduced by the employee=s attorney and we have some concerns about a party arguing that a compensation judge erred in accepting evidence that the same party offered. In any event, we find no prejudice to the employee and decline to reverse on this basis. Since there is agreement that this finding does not refer to the employee, Finding 5 is vacated.
 The employee subsequently retained her present attorney to represent her in this appeal.