BARBARA E. SMITH, Employee/Appellant, v. DOUGLAS CO. PHN SERVS., SELF-INSURED/MINN. COUNTIES INS. TRUST/RSKCO., Employer.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 5, 2004
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge=s decision as to the nature of the employee=s work injury and as to the causal relationship of claimed medical expenses to that injury.
Determined by: Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Bradley J. Behr.
Attorneys: Mark R. Black, Black Law Office, St. Cloud, MN, for the Appellant. Candice E. Hektner, Peterson & Hektner, Minneapolis, MN, for the Respondent.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s determination that the employee did not sustain an injury to her lumbar spine and from the judge=s denial of medical treatment and medication expenses as not reasonable and necessary to treat her 1997 work injury. We affirm.
On October 14, 1997, the employee sustained an injury while transferring a patient in her job as a home health aide for Douglas County PHN Service [the employer]. The employee was seen at the Lakewood Clinic on October 15, 1997, complaining of upper back and neck pain. The clinic notes reflect that A[s]he has had this intermittently, but not on a consistent basis. Over the last 3 days has gotten increasingly worse.@ Her pain at that time was localized in the shoulders, upper back, and neck areas. Physical therapy was prescribed.
When seen at the Lakewood Clinic again on October 22, 1997, the employee also complained of some pain into her hips and legs but described it as Anot a radiating pain.@ On November 18, 1997, physician=s assistant Marc DeBow [PA-C DeBow] diagnosed fibromyalgia. The employer and insurer admitted liability for a neck injury but denied liability for an alleged back injury.
PA-C DeBow referred the employee for a fibromyalgia evaluation, and on January 2, 1998, the employee was examined by Dr. Kathryn Riordan, a rheumatologist, who noted some tenderness in the back and trapezius bilaterally down into the paraspinous muscles. There were no discrete tender points consistent with fibromyalgia. On January 26, 1998, the employee was examined by orthopedic surgeon Dr. David Kraker, who noted mild left trapezial spasm but no paraspinal spasm in the cervical spine. His diagnosis was chronic lumbar, thoracic, and cervical strain and degenerative disc disease of L5-S1, C4-5, and C5-6. MRIs performed on February 12, 1998, confirmed disc degeneration of the cervical and lumbar spine. When the employee was seen again on May 19, 1998, Dr. Kraker diagnosed degenerative disc disease.
On March 25, 1998, the employee was seen by neurosurgeon Dr. Eric Nussbaum, who opined, AI think we are really dealing with a soft tissue problem that may have resulted from the injury.@ He did not think that the employee was a candidate for surgery. The employee was subsequently examined by independent medical examiner Dr. Robert Fielden on May 28, 1998. Dr. Fielden found no evidence that the employee had ever been injured.
The employee continued to treat with PA-C DeBow throughout 1998 and 1999. Her complaints over that time included neck pain, low back pain, headache, hip pain, tingling in her arms and legs, and sleep disturbance. Numerous medications were prescribed, and PA-C DeBow=s working diagnosis continued to be fibromyalgia. In September of 1998, the employee was seen again by Dr. Riordan, who again opined that the employee did not meet the diagnostic criteria for fibromyalgia. It was Dr. Riordan=s opinion that the employee suffered from chronic pain syndrome.
The employee was examined by independent medical examiner Dr. Michael Smith on March 29, 1999. Dr. Smith diagnosed cervical and lumbar degenerative disc disease. He opined that the employee=s low back complaints were not related to the October 14, 1997, work activities, but that the employee did sustain a thoracic and cervical sprain on that date, constituting a temporary aggravation of a preexisting condition, namely degenerative disc disease. He also opined that the employee was suffering from a chronic pain syndrome that was not related to the work injury.
The parties entered into a stipulation for settlement in June of 1999. At the time of the stipulation, the employee was claiming benefits for a 20% permanent partial disability to the whole body, temporary total disability benefits continuing from October 28, 1998, or, in the alternative, permanent total disability benefits, and the need for acupuncture, chiropractic care, a pain clinic, and referral to the Mayo Clinic. The employer admitted that the employee had sustained an injury to the neck but denied that the injury was permanent, denied injury to the lumbar spine, and denied the claims for permanent partial disability, temporary total, temporary partial, or permanent total disability benefits, and chiropractic or medical care. The terms of the stipulation provided that the employer would pay the employee $21,000 for a full, final, and complete settlement of any and all claims arising out of the work injury, with the exception of future Anon-chiropractic, non-psychiatric, non-psychological and non-pain clinic medical expenses.@ An award on stipulation was filed on June 22, 1999.
PA-C DeBow continued to treat the employee for fibromyalgia throughout 1999 and 2000. Dr. John Halfen of the Lakewood Clinic examined the employee on December 23, 1999, and encouraged the employee to exercise. On June 22, 2000, Dr. Halfen met with the employee again, with his plan being to Aget patient to accept her body as it is, and try to improve it on her own, rather than looking to somebody else to improve it, or looking for drugs to improve it.@ At that time he described the employee=s problems as depression, pain syndrome, and narcotic dependence. He increased her antidepressants and instructed the employee to increase her physical activity.
The parties entered into another stipulation for settlement in March of 2001. At that time, the employee was claiming entitlement to certain medical expenses, and, pursuant to the stipulation for settlement, the employee was paid $3,250.00 in full, final, and complete settlement of all claims for TENS units and/or related supplies and equipment, and certain other medical expenses were paid on a to-date basis. An award on stipulation was filed on March 27, 2001.
The employee treated with PA-C DeBow on January 11, 2002, for increased pain in the muscles of her back, neck, and right arm and leg. On examination, tenderness was noted in all the muscles of the back, the paraspinous muscles, latissimus muscles, and rhomboid muscles. In addition, the employee had tenderness in both arms and legs. PA-C DeBow=s assessment at that time was allergic rhinitis, possible recent virus, and fibromyalgia. When seen again by PA-C DeBow on February 7, 2002, the employee complained of episodes of falling without warning. This was assessed as Amedication related episodes of balance.@ In March of 2002, the employee apparently filed a claim petition, seeking payment of medical expenses for the two visits to PA-C DeBow in 2002, medical mileage, and prescription drugs.
The employee was examined by independent medical examiner Dr. Paul Yellin on April 11, 2002. Dr. Yellin noted that the employee=s complaints were Arather global involving the entire spine and both upper and lower extremities.@ Dr. Yellin opined that the employee=s low back complaints were not a result of the 1997 work injury and Amay be psychologic in origin.@ The doctor also concluded that the employee had suffered soft tissue injuries to the upper back and neck on October 14, 1997, but that those injuries were temporary aggravations of a preexisting degenerative condition. He did not think that the employee=s need for medications was related to the work injury.
The claim petition proceeded to hearing on June 13, 2003. In Findings and Order filed on July 25, 2003, the compensation judge denied the employee=s claim that she had sustained an injury to her lumbar spine on October 14, 1997, and found that the medical treatment and medications for which she was seeking reimbursement were not reasonable or necessary to cure or relieve the effects of the work injury. 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.
The employee contends that the compensation judge erred in not making a finding that the employee had sustained chronic lumbar and cervical strains as a result of the 1997 work injury. We are not persuaded.
At the beginning of the hearing, the compensation judge asked employee=s counsel, A[a]nd you=re claiming what type of an injury. . . ?@ Counsel responded that his client had suffered a chronic cervical and lumbar strain. The compensation judge did not make any specific findings with regard to the claimed chronic lumbar and cervical strains. Under other circumstances, we might have remanded the matter for additional findings, but in this case, we see no need.
This court does not generally function as a factfinding body; however, we note that none of the evidence submitted at hearing would support a finding of ongoing, chronic lumbar or cervical strain. The employee points to records from Drs. Freeman, Kraker, Nussbaum and the Lakewood Clinic as supporting her position. While Dr. Freeman diagnosed a neck strain, that diagnosis was made the day after the work injury. Dr. Nussbaum did not diagnose a strain but rather diagnosed Aa soft tissue problem that may have resulted from the injury,@ and the last notation of a strain diagnosis contained in the Lakewood Clinic records was on November 25, 1997, when PA-C DeBow diagnosed a low back strain, in addition to fibromyalgia. Dr. Kraker did diagnose chronic strains of the cervical and lumbar spines, but he did so in January of 1998, when the employee was still exhibiting muscle spasms on examination. By the time of his May 1998 examination, Dr. Kraker had changed his diagnosis to degenerative disc disease. No doctor has diagnosed a strain since January of 1998, three months after the employee=s injury. Rather, the diagnoses have been degenerative disc disease, chronic pain syndrome, fibromyalgia, and myofascial pain. Under these circumstances, the compensation judge did not err in failing to find that the employee had sustained chronic strains of the cervical and lumbar spine as a result of the 1997 work injury.
The judge found that the employee has degenerative disc disease of the lumbar and cervical spine, which preexisted the work injury, and that the employee=s symptoms Ahave been described as chronic pain, myofascial pain and fibromyalgia by various providers and examiners.@ The employee does not appeal from those findings but contends that substantial evidence does not support the judge=s finding that her current conditions are not causally related to the 1997 work injury. Again, we are not persuaded.
With regard to the lumbar spine, the compensation judge noted that the employee did not complain of low back pain when she was seen by a doctor the day after the work injury. No specific diagnosis involving the low back was made until October 28, 1997. This delay in reporting low back symptoms, along with the doctor=s notation on October 15, 1997, which failed to contain a history of a specific injury on October 14, 1997, provided the basis for the judge=s decision. In addition, the employee testified at hearing that her low back pain came on within three weeks of the personal injury and that it came on A[t]hrough the aggravation of everything else.@ The employee=s testimony, the October 1997 records of the Lakewood Clinic, and the opinions of Drs. Yellin and Smith provide substantial evidence to support the judge=s finding that the employee did not sustain a lumbar spine injury on October 14, 1997.
With regard to her other diagnoses, the employee contends that the records and reports of Drs. Riordan, Kraker, and Halfen, and of PA-C DeBow, provide evidence that the employee=s current conditions are related to her work injury. PA-C DeBow has repeatedly diagnosed and treated the employee for fibromyalgia, but this diagnosis has not been confirmed by any doctor. Rheumatologist Dr. Riordan has stated that the employee=s condition does not meet the criteria for fibromyalgia. She has diagnosed myofascial pain syndrome with sleep disturbance but does not discuss causation other than to say Afollowing injury last year.@ Dr. Kraker opined that the employee has degenerative disc disease and that the condition was not caused by but was aggravated by her work injury. Dr. Halfen indicated that the employee had preexisting degenerative disc disease Abut was able to maintain employment and a reasonable lifestyle,@ going on to explain,
With her injury of 10/14/97, she developed a rather new problem of limited significance, but this did cause aggravation of her other defects to the point where she has been incapacitated since then, on multiple medications and due to permanency of her previous problems she will never return to her previous level of work capacity.
The compensation judge specifically addressed but rejected the opinions of Drs. Halfen and Riordan and PA-C DeBow because these medical providers did not appear to be aware that the employee had experienced neck and upper back pain prior to the injury. The employee contends that no treatment for degenerative disease of the spine, prior to the work injury, was documented in the record. The judge, however, was within his discretion to rely on the treating doctor=s notation on October 15, 1997, that the employee had suffered from upper back and neck pain intermittently. We also note that, at the time of trial, the employee did not testify that she did not have neck pain prior to the work injury; rather, she testified that she had never treated for cervical spine problems. The employee further suggests that the compensation judge erred in not specifically addressing Dr. Kraker=s opinion. However, this court has said before that a compensation judge does not have to mention every piece of evidence in his or her decision. Rothwell v. Minn. Dept. of Natural Resources, slip op. (W.C.C.A. Dec. 6, 1993). It is apparent from the judge=s decision that he thoroughly reviewed the record.
The determinative issue before us on appeal is whether the judge=s findings are supported by substantial evidence in the record. As noted in the judge=s memorandum, both Drs. Smith and Yellin agreed that the employee suffers from a chronic pain condition but did not feel that the 1997 work injury was a substantial contributing factor. These doctors also diagnosed degenerative disc disease of the cervical and lumbar spines but opined that those conditions were not causally related to the work injury and were only temporarily aggravated by the work injury. A judge=s choice between expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employee=s only challenge to the reports of Dr. Smith and Dr. Yellin is that these doctors did not reference specific records or reports documenting treatment for neck or upper back pain prior to the date of injury. However, the doctors were entitled to rely on the October 15, 1997, notation of the treating doctor, which indicated that the employee had been suffering from intermittent head and neck pain. Accordingly, the judge=s implicit conclusion that the employee=s current conditions are not causally related to the work injury is affirmed.
The employee also appeals from the compensation judge=s denial of reimbursement for numerous medications, medical mileage, and two trips to the Lakewood Clinic. As we have affirmed the judge=s determination that the employee=s current conditions are not causally related to the 1997 work injury, we affirm also the finding that treatment, including medications, which are presumably for treatment of those conditions, is not reasonable or necessary to cure or relieve the effects of the work injury. No further discussion of this issue is warranted.
 The employee also treated with Dr. Halfen at the Lakewood Clinic on January 17, 2002, but no claim was made with regard to that clinic visit.
 We note that, while the judge made a specific finding that the employee did not prove an injury to her lumbar spine on October 14, 1997, he did not make a specific finding that the employee=s neck complaints, chronic pain, myofascial pain, or fibromyalgia diagnoses were not causally related to the work injury. The judge did state, however, in his memorandum, that A[t]he employee contends that she suffers from either myofascial pain syndrome or fibromyalgia affecting her neck, upper back and low back, and that the condition is a substantial result of the injury of 10/14/97. The medical support for this claim is not persuasive.@ In addition, the judge specifically found that the prescription medications for which the employee sought reimbursement, and the two office visits to the Lakewood Clinic, were not reasonable and necessary to cure and relieve the effects of the 1997 work injury.
 At trial, the employee was seeking reimbursement for numerous medications, including medications for migraine headaches and insomnia. The judge found that the employee was taking medications for migraine headaches and sleep disorder prior to the 1997 work injury. The employee did not appeal from that finding.