SUSAN THAO YOUNG, Employee/Appellant, v. FAIRVIEW-UNIVERSITY MEDICAL CTR., SELF-INSURED, Employer.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 28, 2004
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION. The opinion of Dr. Hebert, a resident, and Dr. Freehill, a shoulder specialist, at the University of Minnesota clinics does not lack foundation, and the compensation judge did not err in concluding, based on their report, that the employee would likely benefit from a chronic pain assessment and treatment program and has not reached maximum medical improvement (MMI) for her admitted left shoulder injury.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. On the facts of this case, the compensation judge could conclude it would be premature to find the employee permanently and totally disabled until the employee=s chronic pain syndrome is addressed and specialized job placement efforts are undertaken.
PERMANENT PARTIAL DISABILITY. Where the employee was given a permanency rating based on Minn. R. 5223.0450, subp. 4.A. and 4.B., based on limitation of passive range of motion in the shoulder, all of the doctors indicated the employee=s range of motion is significantly limited due to pain, and further treatment is contemplated to address the employee=s chronic pain syndrome, it was not unreasonable to conclude that the employee=s permanent partial disability is not presently ascertainable and an award of permanency benefits is premature.
Determined by Johnson, C.J., Wilson, J. and Pederson, J.
Compensation Judge: Patricia J. Milun
Attorneys: Denise D. Lemon, Maguire & Lemon, Egan, MN, for the Appellant. Gregory G. Heacox and Tracy M. Borash, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s determinations that the employee failed to prove permanent and total disability and that the employee=s claim for permanent partial disability benefits was premature. We affirm.
The employee, Susan Thao Young, was born in Laos in 1949, and is 54 years old. She has had no formal education and cannot read or write in English or her native language. In 1978, the employee emigrated to the United States with her husband. They initially lived in Iowa, where the employee worked for two or three months in a factory making bandage tapes for toes and fingers. The family then moved to Minnesota, after which the employee remained at home to care for the children.
At some point, through a friend, the employee obtained a job sorting linens. She left after one week, testifying that, because of her limited English, she could not understand the instructions. In July 1997, the employee obtained a housekeeping job with Fairview-University Health Services, the self-insured employer, through her daughter who also worked for Fairview. The employee=s job was to clean patient rooms after they left, including taking out garbage, stripping, cleaning and re-making beds, and cleaning floors and bathrooms.
On June 29, 2000, the employee sustained a work-related injury to her left shoulder. The employee is left-hand dominant. The self-insured employer admitted liability and paid workers= compensation benefits, including medical expenses and the statutory maximum 104 weeks of temporary total disability benefits between August 8, 2000 and August 5, 2002.
The employee sought treatment from her family physician, Dr. David Ness, on June 30, 2000. The doctor diagnosed an overuse injury to the left shoulder, prescribed medications and rest, and restricted the employee to light-duty work. In a follow-up visit on July 12, Dr. Ness prescribed physical therapy and requested an MRI scan. The scan, taken July 26, 2000, showed a small subchondral cyst, but was felt to be otherwise unremarkable. On August 3, noting the shoulder was not healing, Dr. Ness took the employee off work and referred her to Dr. Daniel Hoeffel, an orthopedic surgeon.
Following an examination of the employee on September 7, 2000, Dr. Hoeffel diagnosed left shoulder impingement syndrome with mild tendinitis. The doctor gave a cortisone injection, prescribed Vioxx and physical therapy, and restricted the employee to one-handed work with no lifting, carrying, pushing or pulling over ten pounds. Sometime thereafter, at the request of Dr. Ness, Dr. Cooper Gundry at the Center for Diagnostic Imaging reviewed the June 26, 2000 MRI films. By report dated October 26, 2000, Dr. Gundry interpreted the scan as showing a type II anterior acromial process with mild medial to lateral inferior tilting of the distal margin of the acromion with mild narrowing of the acromiohumeral distance, along with mild subacromial-subdeltoid bursal inflammation and mild tendinosis of the supraspinatus tendon fibers. On November 30, 2000, Dr. Hoeffel met with the employee and her husband. Noting the employee had not responded to conservative treatment, the doctor recommended surgery.
The employee returned to Dr. Ness and was referred to Dr. Julie Switzer for a second opinion. Dr. Switzer also diagnosed left shoulder impingement syndrome and recommended possibly one more cortisone injection or proceeding with surgery. The employee returned to Dr. Hoeffel on January 29, 2001. He agreed if the employee had reservations about the surgery, he would not proceed.
The employee began treating with Dr. Mark Wheaton, a physical medicine and rehabilitation specialist, on April 3, 2001, at the recommendation of Dr. Ness. Dr. Wheaton diagnosed left shoulder impingement syndrome and a left thoracic musculoligamentous sprain/strain. The employee received trigger point injections from Dr. Wheaton through August 2001, with limited relief.
Steven Kurenitz, a qualified rehabilitation consultant (QRC), and Sharalea DeLong, a job placement specialist, began working with the employee in August 2001. Vocational rehabilitation was focused entirely on internal placement, and their involvement consisted solely of monitoring the employee=s medical treatment and monitoring in-house job placement services, with the goal of returning the employee to work at Fairview-University Medical Center.
On October 22, 2001, Dr. Wheaton initiated a series of prolotherapy treatments. By mid-November, the employee was reporting a 40 percent improvement. After mid-January 2002, Dr. Wheaton=s records reflect an 80 to 90 percent improvement in the employee=s reports of pain and symptoms, although not complete resolution. In January 2002, Dr. Wheaton prescribed physical therapy to strengthen the shoulder and improve range of motion. The employee apparently did not complete the physical therapy program. On May 9, 2002, Dr. Wheaton released the employee to return to work as a housekeeper with a 50 pound lifting restriction.
Following the release, Fairview personnel were contacted regarding the employee=s return to work. Conflicting information was provided by Fairview regarding the employee=s status, and it was not clear whether the self-insured employer would take the employee back to work. On July 17, 2002, QRC Kurenitz and Ms. DeLong met with the employee and her husband to discuss vocational options. When the QRC proposed an outside job search, the employee=s husband became very upset, asserting the employee should return to work at Fairview and should not have to do an outside job search. The employee appeared to agree with her husband and no further discussion was had at that time. Then, on July 26, 2002, the self-insured employer formally offered the employee a return to work in her pre-injury position, effective August 12, 2002.
The employee worked two days, was unable to handle the physical demands of the job, and was terminated by the employer, effective August 14, 2002. The employee returned to Dr. Wheaton on August 27, who noted pain in the shoulder with range of motion, periscapular muscle spasms and guarding of the left arm. He recommended three additional prolotherapy treatments as well as work-hardening and/or a job change. The doctor diagnosed chronic myofascial pain syndrome, observing that guarding, muscle fatigue and pain avoidance were contributing to her syndrome. Dr. Wheaton stated the employee would be unable to return to her housekeeping job, and released the employee to work with restrictions of no more than three to four hours of work per day, no lifting, carrying, pushing or pulling over 5 to 10 pounds, change of position every 30 minutes, no repetitive activities and no overhead activities.
A meeting was held on September 3, 2002, with QRC Kurenitz, Ms. DeLong, the employee, and the employee=s son who acted as translator. Outside job placement was discussed, the employee=s restrictions reviewed, areas of vocational interest identified and vocational goals set. On September 8, Ms. DeLong telephoned Lao Family Services and scheduled a meeting on September 12 to discuss, with the employee, job-seeking assistance available through Lao Family. On about September 11, 2002, the employee or a family member left a message with Lao Family stating the employee could not make the meeting. Ms. DeLong left messages for the employee on September 11 and 12, but was unable to reach her. Shortly thereafter, Ms. DeLong was informed by the QRC that placement activity was on hold. In his report dated October 4, 2002, QRC Kurenitz stated AMs. Young does not wish to participate in job search.@ (Resp. Ex. 5.) Mr. Kurenitz testified this statement was based on the July 17 statements of the employee=s husband, the employee=s chronic pain behavior, and the fact the meeting with Lao Family was not kept. (T. Vol. II. at 89-90.) The QRC did attend the employee=s next appointment with Dr. Wheaton on October 9, 2002. Thereafter, no further rehabilitation assistance was provided to the employee.
At the October 9 appointment, Dr. Wheaton noted the employer denied authorization for additional prolotherapy. The doctor reported the employee showed no improvement, had not been well enough to look for a job, and recommended a pain clinic assessment. The employee returned to Dr. Ness on October 24, who noted depression and a flare-up of shoulder pain. He referred the employee to Dr. Michael Espeland at the HealthEast Midway Pain Center who saw the employee on November 11 and December 3, 2002. Dr. Espeland noted loss of strength, tenderness, and significantly limited range of motion in the left shoulder. A suprascapular nerve block was performed on December 3, after which Dr. Espeland stated he could do nothing further for the employee.
Dr. Robert Wengler examined the employee on November 27, 2002, at the request of the employee=s attorney. He noted pain in the left periscapular region, winging of the left scapula, wasting of the deltoid muscle tone, and acute tenderness over the anterior subacromial space. Dr. Wengler diagnosed left shoulder anterior subacromial impingement and probable subdeltoid-subacromial bursitis. He opined the employee could not return to any work requiring use of her left, dominant arm and assigned a permanent partial disability rating of 23.5 percent. By letter dated February 13, 2003, Dr. Ness gave a diagnosis of left shoulder impingement syndrome with tenosynovitis. He concurred with Dr. Wengler=s permanency rating, but opined the employee was permanently totally disabled from working as a result of her left shoulder condition. He further opined the employee needed further care from a physical medicine and rehabilitation specialist to reduce or resolve her pain.
The employee was examined by Dr. Jeffrey Husband on April 2, 2003, at the request of the self-insured employer. Dr. Husband noted unresolved left shoulder pain since June 29, 2000. He found no evidence to support a diagnosis of impingement syndrome or any intrinsic shoulder pathology. Dr. Husband did not believe the employee was an appropriate candidate for a chronic pain program and recommended no additional treatment. The doctor opined it would be premature to determine permanent partial disability based on the employee=s limited passive motion until after maximum medical improvement (MMI) was reached, but testified at the hearing that he now believed the employee had reached MMI. He further testified the employee was capable of employment with certain restrictions.
The employee returned to Dr. Ness for follow-up on April 28, 2003. He observed the shoulder was not improving and was painful with minimal movement. Dr. Ness additionally diagnosed frozen shoulder and referred the employee to the University of Minnesota Clinics. The employee was seen by Dr. Michael Hebert, an orthopedic resident, and Dr. Michael Freehill, Assistant Professor and shoulder specialist, at the university clinic on June 10, 2003. On examination, Dr. Hebert noted limited passive flexion and abduction due to pain, tenderness and deep trigger points over the scapula, mild acromial joint and biceps tenderness, and mild atrophy of the trapezius and left deltoid muscle. He was unable to assess impingement signs due to the employee=s guarding. The employee=s MRI scan was reviewed and the doctors concluded it was essentially normal. Drs. Hebert and Freehill diagnosed complex regional pain syndrome and recommended a referral to a pain clinic for chronic pain management.
David Berdahl, a rehabilitation consultant and job placement vendor, conducted a vocational evaluation of the employee at the request of the employer and insurer. Observing that no formal, outside job search had been initiated, Mr. Berdahl opined a finding of permanent total disability would be premature given the lack of any serious effort to find alternative employment. Mr. Berdahl acknowledged the employee faces considerable barriers to re-employment including a lack of work history, significant restrictions on the use of her dominant left upper extremity, and a very limited ability to communicate in English. He testified, however, there were reasonable prospects that employment could be found using specialized job placement services, including the assistance of community agencies that provide services to Laotian immigrants and English as a Second Language (ESL) classes. He noted, nonetheless, the employee did not believe, at that time, that she could work due to her pain. QRC Kurenitz similarly testified he believed there was a reasonable chance the employee could obtain employment with an appropriate selective job search. Mr. Kurenitz also opined that categorizing the employee as permanently and totally disabled would be premature without a chronic pain assessment and/or a selective assisted job search.
Mary A. Harris, a vocational rehabilitation consultant, conducted an employment evaluation at the request of the employee=s attorney. Ms. Harris opined, based on the combination of the employee=s age (54), lack of any formal education, limited ability to communicate in English, lack of transferable skills and limited work history in unskilled labor jobs, and her permanent, significant work restrictions, that the employee would not, realistically, be able to obtain or maintain employment, and was unemployable in any capacity.
The employee filed a claim petition on January 13, 2003. A hearing was held before a compensation judge at the Office of Administrative Hearings on October 30 and 31, 2003. The compensation judge issued a Findings and Order on January 6, 2004, concluding the employee had failed to prove permanent total disability and that a determination of permanent partial disability was premature.
The employee appeals from the compensation judge=s denial of her claims for permanent total disability and permanent partial disability benefits. We affirm.
1. Additional Medical Treatment/MMI
The employee asserts the compensation judge=s findings that the employee is in need of further medical treatment and is not at MMI is not supported by substantial evidence in the record as a whole and is clearly erroneous. We disagree.
There was conflicting medical evidence regarding the employee=s need for chronic pain assessment and treatment. Dr. Husband did not believe the employee would benefit from a chronic pain program stating the employee had already received treatment similar to the treatment a pain program would offer. Dr. Freehill, on the other hand, diagnosed complex regional pain syndrome and recommended a chronic pain management program. Dr. Wheaton similarly diagnosed chronic myofascial pain syndrome and recommended a pain clinic assessment. The compensation judge did not find Dr. Husband=s opinion persuasive and accepted the opinion of Dr. Freehill.
As a general rule, this court must affirm a compensation judge=s choice between conflicting medical opinions so long as the opinion relied upon has adequate foundation. See Nord v. City of Cook, 360 N.W.2d 337, 37 W. C.D. 364 (Minn. 1985). The employee argues she was not examined by Dr. Freehill, but was seen by an assistant who did not review the employee=s prior medical records. The competence of a witness to provide an expert medical opinion depends upon the degree of the witness=s scientific knowledge and the extent of the witness=s practical experience with the matter at issue. Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983). Dr. Hebert, who examined the employee, is an orthopedic resident at the University of Minnesota clinic. That is, he is a medical doctor receiving advanced training in orthopedics under the supervision of a specialist, in this case, Dr. Freehill. Dr. Hebert is fully qualified to examine patients, diagnose medical conditions and make recommendations for treatment. After the examination by Dr. Hebert, Dr. Freehill discussed the employee=s symptoms and treatment recommendations with her. (T. Vol. I. at 108.) Typically, this level of knowledge and expertise is sufficient to establish a doctor=s competence to render an expert opinion. See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988). While the doctors may not have reviewed all of the employee=s treatment records, we have repeatedly held such failure does not render a doctor=s opinion without foundation. Drews v. Kohl=s, 55 W.C.D. 33, 39 (W.C.C.A. 1996).
Under the circumstances in this case, we cannot conclude Dr. Freehill=s opinion lacks foundation, and the compensation judge did not commit error in relying on his opinion. We, accordingly, affirm the compensation judge=s finding the employee would likely benefit from further medical treatment and has not reached MMI.
2. Permanent Total Disability
The employee contends that persistent pain and loss of mobility in her left shoulder, her significant work restrictions, advanced age, lack of education and training, and her lack of ability to communicate in English compel the conclusion that she is totally disabled. She argues a job search would be futile given these circumstances, and the record as a whole fails to support the compensation judge=s denial of her permanent total disability claim. We are not persuaded.
An employee is totally disabled if her physical condition, in combination with her age, education , training and experience, causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income. Minn. Stat. ' 176.101, subd. 5; Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967). While an injured employee is not obliged to affirmatively seek and be denied employment as a prerequisite to permanent total disability, the lack of a job search goes to the weight of the assertion the employee is totally disabled from work. Thus, as a general rule, if an employee is not obviously incapable of working, Atotal disability@ is established by a diligent job search to no avail. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 732-33, 40 W.C.D. 948, 953-54 (Minn. 1988); compare Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978).
The employee was released to return to work with restrictions by Dr. Wheaton, Dr. Wengler and Dr. Husband. Only Dr. Ness opined the employee was totally disabled from working, maintaining, however, the employee needed further care to reduce or resolve her pain. As discussed previously, the compensation judge concluded the employee would likely benefit from a chronic pain management program. The judge=s decision implies that until a chronic pain assessment is made and appropriate treatment provided a finding of permanent total disability is premature.
In addition, the compensation judge accepted the vocational opinions of QRC Kurenitz and Mr. Berdahl that, despite significant barriers to employment, there is a reasonable prospect the employee can obtain employment with appropriate, specialized job placement services. Previous rehabilitation services provided to the employee were focused on a return to work with the employer. Very minimal assistance was provided after the employee was unable to return to her housekeeping job at Fairview. Whether the employee searched for work on her own was disputed by the parties, but it is apparent the employee is unlikely to obtain employment in the absence of fairly intensive job placement assistance.
Given these facts, the compensation judge could conclude it would be premature to find the employee permanently and totally disabled until the employee=s chronic pain syndrome is addressed and more concerted job placement efforts are undertaken. Compare, e.g., LaFlamme v. Floe Int=l, slip op. (W.C.C.A. Apr. 23, 1999); Lueck v. Main Motors Co., slip op. (W.C.C.A. Jan. 26, 1995). We must, therefore, affirm.
3. Permanent Partial Disability
The compensation judge denied the employee=s claim for permanent partial disability as premature. The employee argues that permanency is clearly ratable and due, and the judge=s decision is unsupported by substantial evidence in the record as a whole. We do not agree.
Permanent partial disability may be ascertainable and payable prior to MMI. See Minn. Stat. ' 176.101, subd. 2a(b), and Minn. R. 5221.0410, subp. 4. Under the circumstances of this case, however, the compensation judge could reasonably conclude that permanent partial disability cannot be reasonably ascertained prior to MMI. Dr. Wengler and Dr. Ness provided a permanency rating of 23.5 percent for the left shoulder pursuant to Minn. R. 5223.0450, subp. 4.A.(1)(e) and 4.B.(1)(d). The ratings in this section are based on limitation of passive range of motion in the shoulder. All of the doctors indicate the employee=s range of motion is significantly limited due to pain. If, as contemplated, the recommended chronic pain treatment results in significant improvement of the employee=s pain, there is also the possibility the employee=s left shoulder range of motion will improve. If so, the employee would not be entitled to the permanent partial disability rating claimed. We affirm.
 The employee testified with the assistance of an interpreter at the hearing.
 The employer could not accommodate these restrictions and the employee continued off work.
 Prior to QRC Kurenitz=s involvement in the case, the employee apparently was assigned a QRC by the self-insured employer, but no reports or records describing this QRC=s activities were submitted at the hearing.
 In his deposition, Dr. Wengler testified the employee could do Awhatever she can do@ with the left arm in a limited fashion. He opined she could not do housekeeping work, but might be able to do something with the left arm held close to the body, but certainly could not use the arm in any manner that would require her to use it away from the body. (Ee Ex. N at 23.)