LESLIE C. LANGE, Employee/Appellant, v. STATE, DEP=T OF CORRECTIONS, SELF-INSURED, Employer, and FAIRVIEW HEALTH SERVS. and BLUE CROSS & BLUE SHIELD/BLUE PLUS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 3, 2005
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s finding that the employee failed to prove that her vocal cord dysfunction arose out of and in the course of her employment.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Paul V. Rieke
Attorneys: Donald W. Kohler, White Bear Lake, MN, for the Appellant. James A. Froeber, St. Paul, MN for the Respondent.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s determination that she failed to prove she sustained a personal injury in the nature of a vocal cord dysfunction arising out of and in the course of employment. We affirm.
The employee, Leslie C. Lange, began working for the employer, the Minnesota Department of Corrections, at its facility in Rush City in 2000. For about two years she worked as a Autility officer,@ assigned on a floating basis to whatever building or location needed extra officers at that time. In about July 2002 the employee started working as a Acorridor control@ officer in the administration building. That job involved operating doors, monitoring and controlling corridor movement, and handing out keys and equipment, and was performed in a small, enclosed station known as the Acorridor control bubble.@
According to the employee=s testimony, she began having headaches at work starting in October or November 2002, a few months after she began the corridor control job. Although the headaches continued to worsen over the next year, she did not seek medical attention and they did not disable her from working. The employee also testified that she had long noticed a musty, mildew smell in the corridor area near the corridor control bubble, but had ignored it. However, when she came to work on January 9, 2004, the smell was Aoverwhelming.@ On January 10, 2004, the employee filed an incident report describing a strong smell of mildew in the corridor control bubble which she had noticed both on that day and on the previous day. In the report, she noted that her eyes and throat had been itchy and irritated, that her tongue and cheeks felt numb, and that she had started to Asound wheezy.@ The employee filed another incident report on January 14, 2004, reporting that she still continued to experience burning and irritation in her eyes, nose and throat and that her throat felt constricted and that she was short of breath. The employee testified that as she continued to work, her lips and tongue would become numb, her tongue would swell, and her throat would constrict, making it difficult to breathe. Mold testing conducted at the employer=s facility by Air Tech Environmental, Inc., on January 20, 2004, failed to reveal any indoor source of mold or obvious mold presence.
On February 5, 2004, after working half of her scheduled shift, the employee went to the employer=s health service department with apparent respiratory distress. She was taken to the emergency room at Fairview Lakes Regional Medical Center, where she was seen by Dr. Leo Pena. The employee told Dr. Pena that she had been having shortness of breath which had started at work about a month earlier. She complained of tingling in her fingers, carpal spasms, wheezing, and heavy chest pain. Her respiration was rapid and Dr. Pena diagnosed acute dyspnea. He gave the employee a prescription for an albuterol inhaler and recommended she follow up with her family physician.
The employee was seen by Dr. Michael B. Thompson at the family practice clinic at the Fairview Lakes Regional Health Care Center on February 9, 2004. She told Dr. Thompson that her symptoms had started after a musty smelling mat had been removed at work. Dr. Thompson authorized the employee to return to work if she could avoid the corridor control area. He referred her to Dr. Carlton Erickson at the center=s allergy clinic.
On February 13, 2004, the employee was seen by Dr. Erickson. The employee described her symptoms as burning of the nose and throat, reddening of her eyes, shortness of breath with wheezing, voice change to a deeper level, headache, and facial swelling. In his history, Dr. Erickson noted that the employee was a smoker, had a family history of asthma, and that vacuuming, dusting, and cleaning caused her no problems. The doctor=s physical examination of the employee for signs of an allergy was normal. She told him that her workplace was being tested for mold. Dr. Erickson, however, noted that whether or not mold spores were found would not necessarily identify mold to be an inciting factor in the employee=s symptoms. He recommended that the employee undergo skin testing for mold and dust allergies, as well as pre- and post-bronchodilator pulmonary testing to identify any reactive airways disease. He noted that a methacholine challenge test might also be necessary.
Pulmonary function spirometry tests performed on February 27, 2004, showed minimal obstructive lung defect. Methacholine challenge testing was positive. When skin contact testing for an allergy was started, the employee immediately began having respiratory problems, and the testing was discontinued. She was lethargic in her responses and an expectation of fainting was present. An intramuscular injection of epinephrine was administered, which cleared up the respiratory symptoms.
The skin allergy testing was again attempted on March 9, 2004. Testing was done for allergies to dusts, molds, and dogs. As a precaution, an IV site was first placed and the employee was tested at low levels. She had no reaction at first, but then began developing respiratory distress. Medications were administered through the IV and her symptoms resolved within a few minutes. The symptoms did return about one hour later, but resolved without further medications. She was given restrictions permitting a return to work at no more than four hours per day. The allergens all tested negative.
The employee was referred to Dr. Anuja Sharma at Pulmonary and Critical Care Associates, P.A. Dr. Sharma saw her on March 15, 2004. The employee had not tried to return to work since March 6, 2004. Spirometry was within normal limits. Dr. Sharma diagnosed a probable occupational asthma condition but noted, Ait is difficult and almost impossible to exactly determine the trigger at the workplace,@ She recommended that the employee find an alternative workplace environment and stop smoking. Determination of an allergic etiology was deferred to Dr. Erickson.
On April 19, 2004, the employee tried to return to work in the employer=s records and filing department, but after half an hour began to experience a headache, facial numbness, and a raw nose and throat. Within a few more hours she had a full asthma attack, left work, and was ill at home for about a week. She did not seek medical care. She next tried working on April 29, 2004 in the employer=s master control area, but her symptoms again returned after about an hour. Some of the areas where the employee tried to return to work were in different buildings than the corridor control area. She testified that she eventually experienced the same symptoms, to various degrees, in at least three of the five buildings on the employer=s site.
On May 4, 2004 the employee returned to Dr. Erickson noting that her symptoms were now occurring anywhere at the work facility. Dr. Erickson noted that the employee presented Aa peculiar situation of which I am at a loss as to best classify.@ He concluded that he was Aat a loss as to what is the precipitating event or antigen or other causation of her dyspnea.@ He recommended that the employee consult another pulmonologist.
On June 30, 2004, the employee was examined by Dr. Thomas J. Mulrooney, a pulmonary and internal medicine specialist, on behalf of the self-insured employer. His physical examination of the employee was unremarkable and pulmonary function measurements were normal. However, toward the end of the examination he asked the employee to take a deep breath and then inhale rapidly, to see if this would elicit a wheeze. It did not, but the employee immediately thereafter developed apparent respiratory distress for about 20 minutes, with a change in her voice quality and harsh noises of airflow across the larynx. This occurred again after administration of a bronchodilator during pulmonary function testing.
Dr. Mulrooney diagnosed hyperventilation syndrome and vocal cord dyskinesia. He noted that the latter condition was often a psychogenic response to acute stress, rather than an allergic response to substances, and that this was almost invariably the case where, as with the employee, it was accompanied by symptoms of hyperventilation Dr. Mulrooney also noted as significant that the employee=s prior medical history included emergency room treatment for stress-related episodes of syncope (loss of consciousness) in March 1998 and June 2002, at which time the employee had been diagnosed with a possible conversion reaction. He concluded that the employee=s workplace environment had not caused her condition nor had it aggravated any previous condition. He recommended treatment by an experienced otolaryngologist and a psychologist or psychiatrist for chronic anxiety, hyperventilation and vocal cord dysfunction.
On July 23, 2004, the employee underwent pulmonary function testing at the Fairview Lakes Family Practice Clinic, associated with the possibility of a return to work for the employer. During the testing, she reported that she was starting to experience the same airway difficulties she had previously had when exposed at her workplace. She felt as though she were choking, had bronchospasm and wheezing, and then lost consciousness for about 15 seconds. She was brought to the emergency room at the Fairview Lakes Regional Medical Center. The diagnosis was a syncopal episode. Her symptoms were deemed more consistent with laryngospasm and hyperventilation syncope than with respiratory arrest, in light of the absence of significant expiratory wheezing to suggest asthma. She was kept in the hospital overnight for monitoring and then discharged.
The employee returned to Dr. Erickson on August 10, 2004, to discuss the medical opinions expressed by Dr. Mulrooney. Dr. Erickson wrote that he did not disagree with the diagnosis of vocal cord dyskinesia, which he thought to be appropriate. He also agreed that the employee might best be treated by a therapist experienced in treating that disorder. He disagreed with Dr. Mulrooney=s denial of work causation, and wrote that while A[t]here may be no physical causal relationship . . . there is a definite correlation between her being at the place of work and the development of the laryngeal dysfunction.@
The employee returned to work with the employer on September 7, 2004. She continued to experience various symptoms now also including nosebleeds, phlegm in the throat, and an ongoing raspy voice.
The employee=s claim of a work-related injury was heard by a compensation judge on September 22, 2004. Following the hearing, the judge found that a preponderance of the evidence failed to demonstrate that the employee=s work for the employer was a substantial contributing cause of her condition. The employee appeals.
The employee bears the burden of proving her claim by a preponderance of the evidence. Minn. Stat. ' 176.021, subd. 1(a). The compensation judge found that the employee had failed to prove by a preponderance of the evidence that her vocal cord dyskinesia was work-related.
In her appellate brief, the employee emphasizes the evidence in the case tending to support her claim, including that she had no prior history of respiratory problems, that her symptoms started at work after she experienced a strong, musty odor at her work station, and that the occurrence of her symptoms were usually associated with the employer=s location. She contends that, in these circumstances, the weight of the evidence clearly favors a finding that her vocal cord dyskinesia was work-related.
The compensation judge, on the other hand, noted that medical literature submitted into evidence by the employee indicated a variety of different etiologies which can cause vocal cord dyskinesia (AVCD@). Air quality tests at the employee=s workplace and the employee=s allergy tests were all negative, and no specific substance had been shown to be present to cause the symptoms. The compensation judge further noted that the employee=s symptoms had eventually occurred not just when she was in proximity to the musty odor she associated with the inception of her symptoms at her usual work station, but also in other buildings on the employer=s campus, and even in various medical offices. The compensation judge noted that the employee had a documented medical history of episodes of loss of consciousness which had been diagnosed as stress-related and of the nature of a conversion reaction. Finally, the compensation judge specifically adopted the opinion of Dr. Mulrooney that the employee=s condition was not work-related.
There was expert opinion on both sides of the issue of whether the employee=s condition was work-related. It is within the province of the compensation judge to choose between competing medical opinions. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). When the opinion relied upon by the compensation judge is adequately founded, the decision is to be affirmed. Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003). Dr. Mulrooney=s opinion provides an adequate basis for the compensation judge=s decision.
The employee also argues that, if her condition was psychogenic, rather than due to physical exposure to workplace irritants, the compensation judge erred in failing to award benefits. The employee argues that a condition caused by work-related stress may be compensable where the resultant condition is an Aidentifiable physical ailment susceptible of discrete medical treatment, separate from and independent of the Employee=s emotional condition.@ Eidem v. United Parcel Serv., 44 W.C.D. 426 (W.C.C.A. 1991).
While the employee is correct that Minnesota case law has treated conditions arising from work-related mental stress as compensable under circumstances where the resultant condition is an independently medically treatable physical injury, in all such claims an employee must meet a two-prong test of causation, showing both medical and legal causation. Medical causation requires proof that work-related job stress was medically related to the injury, while legal causation requires that the employee produce evidence that the work stress was Abeyond the ordinary day-to-day stress to which all employees are exposed. See, e.g., Egeland v. City of Minneapolis, 344 N.W.2d 597, 36 W.C.D.,137 (Minn. 1987).
The employee=s theory below was that she had sustained a physical injury resulting from an exposure to mold or other unidentified substances at her workplace. She did not contend that her condition was the result of work-related emotional stress, offered no evidence of work-related stress, and in fact specifically testified that her job was not stressful. The compensation judge did not find that emotional stress, whether at the workplace or non work-related, was the cause of the employee=s VCD, only that the employee had failed to prove a causal link between her work and her VCD condition.