ROXANNE J. NELSON, Employee/Appellant, v. AUSTIN MED. CTR., SELF-INSURED/MAYO FOUND., Employer, and AUSTIN MED. CTR. HOME HEALTH HOSPICE, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 12, 2005
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge=s conclusion that the employee did not develop complex regional pain syndrome as a consequence of her work injury.
PERMANENT PARTIAL DISABILITY - SCHEDULE. Where the record reasonably supported the conclusion that the employee=s work-related condition was expressly covered by the permanent partial disability rules, the compensation judge did not err in denying the employee=s request for a rating pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).
Determined by: Wilson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: Danny P. Kelly
Attorneys: Donaldson V. Lawhead, Lawhead Law Offices, Austin, MN, for the Appellant. Douglas J. Brown, and Joshua T. Brinkman, Brown & Carlson, Minneapolis, MN, for the Respondent.
DEBRA A. WILSON, Judge
The employee appeals from the judge=s determination that the employee did not sustain a consequential injury in the nature of complex regional pain syndrome and that the employee was not entitled to a 5.5% permanency rating. We affirm.
The employee sustained work-related injuries to her left elbow on February 12, 2002, and February 22, 2002, while working as a home health aide and homemaker for Austin Medical Center [the employer], which was self-insured for workers= compensation purposes. The employer admitted liability for the injury and paid temporary total and temporary partial disability benefits and medical expenses.
The employee was eventually diagnosed with left lateral epicondylitis (tennis elbow) and on March 19, 2003, underwent surgery consisting of a partial lateral epicondylectomy with debridement and repair of the tennis elbow, performed by Dr. Stephen Kazi. On March 20, 2003, the employee was seen in the emergency room of Austin Medical Center, complaining of left forearm and hand pain. When a portion of her cast was cut away, the employee experienced immediate pain relief. On April 16, 2003, Dr. Saleh Alrajhi noted that the lateral epicondyle incision was well healed but that the employee had Aa little swelling of that extremity with numbness and tingling in her first 3 fingers with glove-like sensation.@ On April 18, 2003, Dr. Kazi released the employee to return to work but limited her to one-armed work for at least two weeks.
The employee was seen in urgent care by Dr. Bosheng Yang on May 23, 2003, complaining of swelling and stiffness in the left index and middle fingers. Dr. Yang=s assessment was distal arthritis, and he prescribed Celebrex. About a week later, on May 30, 2003, Dr. Kazi noted that the employee=s elbow was healed, that she had no elbow pain, and that she had full range of elbow motion. The employee=s chief complaint at that time pertained to the small joints of her left hand. Dr. Kazi opined that the employee had reached maximum medical improvement [MMI] with regard to her elbow, and he released the employee to return to work with no restrictions, other than a restriction on lifting more than 30 pounds, effective for two months.
The employee treated with Dr. James Burke on June 16, 2003. At that time, the employee indicated that her symptoms had progressed to the extent that she was having difficulty closing her fingers because of swelling and discomfort and was also having difficulty extending her wrist. Noting edema in the employee=s hand and wrist, Dr. Burke recommended that the employee see a neurologist for evaluation of possible scar-related radial cutaneous neuropathy and that she also obtain a second opinion from a rheumatologist.
When Dr. Joseph Duffy, a rheumatologist, saw the employee on July 17, 2003, his impression was Aindeterminate left hand and wrist swelling,@ and he recommended an MRI scan of the hand and wrist. A few days later, on July 22, 2003, neurologist Dr. Daniel Lachance examined the employee and theorized that the employee=s symptoms Acould potentially suggest a complex regional pain syndrome (previously known as reflex sympathetic dystrophy)@ but noted that, if she had that syndrome, it was exceedingly mild. It was his suspicion that Athe employee has a very low tolerance to physical concerns@ and that there might be psychological factors to consider. A subsequent EMG was normal. On August 14, 2003, Dr. Lachance opined, AI think that there is a heavy influence of psychological factors affecting this person=s physical symptoms. Again, though I could not exclude a component of very mild form of a complex regional pain syndrome, the treatment is the same.@
The employee returned to see Dr. Burke on August 18, 2003, and he recorded the following symptoms:
First there is a sensation like there is a wrap surrounding the elbow. Second she has a sharp intermittent discomfort above and below the elbow. Third is sensation from mid forearm distally which feels like she is wearing a glove. There is a decrease in sensation like a numbness or fullness. She has decrease in the ability to flex the fingers and the hand feels swelled.
The employee also described intermittent difficulty grasping objects with her left hand. On examination, the doctor noted Avery minimal swelling@ in the fingers and palm of the left hand. Dr. Burke agreed with Dr. Lachance that this Amay possibly represent a very mild form of complex regional pain syndrome,@ and he restricted the employee from lifting more than 20 pounds.
On October 3, 2003, Dr. Robert Wengler performed an independent medical examination of the employee at the request of her attorney. In his report of that date, Dr. Wengler opined that the employee was suffering from chronic lateral epicondylitis of the left elbow, and he gave no recommendation for further orthopedic intervention. In a letter to the employee=s attorney on that same date, Dr. Wengler stated that the workers= compensation rules rated lateral epicondylitis at 0% impairment, but he went on to rate the employee as having a 5.5% whole body impairment under the AMA Guide to Evaluation of Permanent Impairment ratings. He also stated, A[i]t had been suggested in the past that she might have reflex sympathetic dystrophy. She does not.@
The employee was seen by Dr. Burke again on October 27, 2003, and, on exam, the doctor noted Aperhaps a minimal amount of swelling or edema in the left hand compared to the right.@ Extension and flexion of the left wrist were normal, but the employee had some restriction to full finger flexion on the left compared to the right. Dr. Burke opined that the employee was at MMI, advised that she should use her arm frequently and freely, and released her to return to work with no restrictions. He again recommended an MRI, which was performed on October 30, 3002, and was interpreted as normal.
Dr. Burke also referred the employee to Dr. Keith A. Bengtson, who first saw the employee on November 20, 2003. At that time, the employee was complaining of stiffness, swelling, and paresthesias in the left hand. On examination, Dr. Bengtson found no obvious edema, skin texture and hydration were normal, and there were no temperature or color changes. The employee was noted to have mild tenderness throughout the dorsum of the wrist, but, Aas a whole, tolerates touch quite well.@ Dr. Bengtson prescribed physical therapy. When seen in follow-up on December 12, 2003, the employee reported good improvement of her symptoms, and she was noted to have no tenderness to palpation, no obvious swelling, and only very subtle flexion lags of the left second and third digits.
The employer had the employee examined by Dr. David Falconer on April 30, 2004. In his report of June 2, 2004, the doctor noted that there were no signs for sympathetic dystrophy disorder. He diagnosed mild discomfort and mild residual weakness, consistent with a normal surgical outcome from tennis elbow procedure, and he opined that the employee had reached MMI with a 0% permanent partial disability.
According to Dr. Bengtson=s office note of September 17, 2004, the employee continued to have pain in the left lateral epicondyle and extensor forearm region and, over the past two months, had noticed numbness involving the first through fifth fingers. On examination, the doctor noted some tenderness to palpation in the extensor forearm and lateral epicondyle, but he discerned no shininess of her skin, swelling, or change in texture, hydration, color, or temperature. He recommended that the employee go through autonomic studies Awith an RSD screen.@ In his October 12, 2004, office note, Dr. Bengtson stated that A[h]er autonomic testing shows asymmetric tomography, as well as resting sweat output. However, there is normal QSART responses.@ In a subsequent letter dated November 4, 2004, Dr. Bengtson wrote that the findings on testing were
considered to be consistent with the diagnosis of complex regional pain syndrome (CRPS). In my opinion, the patient=s history and current situation is consistent with left upper extremity CRPS as a complication from her elbow surgery. My current diagnosis is that of left upper extremity CRPS and I am treating her initially with a sympathetic blocking medication.
On November 9, 2004, the matter came on for hearing for resolution of various issues, including the employee=s claim for permanent partial disability benefits and the employee=s claim that she had sustained a consequential injury to the left upper extremity, left forearm, and left wrist. In a findings and order filed on January 10, 2005, the compensation judge found, in relevant part, that the employee had not sustained a consequential injury, that the employee had a 0% permanent partial disability, and that a Weber  rating was not appropriate. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2004). Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
1. Consequential Injury
The employee contends that substantial evidence does not support the judge=s finding that the employee did not sustain a consequential injury in the form of complex regional pain syndrome [CRPS], and she asks this court to vacate that finding and substitute either a finding that the employee has CRPS or a finding that a determination as to consequential injury or CRPS diagnosis is premature. We are not persuaded.
The employee argues that Dr. Bengtson was the only doctor who based his opinions on Asophisticated testing at the Mayo Clinic directed specifically to determining CRPS. The test is a Quantitative Sudomotor Axon Reflex Test and a thermography which positively diagnoses CRPS or RSD.@ It is the employee=s position that all of the physicians who declined to make the CRPS diagnosis did so only because they did not have access to this Asophisticated, positive testing.@ As such, the employee contends, the compensation judge erred in rejecting the opinion of Dr. Bengston. We disagree.
We note initially that nothing in the records received into evidence at the hearing supports the employee=s allegation on appeal that the testing ordered by Dr. Bengtson Apositively diagnoses CRPS or RSD.@ In his report of November 4, 2004, Dr. Bengtson stated only that the findings on testing were Aconsistent with the diagnosis of CRPS,@ that Athe patient=s history and current situation is consistent with left upper extremity CRPS as a complication from her elbow surgery,@ and that Amy current diagnosis is CRPS@ (emphasis added). While Dr. Bengtson=s November 4, 2004, report certainly might have been sufficient to support a finding of a consequential injury in the form of CRPS, the wording of the report suggests that there might also be alternative diagnoses that this testing would also support, and, as the compensation judge noted, in a healthcare provider report dated November 4, 2004, Dr. Bengtson listed the employee=s diagnosis as only lateral epicondylitis.
The compensation judge specifically found the opinions of Dr. Falconer to be persuasive. Dr. Falconer explained that tennis elbow surgery may have variable outcomes and that many patients have some residual pain and mild dysfunction thereafter, and he diagnosed mild discomfort and mild residual weakness consistent with a normal surgical outcome from the tennis elbow procedure. He also noted that, on examination, the employee had none of the signs of RSD. 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, 37 W.C.D. 364 (Minn. 1985) We find no basis to overturn the judge=s choice between experts here.
Dr. Falconer=s report, coupled with the report of Dr. Wengler, provides substantial evidence to support the judge=s finding that the employee did not prove a consequential injury in the nature of CRPS. We therefore affirm that finding.
2. Permanent Partial Disability
The employee contends that she Ais entitled to a Weber rating of 5.5 percent since she has significant loss of function with objective testing showing CRPS.@ The employee relies, however, on Dr. Wengler for that rating, and Dr. Wengler specifically opined that the employee does not have CRPS. In fact, no doctor has described the employee=s loss of function as Asignificant@; Dr. Bengston stated only that the employee has Asome@ loss of function due to her pain.
In addition, the issue on appeal is not whether the evidence might support an alternative finding but whether substantial evidence supports the finding made by the compensation judge. In this case, the compensation judge found that the employee has a 0% permanent partial disability under Minn. R. 5223.0460, subp. 2.C and that a Weber rating is not appropriate. That finding is supported by the report of Dr. Falconer, who diagnosed lateral epicondylitis. He opined that the employee was entitled to a 0% permanency rating under Minn. R. 5223.0460, subp. 2.C. for painful organic syndrome including chronic lateral epicondylitis. As there is a category that expressly addresses the employee=s condition, a Weber rating is not appropriate. We therefore affirm the judge=s decision on this issue.
 Additional issues included weekly wage, whether there had been an underpayment, and the employee=s entitlement to medical expenses and wage loss benefits.
 See Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).
 The terms CRPS and reflex sympathetic dystrophy (RSD) are used interchangeably by the doctors.
 On appeal, for the first time, the employee asks for an alternative finding indicating that a finding as to CRPS is premature at this time. Having made a claim for CRPS at the time of hearing, the employee may not now contend that a finding on the issue is premature.
 In addition, Dr. Bengtson, who diagnosed CRPS, opined that the employee was not entitled to a permanent partial disability rating since she does not meet the requirements of the permanency schedule for that condition.