LORI BENGSTON, Employee/Appellant, v. PIONEER PACKAGING & PRINTING, and ST. PAUL TRAVELERS, Employer-Insurer, and MEDICA HEALTH PLANS/INGENIX, FAIRVIEW HEALTH SERVS., NOVACARE REHAB., NORAN NEUROLOGICAL CLINIC, and KARI CLINIC OF CHIROPRACTIC, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 14, 2006
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s finding that the employee failed to establish by a preponderance of the evidence that the work injury was a substantial contributing factor in her condition.
Determined by: Stofferahn, J., Rykken, J., and Pederson, J.
Compensation Judge: Bradley J. Behr
Attorneys: Leslie A. Gelhar, Gelhar & Goldetsky, Bloomington, MN, for the Appellant. Thomas A. Atkinson, John G. Ness & Associates, St. Paul, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s finding that the employee failed to establish by a preponderance of the evidence that her wrist injury of July 11, 2003, was a substantial contributing factor in her need for surgery in November, 2003, and in her condition, thereafter. We affirm.
Lori Bengston began working for Pioneer Packaging and Printing in 2000. Pioneer manufactures cartons and other similar packaging products at its facility in Anoka. The employee=s position at Pioneer was as a feeder/packer, assisting in the operation of a machine by loading material into the machine or by removing finished product and packing it. The parties dispute the extent to which the employee=s job duties involved repetitive activity.
On July 11, 2003, the employee consulted with her family physician at Fairview Lakes Regional Health Care. She saw Dr. Therese Durkin who recorded a history of pain in the dorsum of the right hand for about four weeks which the employee attributed to repetitive motion at work. After examination, Dr. Durkin diagnosed a ganglion cyst and carpal tunnel syndrome with some median nerve neuropathy. The employee was placed in a splint, was given motrin, and was told to ice the affected area. No work restrictions were given. At a return visit on July 17, with Dr. Deborah Strand, the employee was restricted from repetitive use of her right hand and wrist and referred for an orthopedic consultation.
The employee saw an orthopedist, Dr. Aaron Butler, on August 8, 2003. Dr. Butler assessed overuse phenomenon with mild wrist tendonitis. Dr. Butler recommended a cock-up splint, hand therapy and prescription medication. He also noted that the cyst referenced by Dr. Strand had gone away. Dr. Butler placed restrictions on the employee=s use of her right hand and wrist at work.
The employer and insurer accepted liability for the July 11, 2003, injury. It appears from payment records that the employee stopped working July 17, 2003, and that the insurer began paying her temporary total disability benefits at that time.
The employee returned to Dr. Butler on September 23, 2003. He found Ano discreet sign of dorsal ganglion@ at that time but assessed dorsal wrist ganglion and lateral epicondylitis. Dr. Butler recommended medication and hand therapy for the epicondylitis. An MRI was done which Dr. Butler interpreted at the time of the employee=s October 24 visit as showing a Adiffuse finding consistent with probable ganglion intertwined with the extensor tendon apparatus.@ Dr. Butler recommended surgery. There are in evidence two report of workability forms completed by Dr. Butler on November 4, 2003, in which he took the employee off work. One identifies the condition as work-related and the other as Aundetermined.@
Surgery was done on November 3, 2003, by Dr. Butler, who performed a right wrist dorsal ganglion excision. In follow-up on November 25, the employee reported she was symptom free in her right wrist but had similar pain and mass in her left wrist. Dr. Butler indicated he would let the right wrist recover for some time before beginning therapy. On return on December 23, the employee reported that she felt she was progressing well. Dr. Butler prescribed additional therapy. When the employee returned on February 16, 2004, she stated she was continuing to improve but still had some pain and discomfort. Dr. Butler did not recommend additional treatment and released the employee to work with restrictions.
By this time, the employee was working with a QRC, who assisted employee in returning to work at the employer in light duty within her restrictions. The employee returned to work on February 23, 2004, initially working four hours every other day. The employer wanted to increase the employee=s hours but the employee indicated to her QRC that she was having difficulty with the work.
On March 5, 2004, the employee returned to Dr. Strand, complaining of pain in her right arm, hand, and wrist with tingling from her elbow up to her shoulder. Dr. Strand thought the employee probably had a trapezius and cervical strain secondary to positioning and protecting her arm. Physical therapy was recommended. The employee saw Dr. Butler on March 24, with similar complaints but also with headaches. Dr. Butler was concerned about possible cervical radiculopathy and referred her for a neurology appointment. Dr. Butler kept the employee at work within her previous restrictions. The employee increased her hours at work so that by March 31, 2004, she was working 40 hours a week.
The employee=s initial appointment with the neurologist, Dr. Ana Groeschel, took place on April 7, 2004. The employee advised Dr. Groeschel that she had pain and numbness in her upper right arm, headaches with nausea, and numbness and tingling in her left hand. Examination showed spasm in the cervical and thoracic spine and in the trapezius muscles. Dr. Groeschel made no specific diagnosis and prescribed a muscle relaxant and other medication for the headaches. A cervical MRI was done and was read by Dr. Groeschel as showing no evidence of cervical radiculopathy. The employee continued to treat thereafter with Dr. Groeschel.
Dr. Butler=s last appointment with the employee was May 25, 2004. Dr. Butler deferred a physical examination on that date and stated AI have had a frank talk with Lori that she needs to find a different career. The MRI of the cervical spine was unremarkable and I do not think any further EMG studies or other surgical intervention are necessary and will likely do more harm than good for her. She has repetitive overuse syndrome and needs to find a different career long term, if she is going to keep herself physically comfortable and happy.@
In May 2004, the QRC prepared video tapes of the employee=s pre-injury job and of the light-duty assignment. Dr. Butler refused to view the tapes but the tape of the light-duty job was reviewed by Dr. Groeschel or her physician=s assistant sometime in August. The job was felt to be within the employee=s restrictions. The employee continued to work for the employer but missed a number of days from work because of her complaints. The employer also noted difficulty in accommodating Dr. Groeschel=s additional restrictions of changing work tasks every two hours and there were times when the employer had no work for the employee.
On June 17, 2004, the employee was evaluated on behalf of the employer and insurer by a neurologist, Dr. Rajiv Aggarwal. Dr. Aggarwal=s conclusion was that the employee=s headaches were not the result of any cervical radiculopathy but were migraine headaches. The employee had a history of migraine headaches before her work injury. Dr. Aggarwal also commented that the probability of the employee=s surgical cyst of being related to repetitive work activity was low. Based upon Dr. Aggarwal=s report, the employer and insurer denied that the employee needed work restrictions as a result of her July 11, 2003, injury and filed a notice of intention to discontinue benefits in August 2004. The employee filed an objection to discontinuance which was later converted to a claim petition.
At the employee=s appointment on January 26, 2005, Dr. Groeschel noted Amild discoloration@ on the right hand and her discussion notes for that date stated Athere seems to be some component of reflex sympathetic dystrophy.@ At the next appointment on March 23, Dr. Groeschel commented that Athe employee is having some components of sympathetic dystrophy on the right hand where she had the surgery. There is discoloration and diaphoresis in her hand as well as changes in temperature.@
Dr. Groeschel provided deposition testimony on February 9, 2005. She diagnosed the employee as having shoulder pain, arm pain, headaches, and reflex sympathetic dystrophy. On cross-examination, Dr. Groeschel stated that the employee=s efforts to protect her wrist after surgery by modifying her work activity were responsible for the shoulder and neck pain. Dr. Groeschel also concluded that, in her opinion, the reflex sympathetic dystrophy was the result of the November 2003 cyst surgery. Dr. Groeschel did not express an opinion as to whether the cyst was due to the employee=s work activity.
The employee was evaluated again by Dr. Aggarwal on March 29, 2005. In his report of that date, Dr. Aggarwal concluded that the employee=s symptoms were consistent with reflex sympathetic dystrophy and he concluded this condition was related to the surgical removal of the ganglion cyst in the right wrist in November 2003. Dr. Aggarwal also stated that the bilateral cysts were Anot likely related to any repetitive movement at the wrist.@ He also reiterated his opinion that the employee=s headaches were migraine in nature.
Dr. Aggarwal prepared a supplemental report of June 22, 2005, after viewing a surveillance video of the employee. The video, taken on June 3, 2005, showed the employee shopping on a day when she had apparently advised her employer that she was not able to work. Dr. Aggarwal=s opinion was that the employee was misrepresenting her clinical complaints and that she did not have any clinical condition. He stated that Athe symptoms of reflex sympathetic dystrophy can easily be faked, as symptoms are primarily subjective, and the possibility of this occurring in this situation are very, very high.@
This matter was heard by Compensation Judge Bradley Behr on July 1, 2005. At hearing, the employer and insurer admitted that the employee had sustained a right wrist strain on July 11, 2003, which was related to her employment. Issues for determination by the compensation judge included whether the admitted injury was a substantial contributing factor in the development of the ganglion cyst and in the development of right shoulder, arm, and neck pain and of reflex sympathetic dystrophy. The employee alleged these conditions to be related and claimed wage loss and medical benefits as a result.
In his Findings and Order, served and filed August 30, 2005, the compensation judge determined that the employee had failed to prove by a preponderance of the evidence that the ganglion cyst was related to the work injury and that, as a result, the arm, shoulder and neck pain and reflex sympathetic dystrophy were not work-related. The employee=s claims were denied. The employee appeals.
The compensation judge determined that the employee failed to prove that the ganglion cyst and the surgery to remove that cyst in November, 2003, were related to the admitted wrist strain injury of July 11, 2003. Because it was the employee=s position that the ganglion cyst surgery resulted in the arm, shoulder, neck pain and headaches due to the employee=s efforts to Aguard@ her wrist at work and because the employee claimed that her alleged reflex sympathetic dystrophy was a result of the surgery as well, this finding by the compensation judge resulted in denial of the employee=s claims. On appeal, the employee argues that substantial evidence does not support the compensation judge=s finding on this issue. The employee also contends that the compensation judge erred in not concluding as a matter of law that the employer and insurer, having initially accepted responsibility for the employee=s wrist condition, were barred from subsequently denying liability.
As the compensation judge points out in his memorandum, the employee presented no medical opinion that there was a causal relationship between her work injury and the ganglion cyst. The primary evidence to which the employee points are the work release forms from Dr. Butler in which he checked the condition as being Awork-related.@ However, we note that this section of the form begins Apatient reports injury as@ and then calls for a box to be checked. Assumedly, therefore, this part of the form represents not the medical opinion of Dr. Butler but the opinion of the employee. At no place in his records does Dr. Butler express his opinion on causation. We do not read Dr. Butler=s comments in his May 25, 2004, chart notes on the admitted overuse syndrome as having anything to do with the question of causation for the cyst. Further, the question for the compensation judge was not whether the evidence can be scoured for some minimal support of the employee=s claim. The employee has an obligation to prove her claim by a preponderance of the evidence. Minn. Stat. ' 176.021, subd. 1.
In addition to the records provided by the employee, the compensation judge also was given the opinions of Dr. Aggarwal as set out in his reports. While Dr. Aggarwal was not very specific in his initial report regarding causation of the cyst condition, it is also true that at that time the significance of the ganglion cyst surgery was not being emphasized by any party. In his March 2005, report Dr. Aggarwal clearly provided his opinion that the cyst was not related to the employee=s wrist strain.
Given the lack of a supporting medical opinion and the opinion of Dr. Aggarwal, we conclude substantial evidence supports the compensation judge=s determination that the employee failed to prove by a preponderance of the evidence that a causal relationship existed between the cyst surgery and the work injury.
The employee=s second argument is that the compensation judge erred in failing to impose liability on the employer and insurer as a matter of law. Since the compensation judge found the employee=s present condition to be in substantial part due to the cyst surgery and since the employer and insurer authorized and paid for the surgery, the employee argues that the compensation judge was obligated to award the employee=s claim. As support for her position, the employee refers to case law and equity.
As case law authority, the employee cites Smith v. Fenske=s Suburban Sanitation, 266 N.W.2d 892, 30 W.C.D. 411 (Minn. 1978), in which the court held that aggravation of the initial injury by medical treatment is compensable. However, Smith does not apply to the present since Smith dealt with a situation in which the initial condition was work-related. In the present case, the Smith rule would apply if it had been determined that the cyst was work-related. Consequences from the surgery for that work-related condition would then be compensable. The employee failed to prove a causal relationship between the cyst and the work injury and an aggravation from surgery for a non-work condition is not compensable. Hall v. Fingerhut, slip op. (W.C.C.A. May 17, 2001). While the employer and insurer admitted the employee sustained a right wrist strain, there is no evidence that the surgery in November 2003, had anything to do with that diagnosis.
The employee argues, however, that the employer and insurer had initially accepted liability for the cyst condition, paid for the surgery, and changed their position only after it became apparent that the surgery had adverse consequences. Allowing the employer and insurer to change its position and deny liability at that point, according to the employee, leads to an absurd result which encourages denial of claims whenever a surgery is unsuccessful.
Minn. Stat. ' 176.221, subd. 1, specifically allows an employer to deny liability for an injury even though it has commenced payment of benefits. At least one purpose of this provision would seem to be to encourage employers to accept liability, at least initially, even in doubtful cases. An employer who does so is not necessarily accepting liability for all time regardless of further information and developments. In any event, the actions of the employer and insurer in the present case are allowable under the statute.
Finally, the employee contends that the principles of equitable estoppel should be applied to the present case to prevent the employer and insurer from denying liability. We find no indication that the question of equitable estoppel was raised before the compensation judge. This court reviews the decision of the compensation judge and we will not consider an issue which has not been raised before the compensation judge. Childers v. Honeywell Inc., slip op. (W.C.C.A. September 10, 2002).
The decision of the compensation judge is affirmed.