PATRICIA A. BERGIN, Employee/Appellant, v. CASS LAKE-BENA SCH. DIST. #115 and TRI-STATE INS. CO., Employer-Insurer, and CHIROPRACTIC SPORT & SPINAL REHAB. and MEDICA HEALTH PLANS/INGENIX, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 28, 2006
CAUSATION - TEMPORARY AGGRAVATION. Substantial evidence, including an adequately founded expert medical opinion, supports the compensation judge=s determination that the employee=s November 30 , 2001, work-related injury was a temporary aggravation of a pre-existing condition.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Catherine A. Dallner
Attorneys: Larry J. Peterson, Peterson, Logren & Kilbury, St. Paul, MN, for the Appellant. Kristin M. Cajacob, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge=s finding that the employee=s work injury on November 30, 2001, was a temporary aggravation of a pre-existing condition that had resolved by March 30, 2002. We affirm.
On November 30, 2001, Patricia Bergin, the employee, slipped and fell on ice while working for Cass Lake-Bena School District #115, which was insured for workers= compensation liability by Tri-State Insurance Company. As a result of her fall, she injured her right shoulder and cervical spine. The employee reported her injury on December 3, 2001, and later sought treatment with Dr. Todd Wickmann, a chiropractor with whom she had previously treated. Although the employee has continued to work following her injury, she has undergone various medical and chiropractic treatments since that injury. The employer and insurer admitted liability for the injury, and have paid for a portion of the expenses the employee incurred for medical and chiropractic treatment, although they denied payment for various treatment expenses. The compensation judge awarded a portion of the employee=s claimed expenses; the judge=s denial of remaining expenses and of the employee=s claim for permanent partial disability benefits is the subject of this appeal.
The employee had treated extensively for pre-existing conditions of neck, back, and right shoulder pain before her November 30, 2001, injury. Starting in 1992, the employee treated for numbness in her right hand and pain in her right arm and elbow. In November 1996, the employee began receiving chiropractic treatment with Dr. Randall Lish for neck, shoulder and forearm pain. In November 1997, the employee injured her right arm, upper back and shoulder while working in the employer=s school kitchen, and was off work from February through September 1998. The employee continued to treat periodically with Dr. Lish through April 2000 for neck pain, right shoulder and arm pain, and right arm and hand numbness. From May 2000 through November 2001, the employee received chiropractic treatment from Dr. Wickmann for headaches, neck pain, upper back pain, right shoulder pain, and right arm and hand pain.
The employee continued to treat with Dr. Wickmann following her 2001 injury. He diagnosed a cervical sprain/strain. In mid-January 2002, Dr. Wickmann noted only slightly decreased cervical extension and cervical right and left lateral flexion, and noted no positive findings regarding deep tendon reflexes, muscle tests, or sensory tests. By late January, the employee continued to report a high degree of pain in her back and numbness in her hands. In March 2002, the employee reported to Dr. Wickmann that her symptoms were improving and that her right shoulder and headaches were much better. She continued to treat with him until April 2002.
On April 8, 2002, the employee sought treatment with Dr. Thomas Miller, Lake Region Bone and Joint Surgeons, with whom she had consulted in 1993 for a right knee condition. She reported neck and bilateral shoulder pain. Dr. Miller noted a positive anterior impingement sign, pain with abduction and forward elevation on the right, and a diffuse ache in the shoulder and scapula area. Cervical spine x-rays suggested disc space narrowing and posterior spurring at the C6-7 level. Dr. Miller diagnosed a possible cervical disc rupture, and prescribed physical therapy and cervical traction, but at a follow-up appointment, the employee reported to Dr. Miller that she had no improvement with physical therapy. Dr. Miller recommended a cervical spine MRI, which was conducted on May 13, 2002, and which indicated a left-sided herniated disc at C6-7 with no spinal cord mass nor spinal cord compression, and with no evidence of significant spinal stenosis. In his chart note of May 16, 2002, Dr. Miller stated that A[i]t appears to be that her primary problem and a work related problems [sic] is herniated disc, secondary to a fall.@ Dr. Miller prescribed Vioxx for the employee, and, with approval from the insurer, referred the employee to Dr. Francis Denis at Twin City Spine Center for an orthopedic consultation.
At her initial consultation with Dr. Denis on June 20, 2002, the employee reported bilateral shoulder and arm pain with numbness and tingling in her hands. Dr. Denis diagnosed left C6-7 herniated nucleous pulposes with symptoms consistent with a herniation, and mentioned the possibility of a cervical discectomy and fusion surgery.
In September 2002, the employee resumed chiropractic treatment with Dr. Wickmann, and he noted decreased range of motion in all cervical spine tests, decreased right biceps and decreased sensory testing on the right at C5, C6, C7, and C8. On May 21, 2003, Dr. Wickmann issued a narrative report indicating his diagnosis of Aa cervical and thoracic/sprain/strain, resulting in facet syndrome and cervical disc syndrome with associated muscle guarding and loss of range of motion.@ Upon examination, he found a limited range of motion, muscle guarding, decreased sensation in the right arm, tests consistent with facet syndrome in the right cervical/thoracic junction, and positive findings for a C6-7 herniated disc on the left. In his opinion, the employee=s November 2001 work injury caused a significant aggravation of the employee=s pre-existing condition in her right neck and scapular area.
Dr. Denis re-examined the employee on June 16, 2003. According to Dr. Denis=s chart note, the employee reported that she was doing fairly well, but that she had some complaints of pain in her right interscapular region and occasional symptoms of numbness of her left ring and small fingers. Dr. Denis concluded that the pain, as described by the employee was, in part, related to the disc herniation. At his deposition, Dr. Denis testified that the employee=s November 30, 2001, work injury had permanently aggravated her pre-existing cervical spine condition and that she had sustained a 7% permanent partial disability rating pursuant to Minn. R. 5223.0370, subp. 4(c)(1). He also indicated that, based upon her prior complaints, the employee=s herniation had existed before the work injury.
In October 2003, the employee was referred to Dr. Robert Johnson, a neurosurgeon, for a second opinion concerning her cervical spine. The employee reported that her primary problem was pain across her shoulders, particularly on the right side, along with headaches. Dr. Johnson reviewed the employee=s MRI and agreed it indicated a left sided disc herniation at C6-7, but opined that the employee did not have radicular symptoms and instead had symptoms of a muscular ligamentous nature. He concluded that the employee was not a surgical candidate, and recommended A some long-term physical therapy, some heat massage, ultrasound, and possibly a pain management program.@
In January 2004, the employee began treating with Dr. Daniel Rud, a chiropractor, and treated with him through at least mid-May 2005. At his deposition, Dr. Rud testified that the employee had sustained a permanent injury as a result of her work-related injury in 2001, and had also sustained a 7% permanent partial disability rating pursuant to Minn. R. 5223.0370, subp. 3(c) (1).
The employee was examined by Dr. Gary Wyard at the employer and insurer=s request on July 12, 2001, and January 30, 2004. Dr. Wyard diagnosed neck pain and minimal cervical disc herniation at C6-7 with lesion primarily towards the left and symptoms primarily towards the right. Dr. Wyard testified in his deposition that the employee=s subjective complaints were inconsistent with her MRI findings of a herniated disc since the findings were on the left side but the complaints were on the right side. Also, he noted that she had not shown any objective neurological findings and that the MRI did not show any spinal cord or nerve root compression. Dr. Wyard concluded that the employee=s complaints after her injury on November 30, 2001, were similar to her pre-existing symptoms and that her current subjective complaints were not substantiated by objective findings. He testified that the employee=s condition was the result of longstanding pre-existing degenerative disc disease, and that any injury in November 2001 was a temporary aggravation of her pre-existing condition which would have lasted only three to four months.
On January 7, 2004, the employee filed a medical request for payment of outstanding chiropractic and medical bills, including expenses related to the employee=s examination with Dr. Robert Johnson. She also requested authorization for physical therapy. The employer and insurer responded, denying liability for the medical expenses, alleging that the employee=s work injury had resolved, and alleging that the disputed treatment was not reasonable and necessary to cure or relieve the effects of the employee=s injury and was in violation of the medical treatment parameters.
A hearing was held on July 20, 2005, to address the employee=s medical request and to address a claim for permanency benefits based on 7% permanent partial disability of the whole body. In her findings and order, the compensation judge found that the employee had sustained an injury on November 30, 2001, which had resolved by March 30, 2002, and that the employee had not sustained any permanent impairment as a result of that injury. The compensation judge also found that, except for medical expenses for chiropractic treatment with Dr. Wickmann through March 30, 2002, the claimed medical and chiropractic expenses were not reasonable and necessary and were not causally related to the employee=s work injury. The employee appeals.
The employee appeals the compensation judge=s finding that her work injury on November 30, 2001, was a temporary aggravation of a pre-existing condition that had resolved by March 30, 2002, and appeals from the related denial of medical and chiropractic expenses and denial of permanent partial disability benefits. The employee contends that her pre-existing condition does not bar her claim for benefits if her employment aggravated, accelerated, or combined with that pre-existing condition to produce disability. See, e.g., Wyatt v. Hancock Nelson Mercantile Co., 207 N.W.2d 342, 26 W.C.D. 673 (Minn. 1973). Whether her employment aggravated her pre-existing condition is a question of fact. See Bender v. Dongo Tool Co., 509 N.W.2d 366, 367, 49 W.C.D. 511, 513 (Minn. 1993).
This court has identified a number of factors which a compensation judge may consider in determining whether an aggravation of a pre-existing condition is permanent or temporary. Those factors are: (1) the nature and severity of the pre-existing condition and the extent of restrictions and disability resulting therefrom; (2) the nature of the symptoms and extent of medical treatment prior to the aggravating incident; (3) the nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom; (4) the nature of the symptoms and extent of medical treatment following the aggravating incident; (5) the nature and extent of the employee=s work duties and non-work activities during the relevant period; and (6) medical opinions on the issue. McClellan v. Up North Plastics, slip op. (W.C.C.A. Oct. 18, 1994). "Which of these factors are significant in a particular case and the weight to be given to any factor is generally a question of fact for the compensation judge." Wold v. Olinger Trucking, Inc., slip op. (W.C.C.A. Aug. 29, 1994).
There is no dispute that the employee had a pre-existing condition resulting in symptoms in her neck, shoulders, and right arm. The employee periodically had treated for these symptoms beginning in 1992. The compensation judge addressed this pre-existing treatment, and
addressed the symptoms reported by the employee before and after her 2001 work injury. In her memorandum, the judge outlined her review of various medical opinions submitted into evidence. She also noted that the evidence showed that the employee=s cervical disc herniation may have been present before her 2001 injury, even though it was not detected or diagnosed until after the 2001 injury. Even though the employee was not diagnosed with a cervical herniated disc until after the November 2001 work injury, Dr. Wyard opined that the employee=s complaints after that injury were similar to her pre-existing symptoms. Dr. Denis agreed that, given the employee=s symptoms, it was possible that the employee=s herniated disc pre-dated the employee=s November 2001 work injury.
Dr. Wyard opined that the employee=s condition was the result of her pre-existing degenerative disc disease, and that any injury in November 2001 was a temporary aggravation of her pre-existing condition which would have lasted three to four months. Dr. Denis, however, concluded that the employee=s November 30, 2001, work injury permanently aggravated her pre-existing cervical spine condition even though the employee=s disc herniation may have existed before her work injury; the employee relies on Dr. Denis=s opinion in support of her claim. In her memorandum, the compensation judge explained that she found Dr. Denis=s opinions to be unpersuasive, based, in part, on his opinions on the discrepancy between the location of the employee=s cervical disc herniation and the location of her arm and shoulder pain. The employee reported symptoms in her right parascapular region even though she had a left cervical herniation. At his deposition, Dr. Denis testified that he was not concerned with this discrepancy, and testified that these opposite symptoms could have demonstrated Aan attempt by the body, in an involuntary fashion, to try and compensate for the herniation@ and resulting nerve root pressure. He stated that A[i]n other words, the body tries to favor the herniation to some extent, creating overwork on the muscles on the opposite side.@ Dr. Wyard, however, testified in his deposition that the employee=s subjective complaints were inconsistent with her MRI findings of a herniated disc since the findings were on the left side but the complaints were on the right side. The compensation judge could reasonably rely upon Dr. Wyard=s opinion over that of Dr. Denis. It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).
In spite of the contrasting opinions expressed by Dr. Wyard and Dr. Denis, both concluded that the employee=s chiropractic treatment for 3-4 months following her injury, at a minimum, was reasonable and necessary. Based in part on those opinions, the compensation judge awarded payment for chiropractic care and treatment during the 3-4 months following the employee=s injury, concluding that the employee received significant relief of her neck, right shoulder and right arm pain as a result of the chiropractic treatment provided by Dr. Wickmann. While surgery was considered for the employee, the judge referred to Dr. Johnson=s conclusions, from an October 2003 exam, that the employee=s cervical spine motions were minimally restricted, that she had normal strength in her upper extremities, that her findings on sensory and reflex examinations were normal, and that surgery was not indicated. The judge further noted that by June 2003, Dr. Denis had also found that the employee had excellent range of motion in the cervical spine and that surgery was not indicated. In addition, the employee apparently did not lose any time from work after the work injury.
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. 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. Although there is evidence in this case that the employee underwent more significant treatment after her work injury in 2001 than she had before that injury, the issue on appeal is not whether substantial evidence would support an alternative finding that the employee=s 2001 injury was permanent in nature, but whether substantial evidence supports the judge=s finding that her 2001 work injury was temporary in nature. See Land v. Washington County Sheriff=s Dep=t, slip op. (W.C.C.A. Dec. 23, 2003); see also Ludford v. Honeywell, Inc., slip op. (W.C.C.A. Mar. 17, 2004); Moe v. Dr. Matthew A. Gahn, slip op. (W.C.C.A. Dec. 31, 2003). We conclude that there is substantial evidence in the record, including medical opinion and extensive medical records, supporting the compensation judge=s findings that the employee=s work injury caused a temporary aggravation of her pre-existing condition. As the compensation judge=s determination is supported by substantial evidence and is not clearly erroneous, we must, under this court=s standard of review, affirm that decision. We accordingly affirm the findings and order and the corresponding denial of the employee=s claims for medical and chiropractic benefits beyond March 20, 2002, and the denial of the employee=s claim for permanent partial disability benefits.