STEVEN L. DEHN, Employee, v. HONEYWELL, INC., SELF-INSURED/SEDGWICK CLAIMS MGMT. SERVS., Employer/Appellant, and METHODIST HOSP. and BLUE CROSS and BLUE SHIELD OF MINN./BLUE PLUS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 25, 2006
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, adequately supported the compensation judge=s determination that the employee=s work-related neck injury substantially contributed to the employee=s subsequent neck condition, need for surgery, and resulting disability.
Affirmed as modified.
Determined by: Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Grant R. Hartman, Edina, MN, for the Respondent. Michael J. Patera, Buffalo, MN, for the Appellant.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge=s decision as to the nature of the employee=s admitted work injury and from the judge=s award of medical expenses. We affirm the judge=s decision as modified to reflect that, with respect to medical expenses, the employer is liable only for those expenses causally related to the employee=s cervical condition.
The employee began working as a millwright for Honeywell, Inc. [the employer], in 1978. On February 19, 2000, while trying to unjam a roller conveyer at work, the employee struck his head on an overhead beam. The force of the blow knocked him back onto the conveyer and gave him a headache, but he did not lose consciousness.
The employee consulted the company nurse a few days after the work incident, complaining of neck pain, and the nurse referred him to Dr. Thomas Oas, at North Memorial Clinic. Dr. Oas assessed a cervical strain, prescribed anti-inflammatories, and recommended restrictions on lifting, reaching, and grasping. As of March 2, 2000, the employee=s neck pain was better, but he still had Asome discomfort with rotating fully side to side.@ Dr. Oas continued the employee=s restrictions and advised him to return for a follow up the next week.
On March 9, 2000, Dr. Oas recorded that the employee had full range of motion and indicated that he could work without restrictions as of March 20, 2000. However, on March 13, 2000, the employee notified Dr. Oas that his neck had gotten Areally stiff@ over the preceding weekend, and Dr. Oas consequently referred the employee for physical therapy.
On March 22, 2000, Dr. Oas reported that the employee=s neck pain was nearly gone. However, noting that the employee had three sessions of physical therapy remaining, Dr. Oas continued the employee=s restrictions. After a follow-up appointment on April 5, 2000, Dr. Oas allowed the employee to return to his usual work as a millwright, but the doctor also noted that the employee=s Aneck pain [was] not totally gone.@ A month later, on May 4, 2000, Dr. Oas reported that the employee was Adoing well,@ that he had no restrictions, and that his neck was Adoing ok.@ At that point, Dr. Oas discharged the employee from care, writing that he did not foresee any ongoing problems.
The employee continued to work at his usual job without further treatment until February of 2001, when he sought evaluation at Park Nicollet Clinic for bilateral arm numbness. According to clinic notes, the employee reported having awoken with shoulder pain and bilateral arm numbness and tingling earlier that week, after having lain in bed for a couple of days. The employee also mentioned his prior work-related neck injury. Cervical x-rays showed mild degenerative changes at C6 and C7. The doctor prescribed a Medrol Dosepak, writing that the employee would need further evaluation if his symptoms did not clear. Notes from this and a subsequent visit reflect that the employee was not complaining of any neck pain at that time, and examination findings relative to the employee=s neck were normal.
On February 21, 2001, the employee underwent a cervical MRI scan, with contrast. According to the radiologist=s report, the scan revealed a loss of cervical lordosis, Aperhaps due to muscle spasm,@ a broad-based disc bulge with shallow left paracentral herniation at C5-6, and a broad-based disc bulge and mild stenosis at C6-7. An EMG was apparently within normal limits.
On March 4, 2001, a doctor at Park Nicollet called the employee Aregarding physical therapy for his neck and arm pain.@ Two weeks later, on March 19, 2001, Dr. Mary Ann Ryken noted that the employee had normal, pain-free range of cervical motion and that his resolving bilateral arm numbness was probably related to Aprolonged compressive positioning@ from his time in bed the weekend before his symptoms began. In early April of 2001, Dr. Ryken indicated that the employee=s condition was still apparently resolving. She also reported that the employee had no functional deficits at that time.
In June of 2001, the employee saw Dr. Oas again. While noting that he did not have all of the employee=s records, Dr. Oas concluded that the employee=s current symptoms were not related to the February 2000 work injury.
In August of 2001, the employee was still experiencing some upper extremity numbness, but the Park Nicollet doctor, this time Dr. Eric Shenk, found no evidence of neurological abnormality and indicated that the employee could return for additional care as needed.
On July 11, 2003, nearly two years after the end of his treatment for bilateral arm numbness, the employee consulted Dr. Oas again, complaining of neck cracking and pain over the previous four to five weeks. The employee asked Dr. Oas if his neck symptoms might be related to his February 2000 work-related neck injury; Dr. Oas did not think so but deferred a final assessment pending review of the employee=s complete medical records. On July 16, 2003, the employee returned to Dr. Oas with more severe symptoms, including radiating left arm pain. Dr. Oas suspected a cervical radiculitis and informed the employee that he should see his own physician for treatment. At that time, Dr. Oas reiterated that the employee=s neck condition was not related to the February 2000 work injury.
Also on July 16, 2003, the employee was seen at the Park Nicollet Clinic. The physician=s assessment was neck pain with radiculopathy, and he scheduled an MRI scan. That scan, performed on July 18, 2003, disclosed a herniated disc at C5-6, which had increased since the prior scan and was mildly indenting the spinal cord on the left, and slightly increased bulging and degenerative changes at C6-7.
On July 22, 2003, the employee was seen by Dr. Andrew J. Smith, another Park Nicollet physician. In the history portion of the report from that consultation, Dr. Smith recorded as follows:
This patient is a -year-old gentleman who is being seen at the request of Dr. Dahl for problems related to his neck and left arm. He has had these problems for at least the last 2 weeks. He has had severe neck, left shoulder, left upper outer arm pain radiating down the forearm and mainly into his thumb on the left hand. In 02/2000, he was running on a scaffolding, hit a cement floor, developed neck pain and left hand numbness which were treated with muscle relaxants and pain killers, and eventually he got better, but since that time he has had pain off and on in that left shoulder and arm. He has had numbness off and on in that left shoulder and arm, and it was particularly aggravated when a commercial door fell down on his head. He was taken to North Memorial Medical Center and evaluated with several stitches in his head and eventually released. Then, the pain started 14 days ago in his neck, and he had recurrent severe left shoulder and arm pain with numbness in the hand more severe than he had had previously, but it appears to me that this a continuation of his ongoing neck injury and presumably nerve impingement on the left side. He went to the emergency room. He was given morphine sulfate pills. He was given an MRI scan, and it shows a herniated disk at C5-6 on the left impinging the left C6 nerve root that would account for his radiculopathy. He has seen his company doctor, who raised questions as to whether or not this was work related. I think it is. I have not seen his report to know exactly what the feelings of the company doctor were.
Conservative treatment failed to alleviate the employee=s symptoms, and, on August 11, 2003, the employee underwent a cervical hemilaminectomy at C5-6, on the left, with excision of the herniated disc, performed by Dr. Smith.
The employee made a good recovery following the surgery, testifying that he has no continuing neck or arm complaints whatsoever. In November of 2003, he was released to return to his usual job as a millwright, with no restrictions.
The matter came on for hearing before a compensation judge on January 4, 2006, for resolution of the employee=s claim for temporary total disability benefits, permanent partial disability benefits, and medical expenses. At hearing, the parties agreed that the employee had sustained an injury arising out of and in the course of his employment with the employer on February 19, 2000, and that the employee=s medical treatment had been reasonable and necessary. The employer maintained, however, that the February 2000 injury was merely a temporary strain/sprain that did not contribute to the employee=s later disability or need for surgery.
At the beginning of the hearing, a discussion was had regarding the employer=s objection to medical bills from Park Nicollet, which did not intervene in the matter. According to the claim summary, the employee was seeking payment of $9,615.90 in medical expenses for treatment at Park Nicollet; however, the actual bills from Park Nicollet reflected a balance of zero, either because Blue Cross/Blue Shield, which did intervene, had paid those bills, or because of an accounting practice by Park Nicollet applicable to overdue bills. In any event, counsel for the employer contended that, given the unexplained discrepancies, a representative of Park Nicollet should be required to appear to explain exactly what had happened. Counsel also requested the opportunity to take the deposition of Dr. Smith, the employee=s surgeon, post hearing. That request was denied. Evidence submitted at hearing included the employee=s medical records, a July 2, 2004, causation report by Dr. Smith, and an April 21, 2005, report from Dr. David Webster, the employer=s independent examiner.
In a decision issued on January 20, 2006, the compensation judge concluded that the employee=s February 19, 2000, work injury was a substantial contributing cause of the employee=s claimed temporary total disability, permanent partial disability, and need for medical treatment, including surgery. The employer 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).
In his July 2, 2004, report, Dr. Smith wrote as follows on the issue of causation:
I am answering your letter of February 11, 2004, in which you ask for information regarding the relationship between an injury that Mr. Steven Dehn apparently sustained on or about February 19, 2000, at work and neck surgery that I performed on August 11, 2003, and subsequent treatments and disability that derived therefrom. I have reviewed my original consultation notes as well as notes from other Park Nicollet physicians as well as the North Works Occupational Health Services at North Memorial Medical Center, and it is my opinion that the injury of February 19, 2000, in fact was a substantial contributing factor to Mr. Dehn developing neck pain, shoulder and arm pain, a herniated cervical disk, and subsequently requiring surgery on his neck by me on August of 2003. I say this because he had a number of visits with different doctors; and over that period of approximately three years between the time of the original work-related injury and the subsequent performance of cervical spine surgery, he has ample documentation of ongoing problems with his neck and right arm that began with that accident and did not precede it, as far as the records suggest.
Dr. Webster disagreed with Dr. Smith, writing, in relevant part, as follows:
The etiology of Mr. Dehn=s radiculopathy cannot be determined from the information available. Mr. Dehn tells me that he, himself, believes his cervical radiculopathy evolved out of a work-related accident in which a garage door fell on his head. (Records indicate that this occurred in September 1997.) Mr. Dehn tells me that his neck bothered him from that time until the cervical radiculopathy was diagnosed in 2003. However, I find no chart notes indicating that Mr. Dehn ever sought physician treatment for that 1997 injury. Neither do I find medical records indicating that Mr. Dehn was having ongoing neck problems from 1997-2003.
We do have records related to a work-related cervical sprain/strain injury which occurred in March 2000. As part of an evaluation of numb arms, Mr. Dehn had a cervical MRI and an EMG performed in February 2001. At that time, he was found to have an asymptomatic disc herniation at C5-6 and an asymptomatic disc bulge at C6-7. Neither the consulting neurologist nor the EMG identified any symptoms or signs of cervical radiculopathy at that time.
More than two years elapsed between that evaluation and the time Mr. Dehn developed symptoms and signs of cervical radiculopathy. In my opinion, it is impossible to know if Mr. Dehn=s cervical radiculopathy is causally related to his previous work-related neck injuries. In most cases, an asymptomatic cervical disc herniation does not spontaneously enlarge and cause symptoms to the degree that Mr. Dehn=s disc enlarged and caused symptoms without some sort of additional injury.
Like Dr. Webster, Dr. Oas found no relationship between the February 2000 work injury and the employee=s subsequent need for neck surgery. In her memorandum, the compensation judge discussed the medical evidence and the opinions of Drs. Smith and Webster, ultimately accepting Dr. Smith=s opinion on causation.
On appeal, the employer acknowledges that conflicts in expert opinion are to be resolved by the trier of fact. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employer argues, however, that Dr. Smith=s opinion is faulty because the doctor assumed that the employee had ongoing neck and arm symptoms after the February 2000 work injury, an assumption the employer contends is not borne out by the employee=s testimony or the medical records, and because it is unclear exactly which medical records Dr. Smith reviewed before rendering his opinion. We are not persuaded.
Initially, we note that the employer did not object to Dr. Smith=s report at hearing. As such, the alleged defects in that opinion go to weight, not foundation. See Drews v. Kohl=s, 55 W.C.D. 33 (W.C.C.A. 1996). As for the employer=s argument that it is not clear how familiar Dr. Smith was with the employee=s prior medical records or history, it is reasonably inferable, based on his report, that Dr. Smith reviewed most if not all of the records concerning employee=s treatment for neck and/or arm symptoms. Finally, it may be true that the employee testified, on cross-examination, that he had not reported neck symptoms during his evaluation for arm pain and numbness beginning in February 2001. However, at another point at hearing, the employee testified that he had been experiencing intermittent headaches, neck stiffness, and problems turning his head Aevery few days@ or Aon and off@ by the time of his February 2001 treatment. A judge is entitled to accept all or any part of a witness=s testimony. City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980).
As the compensation judge herself noted, the evidence in this case is Anot overwhelming.@ However, even Dr. Webster, the employer=s independent examiner, did not rule out the work injury as the cause of the employee=s need for surgery, concluding instead that causation could not be determined. Given the opinion of Dr. Smith, who was the employee=s treating surgeon, we cannot conclude that the judge=s causation decision is clearly erroneous or unsupported by the record as a whole. We therefore affirm on this issue.
2. Medical Expenses
In her findings, the compensation judge determined as follows with regard to the Park Nicollet medical expenses claimed by the employee at hearing:
The employee properly served written notice of the right to intervene upon Park Nicollet Clinic on January 25, 2005. As of the date of hearing, Park Nicollet Clinic had not filed a timely Motion to Intervene. The employee proceeded to prosecute the medical expenses of Park Nicollet Clinic for the period of February 9, 2001 through November 20, 2003, billed in the sum of $9,615.90; some payments were made by Blue Cross and Blue Shield of Minnesota. Failure to timely intervene has not been shown to prejudice the rights of the parties. The employee has incurred reasonable and necessary medical expenses with Park Nicollet Clinic for treatment of the cervical spine. The self-insured employer has failed to prove material prejudice by failure of Park Nicollet Clinic to file a Motion to Intervene.
The judge then ordered the employer to pay the claimed medical expenses Aat Park Nicollet Clinic, Methodist Hospital, and North Memorial Medical Clinic, within the medical fee schedule, plus interest,@ as well as Blue Cross/Blue Shield=s intervention interest.
On appeal, the employer acknowledges that an employee may pursue payment of a medical bill, regardless of whether the medical provider has intervened in the proceedings. See Adams v. DSR Sales, Inc., slip op. (W.C.C.A. Mar. 12, 2004). The employer argues, however, that the judge erred in ordering payment to Park Nicollet and North Medical Clinic, because it is not possible to tell what charges remain outstanding. Accordingly, the employer contends, Ait cannot be determined the nature of the charges the clinics may claim,@ and, A[i]f one cannot determine then the nature of the charges, one cannot determine the reasonableness and necessity nor causal relationship of those possible charges to any admitted work injury.@
The employer=s argument is not entirely without merit. The evidence concerning the claimed medical expenses is rather vague, and counsel for the employer raised legitimate concerns at the beginning of the hearing before the compensation judge. However, the employer also expressly agreed at hearing that the treatment at issue was reasonable and necessary; the only question was causation. Now that causation for the employee=s neck condition and resulting surgery has been established, it should be a simple matter to determine the employer=s liability. At the same time, the compensation judge=s decision is arguably too broad, in that she found all treatment to be causally related, without specific evidence to support that conclusion. Therefore, to the extent that the compensation judge=s decision can be read to require the employer to pay medical expenses unrelated to the employee=s cervical condition, we modify that decision.
 The incident in which the employee was struck by the Acommercial door@ apparently occurred at work in 1997.
 Throughout his brief on appeal, counsel for the employer references his inability to secure a deposition with Dr. Smith and the judge=s refusal to allow him to depose Dr. Smith post hearing. However, the employer did not raise the issue in its notice of appeal. As such, we will not consider whether the judge abused her discretion in denying the employer=s request for a post-hearing deposition.
 That is, the records from North Memorial Clinic and Park Nicollet.
 The North Memorial Clinic bill is $180.00.
 However, having admitted reasonableness and necessity, the employer may not raise that issue again with respect to any of the bills submitted to the compensation judge in the most recent hearing. The only potential issue is whether the expenses are causally related to the employee=s neck condition.