JAMES E. GROTH, Employee/Cross-Appellant, v. RYAN CONTRACTING CO., and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants, and INJURED WORKERS= PHARMACY, and JOHN P. CURRAN, M.D., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 5, 2006
CAUSATION - MEDICAL EXPENSES. Where the employee=s psychological diagnoses include the existence of a general medical condition, that both the employee=s physician and the independent medical examiner agree is the employee=s work-related right hand and arm condition with ongoing pain, the compensation judge erred in denying payment of the employee=s claimed medical expenses based on a finding that the employee did not sustain a consequential psychological condition, and the judge=s denial of the claimed medical expenses is vacated and the matter remanded for further findings.
TEMPORARY TOTAL DISABILITY - JOB SEARCH. Substantial evidence supports the compensation judge=s determination that the employee failed to conduct a diligent job search prior to July 23, 2004, and the judge=s denial of temporary total disability benefits up to that date. Based on the testimony of the employee and the records and testimony of the employee=s QRC, there is substantial evidence to support the compensation judge=s finding of a reasonably diligent job search and the award of wage loss benefits from and after July 23, 2004.
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence, including treatment records and a report from the employee=s treating physician, supports the compensation judge=s finding that the employee has not reached maximum medical improvement.
Affirmed in part and vacated and remanded in part.
Determined by: Johnson, C.J., Wilson, J., and Pederson, J.
Compensation Judge: Paul D. Vallant
Attorneys: Charles M. Cochrane, Cochrane Law Office, Roseville, MN, for the Appellant. Beth Giebel Mandel, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Cross-Appellants.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s denial that the employee did not sustain a psychological injury and the judge=s denial of his claim for medical expenses and total disability benefits. The employer and insurer cross-appeal the compensation judge=s award of total disability benefits.
James E. Groth, the employee, sustained a personal injury to his right hand on September 4, 2002, while employed by Ryan Contracting Company, the employer, insured by State Fund Mutual Insurance Company. The employee=s wage on that date was $935.37. The employer and insurer admitted liability for a right hand injury.
The employee saw Dr. Daniel J. Dunn at Park Nicollet Clinic on September 10, 2002, complaining of right hand and finger pain following his work injury. The doctor noted tenderness to palpation over the flexor tendon, pain with Tinel=s test at the carpal tunnel and paresthesia in the fourth and fifth fingers with grip weakness. Dr. Dunn diagnosed a possible tendinitis or nerve entrapment, prescribed a wrist splint and placed restrictions on the employee=s work activities. Dr. Sunny Kim examined the employee on September 24, on referral from Dr. Dunn. The doctor diagnosed tenosynovitis of the flexor tendon and prescribed anti-inflammatory medication. On October 30, 2002, the employee saw Dr. Jeffrey Husband with continued complaints of right hand pain, tingling and weakness. The doctor diagnosed a right forearm strain with acute median nerve symptoms and recommended continued physical therapy. The employee followed with Dr. Dunn who diagnosed persistent right wrist tendinitis with ulnar neuropathy. Dr. Eric Schenk, a neurologist, performed an EMG which was essentially normal and diagnosed a strain injury. The employee returned to see Dr. Husband who diagnosed a possible right carpal tunnel syndrome but opined that diagnosis did not account for all the employee=s symptoms. A cervical MRI scan in March 2003 was normal with no evidence for a cervical disc herniation or stenosis. The employee continued to be treated by Dr. Dunn, Dr. Husband and other doctors at the Park Nicollet Clinic with continuing complaints of right hand pain and weakness.
In April 2004, the employee saw Dr. Jack Hubbard, a neurologist. On examination, the doctor noted a slight decrease in temperature of the fourth and fifth fingers and prominent trigger points in the medial forearm with a normal neurologic examination. The doctor opined the employee sustained a myofascial injury to the right forearm with an autonomic component with some degree of complex regional pain syndrome. Dr. Hubbard ordered a bone scan which was normal and stellate ganglion blocks which provided only temporary relief. In August 2004, Dr. Hubbard referred the employee to Dr. John Curran, a psychiatrist, for a psychological assessment and chronic pain management.
The employee saw Dr. Curran on October 5, 2004, complaining of trouble sleeping and hand pain. The doctor diagnosed tenosynovitis and Apain disorder with psychological factors and a general medical condition@ secondary to the September 4, 2002, work injury. Dr. Curran commenced a treatment program designed to reduce psychosocial stress and enable the employee to cope with his disability.
Dr. Mark Engasser examined the employee on June 22, 2004, at the request of the employer and insurer. On examination, the doctor stated the employee demonstrated Arather bizarre findings including pain on palpation of the forearm musculature with no evidence of any focal weakness or neurological loss.@ Dr. Engasser noted no evidence of any atrophy from disuse nor any evidence of cervical radiculopathy. The doctor opined the employee sustained right wrist and hand flexor tenosynovitis secondary to his September 2002 work injury, but further stated this was a relatively mild injury that had expanded to include numerous other diagnoses. Dr. Engasser opined the employee had no evidence of any reflex sympathetic dystrophy or complex regional pain syndrome but demonstrated some primary pain elements with no consistent physical findings to suggest anything physiologic. Dr. Engasser stated the work injury was a substantial contributing factor to the employee=s Amore recent complaints and need for medical treatment,@ but also stated the employee had not been disabled since May 1, 2003, and had no evidence of any permanent disability. The doctor stated the employee could return to light-duty work with no limitations on the use of the left arm, back or neck but limited lifting to 20 pounds. In a subsequent report, Dr. Engasser stated the employee sustained a temporary injury to his right wrist and hand on September 4, 2002, which lasted no more than six months. The doctor opined the employee had reached maximum medical improvement as of the date of his June 2004 examination.
By report dated April 6, 2005, Dr. Curran restated his diagnoses of pain disorder associated with both psychological factors and general medical condition. The doctor opined the employee=s work injury was a substantial contributing factor to the development of his pain disorder. The doctor noted the employee gave a history of continuous and regular employment prior to his work injury with an immediate onset of pain and disability thereafter which had failed to respond to conservative treatment and had persisted. The doctor stated he initially prescribed Keppra to relieve the employee=s hand discomfort and later prescribed Cymbalta, an antidepressant, also helpful with neuropathic pain. Dr. Curran reported,
Currently, I am not prescribing but continue to work with him to reduce the psychosocial stress imposed by his impoverishment, loss of work, and neglect. I am encouraging him, also, to learn to be more forthcoming regarding these issues rather than masking his feelings and concerns behind an impassive and stoic demeanor. Finally, I am teaching him pain management, that is, how to live with his discomforts.
By report dated April 13, 2005, Dr. Hubbard diagnosed persistent myofascial trigger points in the right forearm with a neuropathic component to the employee=s discomfort which was helped with medication. The doctor stated there was, more likely than not, an autonomic component given the employee=s excellent but transient response to the cervical stellate ganglion block. In his opinion, there was an organic basis for the employee=s symptoms and a neuropathic component as well. The doctor opined the September 2002 work injury was a substantial contributing factor to the employee=s right arm and hand pain and recommended continued myofacial therapy. Dr. Hubbard further opined the employee could work subject to restrictions for his right arm and hand.
The employee was examined by Dr. John Rauenhorst, a psychiatrist, in June 2005, at the request of the employer and insurer. The doctor diagnosed Apsychological factor affecting a general medical condition@ with a history of a right hand and arm injury with ongoing pain. The doctor opined the employee did not meet the criteria for a depressive disorder. Dr. Rauenhorst recommended no further psychiatric treatment and opined the employee=s work injury was not a substantial contributing cause of the employee=s recent psychological treatment. Rather, Dr. Rauenhorst opined the employee=s basic psychological makeup and his environment were contributing to the employee=s physical symptoms rather than vice versa. He stated the employee had a trait of expressing psychological stress as physical symptoms. The doctor stated that from a psychiatric standpoint the employee was capable of working without any restrictions and opined that the employee had reached maximum medical improvement.
The employee continued to work for the employer following his injury until he was laid off in December 2002. He was not thereafter offered a job by the employer. The employee testified he began looking for snow plowing jobs in January 2003. Beyond that, the employee stated his job search Awould have been just contacts with friends and the people that they work with.@ (T. 36.) At some point in early 2003, the employee received unemployment compensation benefits. The employee met with Albert McCaffrey, a qualified rehabilitation consultant (QRC) on July 6, 2004, and a Job Placement Plan and Agreement (JPPA) was approved on July 26, 2004. The parties agreed the employee would begin a part-time job search for light-duty work in the construction industry. John Ramus, a job placement specialist, was assigned by Mr. McCaffrey to work with the employee. The employee testified he spent two to six hours a day looking for work, primarily over the telephone, met with the placement vendor once a month and spoke with the placement vendor and his QRC regularly. The employee testified he contacted all potential job leads provided by Mr. Ramus and did some cold calling on his own. The employee had no interviews for positions and received no job offers.
The employee filed a claim petition seeking temporary total disability benefits from May 1, 2003, secondary to his physical injury and a resultant psychological injury together with payment for medical treatment. In a Findings and Order, the compensation judge denied the employee=s claim for wage loss benefits from May 1, 2003, through July 23, 2004, but ordered the employer and insurer to pay temporary total disability benefits thereafter. The compensation judge found the employee did not sustain a psychological injury and denied his claims for medical treatment expenses. The employee appeals the compensation judge=s finding that he did not sustain a psychological injury and the judge=s denial of the claimed medical expenses and temporary total disability benefits. The employer and insurer cross-appeal the determination that the employee has not reached maximum medical improvement and the award of wage loss benefits.
1. Psychological Injury/Medical Expenses
The employee alleged he sustained a psychological injury as a result of the September 4, 2002, work injury. Additionally, the employee sought payment for the treatment of Dr. Curran and prescription drug expenses. (Pet. Ex. F.) The compensation judge found the employee Adid not sustain a consequential psychological injury as a substantial result of the September 4, 2002, work injury@and found the employee was Anot entitled to payment of outstanding medical bills related to his psychological condition, and the intervenors herein are not entitled to reimbursement.@ (Findings 20 and 21.) The employee appeals these findings.
In his memorandum, the compensation judge explained,
Dr. Curran does not appear to relate the employee=s psychological condition directly to the employee=s pain and disability resulting from the work injury, but rather to the employee having been Aabandoned by the workers= compensation system@ and to the employee=s Aimpoverishment, loss of work and neglect.@
(Mem. at 7.) The employee contends the compensation judge misinterpreted Dr. Curran=s opinions. He asserts that in his April 6, 2005, report, Dr. Curran unequivocally stated the employee=s work injury was a substantial contributing factor to the development of the employee=s pain disorder. Further, the employee argues the opinions of Dr. Rauenhorst lack foundation and cannot be relied upon. Accordingly, the employee maintains the compensation judge=s decision that the employee did not sustain a psychological injury is unsupported by substantial evidence and should be reversed. We disagree.
Foundation goes to the competency of a witness to provide an expert opinion. The competency of a medical expert depends both upon the extent of the scientific knowledge of the witness and Athe witness=s practical experience with the matter which is a subject of the offered testimony.@ Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983). Sufficient knowledge of the subject matter can be obtained by personal knowledge, the hypothetical question or testimony at the hearing. Scott v. Southview Chev. Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978). Dr. Rauenhorst obtained a history from the employee, reviewed the relevant medical records and performed a physical examination. We have repeatedly held this level of knowledge is sufficient to afford foundation for the opinion of the medical expert. See, e.g., Caizzo v. McDonald=s, 65 W.C.D. 378 (W.C.C.A. 2005).
Dr. Rauenhorst diagnosed the employee=s condition as psychological factor affecting medical condition and stated the employee had a trait of expressing psychological stress as physical symptoms. The doctor opined the employee=s September 2002, work injury was not a substantial contributing cause of the employee=s psychological condition. The employee contends he had no prior history of psychological or psychiatric treatment, no pre-injury medical records evidencing a psychological condition. Further, the employee argues Dr. Rauenhorst failed to explain his opinion or cite any medical records that support his opinion. While these concerns may relate to the persuasiveness or weight afforded the medical opinion of Dr. Rauenhorst, they are insufficient to establish a lack of foundation. See, e.g., Drews v. Kohl=s, 55 W.C.D. 33 (W.C.C.A. 1996).
We acknowledge Dr. Curran did provide an opinion causally relating the employee=s injury and psychological condition. In essence, however, this issue was resolved by the compensation judge by his adoption of the opinion of Dr. Rauenhorst. It is the compensation judge=s responsibility as fact finder to resolve conflicts in expert testimony. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Dr. Rauenhorst=s opinion was adequately founded and the compensation judge reasonably relied upon it. Accordingly, we must affirm the judge=s finding that the employee did not sustain a psychological injury as a substantial result of the work injury. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). We reach a different conclusion, however, with respect to the claimed medical expenses.
Dr. Curran diagnosed a pain disorder associated with both psychological factors and a general medical condition. AThe essential feature of Pain Disorder is pain that is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention.@ Under this diagnosis, Aboth psychological factors and a general medical condition are judged to have important roles in the onset, severity, exacerbation, or maintenance of the pain.@ American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (4th ed., text revision 2000)(DSM-IV). Dr. Rauenhorst diagnosed psychological factor affecting medical condition. AThe essential feature of Psychological Factor affecting Medical Condition is the presence of one or more specific psychological or behavioral factors that adversely effect a general medical condition.@ DSM-IV 731. Central to both diagnoses is the existence of a general medical condition which both Dr. Curran and Dr. Rauenhorst agree is the employee=s right hand and arm condition with ongoing pain. Whether either of these diagnoses constitutes a psychological or psychiatric condition is problematic but regardless, the diagnosis is not necessarily dispositive of the employee=s claims.
The medical expenses here at issue include Dr. Curran=s treatment expenses and prescription medications prescribed by Dr. Curran and Dr. Hubbard. Minn. Stat. ' 176.135, sub. 1(a) requires an employer to furnish any medical treatment Aas may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.@ The issue, therefore, is whether the claimed medical expenses are reasonable and necessary to cure or relieve the effects of the employee=s personal injury. The compensation judge=s finding that the employee did not sustain a psychological injury does not resolve this issue. The compensation judge=s denial of the claimed medical expenses is vacated and the case is remanded to the compensation judge for further findings.
2. Temporary Total Disability
The employee appeals the compensation judge=s denial of temporary total disability benefits from May 1, 2003, through July 22, 2004. The employee contends that his job search was diligent during this time considering the fact that he had no vocational assistance, no job offer from the employer and no instructions from the insurer indicating he was required to do a job search. Accordingly, the employee seeks a reversal of the judge=s denial of his claim for temporary total disability benefits. We are not persuaded.
An injured employee proves total disability by showing that work the employee is capable of doing is unavailable and unavailability is typically shown by a diligent job search to no avail. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 933 (Minn. 1988). The question of whether an employee sought work with reasonable diligence must be viewed within the context of the scope of the rehabilitation assistance provided by the employer and insurer. Sellner v. B. F. Goodrich Co., 39 W.C.D. 463 (W.C.C.A. 1986). While the lack of rehabilitation assistance is a factor to be considered, the lack of such assistance does not excuse the employee=s obligation to conduct a diligent job search. Tomlin v. Rocco Altobelli, slip op. (W.C.C.A. March 24, 2003). The determination of whether or not an employee=s job search is diligent is a question of fact for the compensation judge to resolve. Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989).
Prior to July, 2004, the employee kept no written documentation of any job search efforts and failed to identify any specific job contacts. The compensation judge concluded the employee performed virtually no job search prior to July 23, 2004. The compensation judge went on to note Athe lack of rehabilitation or economic assistance does not excuse the employee=s almost complete lack of a job search prior to July 23, 2004.@ Substantial evidence supports this conclusion and the judge=s denial of temporary total disability benefits is affirmed.
The employer and insurer appeal the compensation judge=s award of temporary total disability benefits from and after July 23, 2004. They argue the employee failed to comply with the requirements of the JPPA and failed to follow up on the placement assistance provided. An inspection of the employee=s job logs, the cross-appellants argue, reflect the employee was simply watching television and not conducting a viable job search. It is clear, the employer and insurer, argue, the employee simply did not take seriously his obligation to search for work. Accordingly, the cross-appellants request the award of temporary total disability benefits be reversed.
We have carefully reviewed the record and the exhibits, including the employee=s job logs. There is merit to the employer and insurer=s arguments. The compensation judge noted the employee=s job search was lacking in cold calling and in-person contacts. Despite this fact, however, the compensation judge concluded the employee=s job search was Aminimally reasonable and diligent under the circumstances of this case.@ (Mem. at 6.)
The employee had significant restrictions on his ability to work, has minimal transferrable skills and limited job experience. Mr. McCaffery noted the employee had little disposable income for gas money and job search and had significant problems with lack of sleep which impacted his concentration, attention span and his ability to drive. Mr. McCaffery testified the lack of job offers resulted not from the employee=s lack of effort but rather because of a lack of appropriate jobs within his restrictions. Mr. McCaffery concluded that after July 23, 2004, the employee=s job search was a reasonable and diligent and he cooperated with rehabilitation efforts. There is substantial evidence of record to support the compensation judge=s award of wage loss benefits after July 23, 2004, and the award must, therefore, be affirmed.
3. Maximum Medical Improvement
The employer and insurer appeal the compensation judge=s finding that the employee has not reached maximum medical improvement (MMI). The cross-appellants contend there is no substantial evidence of record that the employee has made any significant improvement since Dr. Engasser=s examination. Nor, they argue, is there any evidence the employee=s condition is likely to significantly improve with or without any additional treatment. Accordingly, the employer and insurer contend the compensation judge=s finding is unsupported by substantial evidence and must be reversed.
Maximum medical improvement means the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability, irrespective and regardless of subjective complaints of pain.
Minn. Stat. ' 176.011, subd. 25. Factors to be considered in determining whether MMI has been reached, include:
1. There has been no significant lasting improvement in the employee=s condition, and significant recovery or lasting improvement is unlikely even if there is ongoing treatment.
2. All diagnostic evaluation and treatment options that may reasonably be expected to improve or stabilize the employee=s condition have been exhausted or declined by the employee;
3. Any further treatment is primarily for the purpose of maintaining the employee=s current condition or is considered palliative in nature; and
4. Any further treatment is primarily for the purpose of temporarily or intermittently relieving symptoms.
Minn. R. 5221.0410(3). In his November 30, 2004, chart note, Dr. Hubbard stated,
Unfortunately, further management has been somewhat hampered by the legal issues. All treatment has been denied pending his court time, which will not be until February at this point in time, according to his QRC. Consequently, he has not received any physical therapy nor has he had cervical sympathetic blocks carried out.
We discussed the situation at length. At the present time, there is nothing further that can be done except to continue with the Keppra. We also discussed the use of Lidoderm patches for his right hand. He has tried that in the past and has found it to be helpful. I recommended the additional use of a Lidoderm patch.
He will return to see me in follow-up in the next 4 months= time. If the legal issues are resolved before that time, I indicated that I would be happy to see him on a prn basis to start on the next phase with cervical sympathetic blocks and associated physical therapy.
(Pet. Ex. D). In his April 13, 2005 report, Dr. Hubbard stated he last saw the employee on November 30, 2004, and again reported that no additional physical therapy or sympathetic blocks had been carried out. The doctor stated:
As to further treatment, Mr. Groth would benefit from continued myofascial therapy. My assessment was that he was improving, but has only had a limited amount. He also would benefit from a third stellate ganglion block, as well. (Pet. Ex. C).
The employer and insurer essentially argue the medical evidence supports a result contrary to the conclusion reached by the compensation judge. The question for this court is not whether the evidence would support a contrary result but whether substantial evidence supports the decision reached by the compensation judge. It is the role of this court to 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). In this case, substantial evidence, including Dr. Hubbard=s reports, supports a conclusion that further treatment may significantly improve the employee=s condition. Accordingly, the compensation judge=s decision is affirmed.