TRISHA H. MILLER, Employee/Appellant, v. WAL-MART, SELF-INSURED/CLAIMS SERVS. INC., Employer, and SUMMIT ORTHOPEDIC, FAIRVIEW HEALTH SERVS, and UCARE MINN.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 26, 2006
PRACTICE & PROCEDURE - INDEPENDENT MEDICAL EXAMINATION. The compensation judge did not abuse her discretion in admitting the IME report.
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, in the form of a well founded medical opinion, supports the compensation judge=s determination that the work injury was a temporary aggravation of an underlying degenerative disc condition.
Determined by Stofferahn, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Carol A. Eckersen
Attorneys: Gregg B. Nelson, Nelson Law Office, Inver Grove Heights, MN, for the Appellant. Christopher P. Rosengren, Gislason & Hunter, Mankato, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s determination that her work injury was a temporary aggravation of an underlying degenerative disc condition which resolved as of December 23, 2003, and from the denial of her claims after that date. We affirm.
Trisha Hiltner Miller, the employee, sustained an admitted work injury to her back on May 20, 2003, while employed by Wal-Mart. The primary issue at the hearing was whether the work injury was a temporary aggravation which resolved by December 23, 2003, or whether the injury was a substantial contributing factor after that date in the employee=s wage loss, permanent partial disability, and need for medical care.
The employee was born January 11, 1981. In 1994, she was diagnosed as having scoliosis; no treatment was provided. In 1998, the employee had a number of motor vehicle accidents, the most serious of which was on June 5, 1998. The employee sought treatment after that accident at the emergency room of Fairview Lakes Regional Medical Center where she noted cervical and lumbar pain. X-rays taken at that time were essentially negative.
The employee=s follow up care was at the Allina Clinic in Forest Lake where she received pain medication and later, physical therapy for what was diagnosed as a strain to the cervical, thoracic and lumbar spine. She found the physical therapy to be helpful in allowing her to move around more easily and in being able to sleep better. She continued to note continued discomfort, especially when sitting, and requested a referral to a chiropractor. The employee began treating at Ottomeyer Chiropractic Clinic at the end of July 1998.
The employee treated thereafter for her back condition on an intermittent basis. In October 1999, she presented at the Allina Clinic with symptoms of low back pain for the past week which she attributed to her motor vehicle accident in 1998. She was given pain medication and referred to physical therapy. In July 2001, the employee returned to the clinic for evaluation of chronic back pain. Physical therapy was suggested but the employee wanted a referral to an orthopedist so a referral was made to Dr. John Dowdle.
The employee first saw Dr. Dowdle on August 14, 2001. Although she had noted neck and thoracic problems, her primary complaint at that time was her low back. She described 70% of her pain as being in her low back and 30% of her pain in the posterior aspect of both thighs. She was taking Tylenol with codeine and ibuprofen. Dr. Dowdle diagnosed a myoligamentous injury to the cervical and lumbar spine as well as bilateral SI joint inflammation. He recommended SI joint injections.
An MRI of the lumbar spine was done on September 18, 2001, and was read as showing Aearly degenerative disc disease with desiccation of the L2 through L5 disc spaces and mild narrowing of these interspaces. Annular bulging at L4 without focal disc herniation. No central canal stenosis. Incidental note is made of Schmorl=s node formation at L4-5.@
After review of the MRI, Dr. Dowdle recommended a low back support, the use of anti-inflammatory medicine and moderation of the employee=s activities. Dr. Dowdle advised no lifting over 11 to 25 pounds and avoiding repetitive bending and lifting with no prolonged sitting or standing. Dr. Dowdle did not see the employee again until after her work injury in 2003.
In 2002, the employee saw Dr. Ottomeyer for a number of chiropractic visits for neck, upper back, and low back pain. The employee went to the emergency room at Fairview Lakes in July 2002. The employee stated at that time that her pain had flared up two days ago with low back pain and some radiation of pain to her left leg. The employee was given pain medication and injections of Demerol at that time.
On May 20, 2003, the employee worked as a stocker for Wal-Mart, placing products on store shelves. The employee testified that before that date her back problems had not interfered with her ability to do her job at Wal-Mart and that she had not missed any time from work. On May 20, she was lifting boxes of computer paper which weighed 25 pounds and was placing them on a shelf over her head. As she was doing so, she testified that her back snapped and started hurting.
The employee treated at Allina Clinic in Forest Lake for her work injury. When she saw Dr. Mayer on May 23, 2003, her primary complaints were of pain in the left buttock and into the left thigh. Dr. Mayer concluded the employee had sustained an exacerbation of her underlying lumbar disc disease and recommended anti-inflammatory and pain medication. In subsequent visits, the employee noted significant pain in her low back without radiation into her legs.
An MRI was done on June 9, 2003, and compared with the 2001 MRI by Dr. Tammy Fox. Dr. Fox concluded Amild degenerative disc disease with desiccation at the intravertebral disc extending from the L2-3 through L5-S1 levels. There is very minimal posterior bulging of the anulus at the L4-5 level. There is no evidence of a focal disc herniation. Minimal facet arthropathy at the lower levels. There is also mild scoliosis of a lumbar spine convex to the left. No significant change compared to the previous examination.@
The employee returned to Dr. Dowdle on July 15, 2003. His history contains no mention of the 2003 work injury and states Ashe has had some difficulty but she has done reasonably well since I saw her last.@ A question had been raised by her referring doctors as to whether or not some type of surgical intervention would be appropriate. Dr. Dowdle disagreed with a surgical approach and instead recommended low back support, activity moderation and a Medrol Dosepak. On follow-up, it was noted that the employee was not able to use the Dosepak because of an allergic reaction.
On November 25, 2003, Dr. Dowdle found on physical examination that she had paraspinal tenderness and spasm. Dr. Dowdle=s impression was of Amechanical low back pain with multiple level degenerative disc disease, lumbar spine.@ Dr. Dowdle recommended an epidural injection at the L4-5 level as well as continuing the use of ibuprofen as an anti-inflammatory medication. Dr. Dowdle did not see the employee after that date. He did not address the question of work restrictions.
The employee was evaluated on behalf of the employer by Dr. Mark Wikenheiser on December 18, 2003. In his report of December 23, Dr. Wikenheiser reviewed the employee=s history of her work injury and her treatment since that date. Dr. Wikenheiser=s physical exam was negative except for spasms in the lumbar spine and he also reviewed the 2001 and 2003 MRI=s. Dr. Wikenheiser concluded that the 2003 work injury was a temporary exacerbation of an underlying degenerative disc condition and that the employee=s current symptoms were not the result of her work injury.
The employee filed a claim petition on November 16, 2004, seeking various wage loss benefits and medical expenses which were alleged to be the result of the 2003 work injury.
A second IME by Dr. Wikenheiser was performed on July 14, 2005. In his new report, Dr. Wikenheiser reviewed in detail the employee=s medical records from before the work injury and also conducted a second physical exam. He found spasm throughout the lumbar spine on range of motion examination. He restated his initial opinion that the employee=s work injury was a temporary exacerbation of an underlying degenerative disc disease and concluded as well that the employee had no restrictions or permanent partial disability from the work injury.
At the request of the employee=s attorney, Dr. Gary Mayer, one of the employee=s treating physicians at Allina Clinic, prepared a report dated January 6, 2006. He noted in that report that he had not seen the employee since April 2004. Dr. Mayer stated that the employee=s work injury was a significant exacerbation of her underlying condition which had resulted in the employee being unable to engage in Aanything but relatively sedentary work activities.@ Dr. Mayer also concluded that the employee had seven percent whole body disability pursuant to Minn. R. 5223.0070, subp. 1.A. (3)(a).
The employee=s claim petition was heard by Compensation Judge Carol Eckersen on December 27, 2006. In her Findings and Order of April 24, 2006, the compensation judge specifically adopted the opinion of Dr. Wikenheiser and determined that the employee=s work injury was a temporary aggravation which had resolved by December 23, 2003. The employee=s claims for benefits after that date and her claim for permanent partial disability were denied. The employee appeals the admission of Dr. Wikenheiser=s 2005 report and the denial of her claims.
1. Admissibility of the 2005 IME Report
At the hearing, the employee objected to the admission of Dr. Wikenheiser=s 2005 report, contending that the report was untimely under Minn. Stat. ' 176.155, subd. 1.
That section provides Athe examination shall be completed and the report of the examination shall be served on the employee and filed with the commissioner within 120 days of service of the claim petition.@ This section also allows for an extension to be granted by a compensation judge for good cause, including that Athe extension is necessary to gather additional information which was not included on the petition as required by section 176.291.@ This court has held, relying on language in Bey v. Oxford Properties, 481 N.W.2d 40, 46 W.C.D. 198 (Minn. 1991), that application of the extension is addressed to the discretion of the compensation judge. Newberg v. Walgreens, WC05-195 (W.C.C.A. October 5, 2005).
In the present case, Dr. Wikenheiser=s 2005 report supplemented his 2003 report. The difference between the two reports was that in the 2005 report, Dr. Wikenheiser identified the pre-2003 records that he had reviewed. His conclusion in both reports was the same, that the work injury was a temporary aggravation of an underlying degenerative condition. In her appeal, the employee does not identify any material in the 2005 report which had not been provided in the 2003 report. Given these facts, we are not able to conclude that the compensation judge abused her discretion in admitting this report into evidence.
2. Sufficiency of Evidence
On appeal, the employee argues that, even with the 2005 report, substantial evidence does not support the compensation judge=s decision in that Dr. Wikenheiser=s opinion lacked adequate foundation and his opinions do not support the findings of the compensation judge.
We conclude Dr. Wikenheiser=s opinions had adequate foundation to be relied upon by the compensation judge. Dr. Wikenheiser reviewed medical records and conducted a physical examination of the employee. Typically, this provides sufficient information to provide adequate foundation for a doctor to provide a medical opinion. Scott v. Southview Chevrolet, 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978). The employee argues however, that Dr. Wikenheiser stated that the employee=s condition before and after her work injury was essentially the same and the evidence shows, according to the employee, that her condition had changed significantly as the result of her work injury.
We recognize the employee believes her symptoms and work restrictions were adversely changed by her work injury and she testified to that effect at the hearing. However, her opinions were not binding on Dr. Wikenheiser and he was not required to accept those opinions in reaching his conclusions. We note further that there is contrary evidence in the record. The 2001 and 2003 MRI=s were read as showing no significant difference. Dr. Dowdle=s findings, diagnosis and recommendations were not appreciably different between 2001 and 2003.
In any event, the inquiry for this court is not whether the evidence would have supported a contrary result but whether substantial evidence supports the result reached by the compensation judge. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). We conclude that Dr. Wikenheiser=s opinion had adequate foundation and that the compensation judge could rely on that opinion in reaching her decision. Martinson v. Potlatch Corp., WC05-284 (W.C.C.A. April 11, 2006).
The employee also argues that there is no evidence to support the finding that the ending date of the temporary injury was December 23, 2003. This finding, according to the employee, was not based on the IME opinion and thus was not supported by substantial evidence. We disagree. Dr. Wikenheiser in his report dated December 23, 2003, from his examination on December 18, 2003, concluded that the employee=s work injury was temporary. We see no basis for concluding that the compensation judge erred in using the date of the report as the date for the end of the temporary aggravation.
The employee has also appealed the compensation judge=s finding that she rejected an offer of suitable employment from the employer in May 2004. Given our affirmance of the finding that the employee=s work injury had resolved before that date, the issue is moot.
The decision of the compensation judge is affirmed.