TAMI (ANDERSON) REECE, Employee, v. CITY OF MINNEAPOLIS, SELF-INSURED, Employer/Appellant, and MINNEAPOLIS RADIOLOGY, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 31, 2006
MEDICAL TREATMENT & EXPENSE - SURGERY. Substantial evidence, including the adequately founded opinion of the employee=s treating physician, supports the compensation judge=s approval of the requested hip surgery.
Determined by Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Carol A. Eckersen
Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani Fishman & Carp, Minneapolis, MN, for the Respondent. Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, Minneapolis, MN, for the Appellant.
THOMAS L. JOHNSON, Judge
The self-insured employer appeals from the compensation judge=s approval of the employee=s request for surgery. We affirm.
Tami (Anderson) Reece, the employee, began working for the City of Minneapolis in 1989 as a police officer. On April 28, 1993, the employee and her partner responded to a police call involving another officer who was engaged in an altercation with a suspect. When the employee arrived on the scene, she jumped on the suspect=s back to attempt to subdue the suspect. The suspect fell to the ground and the employee landed on her left side. The suspect also bit the employee on her left hand. The employer was self-insured for workers= compensation liability on April 28, 1993, and admitted liability for the personal injury.
The employee went to the emergency room at Abbott Northwestern Hospital following the incident because she was concerned about a transmittable disease due to the bite. The bite wound was cleaned and a blood test was negative.
The employee saw Dr. Gary Johnson at HealthSpan Occupational Health Group on May 18, 1993, complaining of mid and left-sided low back pain with intermittent tingling into the lower leg and foot. The employee traced her symptoms to the April 28, 1993, scuffle with a suspect. The employee also reported some chronic intermittent left-sided hip and low back discomfort over the past year which she associated with wearing a gun belt and sitting in a squad car. Dr. Johnson diagnosed regional low back pain coupled with left-sided lower extremity symptoms of numbness and tingling of unknown etiology. The doctor recommended an active exercise program and released the employee to work without restrictions. The employee returned to HealthSpan in June 1993 with continuing complaints of left-sided low back pain with radiation of pain, numbness and tingling into her left leg which she dated to the April incident. Dr. Johnson diagnosed left-sided back and leg symptoms partially explained by a left-sided greater trochanteric bursitis which the doctor opined was due to the employee=s personal injury. The doctor placed the employee on light-duty. By July 1993, Dr. Johnson opined the employee=s trochanteric bursitis was very nearly resolved and he released the employee to full-duty work.
The employee was also seen by Dr. David Carlson in June 1993, on referral from Dr. Johnson. The doctor diagnosed trochanteric bursitis. He injected the employee=s hip with Lidocaine which helped her pain for only several days.
The employee returned to the HealthSpan Clinic in October 1993, complaining of left and right hip pain. Dr. Johnson diagnosed bilateral greater trochanteric bursitis which he opined was related to the April 1993 personal injury. The doctor prescribed medication and home exercises. The employee returned to see Dr. Carlson in November 1993 complaining of bilateral hip pain. The doctor stated, AI suspect that this is work related and that it is involving the wearing of a gun belt.@ The doctor performed injections into both hips and recommended the employee change the position of the equipment on her belt so that it would not rest on the trochanteric areas. (Pet. Ex. H.)
By report dated January 18, 1994, Dr. Johnson stated his initial diagnosis was left-sided trochanteric bursitis secondary to a personal injury on April 28, 1993. During a clinic visit on October 29, 1993, Dr. Johnson stated the employee then complained for the first time about right-sided symptoms. The doctor stated the employee related her symptoms to prolonged sitting as well as wearing her gun and equipment belt. Dr. Johnson stated his diagnosis was bilateral trochanteric bursitis which he opined was work-related.
The employee returned to see Dr. Johnson in May 1994. His diagnosis remained bilateral greater trochanteric bursitis. He again referred the employee to Dr. Carlson who also diagnosed bilateral trochanteric bursitis and stated, AI think this is related to her work because she carries a heavy gun belt and all the other equipment that she has to carry as a police officer.@ Dr. Carlson provided injections into both trochanteric bursae areas. (Pet. Ex. H.)
The employee sought no medical treatment between May 1994 and July 1997. She testified, however, she continued to experience right and left hip pain during this time. In 1995, the employee stopped working as a patrol officer and began a job as a plain-clothes investigator for the Family Violence Unit. She has worked in that position continuously since that date. The employee was not regularly required to wear a gun belt in this position and wore it only for special assignments which included working four to six weekends as a patrol officer each summer.
In July 1997, the employee returned to see Dr. Carlson complaining of continued right hip pain. An MRI scan of the back and right leg was negative for any avascular necrosis. Dr. Carlson referred the employee for physical therapy.
In June 2001, the employee saw Dr. Richard Reut, an orthopedic surgeon, complaining of bilateral hip, buttock and low back pain. The doctor=s impression was chronic bilateral hip pain with possible underlying mechanical low back pain. A bone scan was negative. Dr. Reut referred the employee to Dr. Jessica Heiring, a neurologist who saw the employee in July 2001. The doctor diagnosed bilateral sacroiliitis and piriformis spasm and recommended SI joint injections and physical therapy. In September 2001, Dr. Heiring noted the employee=s pain was markedly decreased but opined she continued to suffer from lumbar myofacial pain syndrome with bilateral piriformis spasm. By December 2001, Dr. Heiring felt the employee was recovering and encouraged her to continue her home conditioning and stretching program. The employee returned to see Dr. Heiring in June 2003, with complaints of pain and tightness in the left gluteal and SI region with pain radiating into both hips, left more than right. The doctor diagnosed continuing lumbar myofascial pain syndrome with a flare up of the employee=s piriformis spasm and SI joint irritation. In February 2005, the employee underwent a bilateral sacroiliac arthrogram with injection of a steroid and an anesthetic as ordered by Dr. Heiring.
The employee saw Dr. Jeffrey Dick in March 2005 complaining of continued hip and buttock pain. The doctor diagnosed bilateral sacroiliitis greater on the right than the left. Dr. Dick stated he had no further conservative care to offer her and felt she was a candidate for a right-sided SI fusion. In April 2005, the employee sought a second opinion from Dr. David Tempelman at Wayzata Orthopedics regarding the surgery recommended by Dr. Dick. The doctor=s impression was right trochanteric bursitis and early degenerative problems of the right hip. An MRI scan of the employee=s right hip showed evidence of a degenerative tear within the anterior and lateral aspect of the superior acetabulum. A right hip arthrogram in July 2005, showed a small recess in the anterolateral aspect of the femoral head and a small recess across the lateral acetabulum. Dr. Tempelman ultimately diagnosed a hip impingement syndrome with a possible labral tear. The doctor sent the employee=s records to Dr. Thomas Ellis at the University of Oregon, an expert in the field, who recommended an arthroscopic procedure to correct the hip pain.
In September 2005, a representative of the employer wrote to Dr. Tempelman with multiple questions, including the exact nature of the employee=s hip impingement and whether the condition was work- related. In response, Dr. Tempelman stated,
1. Hip impingement is due to decreased femoral head, femoral neck offset, causing a CAM effect of the hip, rather than synchronous motion.
2. [T]he underlying condition for the procedure is a resection of a portion of the femoral head to reduce this mechanical impingement. The underlying condition would be aggravated and accelerated by work. (Pet. Ex. B.)
By report dated December 8, 2005, Dr. Tempelman stated,
In terms of a question of causation, this is a developmental condition. It is known to exist in many people, some of whom are not symptomatic. The fact that Ms. Reece became symptomatic after the on-the-job injury, to me is conclusive that this was an aggravation of a pre-existing condition. (Pet. Ex. B.)
Dr. Loren Vorlicky examined the employee in October 2005 at the request of the employer. The doctor diagnosed a labral tear of the right hip, a small recess in the anterolateral femoral head and a component of femoral neck impingement syndrome. Dr. Vorlicky stated the most objective finding was the labral tear which can cause nagging hip pain. Dr. Vorlicky opined the findings shown on the arthrogram were not related to the injury of April 28, 1993, and opined that any treatment three months after the injury was not reasonable or necessary. Dr. Vorlicky opined the employee reached maximum medical improvement three months post-injury. By report dated February 21, 2006, Dr. Vorlicky stated,
At the time of my exam Ms. Reece was complaining of primarily left sided trochanteric pain that she felt was secondary to wearing her gun belt and reported the date of injury as 10/29/93. The records indicated that she was treated for a trochanteric bursitis. In my opinion the development of trochanteric bursitis, whether it be right sided or left sided, has little to do with wearing a gun belt. There are many other activities that occur in the course of her daily activities and her employment and recreational activities that could have contributed to this. The mechanism of injury is not clear to substantiate the contention of a Gillette type injury secondary to wearing her gun belt. Also, wearing a gun belt does not have any effect on the treatment of her labral tear. (Resp. Ex. 2.)
The employee=s surgical request was heard by a compensation judge at the Office of Administrative Hearings. In a Findings and Order, served May 8, 2006, the compensation judge found the employee=s personal injury was a substantial contributing cause to her need for hip surgery. The self-insured employer appeals.
The self-insured employer appeals the compensation judge=s approval of the requested surgery contending the decision is legally erroneous and unsupported by substantial evidence. The appellant argues the employee has two separate and distinct diagnoses for hip complaints: trochanteric bursitis and the labral tear and mechanical impingement in the right hip. The surgery was recommended to treat the latter diagnosis which, the appellant contends, is unrelated to the employee=s personal injury. The appellant further argues the opinion of Dr. Tempelman to the contrary lacks foundation. For these reasons, the self-insured employer asserts, the compensation judge=s surgical approval must be reversed.
The doctors agree the reason for the surgery is to resect a portion of the femoral head to reduce a mechanical impingement. The issue then is whether this condition is work- related. Dr. Tempelman opined this condition was aggravated and accelerated by the employee=s work and stated the fact that the employee Abecame symptomatic after the on-the-job injury, to me is conclusive that this was an aggravation of a pre-existing condition.@ (Pet. Ex. B.) The appellant contends Dr. Tempelman=s assumption that the employee=s right hip became symptomatic after her injury is incorrect and unsupported by the medical records. When the employee saw Dr. Gary Johnson in May 1993, she complained of mid and left-sided low back pain and intermittent left hip pain. The first documented complaint of right hip problems was on October 29, 1993, when the employee returned to see Dr. Johnson. The doctor then diagnosed bilateral trochanteric bursitis. The July 1997 MRI scan was read by Dr. Miller as showing no hip abnormality. In July 2005, a right hip arthrogram showed a small recess in the anterolateral femoral head. In September 2005, Dr. Tempelman diagnosed a hip impingement syndrome and recommended surgery. Since the employee=s right hip did not become symptomatic immediately after the personal injury, the appellant contends Dr. Tempelman=s opinion that the employee=s fall on her left side caused the right hip pathology which was not diagnosed until 12 years later lacks foundation and is unsupported by substantial evidence.
The appellant does not contend Dr. Tempelman lacks the necessary scientific expertise or practical experience with the subject matter of the offered testimony. See Drews v. Kohl=s, 55 W.C.D. 33 (W.C.C.A. 1996). Rather, the appellant argues the facts assumed by Dr. Tempelman are inconsistent with the contemporaneous medical records. A doctor's opinion regarding causation which is based on an inadequate factual foundation is of little evidentiary value. Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991) (citing Welton v. Fireside Foster Inn, 426 N.W.2d 883, 41 W.C.D. 109 (Minn. 1988)). In this case, we cannot agree Dr. Tempelman lacked foundation for his opinions.
Admittedly, the employee=s right hip symptoms did not come on until six months after her injury. Dr. Tempelman did not, however, state the employee=s right hip symptoms came on immediately after the personal injury. Rather, the doctor stated the employee=s symptoms Abecame symptomatic after her injury.@ (Pet. Ex. B.) This statement is consistent with the medical records. A six month lapse between the injury and the onset of symptoms does not render Dr. Tempelman=s causation opinion without foundation. Neither does the fact that the final diagnosis of an impingement syndrome was not made until years after the accident render the doctor=s causation opinion without foundation. Rather, these facts go to the weight to be afforded the doctor=s opinion rather than its admissibility.
Dr. Tempelman is a qualified medical doctor, he reviewed the employee=s medical records and performed multiple examinations. Accordingly, the doctor had adequate foundation to render his expert opinion. It is the responsibility of the compensation judge, as the trier of fact, to select between conflicting medical opinions. See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985). The compensation judge adopted and relied upon the adequately founded opinion of Dr. Tempelman. Since the compensation judge=s decision is supported by substantial evidence, it must be affirmed by this court. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).