TRACY L. SCHILLING-HYSJULIEN, Employee, v. METRO DENTAL CARE and AMERICAN COMP. INS. CO./RTW, INC., Employer-Insurer/Appellants, and INSTITUTE FOR ATHLETIC MED., EDINA FAMILY PHYSICIANS, SPORTS & ORTHOPEDIC SPECIALISTS, and MEDICA HEALTH PLANS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 6, 2006
CAUSATION - MEDICAL TREATMENT. Substantial evidence, including medical evidence and the employee=s testimony, supports the compensation judge=s findings that the employee sustained a work-related soft tissue injury to her right shoulder on April 13, 2004, and that the work injury is a substantial contributing factor to the employee=s need for the disputed medical treatment.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Gary L. Manka and Neil Clemmer, Katz, Manka, Teplinsky, Due & Sobol, Minneapolis, MN, for the Respondent. Devin J. Murphy, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal the compensation judge=s award of medical expenses the employee incurred for a right shoulder injury she sustained while working as a dentist. We affirm.
On April 13, 2004, Tracy Schilling-Hysjulien, the employee, was working as a dentist for Metro Dental Care, the employer, which was insured for workers= compensation liability by American Compensation Insurance Company/RTW Inc. The employee testified that while performing a dental procedure on a patient, she reached up to adjust an overhead light and felt Asomething@ in her right shoulder and right arm. Her pain worsened and spread to the back of her shoulder and the front of her chest, and began radiating down her right arm into her right hand. The employee sought treatment the next day with Dr. Douglas Perula, a chiropractor at Allina Medical Clinic, for right arm and shoulder pain. The employee reported to Dr. Perula that she was busy at work and that her symptoms had started Ainsidiously - no injury that I=m aware of.@ The employee also treated with Dr. Perula on April 15 and April 16, 2004.
On April 15, 2004, the employee also consulted with her primary physician, Dr. John Beecher. On examination, Dr. Beecher noted crepitus in the right posterior shoulder, and diagnosed a shoulder and arm sprain. Dr. Beecher prescribed a Medrol Dosepak and also advised her to return for treatment as needed. The employee received three more chiropractic treatments in April and May; her chiropractor recommended that she receive medical treatment. On May 4, 2004, she underwent MRI studies of the right shoulder and cervical spine at Dr. Beecher=s referral, to determine whether she had a rotator cuff tear. The shoulder MRI indicated no rotator cuff tendinosis or tears but showed a physiologic amount of fluid in the glenohumoral joint, and the cervical MRI was unremarkable.
Dr. Beecher referred the employee to an orthopedic surgeon, Dr. Edward Kelly. The employee saw Dr. Kelly on May 6, 2004, and reported right shoulder pain after a long day of work as a dentist on April 13, 2004. Dr. Kelly noted positive tenderness of the anterolateral rotator cuff, normal range of motion, and positive impingement tests, and diagnosed right shoulder rotator cuff tendonitis. Dr. Kelly treated the employee with a steroid injection, which improved the employee=s symptoms, and referred the employee for physical therapy for rotator cuff strengthening. He also suggested application of ice on the shoulder and anti-inflammatory medication. The employee began therapy on May 18, 2004, and was discharged from therapy on August 30, 2004, showing significant improvement with full pain-free active and passive range of motion and full strength. Her physical therapist recommended that the employee be on an independent home exercise program. The employee testified that it was her understanding that she would be able to manage her symptoms on her own. Her physical therapist also recommended that the employee consult Dr. Daniel Buss, orthopedic surgeon, if she continued to have difficulty.
The employee attempted to return to clinical dental work but testified that she could not perform that type of work because it exacerbated her symptoms. She had difficulty reaching for things and noted weakness and numbness that affected her ability to use dental instruments. At times she was able to substitute for other dentists but needed constant assistance because she could not move her right arm as required. For example, at one point, she attempted to perform a root canal surgery but needed assistance from another dentist to complete the procedure. The employee later was able to obtain a position as a dental school instructor.
The employee did not treat for her shoulder again until May 25, 2005, when she consulted with Dr. Buss. The employee reported right shoulder pain that started from a work injury moving an overhead light, and that she was unable to work as she had difficulty with fine instrument work. Dr. Buss interpreted the employee=s May 2004 shoulder MRI to show minimal fluid around the biceps tendon and he assessed right sided posterior shoulder pain with hand weakness and numbness. His exam results showed tenderness in the employee=s trapezius and periscapular region. Dr. Buss opined that the employee=s current symptoms and the findings on MRI were not related to the shoulder pathology, and concluded that no findings on her MRI and clinical examination could be corrected with surgery at that time. Dr. Buss recommended an evaluation with Dr. Erik Ekstrom, a pain management and rehabilitation specialist at the Institute for Low Back Care, and also advised that she might need a long-term home exercise program to improve her overall strength and foundation.
The employee consulted with Dr. Ekstrom on June 13, 2005, reporting right upper back and chest pain with right hand weakness and numbness. According to the patient information form completed by the employee, she sought treatment for right shoulder/hand pain and weakness. Dr. Ekstrom=s impression included myofascial pain and muscle spasm, and he recommended a hand therapy program to stabilize the employee=s wrist and to improve her right upper extremity glide. The employee again saw Dr. Ekstrom, on August 1, 2005, after participating in therapy, and reported a significant decline in symptoms. Since that time, the employee has treated on an as-needed basis.
On October 24, 2005, the employee was evaluated by Dr. Thomas Raih at the employer and insurer=s request. At that time, she reported chronic right shoulder pain and stiffness with a lack of mobility and right hand and arm numbness. Dr. Raih opined that on or about April 14, 2004, the employee had sustained a mild shoulder and scapular strain at work that was temporary and had resolved by May 6, 2004, when the employee was examined by Dr. Kelly. He concluded that the employee had subjective complaints consistent with mild periscapular tendinitis and mild impingement syndrome of the right shoulder, but also concluded that her complaints appeared to be varied and did not evidence an anatomic structural injury. He concluded that the employee=s medical care and treatment had been reasonable and necessary, but considered only the care through May 6, 2004, to be causally related to her work injury. In Dr. Raih=s opinion, although the employee may have required temporary limitations on the use of her right upper extremity over shoulder level, no restrictions were necessary beyond May 6, 2004, relative to the employee=s ability to work as a dentist. Dr. Raih also concluded that the employee had reached maximum medical improvement from her work injury.
On June 15, 2005, the employee filed a claim petition alleging a work injury to her right shoulder on April 13, 2004, and claiming medical expenses incurred in 2004 and 2005. The employer and insurer denied primary liability and a hearing was held on May 2, 2006. The employer and insurer argued that the employee had not sustained a compensable work injury, disputed the nature and extent of the injury, and claimed that the medical expenses were not causally related to the claimed work injury. In her findings and order served and filed May 19, 2006, the compensation judge found that the employee had sustained a soft tissue injury to her right shoulder and that the claimed medical expenses were causally related to this injury. The employer and insurer appeal.
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. 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).
The employer and insurer argue that since the employee=s medical records vary in the nature of her complaints and that she did not report a specific injury at work when she was first treated, the compensation judge could not accept the employee=s testimony as to how the injury occurred and the nature and extent of the injury. When the employee began treating for her injury, she reported, on a patient history form, that she was busy at work and that her symptoms had started AinsidiouslyBno injury that I=m aware of.@ At the hearing, the employee explained that she did not consider reaching over her head to adjust the light an Ainjury@ or a trauma; she also explained that examples of occurrences that she would consider to constitute an injury would be an event such as falling through a floor or having a forklift pallet fall over on her. The employee also explained that by using the word Ainsidiously@ on her patient history form, she meant that her symptoms had become worse during her work day and over the next two days.
The compensation judge noted that the employee had reported that her symptoms came on while she was at work. In addition, Dr. Raih opined that the employee had sustained a mild shoulder and scapular strain at work. The existence of a compensable personal injury may be established based on the subjective complaints of an employee combined with the opinion of a medical expert that the employee sustained a work-related injury or aggravation. Brown v. State, Dep=t of Transp., 54 W.C.D. 60 (W.C.C.A. 1996).
The employer and insurer further argue that the compensation judge is bound by Dr. Raih=s opinion that the employee=s injury had resolved by May 4, 2004, claiming it is an uncontroverted medical opinion. See Olson v. Midwest Printing Co., 347 N.W.2d 43, 46, 36 W.C.D. 623, 627 (Minn. 1984) (citing DeHaan v. Farmers Union Mktg & Processing Ass=n, 302 Minn. 552, 555, 225 N.W.2d 21, 23, 27 W.C.D. 683, 686 (1975)); see also Flansburg v. Giza, 284 Minn. 199, 201-02, 169 N.W.2d 744, 746, 25 W.C.D. 3, 6 (1969). However, there is a difference between disregarding an unopposed medical opinion and rejecting it on the basis of other evidence. Clark v. Archer Daniels Midland, slip op. (W.C.C.A. Feb. 14, 1994). Such opinion is not necessarily conclusive upon the trier of fact, see Tuomela v. Reserve Mining Co., 299 Minn. 203, 204, 216 N.W.2d 638, 639, 27 W.C.D. 312, 313 (1974), where there is other evidence to consider. The compensation judge considered Dr. Raih=s opinion and concluded that his opinion that the employee=s injury had resolved by May 4, 2004, was inconsistent with the evidence. The employee testified that she continued to have symptoms after that date, testimony which the compensation judge found credible. Further, the compensation judge is free to accept all or part of an expert opinion. Klasen v. American Linen, 52 W.C.D. 284, 292 (W.C.C.A. 1994); Johnson v. L.S. Black Constr., Inc., slip op. (W.C.C.A. Aug. 18, 1994) (citing City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980) (a factfinder generally Amay accept all or only part of any witness= testimony.@)). The compensation judge could reasonably accept Dr. Raih=s opinion that the employee had sustained a work-related injury, and yet reject his opinion concerning the duration of that injury. Substantial evidence, including medical evidence and the employee=s testimony, supports the compensation judge=s finding that the employee sustained a work-related soft tissue injury to her right shoulder on April 13, 2004. Accordingly, we affirm.
The employer and insurer also appeal the compensation judge=s finding that the employee=s claimed medical expenses are causally related to the employee=s work injury, and also argue that only that treatment which was specifically related to her right shoulder could be considered as related to her work injury. As outlined in Minn. Stat. ' 176.135, an employer and insurer Ashall furnish any medical, psychological, chiropractic, podiatric, surgical and hospital treatment, . . . as may reasonably be required at the time of the injury and anytime thereafter to cure and relieve from the effects of the injury.@ Payment for medical treatment can include the costs of diagnostic testing performed to eliminate possible causes of an employee=s continued symptoms. Neeb v. Collins Electrical Co., slip op. (W.C.C.A. 1993), citing Braatz v. Total Constr. & Equip., slip op. (W.C.C.A. May 19, 1992); Klaven v. Northwest Medical Ctr., slip op. (W.C.C.A. Sept. 24, 1991). However, to be awarded, medical expenses must be causally related to an employee=s work-related injuries. Lang v. H & W Motor Express, 42 W.C.D. 402 (W.C.C.A. 1989).
"The burden is on the employee to prove by a fair preponderance of the evidence that he is entitled to workers' compensation benefits." Fisher v. Saga Corp., 463 N.W.2d 501, 501, 43 W.C.D. 559, 560 (Minn. 1990). The burden also is on the employee to establish that medical care and treatment rendered is causally related to the work injury and is reasonable and necessary. Dorr v. General Office Prods., slip op. (W.C.C.A. Mar. 13, 1990). The employee continued to seek occasional treatment for her condition in 2004 and 2005 and had reported continued symptoms in the general area of her right shoulder, upper back, neck and right arm and hand. The compensation judge noted that the employee derived great satisfaction from her work and that the purpose of the employee=s medical treatment was to restore her to her pre-injury level of functioning. The compensation judge specifically acknowledged that there was no medical opinion definitely linking the employee=s work injury to the treatment at issue, but found that the employee had shown causation through Athe close temporal relationship between the work injury and the onset of symptoms, the consistency of those symptoms in terms of both location and character and the lack of any credible alternative explanation for the symptoms.@ The compensation judge also found that the employee continued to have pain and numbness after May 4, 2004, and had been evaluated by various specialists for her symptoms that were consistently located in the same areas. In view of the evidence as a whole, it was not unreasonable for the compensation judge to conclude that the April 13, 2004, work injury is a substantial contributing factor to the employee=s need for the disputed medical treatment from her various providers, and to award payment of that treatment. Substantial evidence supports these findings, and we affirm.
 Dr. Raih listed the date of April 14, 2004, but it is evident that he was referring to the actual injury date of April 13, 2004, the date admitted by the employer and insurer. It was on April 14, 2004, that the employee first sought chiropractic treatment for her injury.