HEIDI L. SWANSON, Employee/Appellant, v. NORTH COUNTRY HOSP., SELF-INSURED/BROADSPIRE, Employer, and NORTH COUNTRY REG'L HOSP., MN DEP'T OF HUMAN SERVS., MERITCARE MED. GROUP, MERITCARE HOSP., DEP'T OF LABOR & INDUS./VOCATIONAL REHAB. UNIT, CENTRAL MINN. NEUROSCIENCES, CENTER FOR PAIN MGMT., BLUE CROSS & BLUE SHIELD/BLUE PLUS OF MINN., TWIN CITIES SPINE CTR., and ST. CLOUD HOSP., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 31, 2006
CAUSATION - TEMPORARY AGGRAVATION. Substantial evidence, including expert opinion, supported the compensation judge's decision that the employee's work injury was only temporary and did not contribute to the employee's disability or need for treatment for the period at issue.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Paul D. Vallant
Attorneys: Mark L. Rodgers, Rodgers Law Office, Bemidji, MN, for the Appellant. Amy L. Borgeson, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondent.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s finding that the employee sustained only a temporary work injury and from the judge=s corresponding denial of benefits. We affirm.
The employee has a long history of emotional and psychological problems, beginning treatment with Nan Matthews, Ph.D., LP, at Upper Mississippi Mental Health Clinic, in February 1994. She has been treated for chronic dysthemia, recurrent major depression, suicidal ideation, interpersonal problems, and bipolar disorder. On August 25, 1999, the employee applied for Security Disability benefits based on psychological and emotional problems, with a primary diagnosis of affective/mood disorder and a secondary diagnosis of personality disorder/conduct disorder. The Social Security claim was denied on December 28, 1999, and again on April 17, 2000.
The employee began working for North Country Hospital [the employer] on October 8, 2001, working .8 time as an LPN. The employee requested a reduction to .7 time on January 8, 2002.
On January 15, 2002, the employee was seen at the Upper Mississippi Mental Health Clinic, complaining of feeling overwhelmed with the responsibilities of being a single parent. About ten days later, on January 24, 2002, the employee sustained a work-related injury to her mid and low back while rolling patients over in their beds. The employee treated in the employer=s emergency room for back pain, and Dr. Mark Frazier diagnosed a mid back strain with muscle spasm. The employee returned to light-duty work but was seen again in the emergency room on January 27, 2002, complaining of continuing low back pain. X-rays of the lumbar spine on that date revealed no abnormality; however, Dr. Frazier took the employee off work.
On January 31, 2002, the employee was seen by Dr. Bruce Wilson at the MeritCare Clinic for complaints of increased low back pain and some discomfort down the back of her legs to the knees. Dr. Wilson diagnosed an acute back strain and prescribed medication and physical therapy.
The employee was seen at the Upper Mississippi Mental Health Clinic on February 1, 2002. Notes from that visit indicate that the employee was going through another crisis in her life, that she had hurt her back at work, and that she was feeling unsupported by her family with respect to caring for her sons.
The employee received 27 physical therapy treatments at Peak Performance Physical Therapy from February 4, 2002, to June 4, 2002. At the time of her last visit, the employee exhibited full range of motion without increased pain, had no significant tenderness with palpation over the lumbar spine, and was able to bend forward and tie her shoes without increased pain. It was also noted that the employee was tolerating her treatment but was not having any continued relief of her symptoms.
The employee was evaluated by Dr. Franklin Drucker on February 7, 2002. Dr. Drucker found the employee to have an unremarkable exam with no palpable spasm, and he released her to return to sedentary work. When the employee returned to Dr. Drucker on February 12, 2002, he recommended an MRI, which was performed on February 16, 2002, and revealed slight disc dehydration at L3-4 and L4-5, with no evidence of disc herniation, stenosis, or other abnormality.
The employee also treated with David Nelson, D.C., from February 15, 2002, until May 22, 2002. On February 19, 2002, Dr. Wilson indicated that the employee believed herself to be considerably improved with Dr. Nelson=s treatment, and Dr. Wilson transferred the employee to Dr. Nelson=s care. On March 16, 2002, the employee presented to the emergency room complaining of increased low back pain and right sciatica after working eight-hour shifts, two days in a row. Dr. David Wilcox restricted her to 4 hours of work, every other day, for one week. On March 28, 2002, at Dr. Nelson=s urging, the employee returned to Dr. Wilson. At this time, the employee complained of extreme low back pain. On exam, Dr. Wilson noted Ano radiculopathy whatsoever@ and opined that the employee had musculoligamentous back pain Awith subjective symptoms exceeding her physical findings.@ Her work schedule, which had been increased to 6 hours per day, was reduced to 4 hours per day.
Dr. Wilson=s records from May 16, 2002, reflect that the physical therapist had reported that the employee=s back pain was slightly better and that her leg did not hurt anymore. He opined that the employee was distraught and had not reached maximum medical improvement [MMI], and he referred her to a pain clinic.
Dr. Sam Elghor first treated the employee on May 31, 2002. Multiple epidural steroid injections were performed, which ultimately were not helpful.
The employee was examined by independent medical examiner Dr. Richard Galbraith on June 13, 2002. Dr. Galbraith conducted an examination and opined that the employee had a normal neurologic exam with no objective findings to account for her January 24, 2002, subjective complaints of low back pain. Dr. Galbraith opined that the employee had reached MMI, and he placed no restrictions on her activities. The employee was served with that report.
A repeat MRI was performed on August 22, 2002. The scan showed slight degenerative dehydration at L4-5 but was otherwise unremarkable.
In his clinic chart note of August 27, 2002, Dr. Wilson stated that the repeat MRI had shown nothing that might be responsible for radicular pain. He diagnosed myofascial or musculoligamentous back pain for which there was no surgical cure. He opined that the employee had reached MMI, and, noting that he had nothing further to offer by way of treatment, he referred her to Dr. William Dicks for chronic pain management. On October 2, 2002, Dr. Wilson also referred the employee to the Twin Cities Spine Center for an evaluation, as he had tried all other treatment. He rated the employee as having a 7% whole body impairment pursuant to Minn. R. 5223.0390, subp. 3C(1).
Dr. Dicks examined the employee on October 22, 2002, and found normal range of motion and questionable straight leg raising. He injected the right sacral myofascial attachment areas and prescribed physical therapy. On November 11, 2002, Dr. Dicks injected the posterior trochanter and upper trochanteric areas. The employee reported a decrease in pain after both injections.
The employee was seen by Dr. James Schwender at the Twin Cities Spine Center on November 13, 2002. Her complaints at that time were excruciating pain in her right lower back and buttock area radiating down the posterior aspect of her thigh. Dr. Schwender recommended a discogram, noting, however, that the employee=s symptoms Aare not classically discogenic.@
The discography was performed by Dr. Elghor on December 11, 2002. He noted that the L3-4 and L4-5 disc were Afound to be contained and no pain was produced by injection@ but that the L5-S1 disc Awas internally disrupted, but no leakage into the epidural space could be observed. Some anterior leakage, especially on the left side, was observed.@
On January 8, 2003, Dr. Schwender wrote to the employee, stating that, based on the discography, Awe do have a surgical option for you. This would be a fusion type procedure.@
In a phone conversation with the employee on January 15, 2003, Dr. Dicks discussed how Aher pain is definitely more complicated than only a localized bad disc, which is apparently at L5/S1, and this disc may or may not be the source of most of her pain.@ During a follow up on January 16, 2003, Dr. Dicks advised the employee that surgery might not eliminate all of her pain and, in fact, could make her pain worse. He diagnosed chronic low back pain and mood disorder.
Dr. Wilson requested a second opinion on the advisability of surgery, and the employee was seen by Dr. Richard Salib on February 28, 2003. Dr. Salib reviewed the discography and noted, with respect to L5-S1, Athere is a somewhat wide nuclear pattern but there is no clear evidence that there is a tear completely to the periphery of the disc annulus.@ He concluded that Ashe has what appears to be a fairly normal looking L5-S1 disc on MRI scan and she has pain on discogram at L5-S1, which, in my opinion, presents a somewhat confusing picture.@ He noted that the employee was very angry during the interview and that Athis type of behavior would make me very reluctant and I would have to be very certain before proceeding with any surgical treatment of this woman.@ He went on to state that he would consider surgery only if the employee=s pain was relieved by the injection of local anesthetic into the disc and Awe confirm that her right leg pain can be reproduced by injection of the anesthetic into the disc space at L5-S1.@ He concluded, AI think it is unlikely that she will benefit from surgery.@
Dr. Elghor referred the employee to Dr. Jeffrey Gerdes for a third opinion regarding surgery, and Dr. Gerdes referred her for an L5-S1 therapeutic disc injection. On March 28, 2003, a single-level intradiscal steroid and anesthetic injection at L5-S1 was performed. The employee noted significant pain relief right after the procedure. Dr. Gerdes then had the employee undergo a psychological evaluation, which was performed on April 10, 2003, by Bruce McNickle, PhD. Dr. McNickle diagnosed dysthymic disorder and borderline personality disorder. He noted that the employee is easily angered, often sees herself as a victim, and is uncomfortable with complex solutions to problems. He further stated that, while the employee had some tendency to convert powerful emotions to somatic complaints, that Adoes not mean she legitimately does not have pain.@
Dr. Gerdes interpreted Dr. McNickles=s report to say that Ait is likely that she is accurately reporting her symptoms and that with some patience and thorough explanations, along with ongoing counseling following her procedure, we will be able to work with her to manage her postoperative care.@ Dr. Gerdes explained the risks and benefits of surgery to the employee, and the procedure was scheduled.
On April 30, 2003, the employee underwent an L5-S1 discectomy, L5 laminectomy, L5-S1 interbody fusion with Peek cage and autologous bone, and L5-S1 posterolateral instrumented fusion. She reported good relief of leg pain by the time she was discharged on May 5, 2003. Subsequent x-rays confirmed excellent alignment and a solid and stable-appearing L5-S1 fusion. The employee was released to work by Dr. Gerdes effective December 16, 2003, with a 20-pound lifting restriction and limited bending, stooping, and twisting, for four hours a day, for the first two months. The lifting restriction was raised to 50 pounds effective February 24, 2004.
The employee was examined by Dr. Todd Wickmann, D.C., on May 4, 2004, and reported dull aching and shooting pain in the low back on the right side with radiation into the leg. Dr. Wickmann noted that the employee had an antalgic gait favoring her right leg. He diagnosed discopathy with muscle and neurological deficits and rated the employee=s impairment at 15% of the whole body pursuant to Minn. R. 5223.0390, subp. 4E and subp. 5.
On June 29, 2004, when she was seen by Dr. Brian Livermore, the employee reported increasing pain in the right side of her low back, radiating into the buttocks but not the leg. The employee underwent physical therapy from June 30, 2004, through July 29, 2004.
Dr. Galbraith performed a repeat examination on March 24, 2005, after having been provided with additional medical records. He concluded that the employee had sustained only a thoracic strain on the date of injury. He went on to state, however, that, if the employee had also sustained a lumbar strain, it should have healed within 8 to 12 weeks. Discussing the employee=s discogram, Dr. Galbraith noted that Athere was no extravasation of contrast and no abnormality at L4-5 or L5-S1 to make any conclusion that an abnormality was present that would require surgical intervention.@ On the date of Dr. Galbraith=s exam, the employee noted good relief of her right leg pain but had continued back pain. Dr. Galbraith opined that the fusion surgery had not been reasonable or necessary, noting that Aat no time did she ever have symptoms that followed the S1 nerve root on the right.@
The employee filed a claim petition, medical request, rehabilitation request, and objection to discontinuance. The employer filed a petition to discontinue. All pleadings were consolidated for hearing. In a findings and order, filed on November 22, 2005, the compensation judge found that the employee=s mid back and lumbar strain on January 24, 2002, was a temporary injury that did not result in any permanent partial disability. He also found that the employee had reached MMI from the effects of the work injury prior to June 21, 2002, and that the L5-S1 fusion was not reasonable or necessary. The employee 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).
The employee appealed from all sixty findings and three orders in the compensation judge=s decision. In his letter brief, the employee=s counsel focused primarily on findings that the compensation judge made concerning the employee=s past and present symptoms and treatment for psychological conditions. The employee contends that, because she was not claiming a psychological disability of any type, Athe trial court=s repeated reference. . . to [the employee=s] psychological problems, anger, crying, and inability to deal with stressful situations. . . is not relevant and mandates reversal of the trial court.@ We are not persuaded.
The employee had extensive treatment for psychological conditions prior to the work injury. It is in fact relevant that an employee claiming temporary total disability after a January 2002 work injury had claimed to be totally disabled from a psychological condition alone as recently as April of 2000. The employee=s psychological treatment records establish that the employee had difficulty coping with work and family prior to her work injury. On January 8, 2002, the employee had requested a reduction in work hours and on January 15, 2002, the employee had complained of feeling overwhelmed with the responsibilities of being a single parent. The employee=s continued psychological symptoms and treatment after the work injury remained relevant to the question of whether the work injury was a substantial contributing cause of the employee=s time off work.
The employee also contends that Dr. Galbraith=s conclusions and reports are based on Aimproper and insufficient foundation and, thus the adoption of Dr. Galbraith=s report by the compensation judge requires reversal of the compensation judge.@ Again, we are not persuaded.
The employee appears to argue that, because Dr. Galbraith opined in his March 25, 2005, report that Athere was no causation ever found for her lumbar pain, and in my judgement, this was never a part of the original injury,@ all of his opinions must be thrown out, in that the judge found that the employee had in fact sustained a temporary lumbar injury. However, this argument fails to recognize that Dr. Galbraith also stated, in that same report, that, A[i]f [the employee] indeed had a lumbar strain occur in the January 24, 2002, through January 28, 2002, timeframe, that lumbar strain should have recovered within a period of 8 to 12 weeks with the therapy she received.@ A compensation judge is generally free to accept all or only part of a witness=s testimony. City of Minnetonka v. Carlson, 298 N.W.2d 763 (Minn. 1980). Dr. Galbraith=s two reports and his deposition testimony on February 24, 2003, establish that the doctor had adequate foundation to render his opinions.
The employee also appears to argue that the employee=s positive discogram somehow proves that she sustained a permanent injury to her lumbar spine as a result of her work injury. However, at least two doctors were troubled by the discogram. Dr. Galbraith noted that Athere was no extravasation of contrast and no abnormality at L4-5 or L5-S1 to make any conclusion that an abnormality was present that would require surgical intervention.@ Dr. Salib also noted, upon reviewing the discogram, that Athere is no clear evidence that there is a tear completely to the periphery of the disc annulus.@ Both doctors noted that the discogram was at odds with a normal-looking L5-S1 disc on MRI scan. And Dr. Galbraith also commented that the employee had never had symptoms that followed the S1 nerve root on the right. Contrary to the employee=s contention, there was no agreement among all the doctors that the discogram showed a Atotally disrupted L5-S1 disc.@
The employee also claims that the compensation judge inappropriately considered the employee=s sporadic work history prior to the work injury, contending that Asporadic work history is not relevant to the issue of a permanent injury.@ The employee, however, was also claiming temporary total and temporary partial disability benefits, and past work history might well be relevant in considering an employee=s motivation to return to work. In this case, the employee testified that she had rarely worked at one job for more than a few months at a time prior to her employment with this employer.
The ultimate question for this court is whether substantial evidence supports the compensation judge=s finding that the lumbar injury was temporary, and the corresponding denial of temporary total, temporary partial, and permanent partial disability benefits, rehabilitation services, and medical expenses after June 13, 2002. In his memorandum, the compensation judge noted that the employee=s testimony and the history she provided to doctors regarding her subjective complaints was not credible or reliable. Assessment of a witness=s credibility is a unique function of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). Our review of the evidence does not establish any basis to reverse the judge=s conclusions about the employee=s credibility. In addition, the judge adopted the conclusions of Dr. Galbraith regarding the nature of the injury and the reasonableness of surgery. A trier of fact=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employee has not established that any facts assumed by Dr. Galbraith were not supported by the evidence. Dr. Galbraith=s opinions provide substantial evidence to support the judge=s decision, and that decision is affirmed in its entirety.