TRACEY BOEGEMAN, Employee/Appellant, v. HOME INSTEAD SENIOR CARE and PHARMACISTS MUT. INS. CO./BROADSPIRE SERVS., INC., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 18, 2007
CAUSATION - TEMPORARY INJURY. Substantial evidence, including the reports and opinions of the employer and insurer=s medical experts, supports the finding that the employee=s February 2006 work injury was temporary and had resolved by August 2007.
Determined by: Johnson, C.J., Wilson, J. and Stofferahn, J.
Compensation Judge: Carol A. Eckersen
Attorneys: Bruce E. Brody, Brooklyn Center, MN, for the Appellant. Mark A. Wagner and Steven E. Sullivan, Johnson & Condon, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s decision granting the employer and insurer=s petition to discontinue temporary total disability benefits. Finding substantial evidence to support the compensation judge=s findings and order, we affirm.
Tracy Boegeman, the employee, began working for the employer, Home Instead Senior Care, as a part-time companion, homemaker and home health aide in June 2004. On February 2, 2006, the employee sustained an admitted personal injury to her back. On that date, the employee was providing home health aide services for an elderly woman who had recently returned home from a hospitalization and nursing home stay. The client, who weighed about 80 pounds, was unable to stand or ambulate without assistance and required nearly a full lift for transfers. Following her shift, the employee experienced low back pain with spasms and pain down the right leg.
The employee sought treatment at Crossroads Medical Clinic on February 8, 2006. On examination, Dr. Sandra Morris noted tenderness to palpation in the low back, negative straight leg raising, normal reflexes, and normal lower extremity strength. The doctor diagnosed a low back strain, prescribed heat and Ibuprofen, and referred the employee for physical therapy. Dr. Morris released the employee to return to work with restrictions of occasional lifting up to 20 pounds, no pushing/pulling over 25 pounds, and no bending more than 30 degrees. The employee returned to the clinic on February 10, and was seen by Dr. Nathan Markell, reporting low back, mid- back, neck and shoulder pain. Dr. Markell noted no spinous process tenderness, no muscle spasms, negative straight leg raising, normal reflexes and a normal motor examination. He diagnosed a thoracic and lumbar strain, prescribed Flexeril, and released the employee to return to work with restrictions. Dr. Morris saw the employee again on February 17 and 22, and March 20, 2006. The doctor=s notes reflect tenderness to palpation across the low back, discomfort with forward bending, and some tightness of the paraspinous muscles throughout the back. The doctor diagnosed a low back strain with secondary myalgia and recommended an intensive back strengthening program. Dr. Morris continued the employee=s release to work with light-duty restrictions, and the employee continued to work for the employer during this time.
On March 27, 2006, the employee was seen by Dr. Thomas Hennessey at the Institute for Low Back and Neck Care complaining of lumbar, thoracic and cervical pain, right leg pain, and right arm pain. Findings on examination included upper thoracic and lower lumbar spine tenderness, pain at the thoracolumbar junction, pain and discomfort with lumbar range of motion, a normal gait, normal reflexes, normal motor strength, back pain bilaterally with straight leg raising, and global hypesthesia on sensory examination of the right leg. Dr. Hennessey ordered MRI scans and took the employee off work pending further evaluation.
The March 29, 2006, MRI scans revealed an extremely small annular tear and midline disc herniation at T6-7, Scheuermann=s disease in the lower thoracic and upper lumbar spine, mild dehydration and a slight annular bulge at L4-5, and dehydration with a small posterior annular tear with minimal disc protrusion at L5-S1. There was no evidence of spinal compression or neural impingement. On April 5, Dr. Hennessey ordered electromyography studies of the right leg. The EMG study was normal, but motor nerve conduction studies were very slightly abnormal, suggestive of a mild polyneuropathy. In follow-up on April 19, Dr. Hennessey prescribed additional physical therapy, referred the employee to a neurologist for further evaluation, and continued the employee off work while therapy was initiated.
On April 21, 2006, the employee was examined by Dr. Robert Barnett, an orthopedic surgeon, at the request of the employer and insurer. On examination, the doctor noted a normal upright stance and posture, no visible or palpable spasms, reports of pain on lumbar range of motion, symmetric reflexes and negative straight leg raising. The doctor maintained the MRI scans showed no evidence of neural impingement or intraspinal pathology, and the findings were consistent with age-related degenerative changes. Dr. Barnett diagnosed thoracic and lumbar pain, stating the employee had an objectively normal examination with subjective symptoms unsupported by clinical findings or the imaging studies. Dr. Barnett opined the employee sustained a temporary sprain/strain on February 2, 2006, that had since resolved; that the employee was capable of working with restrictions at all times since the date of injury and was not temporarily totally disabled; and that the employee had reached maximum medical improvement (MMI) as of April 21, 2006.
The employee was seen by Dr. Fred Lux, a neurologist, on April 24, 2006, on referral from Dr. Hennessey. On examination, the employee=s gait was normal, there was tenderness in the lumbosacral region to palpation and some lumbar limitation of motion. She had positive straight leg raising, with normal bulk, tone and strength in the lower extremities, and reflexes were symmetrical. Dr. Lux stated he did not detect any objective neurological deficits and recommended symptomatic management, including physical therapy and Lidoderm patches. The employee returned for follow-up in June 2006. Dr. Lux noted continued tenderness in the mid-thoracic and lumbar region and reduced lumbar range of motion. The doctor noted the EMG report suggested mild polyneuropathy, however, the test was non-diagnostic and the employee did not exhibit any evidence of mylopathy. Dr. Lux concluded the employee had sustained soft tissue trauma with radicular symptoms into the leg, and recommended a pain management program. In a letter dated June 9, 2006, Dr. Lux stated he did not see any abnormalities in the EMG study and, clinically, did not see any evidence of neuropathy.
The employee returned to Dr. Hennessy on June 8, 2006. The doctor noted minimal improvement with physical therapy and persistent low back pain with right leg pain of a somewhat global nature. On examination, the doctor noted limited lumbar range of motion, hypesthesia and paresthesia in the right leg and foot, negative straight leg raising, and increased hyperreflexia in the legs bilaterally. Dr. Hennessy referred the employee for a surgical consultation relative to the thoracic spine with Dr. Bryan Lynn, and continued the employee off work.
The employee was examined by Dr. Lynn on June 23, 2006. The doctor reviewed the employee=s MRI scans, noting very minimal disc degeneration at T6-7 and minimal to mild disc degeneration at L4-5 and L5-S1. He concluded there was no evidence of central canal stenosis, no spondylolysis or spondylolisthesis, no significant facet arthritis, and adequate patency of the neural foramina. Dr. Lynn stated the EMG study demonstrated no evidence of radiculopathy. The doctor diagnosed mild disc degeneration at L5-S1 and diffuse thoracic pain, probably musculoligamentous, and concluded the employee was not a surgical candidate. Dr. Lynn recommended four weeks of physical therapy for trunk stabilization, aerobic conditioning and strengthening, and released the employee to return to work, with light-duty restrictions through August 7, 2006.
The employee was last seen by Dr. Hennessy on June 30, 2006. He agreed with Dr. Lux=s referral to a pain treatment program, and continued the employee off work. In a letter report dated July 10, Dr. Hennessey opined the employee sustained soft tissue injuries as well as disc herniations at T6-7 and L5-S1 and an annular tear at L4-5, and that the employee=s work injury was a substantial contributing cause of her continuing pain. He further opined that she would not reach MMI until completion of the pain program, and stated the employee was not able to return to her former employment.
On July 11, 2006, Dr. Lux noted continuing complaints of low back pain with radiating symptoms into the legs. He stated the employee had no objective neurologic or motor deficits, but had been experiencing paresthesias into the lower extremities, and ordered a repeat EMG. The EMG, performed on July 28, 2006, was interpreted as abnormal, suggesting a mild polyneuropathy. There was no evidence of any lumbosacral radiculopathy. Dr. Lux ordered blood work to determine or rule out possible causes of the polyneuropathy.
The employee was evaluated by Dr. Robert Long at Medical Advanced Pain Specialists (MAPS) on August 4, 2006. The doctor noted reduced sensation in the right leg, tenderness in the low back with muscle spasm, restricted rotation in the lumbar spine, back pain on the right with straight leg raising, and normal reflexes and muscle strength in the lower extremities. The doctor read the MRI scans as showing degenerative changes that correlated reasonably with the employee=s pain complaints. Dr. Long diagnosed lumbar degenerative disc disease and recommended a series of lumbar epidural injections.
The employee was seen in follow-up by Dr. Lux on August 29 and September 15, 2006. The doctor diagnosed ideopathic neuropathy and lumbar pain with radicular-type symptoms. Dr. Lux opined the neuropathy was aggravated by or became symptomatic as a result of the employee=s work injury, and stated it was likely the employee=s back injury symptoms were magnified by the neuropathy. He noted the blood work had been negative, but recommended regular checkups, stating that polyneuropathies sometimes precede, by many months, an underlying condition that will eventually appear such as diabetes or paraneoplastic syndromes. In a letter report dated January 6, 2007, Dr. Lux maintained the employee=s symptoms were the combined result of her lumbar pain syndrome magnified by the neuropathy, and that the employee=s symptoms were accelerated by her work injury on February 2, 2006. The doctor further opined the employee was unable to return to her job with the employer, and would not be able to return to work until her pain was under better control.
Dr. Joel Gedan, a neurologist, examined the employee on October 12, 2006, at the request of the employer and insurer. Dr. Gedan stated the employee demonstrated marked pain behaviors, but he found no spasm, tightness, trigger points or focal areas of tenderness on examination. The neurological examination was normal. The doctor stated the MRI studies revealed no disc herniation or nerve root compression, and the EMG showed no evidence of radiculopathy. Dr. Gedan opined the employee sustained a minor lumbar strain on February 2, 2006, and that her current condition was subjective complaints of pain unsubstantiated by any objective findings on examination or diagnostic studies. The doctor agreed the nerve conduction studies suggested mild or early polyneuropathy, further noting, however, that the polyneuropathy was, at this point, subclinical with minimal findings and virtually no neuropathic symptoms in the lower extremities. Dr. Gedan opined the employee=s polyneuropathy was not related to the work injury, explaining that polyneuropathy is produced by diffuse metabolic, infectious, or toxic abnormalities, and was not related in anyway to back trauma or lumbar strain. Dr. Gedan further opined the medical care provided was reasonable through the evaluation by Dr. Lynn on June 23, 2006; the employee was not temporarily totally disabled and that restrictions would not have been necessary after April 24, 2006; and that MMI had been reached as of June 23, 2006.
The employer and insurer served and filed a notice of intent to discontinue temporary total disability benefits (NOID) on October 24, 2006, following service of Dr. Gedan=s MMI report on October 20, 2006. In an order on discontinuance issued November 30, 2006, a compensation judge denied the request to discontinue payment of benefits. The employer and insurer filed a petition to discontinue benefits in January 2007 asserting the same grounds alleged in the October 2006 and earlier NOIDs. Following a hearing, the compensation judge found (1) the employee sustained a temporary injury that resolved as of August 7, 2006; (2) the employee was capable of working within the restrictions assigned by Dr. Lynn from and after June 23, 2006; (3) the employee refused suitable work offered by the employer on June 26, 2006; (4) the employee reached MMI effective with service of Dr. Gedan=s report; and (5) the employer and insurer were entitled to a credit for benefits paid after June 26, 2006. The employee appeals.
On appeal, the employee argues the compensation judge=s finding that the employee sustained a temporary injury on February 2, 2006, that resolved by August 7, 2006, is contrary to all objective findings and evidence. She points to a twenty-plus year history prior to the date of injury with no back pain or radicular symptoms requiring medical attention, and the fact the employee worked for the employer as a home health aide, a job requiring relatively strenuous physical activity, for two years, without problems or restrictions. The employee contends the MRI scans and EMGs evidence multi-level disc herniations and polyneuropathy which, along with objective findings documenting chronic back and leg symptoms since February 2006, provide conclusive evidence of a permanent injury. Accordingly, the appellant argues, the opinions of Dr. Hennessey, Dr. Lux and Dr. Long should have been adopted over the opinions of Dr. Barnett and Dr. Gedan. We are not persuaded.
The employee essentially argues that a preponderance of the evidence supports her claims rather than the position of the employer and insurer. In cases involving factual disputes, however, the findings of the compensation are to be affirmed Aif, in the context of the record as a whole, they are supported by evidence that a reasonable mind might accept as adequate.@ Where the Aevidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59-60, 37 W.C.D. 235, 239-40 (Minn. 1984); see Minn. Stat. ' 176.421, subd. 1(3). It is not the role of this court to re-evaluate the credibility of witnesses or reweigh the evidence, but solely to assess whether there is sufficient evidence in the record to support the judge=s decision. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).
Here, there is substantial evidence supporting the judge=s finding of a temporary injury, including the records of Dr. Lynn and the reports and opinions of Dr. Barnett and Dr. Gedan. A trier of fact is not required to accept the opinions of the employee=s treating doctors over the opinions of the employer and insurer=s medical experts. See, e.g., Stange v. State, Dep=t of Transp., No. WC05-101 (W.C.C.A. Oct. 31, 2005); Broughton v. Focus Homes, Inc., slip op. (W.C.C.A. Aug. 19, 2002). As the trier of fact, it is the province of the compensation judge to determine the weight and credibility to be given to medical expert opinion. A compensation judge=s choice of experts will not be reversed by this court so long as there is adequate foundation for the opinions accepted by the judge. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The compensation judge found the opinions of Dr. Barnett and Dr. Gedan more persuasive and accepted their opinions over those of Dr. Hennessy and Dr. Lux. Both Dr. Barnett and Dr. Gedan opined, based on a review of the employee=s treatment records, the employee=s history, and physical examination of the employee, that the employee=s personal injury on February 2, 2006, was temporary and had resolved. While different inferences could be drawn from the evidence in this case, we cannot say that the opinions of Drs. Barnett and Gedan lack foundation, or that the judge=s acceptance of these opinions was clearly erroneous. We must, therefore, affirm.
Having affirmed the compensation judge=s finding that the employee=s personal injury of February 2, 2006, was temporary and had resolved by August 7, 2006, the remaining issues on appeal are rendered moot and need not be decided. See Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987) (an employee is not entitled to continuing workers= compensation benefits if he or she is no longer disabled as a result of the work injury). Since the employee is entitled to no further benefits after August 7, 2006, for the February 2, 2006, injury, there can be no recovery of a credit, pursuant to Minn. Stat. ' 176.179, against future benefits for overpayments made under a mistake of fact or law.
 The employee began receiving Social Security disability benefits in 1998, for an unrelated condition, and limited her hours to maintain her eligibility for Social Security benefits. The employee had not worked outside the home for fourteen years prior to her employment with the employer.
 The insurer denied approval for the referral.
 The employee had previously seen Dr. Lux on February 21, 2006, for evaluation and treatment of headaches, unrelated to her work injury. In the course of his examination, Dr. Lux noted tenderness, soft tissue spasm and paraspinal trigger points in the thoracic and lumbar regions, with normal strength and tone, normal sensation and normal reflexes in the lower extremities.
 Dr. Lux did not have the employee=s MRI or EMG reports at the time of this examination.
 The employer and insurer had previously filed NOIDs on April 27, 2006, and June 26, 2006. The grounds asserted as a basis for discontinuance were essentially the same in each of the NOIDs. A compensation judge, in an order on discontinuance issued June 7, 2006, denied the April 2006 request to discontinue, and temporary total disability benefits were reinstated. Temporary total disability benefits were ultimately paid through the date of hearing, March 9, 2007.