KARLA BURKHALTER, Employee, v. TREND ENTERS., INC., and MIGA by GAB ROBINS N. AM., Employer-Insurer/Appellants, and WALGREEN CO., and MEDICA HEALTH PLANS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 3, 2007
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee=s testimony and the opinion of her treating physician, supported the compensation judge=s decision that the employee=s 2002 work injury was a substantial contributing cause of her continuing symptoms and need for treatment.
Affirmed in part and vacated in part.
Determined by: Wilson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: Gary P. Mesna
Attorneys: David B. Kempston and Thomas D. Mottaz, Law Office of Thomas D. Mottaz, Anoka, MN, for the Respondent. Michael D. Miller and Nancy E. Lamo, McCollum, Crowley, Moschet, Miller, Minneapolis, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the judge=s finding that the employee=s March 2002 work injury was a substantial contributing cause of the employee=s low back pain and need for treatment after April 11, 2005, and from the judge=s award of reimbursement to Medica Health Plans. We affirm in part and vacate in part.
In 1999, the employee began working as a picker/packer at Trend Enterprises, Inc. [the employer]. Her work required frequent bending and lifting of educational materials weighing up to 40 pounds. On March 18, 2002, the employee had an immediate onset of low back pain when she bent over to pick up a light package. The employer and its workers= compensation insurer, Legion Insurance Company, admitted liability for the injury.
The employee began treating with Dr. John Dunne, at the Park Nicollet Clinic, on April 4, 2002, for this injury. She was receiving physical therapy at that time. Dr. Dunne indicated that she should remain off of work and prescribed a TENS unit. On May 2, 2002, he released the employee to return to work for four hours a day with no lifting over 10 pounds and no bending or twisting at the waist. Two weeks later, on May 16, 2002, he eased her restrictions to six-hour work days. And, on May 23, 2002, he allowed the employee to occasionally lift 10 to 20 pounds and to occasionally bend or twist at the waist.
On May 30, 2002, Dr. Dunne noted that the increase in hours and weight had caused the employee to have an increase of low back pain. He also noted that the employee was having symptoms radiating down the right leg all the way to the foot and Aactually down both legs.@ He ordered an MRI of the lumbar spine.
Dr. Dunne=s June 13, 2002, office note indicates that the MRI showed mild diffuse posterior bulging into L3-4 and L4-5, with mild to moderate degenerative changes involving the mid and lower lumbar posterior articular facet joints. He continued the employee on physical therapy, added home traction, and moved the employee from a six- to a seven-hour work day.
On July 24, 2002, Dr. Dunne opined that the employee could work an eight-hour work day, four days per week, but no overtime. He noted that the employee was using her TENS unit daily and also home traction.
The employee began a work conditioning program in early August of 2002. On August 15, 2002, Dr. Dunne noted that the employee had had an acute flare-up of her back pain. He took her off of work conditioning temporarily but kept her working 32 hours a week, with no overtime. Dr. Dunne took her off work on August 26, 2002, and released her to return to work on September 12, 2002, for six- to eight-hour days, four days per week, with a 10-pound lifting restriction.
The employee was seen by Dr. Daniel Kurtti on September 18, 2002. His assessment was low back pain, multilevel lumbar facet degenerative joint disease, and L3-4 and L4-5 disc bulges with degeneration. He recommended facet injections. The employee returned to Dr. Dunne on October 1, 2002, stating that she did not want the injections at that time. Dr. Dunne reinstated work conditioning.
On December 10, 2002, Dr. Dunne relaxed the employee=s restrictions to allow her to lift 40 pounds occasionally and 20 pounds continuously. The employee was to work four to six hours per day on Monday, Wednesday, and Friday, when she also had work conditioning, and eight to ten hours on Tuesdays and Thursdays. By December 31, 2002, the employee had completed work conditioning and was released to work eight to ten hours per day.
On January 28, 2003, the employee was noted to have had a flare-up while working eight to ten hours per day. Dr. Dunne prescribed a health club membership so that the employee could continue her exercises and advised her to get off her feet for 15 minutes every two hours. The employee continued to treat with Dr. Dunne in February, March, April, and May of 2003, and to use her TENS unit, exercise, and take medications.
On June 24, 2003, Dr. Dunne noted that the employee continued to have back tightness and spasm but that she was working every day and taking a number of medications. Dr. Dunne opined that the employee had reached maximum medical improvement [MMI] and advised that she should work a 40-hour week, or less, and could lift, push, pull, or carry up to 20 pounds on an occasional basis. He rated the employee as having a 10% whole body impairment for multiple levels of bulging discs in the lumbar spine. The employee was paid benefits for the 10% rating.
Dr. Dunne=s August 20, 2003, office note indicates that the employee had at that time been working in the position of UPS line operator, for the employer, for the last two months. In that position, she was able to get help with lifting when it exceeded her restrictions. In that note, Dr. Dunne indicated that the employee=s restrictions were permanent and that she was still on three medications, used home traction two to three times a week, and used her TENS unit almost daily.
The employee was doing well when seen on November 25, 2003, but returned to Dr. Dunne on January 13, 2004, complaining of a flare-up of pain. Dr. Dunne changed her medications and restricted her from lifting more than 40 pounds. On January 20, 2004, he eased her restrictions to allow her to lift up to 50 pounds.
On March 23, 2004, the employee was seen by Dr. Mary Arneson in the Occupational Medicine Clinic of Park Nicollet Clinic. The employee reported that Alast month@ she had injured her left knee and had been walking in a way that might be stressing her low back. She rated her pain level at 9 out of 10.
The employee returned to see Dr. Dunne on April 5, 12, and 27, 2004. By April 27, the employee rated her pain at 7-8 out of 10. Her restrictions were set at 5-pound continuous lift, a 10-pound frequent lift, and an 11-20-pound occasional lift, with no lifting over 21 pounds. She was also restricted to no more than five hours of overtime a week.
Dr. Dunne=s office notes from May 26, 2004, indicate that the employee had experienced an increase in low back pain when bending over and pulling on a box at work the night before. The office note designated the date of injury a March 18, 2002. Dr. Dunne eased the employee=s restrictions to allow continuous lifting of 20 pounds, occasional lifting of 21-40 pounds, no lifting over 40 pounds, and no more than eight hours of overtime per week. The employee filed a First Report of Injury listing an injury date of May 25, 2004. On June 25, 2004, Dr. Dunne eased her restrictions further and stated that he wanted to see her again in two months.
When seen by Dr. Dunne on August 12, 2004, the employee rated her pain at 5 out of 10. The doctor renewed her medications and eased her restrictions to allow her to work 8-10 hours of overtime a week.
The employee filed a claim petition on November 4, 2004, seeking one day of temporary total disability benefits and outstanding medical expenses as a result of work injuries on March 18, 2002, and May 25, 2004.
When seen in follow-up by Dr. Dunne on December 8, 2004, the employee reported that her back pain was a little worse because she was out of her medication. Dr. Dunne noted that the employee had constant pain in the center of the back and on the right side. He opined, Ait is the same as the original injury, in fact, I still contend and believe with a high degree of medical certainty that this is a continuation of her previous injury.@ He renewed her prescriptions and kept her on the same restrictions, telling her to return in three months.
The employee returned to Dr. Dunne two months later, on February 14, 2005. At that time she complained of ongoing back pain that was sometimes as high as a 7 out of 10, across her back and into her right leg. Dr. Dunne kept the employee=s restrictions the same.
The employee was examined by Dr. Mark C. Engasser, at the employer=s request, on February 15, 2005. On that date, the employee reported that her pain was primarily in the right lumbar area and that she had difficulty sitting for more than one hour at a time. Dr. Engassar diagnosed chronic myoligamentous strain of the lumbosacral spine and lumbar degenerative disc disease at L3-4 and L4-5. Dr. Engasser opined, in part, that the employee had sustained a permanent injury to her low back on March 18, 2002, and that a work-related incident on May 25, 2004, had resulted in a temporary injury to her lower back. It was his opinion that the temporary injury would have lasted for three months and that all medical care during that period would have been necessitated by that incident alone; after the three-month period, all additional care and treatment would have been necessitated by the March 18, 2002, injury.
The employee was seen again by Dr. Dunne on April 11, 2005, complaining of a flare-up of pain that had occurred the week before while she was moving something at work. The employee noted that the pain was a little more on the left, although it was also present on the right. Dr. Dunne took her off work until the next day and advised her to observe a 10-pound lifting restriction.
On April 18, 2005, Dr. Dunne allowed the employee to lift 10 pounds continuously and to lift 11-20 pounds rarely. He did not restrict her from working overtime. Upon her return to Dr. Dunne on May 18, 2005, the employee reported that her pain was at 3 out of 10 but that it was constant. Dr. Dunne continued to restrict her from lifting over 20 pounds.
By June 15, 2005, the employee was working 10-hour days and reporting that she was doing well overall. However, she reported that her pain was about a 6 out of 10. At that time, Dr. Dunne released her to lift 21 to 40 pounds occasionally with no lifting over 40 pounds. Those restrictions remained in effect except for a couple of days in September of 2005, when the employee was taken off of work completely due to a thoracic spine strain.
In July of 2005, the employee entered into a stipulation for settlement with the employer, MIGA, and CNA Insurance Company, the employer=s insurer on May 25, 2004. According to the agreement, the employee was claiming temporary total disability benefits and medical expenses as a result of work injuries on March 18, 2002, and May 25, 2004. Under the terms of the settlement, the employer and MIGA paid the outstanding medical bills, and CNA agreed to pay MIGA $1,487.97 in full satisfaction of any and all claims for reimbursement and to reimburse MIGA for certain treatment the employee had received at Park Nicollet Clinic. In exchange for said payments, the employee settled all claims, on a full, final, and complete basis, with respect to the claimed May 25, 2004, work injury.
On November 14, 2005, Dr. Dunne noted that the employee=s leg pain was minimal but involved both the right and left legs.
The employee returned to her job as a picker/packer in February of 2006. On February 13, 2006, the employee indicated that she was working in excess of 20 hours of overtime a week and that she rated her low back pain at a 7 out of 10. Dr. Dunne then restricted her to 10 hours of overtime a week. On May 17, 2006, Dr. Dunne indicated that the employee had permanent restrictions as follows: a 10-pound continuous lift, 11-20-pound frequent lift, 21-50-pound occasional lift, no lifting over 50 pounds, and no more than 10 hours of overtime a week. No follow-up appointment was set.
The employee filed a medical request on June 1, 2006, seeking payment of medical expenses with the Park Nicollet Clinic as a result of the March 18, 2002, work injury. The employer and insurer answered that some of the bills were not causally related to the 2002 work injury and that others were being reviewed. Medica eventually intervened to recover payments made to Park Nicollet Clinic and Minneapolis Radiology.
The employee returned to Dr. Dunne on June 15, 2006, stating that she had been doing a lot of standing and had awakened with a flare-up of pain the day before. The pain was in the right side of the low back and into the right leg. Dr. Dunne=s office note indicates that this was a flare-up of the employee=s preexisting injury. Dr. Dunne took the employee off work and put her on a five-day course of prednisone. On June 19, 2006, Dr. Dunne released the employee to return to work with a restriction against overtime.
The employee reported another flare-up of pain to Dr. Dunne on June 26, 2006. At that time, she described her pain as a 9 out of 10. Dr. Dunne ordered a repeat MRI. The July 3, 2006, scan showed moderate intrinsic right-sided posterior bulging of the L4-5 disc. On July 12, 2006, Dr. Dunne noted that the L4-5 bulging disc did not appear to compromise the nerve root, although the employee continued to have symptoms running down her right leg all the way to her foot. The employee continued to treat with Dr. Dunne through at least August 1, 2006, and he kept her on restrictions of no lifting over 20 pounds.
An administrative conference was held on August 18, 2006, on the medical request. A request for formal hearing was filed on August 29, 2006, by the employer and insurer.
The employee was reexamined by Dr. Engasser on September 25, 2006. Among other things, he recorded that the employee had experienced the onset of thoracic pain while lifting at work on September 22, 2005. He also noted that the employee had been doing more standing at work and had increased pain on June 15, 2006. Dr. Engassar opined, in part, that the employee had sustained Aa temporary Gillette injury to her low back on or about June 26, 2006,@ which would have lasted until the date of his exam, and he indicated that all treatment from June 26, 2006, to the time of his exam would have been related solely to that Gillette injury. He went on to agree with Dr. Dunne=s restrictions on lifting and opined that the employee could work up to 10 hours of overtime per week.
Also on September 25, 2006, Dr. Dunne wrote to the employee=s attorney. After outlining the history of the employee=s symptoms and his treatment from April of 2002 and forward, Dr. Dunne stated that the April 2005 and June 2006 flare-ups were directly related to the 2002 work injury.
The matter came on for hearing on October 10, 2006. At that the time, the employer and insurer contested liability for all medical treatment rendered from and after April 11, 2005. The record was left open to allow the employer and insurer to take the deposition of Dr. Dunne, which took place on November 1, 2006. Dr. Dunne testified that the employee had a change in her physiologic state in June of 2006 but had not sustained a Gillette injury at that time. It was Dr. Dunne=s opinion that the March 2002 work injury remained a substantial contributing factor in the employee=s ongoing low back condition and need for medical treatment.
In findings and order filed on November 21, 2006, the compensation judge found that the March 18, 2002, work injury was a substantial contributing cause of the employee=s continuing low back pain and that the flare-ups of April 7, 2005, and June of 2006 were not superseding, intervening causes of the employee=s disability and need for medical care. 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 (2006). 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 contend that substantial evidence does not support the compensation judge=s finding that the employee=s March 18, 2002, injury was a substantial contributing cause of the employee=s low back pain and need for treatment on and after April 7, 2005, and June of 2006. It is the employer and insurer=s position that the employee sustained new injuries in April of 2005 and June of 2006 that were superceding, intervening causes of the employee=s symptoms and need for medical treatment thereafter. We are not persuaded.
With regard to the alleged April 7, 2005, injury, the employer and insurer contend that Dr. Dunne testified that the employee sustained a new injury on that date. His deposition testimony confirms that Dr. Dunne felt that the employee had sustained an injury to her low back on April 7, 2005; however, at no point did he call it a new injury. Rather, while noting the presence of new clinical findings on that date, Dr. Dunne ultimately testified that the March 2002 work injury remained a substantial contributing cause of the employee=s low back condition and need for medical treatment from and after April 11, 2005.
The employer and insurer also contend that the alleged new injury on April 7, 2005, was a superseding, intervening cause of the employee=s need for medical treatment. However, they offer no medical support for their claim to that effect. Dr. Engasser did not address the alleged April 7, 2005, injury, and Dr. Dunne never stated that any injury on April 7, 2005, was a superceding, intervening cause of the employee=s need for medical treatment thereafter. Contrary to the employer and insurer=s brief, there was no evidence that the employee had worked without problems for a year prior to the April 7, 2005, flare-up. Rather, the evidence establishes that the employee treated regularly for low back symptoms after 2002 and had treated with Dr. Dunne as recently as February 14, 2005, when she rated her pain at 7 out of 10.
With regard to the alleged June 26, 2006, Gillette injury, the employer and insurer rely on the opinion of Dr. Engasser. While Dr. Engasser did opine that the employee sustained a work-related Gillette injury on or about June 26, 2006, which he felt to be responsible for all treatment between then and September 25, 2006, the insurers for the alleged April 2005 and June of 2006 work injuries were not parties to the case at hearing, and the determinative issue before the compensation judge was whether the 2002 work injury remained a substantial contributing cause of the employee=s low back condition and the need for medical treatment thereafter.
Clearly the medical records and deposition testimony of Dr. Dunne support the judge=s finding that the 2002 work injury substantially contributed to the employee=s low back condition and need for medical treatment both after April of 2005 and after June of 2006. Dr. Dunne=s records establish that the employee has had work restrictions since the March 2002 work injury and that she has been on medication for her low back symptoms since that time. In addition, she has never gone more than four months without medical treatment for her low back since March of 2002. Dr. Dunne=s office notes have consistently listed March 18, 2002, as the date of the injury for which the employee was treated. In addition, in his report of September 25, 2006, and in his deposition on November 1, 2006, Dr. Dunne opined that the March 2002 work injury was a substantial contributing cause of the employee=s low back condition and need for medical treatment from April of 2005 and forward.
A judge=s choice between expert opinions is generally 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 employer and insurer do not point to any facts assumed by Dr. Dunne that are not supported by the record. Rather, they cite to Dr. Dunne=s testimony on cross-examination that the employee sustained an injury in April of 2005. However, we do not find that testimony inconsistent with his testimony that the 2002 work injury remained a substantial contributing factor in the employee=s need for medical treatment after that date.
The employee=s testimony also supports the judge=s findings. The employee testified that she has never been pain free since the 2002 work injury, that she has continued to have leg symptoms since that time, and that she attributes her low back symptoms to the 2002 work injury.
Substantial evidence supports the judge=s finding of an ongoing relationship between the employee=s symptoms and the 2002 work injury. Those findings are affirmed.
2. Medica=s Claim
The compensation judge observed that he lacked jurisdiction to determine whether Medica=s claim against MIGA was a covered claim, but he then ordered MIGA to reimburse Medica Aif it is a covered claim.@ The employer and insurer contend that such an order is prohibited. As both the employee and the employer and insurer agree that this issue is moot because Medica has withdrawn its intervention claim, the judge=s finding and order on this issue are vacated.
 She was originally employed by a temporary agency but became an employee of Trend in the year 2000.
 At some point, Legion Insurance became insolvent, and the claim was subsequently administered by MIGA.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 In an unappealed finding, the compensation judge determined that the treatment the employee received for her thoracic spine on September 22, 2005, was not causally related to the 2002 work injury.