ROBERT L. HOLLEN, Employee/Appellant, v. COMMUNITY MAINT., INC., and AMERICAN FAMILY INS. GROUP, Employer-Insurer, and FAIRVIEW HEALTH SERVS., BLUE CROSS/BLUE SHIELD OF MINN., PRIMARY BEHAVIORAL CLINIC, INC., and MINNESOTA ORTHOPEDIC SPECIALISTS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 23, 2007
CAUSATION - SUBSTANTIAL EVIDENCE. Given the record as a whole, and especially considering that the employee=s treating physicians were apparently unaware of the employee=s extensive history of pre-injury symptoms and treatment, substantial evidence supported the compensation judge=s denial of benefits related to the employee=s bilateral shoulder condition.
CAUSATION - PSYCHOLOGICAL INJURY. Where the compensation judge made arguably inconsistent findings, and the basis for her decision was not clear, the employee=s claim for a consequential psychological injury was remanded for further findings and explanation.
Affirmed in part, reversed in part, and remanded.
Determined by: Wilson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: Jennifer Patterson
Attorneys: Denise D. Lemmon, Lemmon & Assocs., Eagan, MN, for the Appellant. Michael Forde and Katie H. Kopperud, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s denial of his claim for benefits related to alleged shoulder and psychological injuries. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
The employee has a history of work-related injuries and treatment dating back to at least 1987, when he sustained a work-related right shoulder injury while employed by Hitchcock Industries. On September 16, 1988, after testing and conservative treatment, he underwent right shoulder surgery, consisting of Aneer decompression with anterior acromioplasty and section of coracoacromial ligament.@ The employee=s post-operative diagnosis was impingement syndrome with irritation of the rotator cuff. A few months later, in January of 1989, the employee underwent elbow surgery for chronic right lateral epicondylitis. The employee testified that he recovered well from both procedures and was not subject to any restrictions on his activities.
The employee left Hitchcock Industries and worked for a time at a gun shop before commencing employment with Signature Flight Support in late 1990. His job duties there included loading and unloading cargo planes, and he sustained several injuries arising out of and in the course of his employment with this employer. The first, a right elbow injury, occurred in January of 1991, and he underwent surgery to treat this injury in February of 1991. The second, a low back injury, occurred in January of 1992. Later that year, in July of 1992, he underwent treatment and participated in work hardening at the Fairview Southdale Pain Management Center. Reports from that facility indicate that the employee was complaining of depression and was prescribed an antidepressant, which he declined to take. In August of 1992, work hardening was discontinued due to lack of progress, and Dr. Paul Biewen, the director of the pain program, indicated that the employee was exhibiting signs of symptom magnification.
In April of 1995, the employee sustained additional work-related injuries to his low back and shoulders, again during his employment with Signature Flight, when he was pinned between a 500-pound cargo container and the bulkhead of a plane. In September of 1995, he underwent MRI scans on both shoulders. With regard to the left shoulder, the scan showed moderate acromioclavicular joint hypertrophy with mild impingement of the supraspinatus musculotendinous junction, mild edema in the distal clavicle, and a possible tear of the labrum. Findings on the right were similar except for the possible labrum tear.
In October of 1995, Dr. Asa Kim reported that the employee was suffering from bilateral impingement syndrome related to AC joint arthrosis, with pain somewhat worse on the left side, but the degree of impingement Aquite symmetric.@ In his office notes, Dr. Kim proposed that the employee undergo an open distal clavicle resection. Signature Flight=s workers= compensation insurer apparently denied approval for the operation, and, in April of 1996, Dr. Kim reiterated that, given the employee=s failure to improve with conservative treatment, Asurgical intervention would be a very reasonable option.@ Records regarding treatment for the employee=s low back condition, which was characterized as myofascial pain, indicate that the employee was viewed as lacking motivation for reconditioning. Again in November of 1996, Dr. Kim observed that surgery was the only remaining option to treat the employee=s bilateral shoulder pain with chronic impingement syndrome.
The employee left Signature Flight and obtained a job at a bait shop, where he worked for about two years. He apparently had no work injuries and sought no shoulder treatment during this period. He subsequently worked for two automobile dealerships, again without incident.
On August 9, 1999, the employee was seen again to Aupgrade a disability form.@ According to the notes from this evaluation, the employee had up until then been under a lifting restriction of 30 pounds, and he had been working with his wife, cleaning offices, Awithout any particular problems.@ The examining health care provider indicated that the employee=s bilateral shoulder impingement was A[c]linically somewhat improved,@ and he modified the employee=s lifting restriction to A50 pounds occasionally but nothing above that.@ The employee was also advised that he should work above shoulder height only occasionally.
From late 1999 until early 2002, the employee worked for a company called Osco, performing Aproduct counting, line picking, [and] maintenance.@ During this period, he received treatment for shoulder pain from Dr. Richard Strand. In May of 2000, concerned that the employee might have rotator cuff tears in one or both shoulders, Dr. Strand ordered another set of MRI scans. Those scans, performed in June of 2000, revealed hypertrophy of the AC joint and a labrum tear on the left, and possible subacromial bursitis, hypertrophy of the AC joint, and a possible labrum tear or ASlap lesion@ on the right. The radiologist found no evidence of rotator cuff tears or tendinopathy in either shoulder.
The employee received cortisone injections and was taken off work by Dr. Strand, due to shoulder pain, on several occasions in 2000 and 2001. At times the primary symptoms were in the left shoulder, at other times in the right. Dr. Strand also treated the employee for episodes of low back pain during this same period. A lumbar MRI scan performed on January 29, 2001, disclosed a bulging disc at L4-5.
In 2002, the employee filed some kind of harassment charges against Osco, and he apparently received psychological counseling and was prescribed Zoloft, an antidepressant, in connection with this event. However, no records relative to either the harassment charge or the counseling were submitted as evidence.
Also in 2002, the employee began a maintenance job at an apartment complex. He testified that he did not experience shoulder symptoms or depression and did not seek treatment while working for this employer.
The employee commenced employment with Community Maintenance, Inc., the employer herein, in about June of 2003. His job duties included both construction work, such as remodeling kitchens and baths, and maintenance activities, such as snow plowing.
On September 17, 2004, the employee allegedly sustained work-related injuries to both shoulders while using a Apost pounder@ to install a parking sign. As the employee described it, a post pounder is a metal tube about four and a half feet long, with handles on it, weighing perhaps 50 or 60 pounds. The pounder is placed over the top of a post and then lifted up and slammed down to drive the post into the ground. The employee testified that, on the date of the alleged injury, he lost control of the post pounder when lifting it off the post. The device then fell against his right shoulder, and he allegedly experienced bilateral shoulder pain when he twisted to keep the pounder from falling onto a nearby car. The employee testified that he mentioned the pain to his supervisor, but he continued working, without medical treatment, until October 4, 2004.
On October 4, 2004, the employee was seen at Fairview Cedar Ridge Clinic, complaining of Ashoulder, neck, and back pain after dropping >post pounder= on his back.@ He was advised to avoid working above shoulder level and to avoid strenuous twisting, bending, and lifting for the next 10 days.
On October 7, 2004, the employee tripped at work, falling forward onto his outstretched hands. He testified that he experienced immediate pain in both wrists but continued working because he thought the symptoms would pass. About two weeks later, on October 22, 2004, he sought treatment again at Fairview Cedar Ridge Clinic. The treating physician noted swelling under the employee=s right thumb, and, after x-rays, concluded that the employee had either a right wrist sprain or a nondisplaced fracture. The employee was taken off work and advised to consult an orthopedic surgeon. Records from the employee=s October 22, 2004, examination contain no reference to shoulder symptoms or the September 17, 2004, work incident.
The employee was subsequently seen by Dr. Owen O=Neill, at Minnesota Orthopedic Specialists, who ordered an MRI scan and referred the employee to Dr. Laurie Koch. The MRI scan of the employee=s right wrist was Ahighly suggestive of a complete rupture of the scaphoid attachment of the scapholunate ligament.@
The employee was first seen by Dr. Koch on November 17, 2004. Dr. Koch suspected that the findings shown on MRI were not playing a role in the employee=s wrist symptoms and that the employee=s right wrist pain was likely due to Aan acute nerve process.@ The employee was advised to avoid using the hand, to wear a splint, and to take medication to treat the nerve symptoms. On follow up in December of 2004, Dr. Koch again felt that the employee=s wrist pain was neurologic, as opposed to structural, and she ordered an EMG.
On January 31, 2005, the employee returned to Dr. Koch, who noted that the EMG was completely normal and recommended a cortisone injection. In an addendum to office notes from that evaluation, Dr. Koch wrote that the employee was also reporting some left shoulder and left wrist pain. With regard to the shoulder, Dr. Koch noted that A[t]he shoulder actually predates his current injury, but was also related to work events when he was lifting a post digger. Since that time, he has had occasional pain in his shoulder, worse with overhead activities and worse at night when he is sleeping.@ Dr. Koch ordered left wrist and left shoulder x-rays and continued the employee=s restrictions.
On March 14, 2005, the employee was seen again by Dr. Koch, who wrote, AIn terms of his shoulder, he does have positive impingement signs, a painful arc of motion. He does have some mildly positive biceps tendon signs as well [but] no evidence of full rupture with normal symmetry of his biceps and normal strength in all groups except the supraspinatus which has mild give-way weakness.@ Dr. Koch concluded that a therapy program for impingement and biceps tendinitis would be reasonable, noting that, if the employee continued to have problems, she would recommend an MRI scan before proceeding with an injection.
In May of 2005, after an arthrogram of the employee=s right wrist, Dr. Koch recommended arthroscopic wrist surgery, with pinning and debridement. However, the employee=s right wrist surgery was delayed as a result of an apparent dispute between Dr. Koch and the employer=s workers= compensation insurer over the nature of the procedure. In the meantime, on September 12, 2005, Dr. Koch noted that the employee Ahas had problems with his shoulders that persist. Therapy has not helped and he continues to have difficulties.@ Dr. Koch recommended an MRI scan of the shoulders to evaluate the tendon anatomy.
On September 28, 2005, the employee underwent MRI scans of both shoulders. As to the left shoulder, the radiologist found no rotator cuff tear or significant tendinosis but suspected biceps tendinosis in the rotator interval. With regard to the right shoulder, the radiologist reported the presence of partial and full thickness tears in the rotator cuff.
The employee saw Dr. Koch again on October 3, 2005. In her office notes of that date, Dr. Koch wrote as follows:
Robert Hollen (4-14-52) returns with his MRI. The right side study shows a supraspinatus tear. As we review his history, he had right sided open subacromial decompression and, as I understand it, cuff repair surgery done in 1988. I don=t have his operative report available. He had done well with the shoulder until the episode injuring his right wrist. His left side MRI does not show any significant findings and is more consistent with impingement type problems.
The employee underwent surgery on his right wrist on October 11, 2005, about a year after his work-related fall. A few weeks later, on November 11, 2005, he was seen, for evaluation of his shoulder problems, by Dr. Edward Kelly, on referral from Dr. Koch. In the history portion of his office note, Dr. Kelly noted that the employee had undergone right shoulder open rotator cuff repair in 1988 and had done Awell from that until this [recent] injury.@ After examining the employee and reviewing the September 2005 MRI scans, Dr. Kelly=s diagnosis was as follows:
1. Left shoulder AC joint arthrosis and subacromial impingement with rotator cuff tendinosis.
2. Right shoulder partial-thickness supraspinatus and probable full-thickness subscapularis tendon tears.
3. Subacromial impingement.
4. Mild AC joint arthrosis.
With regard to treatment and causation, Dr. Kelly wrote,
Today his left shoulder is more problematic, and I think he would respond to an injection of his AC joint of cortisone injection and lidocaine, which was provided for him. In addition, I think we can con [sic] to observe this for now. He has had physical therapy and arthroscopy assessment, and subacromial decompression and distal clavicle excision could be performed. This was discussed. As far as his right shoulder goes, that is more of a difficult problem. He probably has a chronic tear there of the subscapularis which may or may not be repairable. At this point, he feels this is a work-related injury, and unless I can get a report from his previous surgery back in 1988, it is hard for me to tell whether this is the result from a [sic] his previous operation or whether this is a new phenomenon.
November 21, 2005, Dr. Koch discussed pain medication issues with the employee and noted that he was reporting mood alterations and moderate depression. With regard to the employee=s psychological status, Dr. Koch wrote, AI think this is not unexpected given the issues that he is having. He has significant wrist problems as well as shoulder problems [and] [i]t may be some time before he returns to work: I think to deal with this, it is appropriate to obtain a psychiatric consult.@
The employee began receiving psychological counseling, from Dr. John Cronin, in January of 2006. Dr. Cronin subsequently concluded that the employee was suffering from depression and chronic pain syndrome as a substantial result of his work injuries in September and October of 2004.
The employee returned to see Dr. Edwards on January 10, 2006. By this time, following a cortisone injection, the employee=s left shoulder was better, but his right shoulder was significantly worse. Dr. Edwards recommended that the employee undergo right shoulder surgery, consisting of an arthroscopic assessment, with an open subacromial decompression, distal clavicle excision, and subscapularis tendon repair.
The employer=s workers= compensation insurer denied liability for the employee=s shoulder condition, based in part on the opinion of independent examiner Dr. Michael D=Amato. The employee nevertheless underwent the right shoulder procedure on May 17, 2006, apparently through his health insurance plan.
In July of 2006, the employee underwent an independent psychiatric evaluation by Dr. John Rauenhorst. Dr. Rauenhorst concluded that the employee was suffering from a depressive disorder but that that disorder was not causally related to his 2004 work injuries.
The employee apparently has not worked since October 22, 2004, shortly after his work-related fall and resulting right wrist injury. The employer and its workers= compensation carrier have paid various benefits related to that injury, including medical expenses, rehabilitation benefits, and temporary total disability benefits. The employer and insurer have also admitted liability for an injury to the employee=s left wrist, resulting from the same incident.
The matter came on for hearing before a compensation judge on August 18, 2006, for resolution of the employee=s claim that he had sustained an injury to both shoulders using the post pounder on September 17, 2004, and that he had developed a consequential depression and chronic pain syndrome as a result of the alleged September 17, 2004, shoulder injuries and/or the admitted October 7, 2004, wrist injuries. The employer and its insurer denied liability for the alleged September 17, 2004, shoulder injuries and maintained that the employee=s psychological condition and need for treatment were not work-related. No other employers were parties to the proceedings.
In a decision issued on October 16, 2006, the compensation judge denied the employee=s claim, in its entirety, on causation grounds. 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 (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).
1. Causation - Shoulder Condition
In her decision, the compensation judge made numerous findings reciting evidence concerning the employee=s history of treatment for his shoulders. Ultimately, she concluded as follows on the issue of causation:
26. As supported by the employee=s treatment records for work injuries to his right shoulder in 1987 and both shoulders in 1995, followed by intermittent care with Dr. Strand for a number of years serious enough to result in two sets of MRI scans being taken in 1995 and 2000; Dr. Kim=s recommendation for right shoulder distal clavicle excision surgery in 1995; Dr. Kelly=s opinion set out in his November 2, 2005 office notes that he did not know whether the torn ligament that showed up on MRI scan in 2004 arose out of his 1988 surgery or the 2004 exacerbation of symptoms; the fact that the employee=s MRI scan findings in 2004 as compared to the earlier two sets of MRI scan=s findings were very similar; the fact that his 2004 and 2005 symptoms and findings on clinical examination were similar to symptoms and findings the employee had had years earlier; the lack of medical support from any of the employee=s treating doctors relating his symptoms in 2004 and 2005 to his work injury in 2004 as opposed to his pre-existing conditions; and the opinion of Dr. D=Amato, the September 17 and October 7, 2004 work injuries were not substantial contributing factors to the employee=s bilateral shoulder symptoms treated from November 2, 2005 on.
27. The employee has not carried the burden of proving that his September 17 or October 7, 2004 work injury, or both of them together, caused symptoms that lasted for more than three weeks from October 7, 2005.
On appeal, the employee alleges in part that the compensation judge made a number of factual misstatements and errors, Awhich [led] to an avalanche of inconsistent findings and mistakes.@ The employee notes, for example, that the judge listed as an issue whether the employee had injured his shoulders on either September 17, 2004, or October 7, 2004, when in fact the employee had never claimed that he had injured his shoulders in the October 7, 2004, work-related fall. The employee also points out that, whereas the judge found that Dr. Koch had not recommended any specific shoulder treatment during a March 14, 2005, office visit, Dr. Koch had in fact recommended therapy for biceps tendinitis and impingement on that date. Moreover, the employee points out that the judge=s Finding 27, quoted above, implies that both of the employee=s work injuries at the employer were merely temporary, when in fact it is undisputed that the October 7, 2004, work injury was permanent, resulting in right wrist surgery and nearly two years off work. The employee also argues that the judge erred in relying on the causation opinion of Dr. D=Amato, who allegedly lacked access to some of the employee=s post-injury treatment records, and in focusing on Dr. Kelly=s initial uncertainty as to the cause of the employee=s condition, when Athe subsequent medical records of Dr. Kelly and Dr. Koch . . . clearly document the causal relationship between [the employee=s] shoulder symptoms and his work injury on September 14, 2004.@
This is a difficult issue. The employee has some valid arguments about certain factual misstatements and errors in the judge=s findings, and, as the employee points out, it is at least unclear just what records Dr. D=Amato reviewed for purposes of evaluating whether the employee had injured his shoulders, as claimed, in the September 17, 2004, incident with the post pounder. Under other circumstances, we might have remanded the matter to the judge for reconsideration. However, it is evident from her decision, when read as a whole, that the judge was simply unpersuaded by the evidence supporting the employee=s claim, even leaving aside the opinion of Dr. D=Amato, the employer and insurer=s independent examiner. And, after thorough review of the entire record, we are not persuaded that the compensation judge=s decision, as to causation for the employee=s bilateral shoulder condition, was clearly erroneous or unsupported by substantial evidence.
As the compensation judge noted, Dr. Kelly, the employee=s shoulder surgeon, indicated on November 11, 2005, that it would be Ahard for [him] to tell@ what had caused the employee=s right shoulder condition without the report from the employee=s prior shoulder surgery. There is no evidence that Dr. Kelly ever received that report, and, just as importantly, there is no evidence that either Dr. Kelly or Dr. Koch was ever made aware of the employee=s 1995 bilateral shoulder injury at Signature Flight or the employee=s subsequent additional shoulder treatment by Dr. Strand in 2000 and 2001. Furthermore, we are not persuaded by the employee=s claim that the records of Dr. Kelly and Dr. Koch Aclearly document@ the causal relationship between the September 17, 2004, post pounder incident and the employee=s subsequent shoulder symptoms and treatment. Neither physician ever issued a narrative report discussing the issue of causation, and their office records suggest that those physicians were simply proceeding on the assumption that the incident described by the employee had led to his shoulder symptoms and need for treatment.
Medical records indicate that the employee had continuing periodic shoulder symptoms and treatment after his 1987 injury at Hitchcock Industries and his 1995 injury at Signature Flight, and Dr. Kim had recommended shoulder surgery in 1995, well prior to the September 17, 2004, incident with the post pounder. Furthermore, contrary to his testimony, medical records establish that the employee was subject to restrictions, due to bilateral impingement syndrome, through at least 1999. While the employee sought treatment for shoulder pain on October 4, 2004, a few weeks after the alleged September 17, 2004, work incident, medical records contain no further reference to shoulder symptoms until January of 2005, despite the employee=s extensive treatment for his right wrist condition. We acknowledge that the right rotator cuff tears disclosed on the September 2005 MRI scan were not present on any of the employee=s pre-injury scans. However, no physician has definitively connected those tears to the incident at issue, and, to the extent that the records of Dr. Koch and Dr. Kelly suggest a causal link, there is no evidence that either doctor was aware of the employee=s extensive history of pre-injury symptoms and treatment. Under all of these circumstances, especially given the complexity of the employee=s treatment history, we cannot conclude that the compensation judge=s denial of the employee=s claim for bilateral shoulder injuries was unsupported by substantial evidence in the record as a whole, and we affirm.
2. Psychological Injury
The employee also claimed that he had sustained a psychological injury, with resulting need for treatment, as a consequence of either his alleged September 17, 2004, work injury or his October 7, 2004, work injury. After review of the judge=s decision and the record as a whole, we conclude that the matter must be remanded for reconsideration of this issue.
There are two primary reasons for our decision. First, while the judge denied the employee=s psychological injury claim on causation grounds, the judge also made the following finding:
20. The employee=s course of recovery from his October 2004 right wrist injury has been long and complicated. As of August 18, 2006, he still did not have a work release. His care has included not only the October 2005 surgery and hand therapy after the surgery, but also a referral to Dr. Cronin, a licensed psychologist, to evaluate and treat depression and chronic pain.
This finding certainly implies a causal relationship between the employee=s wrist injury and his need for psychological treatment.
Second, the judge explained that she was not persuaded by Dr. Cronin=s opinion, tying the employee=s psychological condition to his 2004 work injuries, in part because Ahe was unaware of the employee=s long history of treatment for similar physical problems . . . before September 2004.@ However, the employee had never had a wrist injury before October 2004, and it was the employee=s wrist injury that kept him off work during the two-year period between the date of injury and the date of hearing. The judge=s findings, viewed as a whole, suggest either that she was so focused on the issue of the employee=s shoulder condition that she overlooked the possible significance of the wrist injury, or that she overlooked the fact that the wrist injury was work-related and part of the employee=s psychological injury claim. In any event, because the judge=s findings at least arguably inconsistent, and because the basis for her decision is not entirely clear, we reverse the judge=s denial of the employee=s psychological injury claim and remand for further findings and explanation.