MICHAEL KERR, Employee/Appellant, v. TARGET CORP., SELF-INSURED/SEDGWICK CLAIMS MGMT., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 2, 2007
CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION. Substantial evidence, including expert medical opinion, supports the compensation judge=s conclusion that the employee=s hand and wrist symptoms were not caused, aggravated or accelerated by the employee=s work activities.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani, Fishman & Carp., Minneapolis, MN, for the Appellant. Jay T. Hartman and Jennifer A. Clayson Kraus, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge=s determination that he did not sustain a work-related injury on May 27, 2002, and from the related denial of his claim for benefits. We affirm.
Michael Kerr, the employee, worked for Target Corporation, the self-insured employer, between September 1983 and August 2005. The dispute on appeal arises from an injury the employee claims to have sustained on May 27, 2002, in the nature of bilateral carpal tunnel syndrome.
The employee held various positions while working for the employer. He originally was hired to be a computer operator, and later worked in the network support and software application support areas. After working in software application support, otherwise known as production support, the employee worked in store installation services, working a four day work week, ten hours per day. It was at that position that the employee worked at the time of his claimed injury in May 2002. His job required him to work on a computer on a daily basis, and he worked between two and six hours each day on the computer, depending upon the types of computer problems experienced by store personnel and their related inquiries which he needed to address. His work required him to answer 50 to 100 e-mail messages per day, and to install computers at new stores, setting up cash registers and hardware, and general trouble-shooting.
The employee initially noticed some tingling in his right thumb and index finger in May 2002. At the time he noticed these symptoms, he was driving to an airport to return home after a week=s vacation; he returned to work as scheduled about four days later. The employee continued to experience numbness in his right thumb and index finger, but was able to perform all of his job duties. His symptoms worsened; he experienced greater pain at the end of each work shift as opposed to the beginning of the shift. The employee found that his hand symptoms worsened by the end of the work week, and decreased while he was away from work.
The employee first sought medical treatment with Dr. David Lynch on June 21, 2002, reporting tingling and numbness in his right hand. At that time, the employee described his work activities as being in the information technology area, including typing on a keyboard and using a computer mouse. Dr. Lynch recommended that the employee use a brace, which he did, but he noted no improvement in his symptoms. At an appointment on July 30, 2002, Dr. Lynch diagnosed probable carpal tunnel syndrome and referred the employee for an EMG, which the employee underwent on August 14, 2002. Dr. Frederick Taylor interpreted the EMG results as being abnormal in the left hand, suggesting a possible left median neuropathy at the wrist that apparently was asymptomatic, and interpreted the results from the right hand to be within broad normal limits, Aalthough a comparison value suggests a minimal possibility of a right median neuropathy of the wrist which may be a false positive interpretation.@
At Dr. Lynch=s referral, the employee saw Dr. Benjamin Levine, for an orthopedic consultation and to obtain a second opinion concerning treatment recommendations. On October 7, 2002, Dr. Levine examined the employee, assessed the employee as having Ahand pain with possible thoracic outlet symptoms@ and referred him to physical therapy for parascapular strengthening as well as postural education. The employee underwent hand therapy in October and November 2002, and by December 6, again consulted Dr. Levine, reporting continued pain that Amay be a little bit better.@ The employee described himself as having Agood days and bad days,@ and that he occasionally was awakened at night by symptoms. He continued to experience numbness and tingling at night in his right hand despite his ongoing medical treatment. He had difficulty performing certain normal activities of daily living, including folding clothes, buttoning clothing, and folding papers.
According to Dr. Levine=s chart note, the employee advised the doctor that if his symptoms did not eventually improve, he would like to undergo surgery to lessen his symptoms. Dr. Levine recommended against surgery, however, and referred the employee to Dr. Jeffrey Husband for another opinion. The employee consulted Dr. Husband on March 6, 2003. Dr. Husband diagnosed atypical carpal tunnel syndrome in the employee=s right wrist, and recommended a steroid injection for his right wrist, which did not improve the employee=s symptoms. By April 3, 2003, the employee returned to Dr. Husband, reporting no relief from the steroid injection, and reporting continued numbness and tingling in his thumb, index and middle fingers as well as some paresthesias with limb elevation at night. Dr. Husband concluded that the employee most likely had carpal tunnel syndrome, did not believe that he had thoracic outlet syndrome, and discussed proceeding with open right carpal tunnel release. The employee underwent that surgery on April 25, 2003, and by mid June, reported that his pre-operative pain, numbness and tingling had improved significantly but had not completely resolved. The employee consulted periodically with Dr. Husband, and by mid-September 2003, reported that his symptoms had increased in his left wrist and hand, which was his dominant hand.
In a letter dated November 11, 2003, Dr. Husband responded to an inquiry from a nurse, who evidently had written to Dr. Husband on behalf of the employer=s insurance administrator. She asked Dr. Husband to explain his rationale for recommending left wrist surgery based on the employee=s minimally positive carpal tunnel findings on EMG. Dr. Husband responded that the EMG did not indicate or correlate with the severity of the employee=s symptoms, and that a patient=s symptoms, not an EMG, would determine his need for surgery. Dr. Husband stated that he believed this would be the most effective treatment, and recommended proceeding with the left carpal tunnel surgery, based on the good results from the employee=s right wrist surgery.
On November 12, 2003, the employee reported continued symptoms in his left wrist and advised that he would like to consider an injection. Dr. Husband provided the employee with a steroid injection into his left wrist, and also recommended a repeat EMG. An EMG was performed on December 12, 2003, was interpreted as being normal on the right and as showing Amild borderline left median and net sensory neuropathy at the wrist.@
On January 12, 2004, Dr. Husband performed carpal tunnel release surgery on the employee=s left hand. Following that surgery, the employee=s tingling in his left hand dissipated and he experienced a decrease in pain. He returned to work for the employer in his same position. By mid-February 2004, he advised Dr. Husband that his left side symptoms had improved, but that his larger concern was ongoing symptoms of right hand pain, numbness and tingling. He returned to see Dr. Husband in April 2004, again complaining about right hand symptoms. He noted pain, tingling and numbness in his right hand, which increased while he operated a keyboard and a computer mouse. By April 2004, Dr. Husband recommended repeat right carpal tunnel release; the employee underwent this procedure on May 3, 2004. Following surgery, he underwent hand therapy between May and July 2004, and returned to work approximately one month later.
After using a computer at his office, the employee noticed an immediate increase of pain in both hands. Dr. Husband then assigned additional restrictions of no lifting, no pushing, no pulling and very little keyboarding. The employer initially accommodated the employee=s restrictions, and provided voice-activated software, but his overall production was decreased in part because using the voice-activated software required more time for correcting spelling discrepancies inherent in the use of a voice-activated software system.
Dr. Husband later referred the employee to Dr. Leela Engineer, in the physical medicine and rehabilitation department at Park Nicollet Clinic, for continued treatment. The employee consulted her on November 5, 2004, reporting that his left hand symptoms had essentially resolved, but that his right symptoms, including persistent right hand numbness and pain, were essentially the same as before his second right wrist surgery in May 2004. Dr. Engineer recommended increasing the employee=s Neurotin, and suggested an MRI of the cervical spine to rule out cervical radiculopathy. Dr. Engineer also referred the employee to hand therapy for message, tendon gliding, and ultrasound/phonophoresis. The employee reported no improvement from the hand therapy, and his MRI scan of the cervical spine showed nothing to account for the employee=s symptoms. The employee also reported no improvement with the increased Neurontin and therefore Dr. Engineer decreased the dosage. She also recommended a trial of Elavil, although she expressed uncertainty as to whether the Elavil would result in any significant improvement. Dr. Engineer recommended that the employee continue to use self-massage therapy. She also stated that she had no further recommendations with respect to the employee=s right hand symptoms, and asked him to return for additional treatment on an as-needed basis.
By mid-December 2004, Dr. Husband recommended that the employee undergo a functional capacities evaluation (FCE) in order to determine his permanent work restrictions. The employee underwent an FCE in January 2005. The occupational therapist who performed the evaluation recommended certain work restrictions to avoid repeated aggravation of the employee=s hand symptoms. Those recommendations included restrictions on lifting and various positions of hands. The therapist also made certain ergonomic recommendations for the employee=s chair and computer, recommended warm-up stretches prior to working, regular rotation of work tasks to avoid repetitive or prolonged hand activity, and continued home exercises to increase upper back strength and cardiovascular endurance.
On April 13, 2005, Dr. Husband examined the employee; the employee reported right symptoms much worse than his left, and that he continued to work within restrictions but noted pain, throbbing, numbness and tingling even with minor activities such as buttoning a shirt. Dr. Husband recommended that the employee be referred to the pain clinic at the Sister Kenny Institute of Abbott Northwestern Hospital, under the supervision of Dr. Matthew Monsein. Dr. Husband advised that he really had no further treatment to offer him, and did not believe he would be a good surgical candidate. He also stated that AI do not feel that it would be in his best interest to look for alternate work since anything that he does causes an increase in his symptoms. I don=t think that he would be asymptomatic no matter what his occupation.@ Dr. Husband advised that he would follow-up after the employee had been examined at the pain clinic. On June 1, 2005, Dr. Husband restricted the employee from computer use on an indefinite basis.
On July 12, 2005, the employee underwent an evaluation with Dr. Monsein at the Sister Kenny Institute. Dr. Monsein concluded that it would appear that the employee had developed a chronic pain syndrome, and provided the employee with information concerning the pain rehabilitation program. He also advised that the employee could benefit from some stress management training. Dr. Monsein prescribed a trial of acupuncture and Alpha-Stim, to attempt to reduce his symptoms, and also recommended a topical cream for pain reduction.
Because the employer was unable to accommodate the employee=s restriction on computer use, the employee discontinued working for the employer on August 12, 2005, and he has not returned to work since that time.
Dr. Monsein again examined the employee on November 16, 2005, reporting that the employee=s acupuncture sessions had lessened his pain somewhat but that he still noted tingling and stinging, burning, and aching pain in his hands. The employee reported his current pain medication, tramadol, helped mainly with his left hand, but not with his right hand symptoms, and that the topical cream earlier recommended by Dr. Monsein did not help, nor did Neurontin. The employee advised that he planned to start a pain management program in the near future. By December 29, 2005, Dr. Monsein again examined the employee, at which time the employee again expressed his hope to participate in a residential pain management program in the near future. The employer never authorized payment for a pain management program, however, based upon the results of the employee=s later independent medical examination with Dr. Olmsted.
As of August 2005, the employee has received some rehabilitation assistance, and evidently continued to do so at the time of the hearing in May 2006. The employee has not yet attended a pain clinic; the clinic recommended by Dr. Husband closed during the pendency of the employee=s claim and he has not had the financial resources to personally pay for any alternative program.
On January 9, 2006, the employee underwent an independent examination with Dr. Stephen Olmsted, at the request of the self-insured employer. Dr. Olmsted diagnosed bilateral hand pain and numbness of unclear etiology, greater on the right side than the left, as well as bilateral carpal tunnel release surgery. He also diagnosed functional overlay and anxiety disorder, and concluded that the employee had no documented objective findings consistent with the carpal tunnel syndrome or any significant nerve compression syndrome. Dr. Olmsted commented that all the treatment directed at carpal tunnel syndrome, including conservative management, had failed to provide the employee with any symptomatic relief. He found that this result alone would support an opinion that the employee never had a significant carpal tunnel syndrome or median nerve compression neuropathy. Dr. Olmsted concluded that the employee=s exact diagnosis or etiology for his numbness and pain was unclear, but most likely was related to somatization. He concluded that there was no evidence that any work activities, specifically the use of a computer, had substantially contributed to the development of the employee=s symptoms. He also noted that individuals with hypothyroid disease, a condition for which the employee had been diagnosed, have a lower threshold for developing symptoms of numbness and paresthesias, but explained that this hypothyroid disease is not related to any work activities.
In summary, Dr. Olmsted concluded that the employee had not sustained any significant work-related injury, that he required no further treatment for any work-related injury condition, and that the employee was capable of working full-time. He recommended no restrictions on the employee=s use of computers or his use of his upper extremities, and based that determination on the employee=s normal physical findings and primarily subjective complaints. Dr. Olmsted advised that the employee may consider continuing with a pain management program but advised that this would not be related to any work-related injury.
In a follow-up report dated May 9, 2006, Dr. Olmsted summarized his review of additional medical records, and noted and advised that there was no change in his opinion from his original report. He reiterated that the employee had no objective findings of carpal tunnel syndrome, that he had normal electrodiagnostic studies and normal physical examination, and that his bilateral upper extremity complaints were of unclear etiology.
On May 11, 2006, Mark Netzinger, a physical therapist who the employer commissioned to conduct a work site ergonomic evaluation of the employee=s former position of a store installation design developer, concluded that the physical demands of that position could be classified in the light to medium duty range, with rare occasions in the medium to heavy classification. He reviewed the physical requirements of the position, interviewed two of the employee=s former supervisors, and reviewed various documents pertinent to the employee=s former position and his medical history and results of his FCE. In his report of May 11, 2006, Mr. Netzinger described the nature of the employee=s former position and also outlined his assessment of the employee=s FCE results and his opinion concerning the nature of the employee=s medical condition. He concluded that, based upon the employee=s FCE results, the employee would be able to perform his regular job with the employer, although at the hearing, admitted that if the employee=s treating physician had precluded the employee from working on computers, he would have been unable to perform the essential functions of his job with the employer. Mr. Netzinger also testified that he found the employee=s symptoms of hand pain to be inconsistent with physical signs of carpal tunnel syndrome.
By May 2003, the self-insured employer admitted primary liability for the employee=s injury and paid workers= compensation benefits, including temporary total disability benefits, medical expenses and rehabilitation expenses. In February 2006, following the employer=s receipt of the report issued by Dr. Olmsted, a dispute arose concerning the employee=s entitlement to ongoing temporary total disability benefits and whether he had reached maximum medical improvement from his claimed injury. A hearing was held on May 16, 2006, to address the employee=s objection to discontinuance, filed on March 23, 2006, and the self-insured employer=s petition for discontinuance of compensation, filed on April 13, 2006. Testimony was provided by the employee, the employee=s former supervisor who serves as the employer=s manager of mobility engineering, and Dr. Olmsted.
In her Findings and Order, served and filed on June 8, 2006, the compensation judge determined that the employee had not sustained a work-related injury on May 27, 2002. Relying in part on the opinion of Dr. Olmsted, the compensation judge concluded that the employee=s condition was not causally related to his work activities, nor was his condition aggravated or accelerated by the employee=s work activities for the employer. As a result, the compensation judge denied the employee=s objection to discontinuance and granted the employer=s petition to discontinue. The employee appeals.
The employee appeals from the compensation judge=s finding that the employee did not sustain a work-related injury which arose out of and in the course and scope of his employment. The employee argues on appeal that substantial evidence of record, including the medical opinion by Dr. Husband, amply supports the claim that his work activities substantially contributed to his diagnosis of atypical carpal tunnel syndrome.
A[I]n order to recover workers= compensation benefits, the employee must establish that his work-related injury is a substantial contributing factor to his current disability.@ Steinhaust v. F.G. Clements, 47 W.C.D. 22, 30 (W.C.C.A. 1992). Questions of medical causation fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). The issue for this court on appeal is whether substantial evidence exists to support the decision of the compensation judge. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
The self-insured employer originally admitted primary liability for the employee=s bilateral carpal tunnel syndrome. The claim on appeal arose from the employer=s petition to discontinue payment of the employee=s temporary total disability benefits on the basis that his disabling condition was not causally related to his work activities. The compensation judge concluded that the employee did not sustain a work-related injury on May 27, 2002, as had originally been asserted by the employee and admitted by the employer. The compensation judge cited to the medical evidence that showed the root cause of the employee=s complaints to be unknown. The judge acknowledged that ADr. Husband diagnosed atypical carpal tunnel syndrome, but that diagnosis is highly questionable given the employee=s clinical findings and response to treatment.@ The compensation judge also referred to the onset of the employee=s symptoms after a week=s vacation from work, which the compensation judge felt raised some question about the connection between the employee=s work activities and his symptoms.
The compensation judge also referred to the medical evidence refuting a causal relationship between the employee=s symptoms and his work activities. Dr. Olmsted, who examined the employee at the request of the employer, concluded that the employee had no documented objective findings consistent with carpal tunnel syndrome or any significant nerve compression syndrome. He found no evidence that any work activities, specifically the use of a computer, had substantially contributed to the development of the employee=s symptoms. He based his opinion, in part, on the employee=s lack of symptomatic relief with his conservative management and surgical treatment.
The employee argues that the compensation judge ignored Dr. Husband=s opinion, and those of other treating physicians, because those opinions were not expressed in narrative reports. The compensation judge found the employee to be candid and credible, and stated that she had no doubt that he experiences the symptoms described at the hearing. She was not persuaded, however, that the employee=s symptoms were caused, aggravated or accelerated by the employee=s work activities at Target. Her conclusion was based, in part, on the lack of a narrative opinion from any of the employee=s treating doctors linking his hand problems to his work activity. The judge noted that the record contained only occasional check marks on medical reports marking references to Awork related@ which, in the compensation judge=s assessment, may have resulted from the physicians= adoption of the employee=s opinion on causation.
The employee argues that a doctor=s causation opinion need not be expressed in any particular words, and that the compensation judge should have ascribed greater weight to Dr. Husband=s opinion. The employee contends that Dr. Husband, who treated the employee for an extended period and performed his surgeries, was in the best position to render an opinion on the causation of the employee=s condition and that his office notes and work ability slips clearly provided a foundation for his opinions.
We agree that adequate foundation existed for Dr. Husband=s opinions. A review of the record indicates that Dr. Husband had access to the employee=s medical records, including those summarizing the employee=s diagnostic testing and therapy, and that he periodically examined the employee and noted his history of symptoms, all which provide foundation for his opinions. We also agree that a medical opinion on causation need not be expressed in a specific format. However, we conclude that the compensation judge did not ignore Dr. Husband=s opinion, as is asserted by the employee, but that the judge took that opinion into consideration along with other medical evidence and evaluated the weight to attribute to those opinions when making her determinations on the causation of the employee=s condition.
The dispute in this case concerns the causation of the employee=s bilateral carpal tunnel condition, and the record contains divergent opinions on causation. Although Dr. Olmsted=s opinion is divergent with that of Dr. Husband, and even though conflicting inferences may reasonably be drawn from the evidence, it was reasonable for the compensation judge to find the opinions of Dr. Olmsted to be persuasive. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985) (a compensation judge=s choice between conflicting expert opinions is generally upheld unless the facts assumed by the expert are not supported by the record); see also Redgate v. Sroga=s Standard Service, 421 N.W.2d 729, 734, 40 W.C.D. 9487, 957 (Minn. 1988). And, Auntil the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining compensable injury or disease will have to remain in the province of the trier of fact@. Golob v. Buckingham Hotel, 244 Minn. 301, 304, 69 N.W.2d 636, 639, 18 W.C.D. 275, 278 (1955). Dr. Olmsted concluded that the employee=s injury of May 27, 2002, was not a substantial contributing factor in his hand and wrist symptoms and condition. The compensation judge relied on Dr. Olmsted=s opinion concerning causation, and explained that she found Dr. Olmsted=s opinion to be Awell-reasoned and based on a sound understanding of the employee=s job duties, symptom history and clinical course.@ (Memo., p. 4.)
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. Based upon our close review of the record, including testimony at the trial, the employee=s medical records, testimony presented by Dr. Olmsted, and the arguments presented by counsel at the hearing, we conclude that the record as a whole contains substantial evidence to support the compensation judge=s findings. We therefore affirm.
 The employee testified that the employer=s human resources department determined that the employee=s work status would be considered a Aworkers= comp LOA.@ (Hearing Transcript, p. 51.)
 The record does not contain copies of rehabilitation records, so this information is based on the employee=s hearing testimony.
According to the employee=s medical records, he was diagnosed with hypothyroidism in April 2005 and was prescribed synthroid for that condition.