JOVANY N. HUERTA NAREZ, Employee/Appellant, v. LSI CORP. OF AMERICA, INC., and BERKLEY RISK ADM=RS CO., INC., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 13, 2007
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s determination that the employee reached maximum medical improvement (MMI) from the effects of her work injury.
Determined by: Stofferahn, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Patricia J. Milun
Attorneys: Wayne J. Studer, Griffel & Dorshow, Minnetonka, MN, for the Appellant. Mark A. Kleinschmidt and Jessica J. Theisen, Cousineau & McGuire, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s determination that she has reached maximum medical improvement (MMI) and from the resultant discontinuance of temporary total disability benefits. We affirm.
Jovany Huerta Narez, the employee, began working for LSI Corporation in June 2005. She was 19 years old at that time and had no history of low back problems. On August 23, 2005, Ms. Huerta Narez was picking up a box of hinges; when it started to fall, she tried to catch it and experienced sudden severe pain in her low back.
Ms. Huerta Narez initially went to North Memorial Occupational Medicine where she was diagnosed as having a lumbar strain and was treated with medication and restrictions. Ms. Huerta Narez was placed on temporary total disability benefits as of August 30, 2005.
On September 8, 2005, Ms. Huerta Narez began treating at Align Chiropractic Clinic. At the referral of the doctor there, an MRI of the lumbar spine was done on September 19, 2005. The MRI was read as showing,
a moderately large central and right-sided slightly caudally dissecting 7-8 mm subligamentous disc herniation at the L5-S1 level, producing moderate dorsal displacement and impingement on the traversing right S1 nerve root and also producing mild to moderate flattening and impingement on the left S1 nerve root. There is also mild central spinal stenosis at the L5-S1 level.
Ms. Huerta Narez continued to treat at Align Chiropractic until September 20, 2005. At that point, she transferred her care to Dr. Robert Reed, a chiropractor at Integrated Health Care Services.
Ms. Huerta Narez was released to return to work by Dr. Reed on a part-time basis on November 22, 2005. She noted an exacerbation of pain when she returned to work and was taken off work again. Ms. Huerta Narez has not returned to work since that time.
Ms. Huerta Narez saw Dr. Richard Strand for an independent medical examination on December 7, 2005. She reported to Dr. Strand that she had low back pain, weakness in her legs, and numbness in her left leg. Dr. Strand diagnosed Asubligamentous disc herniation at L5-S1" that he attributed to the work injury. It was Dr. Strand=s opinion that chiropractic care was not appropriate. He recommended a lumbar epidural steroid injection and, if that was not successful, he advised a microdiscectomy should then be performed.
Ms. Huerta Narez was referred for treatment options to Dr. Thomas Bergman, a neurosurgeon, and she saw him on January 18, 2006. Ms. Huerta Narez told Dr. Bergman she had continuous pain at a six to seven level on a 10 point scale. Her legs felt weak and her left leg was painful and numb. Dr. Bergman stated:
I think this patient is going to end up needing surgery. She has had over five months of conservative treatment and she really is not improving. This is a significant disc herniation and I think it is unlikely that it is going to go away on its own. I also do not have a lot of faith in further treatment such as epidural injections, etc. They may help temporarily but I think the primary problem is still present and I am concerned that it is going to continue to bother her. . . . She obviously is very concerned about having surgery and I would agree with that approach. However, in the long run I think she is probably going to end up needing surgery.
Ms. Huerta Narez was subsequently referred to Dr. Aysel Atli at Midway Pain Center Dr. Atli=s assessment was of Achronic low back pain with radiculopathy secondary to L5-S1 disc herniation with impingement on both the right and left S1 nerves.@ Dr. Atli prescribed medication and physical therapy at MAPS and recommended an epidural steroid injection. The injection at L5-S1 was done on March 7, 2006. At a visit to a physical therapist on March 9, 2006, Ms. Huerta Narez reported to the physical therapist that she did not notice any change in her symptoms. At the hearing, she testified that she had relief from her pain for two or three days after the injection.
Ms. Huerta Narez was reevaluated by Dr. Strand on June 7, 2006. She told Dr. Strand that the injection had helped for three days, that she was no longer receiving chiropractic care, and that she expected to have physical therapy and pool therapy through MAPS. Her pain complaints were similar to those she had reported in December. Dr. Strand concluded that chiropractic care was not appropriate and that neither pool therapy nor physical therapy were necessary. Dr. Strand also stated that his examination did not show nerve root involvement so, in his opinion, surgery was not required. Dr. Strand stated Abased on my present examination which is considerably different than Ms. Huerta-Narez= first examination, it is my opinion that she has reached Maximum Medical Improvement if she elects not to have surgery.@ Dr. Strand released the employee to work with restrictions of no lifting over 25 pounds, no pushing or pulling over 75 pounds, and no repetitive bending, lifting, twisting, or turning.
A dispute between the parties concerning the bill for treatment from Integrated Health Care Services and a request for a departure from the treatment parameters to allow continued care by Dr. Reed was heard by Compensation Judge Jane Gordon Ertl on June 22, 2006. In her findings and order, Compensation Judge Ertl determined that a departure from the treatment parameters was not warranted when the preponderance of the evidence demonstrated that Ms. Huerta Narez Adid not experience a significant improvement or change in her condition as a result of chiropractic treatment.@ There was no appeal from this decision.
Ms. Huerta Narez went to the emergency room at Methodist Hospital on June 29, 2006. She reported that, while her pain level was generally at four or six out of ten, it was ten out of ten when she came to the hospital. Pain medications had not been helpful. She was sent home with medication and a recommendation for additional care with her primary care physician.
On July 12, 2006, Ms. Huerta Narez saw Dr. Alfonso Morales, a diplomate of the American Board of Pain Medicine, at Central Medical Clinic. Dr. Morales diagnosed a lumbar disc herniation, prescribed medicine, and stated he would review the medical records before making any additional recommendations. Dr. Morales reviewed those records and prepared a report on July 19, 2006, at the request of the employee=s attorney. Dr. Morales had been asked for his opinion on whether Ms. Huerta Narez was at MMI.
In his report, Dr. Morales stated that Ms. Huerta Narez had not reached maximum medical improvement Adue to the fact the patient has not undergone surgery.@ He agreed with Dr. Strand=s recommendation from the December 2005 evaluation that an epidural injection at L5-S1 should be done and that, if the procedure was not successful, surgery should be done. Dr. Morales saw Ms. Huerta Narez again on August 3, 2006. He recommended physical therapy for four weeks and a Acombination of epidural steroid injections and myofascial trigger point injections to also help her myofascial pain component.@ After Ms. Huerta Narez returned with continuing low back and radicular complaints, Dr. Morales recommended another MRI. The MRI was done on September 11, 2006, and demonstrated,
1. Two-level disc desiccation, namely L4-5 and L5-S1 with central extruded disc with slight caudad migration with mild to moderate canal stenosis at L5-S1.
2. Central broad-based herniated disc at L4-5 with mild to moderate central canal stenosis.
Dr. Morales= interpretation was Athere has been some migration and reduction in the size of this (the
herniated disc) of a few millimeters, although there is not much change.@
Ms. Huerta Narez returned to Dr. Morales on September 18, 2006. Based on the MRI,
he recommended an additional epidural steroid injection. He also advised that pool therapy once a week should be continued. Dr. Morales also continued the work restrictions he had set on September 7. Those restrictions limited lifting to 20 pounds, occasional bending, no twisting, turning, kneeling or squatting, and no pushing or pulling over 50 pounds. There was no mention of possible surgery.
The employer and insurer filed an NOID on June 19, 2006, seeking to discontinue temporary total disability benefits on the grounds that Ms. Huerta Narez had reached maximum medical improvement based on Dr. Strand=s report and that the 90-day period set forth in Minn. Stat. ' 176.101, subd. 1(j), would expire on September 11, 2006. After an administrative conference, a petition to discontinue was filed. The petition was heard by Compensation Judge Patricia Milun on September 19, 2006.
At the hearing, Ms. Huerta Narez testified that her pain level that day was at a four level and that she was having a lot of pain in her left foot. These symptoms had been essentially unchanged ever since the work injury. Ms. Huerta Narez was asked by her attorney about surgery and she responded AThat would be my last decision, but if surgery is necessary, then I will do it.@She also testified that Dr. Morales had scheduled another epidural injection to take place on September 26.
In her findings and order of October 4, 2006, the compensation judge found that Athe
employee=s continuation of prescribed non-surgical medical treatment does not support a reasonable expectation of future improvement.@ The compensation judge adopted the opinion of Dr. Bergman. The compensation judge determined Ms. Huerta Narez was at maximum medical improvement since she had chosen not to have surgery. MMI was found to have been reached as of June 7, 2006, and temporary total disability benefits were discontinued as of September 11, 2006. The employee appeals.
The question for the compensation judge at the hearing was whether the employee had reached maximum medical improvement from the effects of the work injury on August 23, 2005.
Maximum medical improvement is defined by the statute as, AThe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability, irrespective and regardless of subjective complaints of pain.@ Minn. Stat. ' 176.011, subd. 25. A finding of MMI is one of ultimate fact to be made by the compensation judge and does not rest with the medical profession. Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41, W.C.D. 634 (Minn. 1989).
In the present case, the question of MMI was inextricably entwined with the question of appropriate medical care for Ms. Huerta Narez. From the time of her injury through the June 2006 hearing, it was her position that her treatment should be chiropractic care. However, in an unappealed finding from the June 2006 hearing, the compensation judge determined Athe employee did not experience a significant improvement or change in her condition as a result of chiropractic treatment.@ Based on the 2005 MRI findings and the employee=s symptoms, both Dr. Bergman and Dr. Strand concluded that surgery would be appropriate treatment. Dr. Strand believed an epidural steroid injection would be helpful as a first step, and Dr. Bergman did not disagree with the desire of Ms. Huerta Narez to avoid surgery by pursuing conservative care, although he did not expect conservative care to be successful.
By the time of the hearing which is the subject of this appeal, Ms. Huerta Narez had received the epidural injection recommended by Dr. Strand with no change in her symptoms. Dr. Strand withdrew his surgery recommendations because of the changes on examination. The employee had undergone a period of physical therapy and her new treating physician, Dr. Morales, had provided another epidural injection. Despite this care, Ms. Huerta Narez testified that her symptoms were essentially unchanged from the date of injury to the date of hearing. The work restrictions set by Dr. Morales in September 2006 were essentially the same as those placed by Dr. Strand in June 2006.
This is not a case in which the employee refused surgery. Various doctors provided their opinions as to appropriate treatment for Ms. Huerta Narez. One of the treatment options identified was surgery but no doctor disagreed with the employee=s understandable desire to consider surgery as a last resort. We note in this regard that Dr. Bergman=s evaluation was less than five months after the injury. We do not believe this is a case in which the employee delayed or refused recommended treatment to prolong attainment of MMI. Dotolo v. FMC Corp., 375 N.W.2d 25, 38 W.C.D. 205 (Minn. 1985).
The evidence demonstrates, however, that the conservative care provided to Ms. Huerta Narez from the date of injury did not result in any significant improvement of her condition. While surgery may still be possible treatment, there is no current recommendation for surgery. Dr. Morales= treatment recommendations as of the date before the hearing was for additional epidural steroid injections and for continued pool therapy. This appears to be continued conservative treatment which has not resulted in any Asignificant lasting improvement@ to the employee=s personal injury to this point. There is no evidence which would suggest a substantial improvement in the employee=s condition can reasonably be anticipated. We conclude that there is substantial evidence to support the compensation judge=s conclusion that Ms. Huerta Narezhas reached MMI from the effects of her work injury.
The compensation judge determined that the date of MMI was June 7, 2006, the date of Dr. Strand=s second evaluation. The employee argues that the compensation judge specifically rejected the opinion of Dr. Strand as to MMI, and that there is no other medical opinion to serve as the basis for a finding of MMI on that date. As we stated earlier, the question of MMI is one of ultimate fact for a compensation judge and not a question only of medical opinion. By the time of Dr. Strand=s evaluation, it was evident that a course of conservative care would not significantly improve the employee=s condition. We conclude there is substantial evidence in the record which supports a finding of MMI on June 7, 2006, even in the absence of Dr. Strand=s opinion. The date of MMI found by the compensation judge is affirmed.