RONALD H. NOEKER, Employee, v. NORDLING CONSTR., and BITUMINOUS INS. COS., Employer-Insurer/Appellants, and CITY OF INVER GROVE HEIGHTS, SELF-INSURED/ BERKLEY RISK ADM=RS CO., Employer.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 28, 2007
CAUSATION - MEDICAL TREATMENT. Substantial evidence supports the compensation judge=s findings that the employee=s 1974 work injury was causally related to the employee=s current need for physical therapy and a home cervical traction unit, and that the employee=s 2001 work injuries were not causally related to his need for that medical treatment.
Determined by: Rykken, J., Wilson, J., and Pederson, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: Jackson S. Baehman, Woodbury, MN, for the Respondent Employee. Richard L. Plagens, Lommen, Abdo, Cole, King & Stageberg, Minneapolis, MN, for the Appellants. Thomas M. Peterson, League of Minnesota Cities Insurance Trust, St. Paul, MN., for the Respondent Employer.
MIRIAM P. RYKKEN, Judge
Nordling Construction Company and its insurer, Bituminous Insurance Company, appeal the compensation judge=s findings that the employee=s 1974 work injury was causally related to the employee=s current need for physical therapy and a home traction unit, and that the employee=s 2001 work injuries were not causally related to these medical expenses. We affirm.
On November 26, 1974, Ronald Noeker, the employee, sustained an admitted work-related injury while working for Nordling Construction Company, the employer, which was insured for workers= compensation liability by Bituminous Insurance Company. The employee, who was 38 years old at that time, injured himself when he was working on scaffolding on an outside construction project. As he climbed down on an icy ladder he slipped, catching himself on a pipe with his left hand. The employee experienced pain in his arm, neck, hand, and face on the left side, and had some bruising on his face, shoulder, and neck. The employee received ongoing medical treatment and was released to return to work with restrictions against overhead work. He continued to have constant pain behind his ear to his shoulder and elbow, and continued to take pain medication.
The employee=s neck and shoulder pain persisted and eventually he was no longer able to hold his tools in his left hand due to weakness in his left arm. In 1983, the employee was treated by Dr. Ivan Schloff, whose diagnosis included cervical spine degenerative disc disease, history of brachial plexus stretch in 1974, and history of carpal tunnel syndrome. Dr. Schloff opined that there was a direct causal connection between the employee=s complaints in 1983 and his 1974 injury, and that a May 1978 injury was a temporary aggravation. Dr. Schloff referred the employee to physical therapy, which provided limited relief, and then referred him to Dr. Max Zarling for a neurosurgical consultation. In April 1983, Dr. Zarling diagnosed C6 radiculitis from the herniated disc, and concluded that the employee=s problems began in 1974 with his work-related brachial plexus injury. At Dr. Zarling=s referral, the employee underwent a cervical myelogram in April 1983 which indicated a herniated disc at C5-6 and a herniated disc at C6-7 on the left. Ultimately the employee underwent a cervical laminectomy in 1983, performed by Dr. Zarling. The employee testified that he has continued to experience ongoing neck and arm pain even after that surgery.
In 1988, while working as a carpenter for a different employer, the employee sustained a work-related knee injury and underwent knee surgery. After the knee surgery, the employee could no longer work as a carpenter.
On May 20, 1991, the employee was seen by Dr. Dan Moriarty, his family physician, who diagnosed chronic neck pain with cervical arthritis and radiculopathy and noted that the employee had experienced ongoing pain since his 1974 injury. Dr. Moriarty recommended physical therapy which the employee later reported helped on only a temporary basis. In June 1991, Dr. Moriarty referred the employee to Dr. Terrance Capistrant, who opined that the employee=s ongoing neck symptoms were related to his original 1974 injury and that the employee might be a candidate for fusion surgery. In July 1991, Dr. Moriarty concluded that the employee=s symptoms seemed to clearly be related to the previous work-related injury.
The employee worked as a building inspector for the City of Cottage Grove from 1991 through 1998 when he began working as a building inspector for the City of Inver Grove Heights, which was self- insured for workers= compensation liability. The employee treated with Dr. Moriarty again in September and October 2000 for chronic neck pain. He received Botox injections and was prescribed physical therapy. On January 12, 2001, the employee sustained an admitted work injury while inspecting a trailer house. The building had no entryway stairs, and as he was being pulled into the building, the person pulling the employee let go of his arm, causing him to fall to the ground. The employee treated with Dr. Moriarty for a significant exacerbation of his left sided chronic neck and back pain and new right shoulder pain. An MRI of the right shoulder indicated a full thickness tear of his right rotator cuff.
On March 28, 2001, the employee sustained another admitted work injury when he lowered himself into a crawl space and pulled himself out, injuring the right side of his neck and shoulder. Dr. Moriarty diagnosed acute exacerbation of the employee=s chronic neck and back pain and prescribed physical therapy. The employee underwent physical therapy in March and April 2001. On June 15, 2001, the employee underwent a right shoulder rotator cuff tendon repair by Dr. Peter Daly. The employee testified that these injuries did not make his neck condition worse.
The employee experienced increased neck pain and pain in the left side of his face in 2001. In August 2001, the employee was referred to Dr. Thomas Jacques, a neurologist. A cervical MRI indicated advanced degenerative changes involving all of the cervical disc interspaces and severe central canal narrowing, a cord deformity at C4 and left foraminal stenosis at the C3-4 level. Dr. Jacques noted that the employee=s EMG confirmed that he had a C6-7 radicular component, but that most of his condition was chronic, and indicated that the employee=s facial pain was secondary to his neck disease. Dr. Jacques referred the employee to Dr. Jerone Kennedy. The employee treated with Dr. Kennedy on December 6, 2001, for complaints of pain on the left side of the face and neck, as well as left arm, chest, flank region and left leg which the employee reported had been a problem since 1974 but had worsened over the past several years. Dr. Kennedy indicated that the etiology of the employee=s left-sided pain was unclear, but could be residual from the 1983 surgical procedure, and he could not tell if there was any underlying cervical radiculopathy. The employee again treated with Dr. Moriarty on December 10, 2001, and January 2, 2002, for his chronic neck pain and other conditions. Dr. Moriarty recommended additional physical therapy.
In February 2002, the employee sustained a nonwork-related injury after slipping on ice and falling on his left shoulder. In April 2002, the employee underwent a left shoulder rotator cuff repair for this injury and subsequent physical therapy. In March 2003, the employee stopped working. At the time of the hearing he was receiving Social Security retirement benefits.
On October 7, 2003, the employee was evaluated by Dr. Mark Larkins at the request of Nordling Construction Company and its insurer. Dr. Larkins opined that the employee=s condition was not the result of his original 1974 injury and subsequent surgery, but instead was the result of normal degenerative changes which were not accelerated by the original injury, and that the treatment following the 2001 and 2002 injuries were only related to those injuries.
In May 2004, Dr. Moriarty, who had continued to treat the employee for his ongoing neck and shoulder symptoms, referred the employee to Dr. Masood Ghazali, a neurologist, who reported that the employee had ongoing symptoms of cervical brachialgia that reflects post-laminectomy syndrome with continued radiculitis in a setting of advanced cervical osteoarthritis. Dr. Ghazali concluded that the exact causal relationship between his symptoms and work-related injury of 1974 was unclear.
On December 13, 2005, the employee treated with Dr. Moriarty for worsening left-sided neck pain with pain and tenderness over the left side of the face, head, and scalp. The employee had attended physical therapy for his low back in October 2005, which was discontinued on October 22, 2005. The employee received physical therapy for his left facial pain, cervical spine degenerative disc, and low back pain from December 15, 2005, through May 4, 2006, although, according to the employee=s testimony, only one of his therapy sessions had addressed his low back symptoms. On December 28, 2005, Dr. Moriarty and the employee=s physical therapist prescribed a home traction unit. In January 2006, they both also recommended physical therapy with cervical traction and a home program. The physical therapist indicated that the traction treatment had been effective in the office, and the employee testified that he received significant relief from the traction unit. The employee testified that he purchased the traction unit on his own for use at home.
On February 10, 2006, the employee filed a medical request against both Nordling Construction and its insurer, Bituminous Insurance Company, and the self-insured City of Inver Grove Heights, requesting physical therapy and payment for the home cervical traction unit. Both employers denied coverage on the bases that the claimed medical expenses were not casually related to the respective work-related injuries and that the home traction unit did not comply with the medical treatment parameters. An administrative conference was held on February 10, 2006, following which an arbitrator concluded that the medical expenses were causally related to the employee=s work injuries. Both employers and insurer were ordered to pay for the disputed medical treatment and one month=s use of the home traction unit. The employers and insurer appealed, requesting a formal hearing.
A hearing was held before a compensation judge on June 9, 2006, to address the employee=s claims for physical therapy and the cervical traction unit, plus an additional claim for medical mileage. At the time of the hearing, the employee was 70 years old. The compensation judge found that the employee sustained a chronic neck injury in 1974 and has continued to have residual symptoms related to that injury up to the date of the hearing, but that the employee=s 2001 work injuries did not cause permanent injury or symptoms related to the claimed treatment. The compensation judge found that the medical treatment parameters did not apply, based on the employers and insurers= denials of liability for the treatment, and concluded that the employee=s need for the claimed physical therapy and the home traction unit were reasonable, necessary, and causally related to the employee=s 1974 work injury. The compensation judge ordered Nordling Construction and its insurer to pay the claimed expenses and the related medical mileage. Nordling Construction and its insurer appeal.
Nordling Construction and its insurer argue that substantial evidence does not support the compensation judge=s finding that the employee=s need for the claimed physical therapy and the home traction unit was causally related to the employee=s 1974 work injury and not to his 2001 work injuries. They argue that there is no expert medical opinion indicating that there is a causal relationship between the claimed medical treatment and his 1974 work injury. 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). In addition to medical opinions, a judge may base his or her conclusions on other reliable evidence in the record. See Reimer v. Minnit Tool/M.I.T. Tool Corp., 520 N.W.2d 397, 51 W.C.D. 153 (Minn. 1994).
The compensation judge=s factual conclusion contrary to the opinion of Dr. Larkins was not clearly erroneous as a matter of law, nor was it factually unreasonable, given other medical evidence of record that the employee=s ongoing neck problems were causally related to the employee=s 1974 work injury. Other evidence in the record that is supportive of the compensation judge=s conclusions include Dr. Zarling=s causation opinion in 1983 and Dr. Capistrant=s opinion in 1991, as well as the testimony of the employee as to his ongoing symptoms since 1974. The employee testified that his neck and shoulder pain remained the same after the 2001 injuries as before. The judge found the employee=s testimony to be credible, and that express conclusion warrants further deference. See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).
The employer and insurer argue that the records in evidence support a contrary result than the conclusions reached by the compensation judge. The question for this court is not whether the evidence would support a contrary result but whether substantial evidence supports the decision reached by the compensation judge. It is the role of this court to determine whether Athe 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. Substantial evidence supports the findings if, in the context of the entire record, Athey 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). In this case, substantial evidence, including the employee=s testimony and his medical records, supports the compensation judge=s findings that the employee=s 1974 work injury was causally related to the employee=s current need for physical therapy and a home cervical traction unit, and that his 2001 work injuries were not related to his need for the claimed medical treatment. Accordingly, we affirm.