ROGER J. SHOEN, Employee/Appellant, v. ISPAT INLAND MINING CO. and LIBERTY MUT. INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 9, 2007
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s determination that the work injury on August 20, 2004, was not a substantial contributing factor in the employee=s present claimed disability.
Determined by: Stofferahn, J., Wilson, J., Pederson, J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: Roger J. Shoen, pro se Appellant. Randee S. Held, Law Offices of Bakken, Robinson & Grove, Golden Valley, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s determination that his work injury on August 20, 2004, was not a substantial contributing factor in his present claimed disability. We affirm.
Roger Shoen, the employee, went to work for Ispat Inland Mining Company in 1996. On August 20, 2004, he was working on the transmission of a road grader when he slipped on oil on the step of the grader. He fell forward, striking the right side of his chest on the grader. The employee continued to work his regular duties and did not seek medical care for almost a week.
On August 26, 2004, the employee went to Mesaba Clinic in Hibbing where he saw Dr. Constance Stock. He told Dr. Stock that he had right arm and shoulder pain initially which had now resolved but that he had increasing right upper chest pain. Dr. Stock assessed Achest wall discomfort,@ provided pain medication, recommended the alternate use of ice and heat, and took the employee off work for a day. The employee returned to Dr. Stock on September 3, 2004, with continuing chest wall pain. She provided work restrictions and referred him to Dr. Patric Iammatteo, an osteopathic physician at the clinic.
The employee testified he was unable to get an appointment with Dr. Iammatteo until December so he decided that, while he was waiting, he would see a chiropractor, Dr. Paul Maki. He started treating with Dr. Maki on September 29, 2004. Dr. Maki diagnosed subluxations of the cervical, thoracic, and lumbar spine from the work injury and provided chiropractic adjustments to those areas. The employee treated with Dr. Maki 21 times before he saw Dr. Iammatteo on December 29, 2004.
On December 17, 2004, the employee consulted with Dr. Win Cho Hlaing at the Virginia Clinic. He advised Dr. Hlaing that he had upper back pain that sometimes radiated to his left rib area. Examination showed no findings other than tenderness in the middle of the thoracic spine. Dr. Hlaing recommended an X-ray but the employee did not want any X-rays. Dr. Hlaing gave the employee a prescription for Voltaren and placed work restrictions on him. The employee did not treat with Dr. Hlaing again.
When the employee saw Dr. Iammatteo, he reported severe pain in the lower, mid, and upper back at a level of ten out of ten. He noted short-term relief from chiropractic care and said he was continuing to work. Dr. Iammatteo prescribed Ultram, provided osteopathic manipulation, and ordered X-rays. The employee was also released to his regular work.
The employee returned to Dr. Iammatteo on January 5, 2005, and stated that the Ultram was of no help. Dr. Iammatteo noted the X-rays had been within normal limits. Dr. Iammatteo provided manipulation to the cervical and thoracic spine and shoulder girdles. He also referred the employee to physical therapy and changed the medication to parafon forte. The employee was given work restrictions of no lifting over 20 pounds. The employee had nine physical therapy sessions between January 11 and February 2, 2005. He reported that physical therapy was not successful in reducing his pain. When the employee saw Dr. Iammatteo on January 12, it was noted that he had missed a significant amount of work because of pain despite the work restrictions.
An MRI of the spine was done at Dr. Iammatteo=s request on February 7, 2005. Dr. Iammatteo interpreted the MRI as showing a small disc protrusion on the right at C3-4 , a somewhat larger disc at C5-6, and a small central disc protrusion at L5-S1. Dr. Iammatteo recommended a neurosurgical consultation and the employee was referred to Dr. Cornelius Lam at Mesaba Clinic on March 22, 2005.
In his letter to Dr. Iammatteo, Dr. Lam stated, AI have told Mr. Shoen that he has degenerative changes in his spine. He has one disc which is larger than the others. I have told him that at the current time that disc is not responsible for the discomfort he has between the shoulder blades. Correction of the disc is unlikely to help that. I have told him that the MRI of the lumbar area is also not suggestive of a herniation severe enough for surgery. At the current time I have encouraged him to continue with therapy, to improve his diet, and to stop smoking if at all possible.@ It appears that after this appointment the employee did not return to Dr. Iammatteo at Mesaba Clinic.
The employee next saw Dr. Daniel Wallerstein, an osteopathic physician at St. Luke=s Physical Medicine and Rehabilitation Clinic in Duluth, on March 24, 2005, apparently on referral from Dr. Jeffrey Copeman at Mesaba Clinic. The employee told Dr. Wallerstein that he had slipped while climbing up on a road grader and fell three feet, landing on his right shoulder and side. The pain diagram the employee completed for Dr. Wallerstein showed posterior and left lateral headaches, left shoulder and scapular pain, lower back, left buttock, and testicular pain. He described pain on a ten-point scale as ranging from four at the best to ten plus at the worst.
Dr. Wallerstein=s impression was A(1) Status post chronic scapulothoracic cervical strain pattern; (2) Rib contusion; (3) Limited postural awareness with cervical and thoracic strain secondary to above.@ Dr. Wallerstein prescribed physical therapy, instructed the employee in stretching exercises, and reviewed the importance of proper posture.
When Dr. Wallerstein saw the employee again on April 21, the employee stated that there had not been any significant change in his condition. Dr. Wallerstein reviewed exercises with the employee and revised the physical therapy program. On May 12, the examination was essentially normal with the exception of tenderness in the infraspinatus muscle. Dr. Wallerstein emphasized to the employee the importance of compliance with the physical therapy and exercise programs. Dr. Wallerstein also prescribed Hydrocodone and Ibuprofen and recommended a work hardening program.
On June 2, the employee told Dr. Wallerstein that his pain had been aggravated by the work-hardening program. Dr. Wallerstein indicated that his review of the therapy records showed there had been eight consecutive cancellations or no-shows because the employee stated he was in too much pain to attend the sessions. No additional treatment recommendations were made by Dr. Wallerstein. On August 11, Dr. Wallerstein noted he was seeing the employee in Afollow up of his chronic pain pattern.@ Dr. Wallerstein stated, Agiven the minimal findings identified on MRI@ additional physical therapy and soft tissue treatment would be pursued.
The employee reported no changes in his condition when he saw Dr. Wallerstein on September 29. When he returned to Dr. Wallerstein on November 15, the employee stated that he no longer wished to treat with Dr. Wallerstein. Dr. Wallerstein=s comment on that date was that AClearly favoring passive treatment and changing physicians when we have him scheduled for treatment in the future does make me suspicious that he is buying time. Ultimately if his treatment with Mark Bookout is not considered successful, I would suggest an independent medical examination and/or determining of maximum medical improvement.@
On November 14, 2005, the employee saw Dr. Neil Hoyal, an osteopathic physician at Chisholm Medical Clinic. He told Dr. Hoyal that his injury occurred when he fell four feet while working on a transmission. He said he fractured two ribs and injured his back. Dr. Hoyal=s assessment was Asomatic dysfunction associated with a work-related injury of 08/20/04.@ Dr. Hoyal provided osteopathic manipulation and gave him a prescription for Ultram.
When the employee returned on November 21, he said his upper back was Aout of position@ and he was given another manipulation and a prescription for Ultracet. A week later, he reported his upper back was out again and he was prescribed Ultram again and given manipulation. Similar complaints were made and similar treatment was given at visits on December 21, December 28, and January 4.
On January 18, 2006, Dr. Hoyal met with the employee and the employee=s QRC. In his chart notes of that date, Dr. Hoyal stated that he had not been aware that the employee had wanted him to be his primary physician, assuming that Ahe was more or less treating me as his therapist to work on his back.@ Dr. Hoyal found a Asubluxed T4 lesion@ on exam and treated the employee with Aa combination of muscle energy and HVLA techniques.@ In the discussion with the employee and the QRC, Dr. Hoyal Atold him that I felt there was too much emphasis on the single lesion being out and that this somehow was a focal point of his life and needed to be de-emphasized at least as far as his work ability is concerned.@
The employee was seen by Dr. Paul Cederberg on February 7, 2006, at the request of the employer and insurer. Dr. Cederberg reviewed the records of the employee=s treatment from the various health care providers and conducted a physical examination. Dr. Cederberg reported no findings on examination. He concluded that the August 2004 work injury was not a Amaterial contributing factor to his present condition. The injury itself was to the right anterior chest wall.@ Dr. Cederberg was of the opinion that Athere is evidence of symptom magnification with numerous complaints unsubstantiated by objective clinical findings or MRI scan findings that would correlate with his symptoms. He has a small right cervical disc protrusion at C5-6 but has no radicular pattern of pain from that.@ Dr. Cederberg stated the employee did not need medical treatment as the result of his work injury, did not need work restrictions, and had no permanent impairment.
The employee continued to treat with Dr. Hoyal who limited the use of manipulation but continued pain medication and work restrictions. At his visit with Dr. Hoyal on April 14, 2006, the employee noted that he was working five hours a day and was having a lot of pain in his upper back, so much so that it woke him up at night. Dr. Hoyal provided manipulation, prescribed pain medication, and advised the employee to work only five days in the next two weeks.
At Dr. Hoyal=s referral, an EMG was done on July 5, 2006. The EMG was read as showing bilateral carpal tunnel, very mild ulnar neuropathy on the left, but Ano convincing evidence of cervical radiculopathy to correlate to the patient=s symptoms.@
The employer and insurer had paid temporary partial disability benefits for wage loss until April 19, 2006, when benefits were discontinued based on Dr. Cederberg=s report. The employee stopped working for the employer on August 25, 2006, and has not worked since. He was terminated by the employer on October 19, 2006, for absenteeism. The employee testified at the hearing that, when he stopped working, using Lortab affected his ability to think clearly and, despite his medication and reduced work schedule of five or six hours a day, three days a week, Athe combination of all the medications and the pain, it just . . . couldn=t take it no more.@
Dr. Hoyal=s records have no mention of the employee having any difficulty with the use of Lortab. Instead, the employee reported he was not able to function until he had taken his medication. On August 2 and on August 17, Dr. Hoyal placed no work restrictions on the employee other than working three days per week. In the next Report on Work Ability, dated September 13, 2006, Dr. Hoyal identified the restrictions as ASame (although patient states his too severe to work at all despite medication!).@
In the latter part of 2006, after Dr. Hoyal left the clinic, the employee started treating with Dr. William Wilson, a medical doctor at Chisholm Medical Center. On January 23, 2007, Dr. Wilson assessed Amechanical back pain with some degree of degenerative disc disease aggravated by deconditioning.@ Dr. Wilson discontinued Ultram and prescribed Lortab. He also provided work restrictions and demonstrated strengthening exercises for the employee to follow.
The employee was seen again by Dr. Cederberg on February 5, 2007. Dr. Cederberg reviewed additional medical records that had been generated since the last report and he examined the employee again. Dr. Cederberg did not change any of his previous opinions. He continued to be of the opinion that the work injury was not a factor in the employee=s condition and that the employee was, in fact, capable of working on a full-time basis without restriction.
Dr. Wilson generated a report on February 26, 2007, at the request of the employee=s attorney. Dr. Wilson stated that, in his opinion, the 2004 work injury was a substantial contributing factor in the employee=s condition and that the employee needed work restrictions and ongoing medical care as the result of his work injury.
The parties filed a number of pleadings which were heard by Compensation Judge Gregory A. Bonovetz on May 3, 2007. A number of issues were presented to the compensation judge which involved the employee=s entitlement to various wage loss benefits. For purposes of this appeal, the key determination for the compensation judge=s consideration was whether the August 20, 2004, injury was a substantial contributing factor in any work restrictions and wage loss after April 19, 2006.
In his Findings and Order, issued May 8, 2007, the compensation judge found the work injury was not a substantial contributing factor and denied the employee=s claims for benefits after that date. The compensation judge made a specific finding that the employee was not a credible witness. In his memorandum, the compensation judge stated his conclusion that the evidence did not establish that the work injury affected the employee=s spine, either on a temporary or permanent basis. The employee, who was represented at the hearing, now appeals pro se.
The compensation judge decided that the employee did not injure his back in his work injury on August 20, 2004. Since the employee=s claims at the hearing were based on his complaints of pain throughout his back, the result was that the compensation judge denied the employee=s claims. The employee appeals this result. Essentially, the employee contests the compensation judge=s reliance on Dr. Cederberg=s opinion and the determination that he was not credible.
We turn first to the question of Dr. Cederberg and the use of his opinion. It is true, as the employee points out, that Dr. Cederberg was chosen by the employer and insurer to evaluate the employee and write a report about his evaluation. The workers= compensation law allows for this procedure. Minn. Stat.'176.155. In order for this report to be considered, it must have sufficient foundation, meaning that the doctor must show that he or she is aware of relevant information about the employee=s medical condition. In this case, Dr. Cederberg reviewed the employee=s medical records and examined the employee. We have said in a number of cases that this information provides adequate foundation for rendering a medical opinion. Miller v. Wal Mart, No. WC06-179 (W.C.C.A. October 26, 2006).
While we would not expect the employee to agree with Dr. Cederberg=s opinions, the employee does not identify any evidence which would indicate that Dr. Cederberg=s report was unreliable in any way. In almost every workers= compensation case, there are differences of opinion among doctors on some issue. It is the compensation judge=s job to carefully consider those competing opinions and select the opinion that he or she concludes is most consistent with the evidence in the case. Generally, this court will affirm a compensation judge=s decision which is based on that selection of medical opinions and we do not see any reason why we should not do so in this case. Tuttle v. Society of St. Vincent de Paul, No. WC05-19 (W.C.C.A. July 22, 2005).
We turn next to the question of credibility. In order for the employee to have won this case, the compensation judge would have had to accept the employee=s testimony that he injured his back in August 2004 and that his back pain required the medical treatment he received and resulted in his inability to work. Instead the compensation judge rejected his testimony, concluding that the employee was not a believable witness.
We approach this issue with two considerations in mind. First, this court generally defers to the compensation judge on the question of credibility. The compensation judge was present at the hearing and had opportunity to see the witnesses as they answered questions and was in a position to observe the demeanor of the witnesses. Norman v. Diamond Risk Corp./Cook & Assocs., No. WC04-280 (W.C.C.A. Feb. 25, 2005).
The second consideration is the scope of review available to this court. When the compensation judge=s determination is one of fact, as it is in this case, our role is to review the record - the testimony and the exhibits - and determine if substantial evidence exists to support the compensation judge=s decision. If we find substantial evidence, the decision of the compensation judge is to be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
We have set out the evidence in this case in some detail in the previous section of this decision and will not repeat all of the evidence at this time. We conclude there is substantial evidence to support the compensation judge=s decision. There are inconsistencies in the information the employee gave to the treating doctors as to how the injury occurred. The compensation judge noted the employee=s inclination to change treating doctors whenever he was released to work or was given reduced restrictions. The compensation judge also noted the employee=s failure to complete recommended physical therapy treatments. The employee was not interested in any treatment other than spinal manipulation and medication. Despite his extensive treatment, the employee reported to his doctors time and again that the treatment was of no use and his condition remained the same. The recurring complaints of severe pain that prevented him from working are at variance with the records of his treating doctors who consistently released him to work with rather minimal restrictions. Finally, the lack of objective findings is inconsistent with an injury of such severity as the employee describes.
We find the compensation judge=s decision to be amply supported by the evidence and the decision of the compensation judge is affirmed.
 HVLA stands for High Velocity - Low Amplitude and is a form of osteopathic manipulation. See www.osteopathic.org, the website of the American Osteopathic Association.