SUZETTE SWANSON, Employee, v. ASSOCIATED BANK and ACUITY GROUP, Employer-Insurer/Appellants, and TWIN CITIES ORTHOPEDICS, P.A., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 14, 2007
CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION. Substantial evidence, including expert medical opinion, supports the compensation judge=s opinion that the employee=swork injury of November 23, 2005, resulted in an injury to her right elbow.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: Thomas A. Klint and Michael T. Freske, Babcock, Neilson, Mannella, Klint, Anoka, MN, for the Respondent. Charles E. Gillin and Thomas J. Misurek, Jardine, Login & O=Brien, Lake Elmo, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge=s finding that the employee=s right elbow injury was causally related to her work injury of November 23, 2005, and from the related awards of temporary total disability benefits, medical expenses, and statutory interests. We affirm.
Suzette Swanson, the employee, began working as a teller for an Associated Bank branch in September 2001. On November 23, 2005, after she and a coworker left the building once the bank had closed for the day, the employee sustained an admitted injury when she fell forward after tripping on a hole or depression in the sidewalk. After this fall, the employee noticed multiple symptoms including pain in her left knee, elbows, low back and neck. She sought emergency room medical treatment at Mercy Hospital that evening, complaining of various symptoms, including low back pain, numbness of her fourth and fifth fingers on her left hand, and an abrasion on her left elbow. X-rays of her left knee were negative; x-rays of her lumbar spine showed degenerative changes but no fractures.
Shortly after her injury, the employee consulted an orthopedist, Dr. Richard Strand. The employee had earlier treated with physicians in the same clinic for a cervical and lumbar strain caused by an automobile accident in 1997, for a right shoulder condition in 1999 resulting from a fall on stairs, and for a left knee condition that developed in 1999. In his chart notes of December 6, 2005, Dr. Strand stated that the employee reported pain in her low back, left leg, left knee, neck and upper back, along with headaches and nausea. On examination, Dr. Strand noted some tenderness around her right elbow and the lateral epicondyle. He diagnosed AMultiple contusion and strains, secondary to fall in parking lot.@ After a follow-up visit on December 28, the employee again reported multiple symptoms. Dr. Strand recommended physical therapy and restricted the employee from work.
The employee underwent physical therapy intermittently between February 22 and September 26, 2006. Dr. Strand eventually referred the employee to Dr. Paul Biewen, a specialist in physical medicine rehabilitation. On July 18, 2006, Dr. Biewen examined the employee for her low back, left knee and right elbow pain. He noted swelling over her right elbow, and diagnosed right lateral epicondylitis. In addition, Dr. Biewen diagnosed a lumbar strain superimposed upon degenerative disc disease; he also diagnosed chondromalacia patella in the employee=s left knee, a pre-existing condition that he felt was aggravated by her November 2005 injury. Dr. Biewen recommended that the employee eventually discontinue her physical therapy and change to an independent exercise program. He also recommended restrictions for work and home, to limit her use of her right arm. Dr. Biewen also suggested a return to work for four hours per day within restricted activities.
On August 17, 2007, Dr. Biewen reexamined the employee, for her complaints of right elbow, low back and left knee pain. On examination, he observed obvious swelling over the right lateral epicondyle, and stated that the employee was acutely tender over the right epicondyle. Dr. Biewen recommended a pain clinic evaluation for more comprehensive intervention and also recommended limited additional physical therapy. He also referred the employee for an MRI of her right elbow, to further diagnose her condition, in part due to the ongoing swelling and symptoms in her elbow and in part because her elbow condition had not improved through earlier medical treatment. The MRI, taken on September 6, 2006, showed a partial thickness tear in the extensor tendon of the elbow, and a disruption or tear of the radial collateral ligament.
On September 14, 2006, Dr. Gary Wyard, an orthopedic surgeon, examined the employee at the request of the employer and insurer. The employee reported multiple complaints to Dr. Wyard, but stated that her low back, left knee and right elbow hurt her the most. In Dr. Wyard=s opinion, there was no causal relationship between the employee=s work injury and her right elbow condition. He found that the employee had gross functional overlay, and concluded that A[t]here is nothing in the employee=s contemporaneous medical records to indicate left shoulder, left hip, right elbow or neck injuries. She had no more than abrasions, contusions and sprains/strains.@ Dr. Wyard concluded that the employee=s right elbow condition Ahas been a long-standing condition that was coincidentally found on an MRI. There was nothing to indicate it was from a specific or acute injury.@ He concluded that the employee had reached maximum medical improvement from her injury within three months, that she needed no further treatment or restrictions on her work activities as a result of that injury, and that she could return to her original job as a bank teller. Dr. Wyard also opined that the employee=s claim was not plausible in view of the lack of a medical record reporting a right elbow problem immediately after her November 23, 2005, injury.
Based on the MRI results, Dr. Biewen referred the employee to a colleague, Dr. Mark Fischer, an upper extremity specialist. Dr. Fischer diagnosed a persistent lateral epicondylitis, and initially recommended conservative treatment, including a corticosteroid injection in the right elbow. Because of her continued symptoms, tenderness and swelling, Dr. Fischer recommended a surgical repair of the torn ligament and tendon. In view of Dr. Fischer=s recommendation for surgery, Dr. Biewen rescinded his recommendation for a pain clinic evaluation, and continued to restrict the employee from work. As of the time of the hearing in January 2007, the employee had not yet returned to work.
On November 22, 2006, the employee filed a medical request seeking approval for right elbow surgery. A hearing was held on January 10, 2007, to address that claim, in addition to issues concerning rehabilitation benefits and a proposed discontinuance of benefits based on the employee=s attainment of maximum medical improvement. At the hearing, the parties stipulated that if the employee=s right elbow condition was adjudicated to be causally related to her November 23, 2005, injury, then the proposed medical treatment would be considered as reasonable and necessary. The parties also stipulated that the employee=s claim for temporary total disability hinged on her right elbow claim and the consequent decision concerning attainment of maximum medical improvement. Post-hearing depositions of Drs. Biewen and Wyard were held. The record closed on March 12, 2007, following receipt of Dr. Wyard=s deposition transcript.
In her Findings and Order served and filed on April 12, 2007, the compensation judge found that the employee=s right elbow injury was causally related to her work injury of November 23, 2005. The compensation judge approved the proposed surgery, and also found that the employee had not yet been released to return to work because of her right elbow condition and pending surgery, and awarded payment of temporary total disability benefits as claimed. The compensation judge awarded payment or reimbursement of medical expenses related to treatment of the employee=s right elbow condition. The employer and insurer appeal.
The primary dispute on appeal is whether the employee=s right shoulder injury and condition are related to the employee=s fall on November 23, 2005. The employer and insurer admitted primary liability for left knee and low back injuries, but dispute that the employee=s right elbow condition and related treatment are causally related to that work injury, in part because the employee=s emergency hospital records generated on November 23 and 28, 2005, do not reflect any report of a right elbow injury.
According to the employee, she reported multiple symptoms to the emergency medical personnel at Mercy Hospital, including pain in her right elbow, and also experienced pain in her low back, left knee, both elbows and stomach, headaches, nausea, and vertigo within a few days of her injury. The emergency room physician who initially examined the employee diagnosed a left knee contusion and low back strain. Following another emergency room examination on November 28, 2005, a physician diagnosed musculoskeletal pain and benign positional vertigo. The employee testified that she reported all her symptoms to the physicians at Mercy Hospital, including her right elbow symptoms, even though the hospital records do not list all her reported symptoms. She also testified that after her fall, her right arm was swollen but not bleeding, and, according to the employee=s testimony, she was advised by her medical examiners that she bruised a bone which Awould take time to heal.@ She also testified that, initially, she primarily was concerned about the effects of her fall on her low back, because she had undergone low back surgery in April 2005.
In her memorandum, the compensation judge concluded that the employee credibly testified about her work injury and about her right elbow symptoms that were ongoing but had been overshadowed by her other injuries. The compensation judge concluded that it was plausible Athat among the numerous complaints arising out of the fall her right elbow was not a priority during her initial medical treatment.@ It is the trier of fact's responsibility to assess the credibility of a witness. Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)). It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990), and we therefore defer to the compensation judge=s assessment of the employee=s credibility concerning her right elbow injury.
The employer and insurer also argue that the employee=s elbow condition is not related to her work injury, relying upon Dr. Wyard=s opinion that the employee=s claim was not plausible without a medical record showing that the employee had reported a right elbow problem immediately after her injury. The employer and insurer argue that, given the nature of the MRI results, the employee=s claimed elbow trauma is not evidenced in the medical records adequately to warrant a finding that the employee ruptured a ligament and tendon in her right elbow as a result of her fall in November 2005.
Dr. Biewen, on whose testimony the compensation judge relied, concluded that there is a causal connection between the employee=s work injury and her right elbow condition. He based his opinion on his review of the employee=s medical records, which reflected no pre-injury treatment for her right elbow, and on the employee=s report of pain that developed after her work injury. Dr. Biewen also concluded that
[The employee] has MRI findings that are consistent with her report and her objective physical findings that demonstrate that she has a torn tendon and a torn ligament in her elbow, which is also consistent with the type of trauma and the type of mechanism of injury that she describes in terms of how she fell.
At Dr. Biewen=s deposition, counsel questioned him on the factors that could contradict a finding of a causal connection between the employee=s work injury and her right elbow condition, most specifically the contrast between the symptoms the employee claims to have reported to her medical providers and the sporadic references in the employee=s post-injury medical records to her reports of right elbow symptoms. For example, Dr. Biewen acknowledged that tears of the radial collateral ligament and the extensor tendon would more likely result from trauma than from repetitive use. Yet the emergency department records from November 23, 2005, state that the examination findings on the employee=s right upper extremity were Anormal.@ Dr. Biewen acknowledged that the normal finding during the hospital examination was inconsistent with what would typically be seen if indeed the employee=s fall had resulted in a tear. He also commented that if the employee had suffered a tear, he would have expected her to report more symptoms than simply tenderness. Dr. Biewen nevertheless concluded that it was Amore likely than not@ that the employee=s right elbow problem resulted from her 11/23/05 injury, in view of the employee=s continued reports of right elbow symptoms since 2005, and in view of the periodic documentation of those symptoms in the employee=s medical records.
By contrast, Dr. Wyard testified that an elbow condition such as employee=s typically manifests itself as a progression of a degenerative nature. He concluded that the employee=s right elbow condition was long-standing and was coincidentally detected on an MRI scan, with nothing to indicate it resulted from a specific or acute injury. Dr. Wyard explained that he concluded the employee=s lateral epicondylitis condition resulted from gradual activity over a long period of time, and was degenerative and not traumatic in nature, in part because there are no contemporaneous medical records to suggest that the employee had problems with her right elbow following her work injury. Dr. Wyard also testified that he would not recommend surgery or further care or treatment for the employee=s right elbow, in view of the unpredictability of the surgical risks.
The compensation judge found that the employee=s right elbow condition was related to her work injury, relying on Dr. Biewen=s opinion in reaching that conclusion. We note that it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. "Where more than one inference may reasonably be drawn from the evidence, the compensation judge's findings shall be upheld." Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985). Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). The judge acknowledged that Dr. Biewen=s opinion was based at least in part on the employee=s reports that she had noted right elbow symptoms after she fell and that her elbow symptoms had persisted. The compensation judge concluded that,
Under the circumstances of this case and based to a large extent on the employee=s detailed and unwavering testimony, it is determined that the employee=s right elbow injury is causally related to the work injury of November 23, 2005.
In view of Dr. Biewen=s opinion, and in view of the employee=s testimony, it was reasonable for the compensation judge to infer that the employee=s November 23, 2005, injury resulted in an injury to her right elbow, and the judge=s reliance on Dr. Biewen=s testimony does not constitute clear error.
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). Because the record in this case contains substantial evidence that supports the compensation judge=s findings, we affirm her decision and the related awards of temporary total disability and medical expenses.