CATHERINE SWANSON, Employee/Appellant, v. NORTHWEST AIRLINES CORP. and CNA/CONT=L CAS., Employer-Insurer, and NORTHWEST AIRLINES CORP. and LIBERTY MUT. INS. CO., Employer-Insurer, and NORTHWEST AIRLINES CORP. and KEMPER INS. CO./BROADSPIRE, Employer-Insurer, and MEDICAL ADVANCED PAIN SPECIALISTS, LIFE INS. CO. OF N. AM., LANDMARK SURGERY CTR., INSTITUTE FOR LOW BACK AND NECK CARE, IMPACT PHYSICAL MEDICINE & AQUATIC CTR., CENTER FOR DIAGNOSTIC IMAGING/PHOENIX MGMT., BODYWORKS PHYSICAL THERAPY, ALLINA MED. CLINIC, ABBOTT NORTHWESTERN HOSP., THERAPY PARTNERS, PRIMARY BEHAVIORAL HEALTH, and HIGH POINT SURGERY CTR., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 19, 2007
PRACTICE & PROCEDURE - REMAND. Where the judge=s finding that the employee=s 1980 work injury had not been a substantial contributing factor in the employee=s wage loss since December 2005 appeared potentially inconsistent with his award of payment of substantial medical expenses after that date, and where the judge had found that the employee had failed to conduct a reasonable job search but the judge had made no findings as to whether the employee had ever been released to work, the compensation judge=s decision was remanded for reconsideration and further findings.
Vacated in part and remanded.
Determined by: Pederson, J., Johnson, C.J., and Rykken, J.
Compensation Judge: Gary M. Hall
Attorneys: Jackson S. Baehman, Woodbury, MN, for the Appellant. Philip C. Warner, Law Offices of Joseph M. Stocco, Edina, MN, for Respondents Northwest Airlines/CNA. Mary Hager, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for Respondents Northwest Airlines/Liberty Mutual and Northwest Airlines/Broadspire.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s finding that since December 13, 2005, Athe employee has been disabled due to a number of nonwork-related factors@ and from his finding that the employee=s 1980 work injury has not been a substantial contributing factor in her wage loss since that date. We vacate in part and remand the matter to the judge for reconsideration and additional findings.
Catherine Swanson [the employee] began working for Northwest Airlines Corporation [the employer] as a flight attendant in 1973. Her duties included assisting passengers with carry-on luggage, pushing beverage and meal carts, and serving meals. She also was required to handle her own luggage in commuting to and from hotel lodgings during layovers.
On or about March 1, 1980, the employee sustained a personal injury to her low back as a result of carrying luggage up several flights of stairs during a layover in St. Louis. On that date, the employer was insured against workers= compensation liability by CNA/Continental Casualty. The employee was also about four months pregnant at the time, and following the injury she developed low back, right hip, and groin pain.
The employee initially sought treatment with chiropractor Dr. John Colvard, who apparently advised her to remain off work until after the birth of her expected child. She was then seen on June 12, 1980, at the Airport Medical Clinic by Dr. David Zanick. The employee reported to Dr. Zanick that she had no previous history of low back problems. She stated that discomfort she had experienced in her groin area had subsided but that she still had discomfort in the right buttock area and a limp associated with heavy lifting. Dr. Zanick found no evidence of injury and concluded that any muscular strain to the hip region that she may have sustained should have resolved. He concluded further that any ongoing symptomatology after June 13, 1980, Ais probably related to the [employee=s] pregnancy.@
In September 1983, the employee was seen by Dr. D. E. Guenther at East Metro Family Practice, complaining of a sudden onset of right back pain after moving baggage. She described pain Ain the right buttocks located just lateral to the midline in the region of the sacroiliac on the right side.@ She stated that she had experienced three or four previous episodes, which had been diagnosed by Dr. Ivan Schloff as scoliosis, and that she had also seen several chiropractors at previous times. Dr. Guenther noted definite right-side tenderness in the sacroiliac, and he diagnosed a sacroiliac strain.
The employee returned to the Airport Clinic for evaluation of her back on December 5, 1985. She provided Dr. Dean Erickson with a history of intermittent back discomfort since her 1980 injury, with exacerbations related to activity. Her most recent exacerbation had occurred on November 28, 1985, after a period of prolonged walking and carrying her suitcase at the Denver Airport. She reported that she had had several courses of physical therapy, had been treated at United Hospital by physiatrist Dr. Essam Awad, and had undergone a CT scan. Dr. Erickson noted that the CT report showed mild degenerative facet joint disease at L4-5, more significantly on the right, with mild degenerative central bulging at the L5-S1 disc without evidence of nerve root entrapment. He recommended a trial of anti-inflammatories and a course of physical therapy.
The employee next saw Dr. Erickson on December 10, 1985, after a trial of traction and physical therapy. She reported that she was feeling significantly better, and he released her to Areturn to flight status@ as of December 12, 1985, without restrictions after a visit on December 23. On January 22, 1986, Dr. Erickson noted that he viewed the employee=s November 1985 incident as a continuation of her 1980 injury, not as a new injury. The employer and its insurer at that time, Kemper Insurance Company, accepted liability for the employee=s November 28, 1985, injury and paid disability benefits for several days.
On August 10, 1987, the employee filed a Medical Request for payment of outstanding treatment expenses incurred after August 4, 1986, primarily with Dr. Awad. In an unappealed Decision and Order issued on December 22, 1987, a compensation judge found that the employee=s 1980 work injury was a material and substantial contributing factor leading to the disputed medical treatment. The judge noted that the employee recounted continuing symptomatology ever since the 1980 injury.
On February 6, 1989, while working on a turbulent flight into Phoenix, the employee again injured her low back. Six days later, on February 12, 1989, the employee was seen by Dr. Kevin O=Connell at the Airport Medical Clinic for a Afitness for duty exam.@ Dr. O=Connell=s impression was that the employee had sustained an aggravation of her degenerative facet and disc diseases in her lumbar spine. By February 15, however, the employee reported that she was much improved, and Dr. O=Connell released her to return to work without limitations the following day. He commented that Athis is a re-injury relating back to her previous injury from 1980.@
On January 29, 1992, the employee was seen by Dr. Thomas Hennessey at the Institute for Low Back Care. Dr. Hennessey obtained a history from the employee of low back pain dating back to April of 1980. The employee advised the doctor that activities such as prolonged sitting, standing, and forward flexion produced her symptoms. She was, at that time, recovering from one of her exacerbations. He recommended an MRI scan to assess the hydration of the employee=s discs, to be followed by facet joint blocks and possible discography.
The MRI scan of the employee=s lumbar spine, obtained on February 3, 1992, revealed Anuclear dehydration and disc bulging at L3-4 and L4-5,@ and on March 26, 1992, Dr. Hennessey administered a facet joint block to treat the employee=s mechanical low back pain syndrome and lumbar degenerative disc and facet joint disease. A second facet nerve block was administered on May 7, 1992, and by September the employee=s symptoms had returned to her reported baseline level. At that point, Dr. Hennessey recommended that she continue with her exercise program on a regular basis and use good body mechanics while performing her work-related and recreational activities.
On November 9, 1992, Dr. Hennessey issued a Maximum Medical Improvement Physician=s Report, in which he rated the employee=s permanent impairment at 10.5% to the body as a whole, under a diagnosis of lumbar degenerative disc disease. The injury date identified on the report was February 6, 1989, and Kemper Insurance Company, still the employer=s insurer on that date, made payment for a 3.4% whole-body impairment, taking credit for compensation for a 10% permanent partial disability of the back that evidently had already been paid for the 1980 injury by CNA/Continental Casualty.
The employee continued working as a flight attendant for the employer without significant treatment for her back until June 21, 2005. On that date, the employee experienced another exacerbation of her low back condition that she attributed to a turbulent flight. Two days later, she was seen at Park Nicollet Airport Clinic by Dr. Daniel Lussenhop. Dr. Lussenhop diagnosed Alow back pain apparently from a work related cause@ and took the employee off work. The employer and its insurer, now Liberty Mutual Insurance Company [Liberty Mutual], accepted liability for the employee=s low back injury of June 21, 2005, and commenced payment of wage loss benefits.
The employee returned to see Dr. Lussenhop on June 27, 2005, reporting that she was somewhat improved but still concerned about her persisting low back pain. The employee requested an orthopedic surgical consultation, and the doctor arranged for an appointment with Dr. David Florence. About this same time, the employer offered the employee a light-duty secretarial position. The employee refused this job offer.
Rather than pursue the appointment with Dr. Florence, the employee elected to return to see Dr. Hennessey for treatment. On July 6, 2005, she saw Dr. Hennessey and again provided him with a history of ongoing back problems dating back to a work-related injury in 1980. She reported that her pain had gotten worse over the past several years and was now a daily occurrence. She stated that her pain was made worse with almost any activity and was somewhat improved with ice and heat, lying down, resting, and medications. Dr. Hennessey assessed mechanical low back pain and right leg pain and took the employee off work. He recommended MRI scans of the lumbar spine and the pelvis and anticipated proceeding with facet joint injection, sacroiliac blocks, and discography.
On December 13, 2005, the employee was examined at the request of the employer and Liberty Mutual by orthopedist Dr. Loren Vorlicky. Dr. Vorlicky obtained a history, reviewed the employee=s medical records, and performed a physical examination. In a report dated December 19, 2005, Dr. Vorlicky stated that the employee=s complaints of groin pain and low back pain were typical of multilevel degenerative disc and facet disease of the lumbar spine. On examination, he found no evidence of radiculopathy, but did note that the employee had subjective complaints of low back pain and that she demonstrated decreased range of motion of the lumbar spine. He did not believe that she had sustained a new and distinct injury on June 21, 2005, instead viewing that incident as merely a manifestation of her chronic back pain. He indicated that the employee could work full time subject to a fifty-pound lifting restriction, which he related to the employee=s multilevel degenerative disc disease and not to her claimed injury of June 21, 2005. Dr. Vorlicky concluded that the employee had reached maximum medical improvement from the effects of her various injuries at the time of his exam and that she did not require any further medical care or treatment for her back complaints.
On January 24, 2006, the employer and Liberty Mutual served a Notice of Intention to Discontinue the employee=s temporary total disability benefits on grounds that there was no new and distinct injury on June 21, 2005, as supported by Dr. Vorlicky=s opinion. On February 17, 2006, a compensation judge issued an Order allowing the discontinuance, and on February 28, 2006, the employee filed an Objection to Discontinuance.
On referral from Dr. Hennessey, the employee returned to the Institute for Low Back and Neck Care on February 28, 2006, for a surgical consultation with Dr. Bryan Lynn. Dr. Lynn noted that the employee=s low back discomfort had not been adequately controlled with the SI joint injections, facet injections, or radiofrequency neurotomy administered by Dr. Hennessey. He reviewed the employee=s July 6, 2005, lumbar MRI scan and noted that it Ademonstrates what appears to be age-appropriate multilevel disc desiccation throughout her lumbar spine with no evidence of extruded disc material.@ Dr. Lynn=s assessment was of chronic low back pain with an approximately ten-month history of exacerbation following the workplace injury, together with facet arthritis at L5-S1, greater than at L4-5. He recommended a repeat MRI scan and flexion/extension/lateral radiographs of her lumbar spine prior to making further treatment recommendations. He recommended also that the employee follow up with her family physician regarding treatment for depression, which he felt was playing a significant role in her present symptoms.
The employee returned to see Dr. Lynn on March 6, 2006. He discussed with her the findings of her recent MRI scan as well as her plain x-rays. He noted that, although he was able to identify degenerative changes in her lumbar spine, he would not recommend lumbar fusion, in that, given the employee=s pathology, it would need to be performed over too broad an area of her spine to provide her with adequate relief. He continued to recommend that she seek treatment for her depressive symptoms.
The employee was seen for the last time by Dr. Hennessey on March 8, 2006. At that visit, Dr. Hennessey stated that he had no other treatment options for the employee. He noted that almost any activity, even riding in a car, significantly exacerbated her low back pain. He thought she would be best served by a comprehensive pain program, and he suggested that she meet with Dr. Lon Lutz. The employee advised Dr. Hennessey that she did not feel that she could do any meaningful type of work at that time, and the doctor noted that Ashe will remain off work for now and for the foreseeable future.@
Following her last visit with Dr. Hennessey, the employee attended twenty-five sessions of pool therapy at Impact Physical Therapy, commencing on March 15, 2006, and she also underwent a course of MyoFascial Release and CranioSacral Therapy at BodyWorks Physical Therapy, commencing on April 19, 2006. Around this same time, the employee came under the care of pain specialist Dr. Lon Lutz, who administered a series of diagnostic injections during April and May of 2006.
In a letter directed to the employee=s attorney on July 20, 2006, Dr. Lutz reported that the employee continued to have persistent axial low back pain Aas a result of a previous work-related injury.@ It was Dr. Lutz=s opinion that the employee was Aunable to obtain any substantial gainful activity at the present time.@ As a result of the recent diagnostic injections, Dr. Lutz recommended lumbar medial branch rhizotomies in hopes of providing the employee with more long-term relief. He indicated that, until those medial branch rhizotomies were completed, the employee=s work status would not change. On August 15, 2006, Dr. Lutz performed on the employee=s back a A[b]ilateral L4, L5, dorsal ramus L5 medial branch rhizotomy under fluoroscopic guidance.@
On September 22, 2006, the employee was seen in consultation by neurosurgeon Dr. Margaret Wallenfriedman, on referral from the employee=s family physician, Dr. Paul Chlebeck. Dr. Wallenfriedman reviewed the employee=s history, performed an examination, and reviewed an MRI of the employee=s lumbar spine. Dr. Wallenfriedman recommended flexion/extension lumbar spine films to detect possible instability and suggested a bone scan to look for any areas of inflammation that might be good targets for injections.
On September 29, 2006, Liberty Mutual filed a Rehabilitation Request, seeking to terminate the employee=s rehabilitation plan on the ground that there was no new and distinct injury on June 21, 2005, for which rehabilitation was owed.
The employee was seen by orthopedist Dr. John Dowdle on November 8, 2006. In the history provided to Dr. Dowdle, the employee indicated that she had had back pain since an injury at work in April of 1980. Dr. Dowdle reviewed the employee=s MRI scan, as well as the bone scan requested by Dr. Wallenfriedman. He noted that, other than scoliosis, there was no abnormality evident on that scan. Dr. Dowdle diagnosed mechanical low back pain with significant depression, and he recommended a discogram to determine if the employee=s pain and discomfort could be traced to an isolated level of her spine.
Dr. Lutz performed a four-level lumbar discography on December 4, 2006, and the employee discussed the results with Dr. Dowdle the following week. On December 12, 2006, Dr. Dowdle indicated that the employee had a positive discogram at the lower four levels of her spine. He recommended that she be evaluated at Medical Advanced Pain Clinic [MAPS] to see if doctors there could manage her pain with longer-acting pain medication. He thought that she would be a candidate for Methadone or other medications. Dr. Dowdle indicated also that, if the employee could get her pain to a more reasonable level, she would be a candidate for returning to light-duty work. If medication proved ineffective, the employee, he concluded, Awould be a candidate for being permanently and totally disabled.@
On December 13, 2006, the employee was examined at the request of the employer and CNA by orthopedist Dr. Mark Friedland. After performing a physical examination and reviewing the employee=s medical records, Dr. Friedland offered the following diagnoses: (1) A[r]ight lumbar scoliosis@; (2) A[m]ild age appropriate lumbar degenerative disc disease and facet arthrosis@; (3) A[o]bjective [sic] symptomatology far in excess of objective findings on physical examination or radiographic studies possibly due to chronic depression@; and (4) [f]ibromyalgia and osteo vs. inflammatory arthritis.@ Dr. Friedland did not believe that the employee had sustained any significant injuries to her lumbar spine as a result of her work activities or alleged specific injuries with the employer. He indicated also that the employee Ahas been diagnosed either as having low grade inflammatory arthritis, osteoarthritis and/or fibromyalgia over the years by her rheumatologist which certainly can contribute to symptomatology that is not associated with any injury or work activities.@ He did not believe the that employee had sustained any permanent partial disability under the permanent partial disability schedules. Dr. Friedland opined that the employee=s care had been excessive, particularly with respect to the multiple injections of the spine that had been performed over the years. In view of her longstanding history of fibromyalgia, osteoarthritis, and/or low grade inflammatory arthritis, Dr. Friedland recommended a general precautionary restriction against lifting more than fifty pounds.
The employee=s claim for benefits came on for hearing before a compensation judge on February 6, 2007. Issues presented for determination by the judge included the following: (1) the nature and extent of the March 1, 1980, November 28, 1985, February 6, 1989, and June 21, 2005, injuries; (2) the employee=s entitlement to temporary total disability benefits continuing from December 13, 2005; (3) whether the employee=s injuries were temporary and had now resolved; (4) whether the employee had conducted a diligent job search; (5) whether the employee had removed herself from the job market; (6) whether disputed medical expenses were reasonable, necessary, and causally related to the injuries; and (7) whether rehabilitation services should be terminated.
In a findings and order issued April 16, 2007, the judge found that the employee=s 1985, 1989, and 2005 injuries were temporary aggravations of a permanent low back problem related to the employee=s March 1, 1980, work injury. That injury, he found, had resulted in a chronic lumbar strain superimposed on multilevel degenerative disc and facet disease and mild scoliosis. He found that the 2005 temporary aggravation ended by December 13, 2005, the date of Dr. Vorlicky=s exam. At finding 23, the judge found:
The employee=s disputed medical treatment since December 13, 2005--as specifically related to the low back condition (including pool therapy)--has been reasonable and necessary in connection with her work injury. Any treatment related to osteoarthritis and fibromyalgia (including the treatment at Bodyworks) is not causally related to the admitted injury and not compensable.
And at finding 21, the judge found:
Since December 13, 2005 the employee has been disabled due to a number of nonwork-related factors. The employee=s 1980 work injury has not been a substantial contributing factor in her wage loss since that date. The employee has not conducted any job search and has essentially removed herself from the labor market. Temporary total disability benefits are not payable from December 13, 2005 to the date of hearing. The employee is currently not eligible for rehabilitation services.
The employee appeals.
STANDARD OF REVIEW
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). 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. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
The employee has appealed from the compensation judge=s finding that, since December 13, 2005, the employee has been disabled due to a number of nonwork-related factors and from the judge=s finding that the employee=s 1980 work injury has not been a substantial contributing factor in her wage loss since that date. The employee argues that there is no dispute that she has remained totally disabled since December 13, 2005, and that there is no evidence in any of the medical records, including the opinions of Drs. Vorlicky and Friedland, indicating that she is off work as a result of nonwork-related conditions. She contends further that the overwhelming weight of the evidence, including her own testimony and the records of her treating physicians, clearly points toward her work-related injuries as the cause of her ongoing disability. As such, she argues, the judge=s denial of benefits, based as it is on the supposed existence of unspecified nonwork-related factors, is unsupported by substantial evidence and should be reversed. The employer and insurers argue, in response, that substantial evidence, including records of the employee=s treatment for fibromyalgia, depression, and either osteoarthritis or inflammatory arthritis, supports the judge=s finding that the employee has been disabled due to nonwork-related factors since December 13, 2005. We believe, however, that the question here is not whether nonwork-related factors contribute to the employee=s disability but whether the employee=s 1980 work injury is a substantial contributing factor in her wage loss since December 13, 2005. Because the judge=s findings on this issue are arguably inconsistent, we vacate specifically Finding 21, and we remand the matter to the compensation judge for reconsideration and further findings.
We note first that, at Finding 3, the judge characterized the employee=s 1980 work injury as Aa chronic lumbar strain superimposed on, multilevel degenerative disc and facet disease, and mild scoliosis.@ Then, at Findings 10, 13, and 16, he found the employee=s 1985, 1989, and 2005 low back injuries to be temporary aggravations of the employee=s Acontinuing@ or Apermanent low back problem related to the March 1, 1980 work injury.@ Following the employee=s June 21, 2005, injury, the judge clearly identified the 1980 work injury as a Apermanent@ injury. Then, while finding the effects of the 2005 injury to have ended by December 13, 2005, the judge nevertheless awarded payment of substantial medical expenses incurred after December 13, 2005, finding, at Finding 23, that treatment specifically related to her low back condition had been reasonable and necessary in connection with her 1980 injury. The judge=s award of substantial medical treatment expenses related to the employee=s permanent 1980 work injury would appear, on the surface at least, to be at odds with his finding that the 1980 injury has not been a substantial contributing factor in her wage loss since December 13, 2005. Some explanation for this apparent inconsistency is required.
We note also that, while finding that the employee has failed to conduct a reasonable job search and has essentially removed herself from the labor market, the judge made no findings as to whether the employee=s work injury resulted in any restrictions or whether the employee has ever been released to work within such restrictions. The judge=s findings as to the employee=s job search efforts would also appear to be at odds with the judge=s finding that the employee has been Adisabled@ since December 13, 2005.
The judge in this case has been confronted with a lengthy and complicated medical history. We are unable either to affirm or to reverse the judge=s decision based on the current findings and order. We therefore vacate specifically Finding 21, and we remand the matter to the compensation judge for reconsideration and additional findings necessary to clarify his decision. The judge may find it helpful to delineate the reasons for his decision in a memorandum. Either party may, of course, appeal from the judge=s decision on remand.