TONY C. VICK, Employee/Appellant, v. NORTHERN ENGRAVING CORP., and SENTRY INS. GROUP, Employer-Insurer, and EMPI, and GUNDERSEN CLINIC, LTD., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 30, 2007
PRACTICE & PROCEDURE - MATTERS AT ISSUE; APPEALS - SCOPE OF REVIEW. Where the employee did not address in his brief the specific finding from which he had appealed pertaining to one injury date, and where no other injury dates had been identified at hearing as being at issue, there was no basis for concluding that the judge erred in her decision by failing to consider other injury dates.
Determined by: Pederson, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Janice M. Culnane
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Appellant. Brian J. Holly, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s denial of his claim for medical treatment expenses. We affirm.
Tony C. Vick [the employee] began working for Northern Engraving Corporation [the employer] in 1980. On June 9, 1992, the employee was lifting a conveyor at work and injured his low back. The employer and its workers= compensation insurer accepted liability for the injury, and the employee was off work for about ten weeks. The employee was thirty-one years old at the time and was earning a weekly wage of $323.60.
Following his injury, the employee was treated conservatively at the Gundersen Clinic in LaCrosse, Wisconsin. An MRI of the lumbar spine performed in late June 1992 showed a herniated disc on the left side at L4-5. On August 18, 1992, the employee=s treating physician, Dr. James Williams, noted that the employee=s radiculopathy had resolved with conservative treatment. The employee was found to be asymptomatic, and he was released to return to his usual job at full capacity.
On November 12, 1992, the employee returned to see Dr. Williams for a final evaluation. He reported on that date Asome occasional back and left lower extremity discomfort which is not in any way limiting.@ Dr. Williams concluded that the radiculopathy related to employee=s herniated L4-5 disc was essentially resolved, and he rated the employee=s permanent partial disability at 9% under Minnesota Rules 5223.0070, subpart 1(B)(1)(a).
In late 1994, the employee and the employer and insurer entered into a full, final, and complete settlement of all claims for workers= compensation benefits arising out of the June 9, 1992, injury except for reasonable, necessary, and causally related medical expenses.
The employee continued working for the employer, and on September 8, 2003, he again injured his low back. The employer and insurer admitted liability for the injury, and the employee was off work for sixteen weeks. On the date of the injury, the employee was evidently earning a weekly wage of $509.16. The employee sought treatment initially at the Gundersen Clinic and Gundersen Lutheran Medical Center, where he was initially seen by Dr. Glenn McCarty on September 12, 2003, complaining of pain in his left lumbar region that radiated into the left hip and buttocks and down the leg into his calf. An x-ray of the lumbosacral spine was read as showing mild spondylosis at L4, and, under a diagnosis of low back pain syndrome with radiculopathy down the left leg to the mid distal calf, Dr. McCarty took the employee off work and prescribed narcotic analgesics and muscle relaxants.
On September 17, 2003, the employee returned to see Dr. McCarty to review the results of a lumbar MRI performed the previous day. Dr. McCarty reported that the MRI showed dislocation of the L4 disc with associated broad-based annular bulging resulting in relative narrowing of the central canal at this level. In addition, it showed a superimposed left-side focal disc protrusion at the L4-5 interspace, which compressed the proximal left L5 nerve root. The doctor recommended that the employee continue with physical therapy and made a referral to Neurosurgery at Gundersen Lutheran Medical Center.
The employee was seen in consultation on October 10, 2003, by neurosurgeon Dr. Walter Faillace, whose assessment was Adisabling sciatica that has not responded to conservative therapy secondary to a midline and left lateral disc herniation at L4-5.@ The doctor offered the employee the option of continuing conservative therapy or undergoing a left hemilaminectomy and discectomy. The employee elected to proceed with the surgery. On November 13, 2003, the employee underwent a left L4 hemilaminectomy and left L4-5 discectomy and exploration of the L3-4 interspace, which Dr. Faillace reported was indicated based on the employee=s disabling left leg sciatic pain.
The employee was seen in follow-up by Dr. Faillace on November 25, 2003. At that visit, the doctor noted that the employee was expected to return back to work on January 2, 2004. Until that date, however, the employee was to remain restricted to ten pounds lifting and was to avoid activities of twisting, turning, bending, pushing, or pulling. About two weeks later, on December 11, 2003, the employee contacted Dr. Faillace=s office to obtain clarification of restrictions upon his return to work. Through his nurse, Dr. Faillace replied that no work restrictions would be necessary, and that same response was apparently communicated to the employer.
On January 2, 2004, the employee was seen again by Dr. McCarty, who noted that the employee was no longer on medication and was doing well, and he therefore released the employee to return to work without restrictions. On January 26, 2004, Dr. McCarty completed a Health Care Provider Report, indicating that the employee had reached maximum medical improvement [MMI] with regard to his September 8, 2003, injury, having sustained no permanent partial disability.
On Friday, February 20, 2004, the employee was performing maintenance on a molding press that required him to crawl inside the press. He subsequently reported to the employer that he experienced pain in his left lower back and hip as a result of this activity, and the employer completed an internal accident investigation report form. The employee evidently did not seek medical treatment but instead took a couple of days off to rest and then returned to his usual job.
The employee was next seen by Dr. McCarty on July 8, 2004, when he reported that, since his return to work in January 2004, he had been experiencing episodic pain in his lower back with referral down his leg. Dr. McCarty recommended an evaluation by a physiatrist, and he gave the employee a prescription for pain medication.
The employee was examined by physiatrist Dr. Brenda Dierschke on September 14, 2004. On that date, the employee complained of discomfort or stiffness in his low back area, stiffness in his left knee, and numbness in both feet. He attributed the onset of these symptoms to his 2003 work-related injury. The employee reported to Dr. Dierschke that he had sustained a low back injury in 1992 but that that injury had resolved in about two months and he had then returned to work full time and had not had any symptoms in the affected area until his injury in 2003. The employee also reported to Dr. Dierschke an incident at work in early 2004, for which he had filled out an incident report. With regard to causation for the employee=s current complaints, Dr. Dierschke stated, A[w]ith a reasonable degree of medical certainty and with the information available to me, it is difficult to say that the patient=s current symptoms are related to the August [sic] 8, 2003, injury.@ She noted also that some different options in regard to further evaluation and treatment for the employee=s current symptoms had been discussed, that samples of Ultracet had been provided to him, and that he had been released to return to work full time without restrictions.
The employee continued working for the employer and was next seen for medical treatment by Dr. McCarty=s physician=s assistant, Angela House, on June 13, 2005. The employee reported to Ms. House that he had back pain in the location of his surgical scar. He denied any recent injury. He reported that he had been on vacation the previous week but was unable to pinpoint what may have exacerbated the pain. Ms. House assessed back pain, took the employee off work, and prescribed medications until he could be seen by Dr. McCarty again in two days.
When he saw Dr. McCarty on June 15, 2005, the employee advised the doctor that he had reinjured his back at work but was having difficulty getting workers= compensation coverage, implying to the doctor that he must have been discharged too early after his surgery. Dr. McCarty acknowledged that he had discharged the employee for the condition that had necessitated his surgery in 2003, but he explained to the employee that it was his impression that the employee=s current symptoms were related to a new injury that should be reported to his employer and covered separately by workers= compensation. Dr. McCarty diagnosed low back pain secondary to strain and muscle spasms, and he prescribed low back exercises and medication. Later that day, Dr. McCarty discussed the employee=s case by telephone first with an industrial medicine specialist and then once more with the employee. In a telephone note on that date, Dr. McCarty reiterated that a question had arisen as to whether or not the employee=s back pain was associated with the previous episode of back pain requiring surgery. Dr. McCarty=s opinion remained that it was not and that A[t]he back pain he is suffering from today was mostly spasm from strain of the paravertebral musculature. The previous back pain involved degenerative disc disease and herniated disc.@
The employee=s low back pain continued, and on June 27, 2005, he was seen by physical medicine and rehabilitation specialist Dr. Joseph Binegar. Dr. Binegar obtained a history of the employee=s 2003 injury and surgery, as well as of his episode of back pain following his work activities in February 2004. Dr. Binegar diagnosed low back and left lower extremity pain status post-surgery for a left L4-5 herniated disc. He recommended an MRI of the lumbar spine to be followed by two epidural steroid injections, and he released the employee to work at light duty with restrictions.
The employee received an epidural steroid injection on June 30, 2005, followed by a lumbar MRI on July 1, 2005, and a second epidural steroid injection on July 14, 2005. He returned to see Dr. Binegar in follow-up on August 2, 2005. The employee reported improvement following the injections, and, with regard to the employee=s MRI, the doctor noted that the employee had a congenitally small spinal canal with disc bulging at the L3-4 and L4-5 levels, resulting in some generally mild to moderate central canal stenosis bilaterally. Dr. Binegar diagnosed low back pain with pain into the lower extremity, secondary to the work injury that occurred in 2004. Stating further that to him it was not clear that the injury was Ain any way related to his injury of September 2003,@ Dr. Binegar recommended a work hardening program and released the employee to light-medium duty with restrictions.
The employee returned to see Dr. Binegar about six weeks later, on September 15, 2005. The doctor noted that, since his last visit, the employee had been involved in a work hardening program. The work hardening therapist had reported that the employee had worked very hard in the program and had plateaued with his physical activities. Dr. Binegar again diagnosed low back pain, which he related to an injury that had occurred in January or February of 2004. He did not believe that it was related to the employee=s injury of September 2003. About a week later, on September 21, 2005, the employee saw Dr. Binegar regarding a flare-up of his low back pain, with some radiation into both lower extremities. Dr. Binegar recommended a third epidural steroid injection and a course of physical therapy. The employee opted to defer the physical therapy. When he saw Dr. Biniger again about a month later, on October 24, 2005, the employee reported that the epidural injection had helped only temporarily. He continued to have pain primarily in the back, with some radiation of the pain into bilateral lower extremities, more severe on the left than on the right. The employee also advised the doctor that he had recently been laid off from his job. In view of the employee=s continued complaints, despite conservative treatment, Dr. Binegar recommended a consultation with a neurosurgeon. The employee did not return to the Gundersen Clinic following this visit.
On November 28, 2005, the employee was examined by Dr. Keith Bengston at the Mayo Clinic Spine Center. Dr. Bengston obtained a history, performed an examination, and reviewed the employee=s lumbar MRI from July 1, 2005. Dr. Bengston diagnosed mechanical low back pain with elements of L4-5 central stenosis, as well as facet degenerative joint disease. Treatment options were discussed with the employee, and Dr. Bengston decided upon a course of physical therapy directed toward lumbar flexion. After attending four physical therapy sessions, the employee was discharged from therapy on December 21, 2005, and was advised to continue gentle range of motion exercises as tolerated. The employee was seen on December 29, 2005, in follow-up by Dr. Bengston, who prescribed a trial of neuromodulatory medication, which subsequently proved ineffective. On February 13, 2006, Dr. Bengston concluded that the employee had reached MMI with a whole-body impairment rating of 13% under Minnesota Rules 5223.0390, subpart 4C(4), based on the employee=s previous two-level discectomy, radicular symptoms, and objective findings of muscle spasms. Dr. Bengston diagnosed mechanical low back pain, L4-5 central stenosis, and status post L3 and L4 discectomies, and he prescribed Vicodin tablets to hold the employee over until he established a relationship with a primary care physician.
In April 2006, the employee filed a Medical Request, seeking payment of medical bills incurred subsequent to July 2004 as a result of the employee=s personal injury of September 8, 2003. Medical expenses claimed included bills for treatment at the Gundersen Clinic, Gundersen Lutheran Medical Center, Caledonia Care and Rehabilitation, Mayo Clinic, and EMPI, as well as out-of-pocket payment by the employee. The employer and insurer denied liability for the expenses claimed, and an administrative conference under Minnesota Statutes ' 176.106 was held on June 2, 2006. The record was held open for sixty days to allow notification to providers of their right to intervene.
On June 23, 2006, the employee was examined at the request of the employer and insurer by orthopedist Dr. John Dowdle. Dr. Dowdle obtained a history from the employee, performed a physical examination, and reviewed the employee=s medical records. In a report dated July 5, 2006, Dr. Dowdle diagnosed, in part, mechanical low back pain with a degenerative disc at L4-5, L5 radiculitis on the left, and status post lumbar laminectomy and disc excision at L4-5 on the left. With respect to the medical treatment at issue, Dr. Dowdle opined that it was related to temporary symptomatic flare-ups of the employee=s underlying degenerative disc condition.
On August 9, 2006, a mediator/arbitrator at the Department of Labor and Industry issued a Decision and Order Pursuant to Minnesota Statutes ' 176.106, determining that Ait has not been established that the need for the disputed treatment is causally related to the admitted 9/8/2003, work injury.@ On August 15, 2006, the employee filed a Request for Formal Hearing. In that Request, the employee asserted that the decision of the mediator/arbitrator was not supported by substantial evidence. He also asserted that A[t]he specialist failed to consider additional evidence of injuries.@ The dates of claimed injury listed on the Request for Formal Hearing included June 9, 1992, September 8, 2003, February 20, 2004, and June 17, 2005.
In a letter to the employee=s counsel on September 19, 2006, Dr. Bengston opined that the employee=s Ainitial injury in September of 2003, was a substantial contributing factor to his current problem and was also responsible for the subsequent medical care that he has received here at Mayo Clinic.@
The employee=s claim for payment of his outstanding medical expenses came on for hearing before a compensation judge on September 27, 2006. At hearing, evidently following a pretrial conference held off record, the sole issue identified by the compensation judge for determination by her was whether the employee=s admitted injury of September 8, 2003, was a substantial contributing factor in the employee=s need for medical treatment beginning in July 2004, and the parties identified no other issue. The judge was not asked to determine whether the employee=s medical treatment was caused or contributed to by the admitted injury of June 9, 1992, or by subsequent injuries or flare-ups alleged to have occurred in 2004 and 2005. When the judge asked on the record, after clarifying the date of the 2003 injury, whether she had fairly characterized the issue before her, counsel for both parties agreed that she had. Both sides then presented rather lengthy opening statements for the judge. Although counsel for the employee referenced in his opening statement his listing of other injury dates on an Amended Medical Request and the Request for Formal Hearing, he indicated his understanding that neither the employee=s flare-up in February 2004 or his reported injury in June 2005 had Aanything to do with@ the claim before the judge.
In a Findings and Order issued October 27, 2006, the judge concluded that the employee had failed to sustain his burden of proving that his work-related injury of September 8, 2003, was a substantial contributing factor in his need for the medical treatment at issue. 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).
At hearing, despite other injury dates listed on the Request for Formal Hearing, the sole issue presented to the compensation judge for determination was whether the employee=s admitted injury of September 8, 2003, was a substantial contributing factor in the employee=s need for medical treatment beginning in July 2004. The judge was not asked to determine whether the employee=s medical treatment was necessitated to any degree by the injury of June 9, 1992, or by subsequent injuries alleged to have occurred in 2004 and 2005. The AStatement of Issues@ set forth in the judge=s Findings and Order issued October 27, 2006, is consistent with the judge=s discussion with the parties on the record.
At Finding 5 of her Findings and Order, the compensation judge determined that Athe employee failed to sustain his burden in proving the work-related injury of September 8, 2003, was a substantial contributing factor in the need for the medical treatment claimed.@ The judge=s finding is more than amply supported by the opinions of Drs. McCarty, Dierschke, and Binegar. In his notice of appeal, the employee appealed from Finding 5, asserting in part that the judge=s decision was not supported by substantial evidence. In his brief on appeal, however, the employee offered no argument in support of his appeal from that finding. Instead, the employee argues that A[t]he compensation judge erred by not considering evidence of other admitted injuries, and their responsibility for treatment which was stipulated to be reasonable and necessary.@ The employee asserts that the judge should have considered whether the claimed treatment was related to the admitted injury of June 9, 1992, or to the alleged injuries in 2004 and 2005. We are unpersuaded by this argument.
At the hearing, the compensation judge specifically asked the parties whether she had properly characterized the issue being litigated and the injury date at issue. Both parties acknowledged that the judge had correctly identified the issue and injury date she was to consider. The judge=s statement of the issue was made after the parties had apparently pretried the case off the record. We have carefully reviewed the record in this matter, and we conclude that the parties were not litigating liability for any alleged flare-ups in 2004 or 2005, nor, given the employee=s counsel=s remarks in his opening statement to the court, does it appear that the employee was asserting that these flare-ups were in any way compelling of the disputed treatment.
Because the judge appears to have reasonably addressed the issue presented to her, and, because no other dates were identified as being at issue for her consideration, we find no basis for concluding that the judge erred by failing to consider other injury dates. See Malinoski v. North American Cable Sys., slip op. (W.C.C.A. Dec. 14, 1989) (an issue raised for the first time on appeal is not properly before the court and will not be addressed). Accordingly, the decision of the compensation judge is affirmed.