WAYNE DONALD, Employee/Appellant, v. ROYAL TIRE, INC., and FEDERATED MUT. GROUP, Employer-Insurer, and METROPOLITAN NEUROSURGERY, NEUROLOGY SPECIALISTS, NORTHSIDE CHIROPRACTIC CLINIC, METROPOLITAN HEALTH PLAN, MINNESOTA DEP’T OF HUMAN SERVS./BRS, THE WINKLEY CO., and HCMC/J.C. CHRISTENSEN, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 22, 2008
CAUSATION - TEMPORARY INJURY. Substantial evidence in the form of a medical opinion with adequate foundation supports the compensation judge’s determination that the employee’s work injury was temporary and had resolved two weeks after the injury.
Determined by: Stofferahn, J., Wilson, J., and Johnson, C.J.
Compensation Judge: Catherine A. Dallner
Attorneys: Mark B. Sarenpa and Charles A. Beckjord, Attorneys at Law, Roseville, MN, for the Appellant. Ryan J. Courtney, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s determination that the employee’s work injury was temporary and from the compensation judge’s resultant denial of claims for ongoing temporary total disability benefits and medical expenses. We affirm.
Wayne Donald, the employee, began working for Royal Tire, Inc., in July 2004 as a service technician. His primary duty was to fix flat tires, generally truck tires, for the employer’s clients. On December 4, 2006, just after entering the employer’s premises, the employee slipped on water on the floor of the bay where trucks were parked for tire work. He testified that both feet went out in front of him and he fell flat on his back and head. The employee said that he had immediate pain “all over.”
The employee was taken by ambulance to Hennepin County Medical Center (HCMC). On admission, he reported that he had slipped on water at work and then fell, injuring his low back. He also complained of left arm weakness and numbness. X-rays showed degenerative disc disease in the lower lumbar spine and no acute fracture. No acute fracture or dislocation was shown in cervical x-rays. The physician’s assessment was of low back pain and the employee was discharged with Vicodin for pain and a recommendation that he followup with his family doctor. The employee was also advised not to lift over one pound for a week.
The employee saw Dr. Jeffrey Meyer at Columbia Park Medical Group on December 5, 2006. He reported that he had slipped on water at work and fell backward, landing on his back, neck, and head. He told Dr. Meyer that he had gone to HCMC and had been given Vicodin, but that the medication had been of no help. He had constant pain from his posterior head down to his lumbar spine and radiating pain down the posterior of both thighs. Dr. Meyer found tenderness in the entire spine, but no spasm. The examination was otherwise normal. Dr. Meyer’s assessment was of “contusions of the head, neck and back with cervical thoracic and lumbar pain without radiculopathy.” Dr. Meyer excused the employee from work for one day, referred him to physical therapy, and refilled his Vicodin prescription.
On December 11, 2006, the employee saw Dr. Ronald Wahlberg. The employee told Dr. Wahlberg of his work injury and was given a prescription for Percocet.
The employee returned to Dr. Meyer on December 12, and reported that he had “constant excruciating pain in his low back and tail bone” but that his head and neck pain were better. The employee was using a cane because of his back pain and he said he could not walk upright because of the pain. The employee continued to use either a cane or walker from that time on. The employee also told Dr. Meyer there was no work for him at the employer if he could not lift truck tires. Dr. Meyer’s assessment of the employee’s condition did not change and he continued the employee’s Vicodin prescription. Dr. Meyer also allowed the employee to work with a restriction of no lifting over 10 pounds.
The employee returned to Dr. Meyer on December 19, 2006. He reported intermittent posterior headaches, constant aching, soreness in his neck and upper back, and constant low back pain, sharp at times with pain radiating down both legs to his feet. His legs had become weaker and gave out on him at times, causing him to fall. On exam, the employee had normal spinal curvature and spinal tenderness with no spasm. Dr. Meyer’s assessment remained head, cervical, thoracic, and lumbar contusion without radiculopathy and he noted the employee “has defused focal weakness in his lower extremities, and this does not fit any one neuromotor radicular pattern.” Dr. Meyer recommended an MRI and allowed the employee to work with a 10-pound lifting limit. The employee did not return to Dr. Meyer after this appointment.
On December 20, the employee began treating with a chiropractor, Dr. Greg Olson, to whom the employee had been referred by his attorney. In his report of July 31, 2007, addressed to the employee’s attorney, Dr. Olson stated his impression was of a “traumatic lumbar spine injury that will in all probability require surgery. He has traumatic spinal injuries throughout his spine.” Dr. Olson provided chiropractic care and also referred the employee to a number of providers. Dr. Olson took the employee off work completely. The employee has not returned to any type of work since that time. At Dr. Olson’s referral, an MRI was done on December 27, 2006, and was read as showing foraminal stenosis at L5-S1 and central stenosis at L4-5. No disc involvement was noted.
On December 29, 2006, the employee returned to HCMC for reevaluation of his complaints and for pain medication. The employee was given another prescription for Vicodin.
The employee was evaluated by a neurologist, Dr. George Adam, at the referral of Dr. Olson on January 8, 2007. Dr. Adam noted that the “neurological exam is relatively benign, so I would be inclined to treat him conservatively.” Dr. Meyer prescribed the use of a back brace and also prescribed prednisone, Soma, and Vicodin. On followup, Dr. Adam recommended an epidural cortisone injection, but the employee reported relief for only a couple of hours from the procedure. In his clinical note of January 31, Dr. Adam recommended another epidural injection and prescribed additional Vicodin.
In March 2007, the employee saw a neurosurgeon, Dr. Michael McCue, at Dr. Adam’s referral. An additional MRI was done on March 20, 2007 and showed disc protrusions with some contact with the nerve root at the L3-4 and L5 levels. After the MRI, Dr. McCue recommended a left L5 foraminotomy for decompression of the nerve root at that level.
In a report to the employee’s attorney on May 17, 2007, Dr. Adam stated,
Mr. Donald has a compressive lumbar radiculopathy. This is causally related to the injury on December 4, 2006. He has significant and progressive neurological deficit. In his current state he cannot work or even look after his personal needs adequately because he cannot stand or walk safely. His prognosis is poor if he is unable to get the necessary surgery. He may lose nerve tissue to such a degree that his strength, balance will be permanently affected.
Dr. Adam sent the employee for another neurosurgical consultation, this one with Dr. Greg Dyste on July 5, 2007, after Dr. McCue indicated an unwillingness to proceed with further care of the employee, apparently because of insurance coverage issues. Dr. Dyste’s impression was “there is nothing on the MRI scan that would perfectly explain his symptoms at this time. We did not see anything that would be likely to improve with surgery.” He was also given a prescription for Robaxin and physical therapy. There is no indication in the records that the employee ever had physical therapy.
The employee returned to Dr. Adam after his appointment with Dr. Dyste. Dr. Adam’s chart notes for August 13, 2007, indicate the employee continued to complain of back and leg pain and that he also had weakness and numbness in his left leg and tingling in his left hand. On exam, Dr. Adam noted that the employee was limping, but he found no weakness in the legs and reflexes were symmetric. There was also decreased sensation in the entire left leg and much of the right arm. Dr. Adam concluded by stating “Mr. Donald’s condition is not improving despite significant conservative treatment efforts (also 2 epidural injections at L5-S1). I am not quite sure what more I could suggest Wayne. He should see Dr. Monsein for a chronic pain evaluation.”
After his work injury, the employee came back to work for the employer for two or three days in December 2006. The employee was given light-duty work involving some sweeping, cleaning of the lunchroom, and doing some mailings. A representative of the employer testified at the hearing that there continued to be light-duty work available for the employee thereafter. The employee testified that he believed he was not able to work.
The employer and its insurer, Federated Mutual Group, accepted liability for the employee’s work injury but refused to pay temporary total disability benefits because they contended the employer had work for the employee within the employee’s restrictions. The employee filed a claim petition in February 2007, seeking payment of temporary total disability benefits. Subsequently, a rehabilitation request in which the employer and insurer sought discontinuance of rehabilitation services was consolidated with the claim petition for hearing.
During the pendency of the claim petition, the employee was evaluated by Dr. Richard Strand at the request of the employer and insurer on April 18, 2007. Dr. Strand’s conclusions were set out in his report of April 25, 2007. Dr. Strand’s diagnosis of the employee was multiple level degenerative disc disease and somatoform pain disorder. According to Dr. Strand, the degenerative disc disease was consistent with the employee’s age and he saw no evidence that there had been any acute or structural injury to the spine as the result of the fall. It was his opinion that the work injury of December 4, 2006, was a contusion to the mid and low back which was temporary and which would have resolved two weeks after the fall. Dr. Strand did not believe that the employee needed any treatment for his low back. He stated that his opinion on this point was based on the employee’s severe pain behaviors and his severe symptom magnification. Dr. Strand also concluded that the employee’s medical treatment had been excessive and had been based on the employee’s subjective complaints and pain behaviors.
The claims in this matter were heard by Compensation Judge Catherine Dallner on August 17, 2007. The record was held open until December 3, 2007 to allow for notice to potential intervenors and to allow intervention. In her findings and order of February 1, 2008, the compensation judge determined that the employee’s work injury of December 4, 2006 was a temporary injury that resolved after two weeks. The compensation judge awarded three days of temporary total disability benefits and limited medical expenses but otherwise denied the employee’s claims. The employer and insurer were allowed to discontinue rehabilitation services. The employee appeals.
On appeal, the employee argues that the decision of the compensation judge is not supported by substantial evidence when considering the record as a whole. The compensation judge adopted the opinion of the IME, Dr. Strand, in making her decision and the employee contends that Dr. Strand’s opinion was contrary to the clear weight of the evidence.
The parties agreed that the employee sustained a work injury on December 4, 2006 when he slipped and fell at work. The issue for the compensation judge to determine at hearing was whether that injury was a substantial contributing factor in the employee’s continuing symptoms. There are a number of statements in the medical records in which the history provided by the employee is that his symptoms began with his fall at work. However, there are only three medical opinions on the issue: the opinions of Drs. Adam and Olson, who found a causal relationship with the work injury, and the opinion of Dr. Strand, who concluded the work injury was temporary and not a factor in the employee’s continuing complaints.
The compensation judge adopted the opinion of Dr. Strand, finding that opinion to be more persuasive. We have stated previously that it is the province of the compensation judge to choose between competing medical opinions. Maricle v. Farmstead Foods, 67 W.C.D.29 (W.C.C.A. 2007). The decision of the compensation judge made on the basis of that choice is generally to be upheld if the opinion relied upon has adequate foundation. Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003); Voshage v. State (MNSCU), Winona State Univ., 65 W.C.D. 167 (W.C.C.A. 2004). The employee does not challenge the foundation for Dr. Strand’s opinion but instead argues that his opinion should not have been found persuasive because a number of his observations and comments were contrary to those of the employee’s treating doctors. We do not conclude any such comments require rejection of Dr. Strand’s opinion but, instead, go to the weight to be provided that opinion. Schulenburg v. Corn Plus, 65 W.C.D. 237 (W.C.C.A. 2005).
The compensation judge found Dr. Strand’s opinion to be more persuasive than those of Dr. Adam or Dr. Olson. We find substantial evidence in the record to support the compensation judge’s determination. In his treatment with Dr. Meyer, the employee’s complaints of low back pain with radiation of pain down both legs was not consistent with the findings on exam and with Dr. Meyer’s conclusion that the employee’s injuries were contusions to the spine. Dr. Meyer specifically stated that the employee’s lower extremity weakness did not fit a radicular pattern. On his first exam, Dr. Adam concluded the exam was “relatively benign.” Dr. Dyste’s conclusion was that surgery was not appropriate treatment for the employee’s condition. Dr. Strand’s examination and opinion were consistent with these records.
In contrast, Dr. Olson’s causation opinion stated that the employee had traumatic spinal injuries throughout his entire spine. There are no records which provide objective evidence to support that diagnosis. Dr. Adam’s causation opinion, in which he stated that surgery needed to be done to prevent deterioration of the employee’s condition, was contravened by his subsequent medical records in which he stated that he did not know what else he could do for the employee and recommended a pain clinic evaluation.
The compensation judge wrote a five-page memorandum in which she detailed the evidence in this case and discussed why she found the medical opinions and conclusions to be persuasive or unpersuasive. It is clear from her memorandum that the compensation judge carefully reviewed the evidence and the arguments made by the parties at the hearing. We find no basis in the employee’s appeal for reversal of the compensation judge’s determination.
The compensation judge’s decision is affirmed.
 Where Dr. Wahlberg practices or why the employee saw Dr. Wahlberg the day before his return appointment with Dr. Meyer is not explained in the record.