DIANE FOLSOM, Employee/Appellant, v. CUSTOM PRODUCTS OF LITCHFIELD, INC., SELF-INSURED/MEADOWBROOK CLAIMS SERVS., Employer, and HUTCHINSON AREA HEALTH CARE, COKATO CHIROPRACTIC, P.A., and INSTITUTE FOR LOW BACK AND NECK CARE, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 17, 2008
CAUSATION - TEMPORARY INJURY. Substantial evidence supports the decision of the compensation judge that the employee’s work injury was temporary and had resolved.
Determined by: Stofferahn, J., Rykken, J. and Pederson, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Diane P. Folsom, pro se Employee. Patrick W. Ostergren, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s decision that she did not sustain a work injury to her neck or anything other than a temporary injury to her right shoulder on July 3, 2002. The employee also appeals various other determinations made by the compensation judge. We affirm.
Diane Folsom went to work for Custom Products of Litchfield in 1977 or 1978. The company produces tractor cabs and for most of the time she was employed there, Ms. Folsom worked as a spray painter. The employee claims she sustained a work injury to her neck, right shoulder and right chest on July 3, 2002.
The employee had a history of right shoulder problems before 2002. In January 1989, she saw Dr. David G. Detert with complaints of pain for several months which she related to her work as a spray painter. The exam on that date was reported as normal and Dr. Detert diagnosed myosotis and possible tendonitis. She received two sessions of physical therapy in January and February, 1989. She did not treat again for her shoulder until October 1993, when she saw Dr. Detert again and was diagnosed as having right bicipital tendonitis. Subsequent medical appointments with Dr. Detert in 1994, 1996, and 1997 also involved right shoulder and chest discomfort. Dr. Guy at Dr. Detert’s clinic saw the employee and diagnosed right pectoralis strain and tendonitis. In follow-up appointments as late as February 1999, Ms. Folsom was noting discomfort in her back and shoulder.
The employee testified that on July 3, 2002, she had to sand some cabs that had already been painted. Apparently there was a problem with the first paint job and the initial coat needed to be removed. The employee used a hand sander and stated that she was under some pressure to get the job done quickly. As she was doing this work, Ms. Folsom noted pain in her right shoulder.
The employee went to see Dr. Detert with right shoulder complaints on July 15, 2002. His examination of her was normal, except for minimal pain with range of motion testing. Dr. Detert assessed mild tendonitis of the right shoulder and recommended the use of ice, Bextra, and no overhead work for two weeks. When she returned to see Dr. Detert on July 31, the employee’s examination was normal and he diagnosed, “infrascapular myositis - significantly improved.” Dr. Detert decided to keep her on light duty for two more days and then released he to “full-time activity.” The employee testified that her right shoulder pain never went away completely.
In November 2002, the employee returned to Dr. Detert with complaints of soreness in her right shoulder. Dr. Detert assessed tendonitis and recommended ibuprofen and the use of ice.
The employee continued to do her usual job with Custom Products until she was terminated in December 2002. The employee had prepared and maintained a notebook which contained information about paint mixtures. The employee claimed ownership of the paint book and was terminated for insubordination when she refused to turn it over to her supervisor. She was off work until May 2003, when the employee found a job with a new employer.
In August 2003, the employee had an MRI of her right shoulder at Dr. Detert’s direction. It was read as being “essentially normal.” On October 17, 2003, Dr. Detert sent a report in response to letters from an attorney for Ms. Folsom. Dr. Detert stated that the employee had tendonitis/bursitis without any underlying structural damage. He stated in his report that he did the MRI to substantiate this fact and he concluded there was no permanent partial disability. Finally, he stated, “given the lack of findings on her examination, I do not think that additional therapy or consultation would provide any additional benefit to her.”
The employee saw Dr. Detert in May 2004, for right anterior chest soreness which had been present for five days and which was worse with some lifting. She received medication and a light work recommendation. In August 2004, she saw Dr. Pamela Brett and stated she had right shoulder and anterior chest discomfort since 2002. Dr. Brett found “sprain/strain overuse syndrome to the anterior chest wall, pectoralis muscle” and possible myositis.
In November 2004, the employee went to work at Bobcat, where she first drove a forklift and then became an assembly line worker. Ms. Folsom worked a full-time schedule with ten to fifteen hours of overtime each week. The parts she handled weighed up to fifteen pounds.
The employee apparently had six sessions of physical therapy in November 2004, at the direction of Dr. Brett. When she saw Dr. Brett in June, 2005, she stated she was having no difficulty with her job at Bobcat, but still had some slight anterior pectoralis pain. In a letter of July 7, 2005, Dr. Brett recommended a functional capacity evaluation to determine a possible home exercise program and physical therapy which would return Ms. Folsom to “full and unrestricted employment.”
A claim petition was filed on behalf of the employee in September 2005, seeking wage loss benefits and payment of medical bills, all of which were alleged to be the result of the July 3, 2002, work injury. The employer answered and denied an injury had occurred at that time and denied liability for the employee’s claims.
The employee was evaluated by Dr. Mark E. Friedland on behalf of the employer on December 6, 2005. Dr. Friedland took a history from Ms. Folsom, reviewed her records, and performed an examination. It was his opinion that, at most, the employee had sustained a strain of the right pectoralis muscle on July 3, 2002, which had resolved by October 17, 2003, the date of Dr. Detert’s letter. Dr. Friedland concluded that Ms. Folsom had no permanent partial disability, required no work restrictions, and needed no medical treatment for her work injury after October 17, 2003. Further, he did not believe the employee required a functional capacities evaluation.
In March 2006, the employee consulted a physician’s assistant at Hutchinson Area Health Care with symptoms of right shoulder discomfort. She provided a history of the pain having started a week previously and referred to her job at Bobcat which required “torquing” with wrenches while tightening nuts and bolts. She also mentioned an overuse injury about three years ago which was “still unresolved.” Chiropractic care was recommended.
Ms. Folsom apparently saw Dr. Seth Isaacson at Cokato Chiropractic Center on March 30, 2006. In a report of September 28, 2006, Dr. Isaacson diagnosed “segmental dysfunction thoracic spine and muscle spasm” and attributed this condition to her July 2002, work injury. Dr. Isaacson recommended continued chiropractic care to “maintain and control flare ups of her condition.”
In November 2006, the employee returned to Hutchinson Health Care for “follow-up” of her neck and shoulder pain. No treatment was provided at that time. The employee also went to the Institute for Low Back and Neck Care in November 2006, for an evaluation for what was described as “right-sided neck pain with radiation into her right shoulder.” She provided a history that since her 2002 injury she had right-sided neck pain with radiation into her right shoulder. Her examination was normal except for some reported tenderness in the right paracervical muscles. No treatment was provided, although an MRI was recommended.
The MRI was done in December 2006. It was read as showing “minor degenerative disc disease at C4-C5, and C5-C6” and “minor annular bulge C3-C4 and C6-C7.” When the employee returned to the Institute for Low Back and Neck Care on June 23, 2007, Dr. Erik J. Ekstrom recommended a cervical therapeutic steroid injection and stated that her work as a painter “may” have caused her symptoms. The employee reported improvement in the cervical symptoms from the injection, but had continued right shoulder pain. Dr. Ekstrom recommended a steroid injection into the shoulder.
The employee’s claim petition was heard by Compensation Judge Peggy A. Brenden on May 17, 2007. The employee was not represented by an attorney at the hearing. In Findings and Order issued May 31, 2007, the compensation judge determined that the employee had a strain injury to her right chest and shoulder which resolved by October 17, 2003, that the employee did not sustain an injury to her neck on July 3, 2002, that she was not entitled to wage loss benefits, and that the medical care provided after October 17, 2003, was not due to her work injury. The employee has appealed.
Standard of Review
This court’s authority to review a compensation judge’s decision is set by state law as passed by the legislature and as determined by the Minnesota Supreme Court. Our task is to consider whether there is substantial evidence to support the compensation judge’s decision. If substantial evidence exists, this court will affirm the decision. We consider then in the present case, whether substantial evidence exists in the record to support the compensation judge’s conclusions on the issues raised by the employee. Minn. Stat. § 176.421; Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
The employee claimed at the hearing that she injured her neck or cervical spine in July, 2002. The compensation judge denied the claim. A review of the medical records indicates that the employee mentioned no symptoms of neck or cervical problems to her doctors in 2002 or at anytime before Dr. Isaacson’s report in September 2006. While Dr. Isaacson identifies the 2002 injury as a source of the employee’s spinal problems, it appears this is based on an incorrect or incomplete history that did not reference any of the employee’s shoulder and chest problems before 2002 and did not refer to the “torquing” activity at Bobcat in the spring of 2006 to which the employee attributed her symptoms at that time. We believe the gap of four years between the employee’s injury in 2002 and the reference to a cervical problem in 2006 is support for the compensation judge’s determination on this issue.
The compensation judge found in her decision that the employee had sustained an injury to her right shoulder and chest in 2002, but that this injury was temporary and resolved by October 17, 2003, when Dr. Detert sent his report to the attorney then representing the employee. Before that date, the employee had seen Dr. Detert twice in July 2002, and in the last of those appointments, Dr. Detert’s examination was normal and the employee reported that she was 80% better. She was released to full work activity at that time and there is no evidence that the employee had to limit her work activity at any time thereafter because of her shoulder problems. She saw Dr. Detert in November 2002, for shoulder soreness, but did not connect that to any injury. Further the MRI done in August 2003, was normal.
The employee complained of right shoulder pain after October 2003, and identified the July 2002 injury as the cause of those symptoms. However, the symptoms the employee had in 2002 were not substantially different than those she experienced in 1989, 1993, 1994, 1996, or 1997. There is no evidence that he sanding on July 2002 changed the employee’s right shoulder condition.
Finally, the compensation judge’s decision on this issue is supported by the opinion of the IME, Dr. Mark Friedland. As might be expected, the employee disagrees with Dr. Friedland’s conclusions and she is particularly unhappy with Dr. Friedland identifying her as 58 when she is ten years younger. Despite that error, Dr. Friedland had a sufficient basis or foundation for his conclusions from his review of the employee’s medical records and from his examination of her. We have held in other cases that a medical opinion with the necessary foundation may serve as a basis by itself for a decision by a compensation judge on an issue such as this. Heitland v. R.O. Drywall, slip op. (W.C.C.A. Apr. 5, 2005).
In almost every workers’ compensation claim, there is disagreement over medical issues with doctors taking different positions. It is the job of the compensation judge to carefully review the competing opinions. The compensation judge in this case carefully reviewed the medical evidence and her choice of medical opinion is affirmed by this court. The compensation judge’s decision on this issue is affirmed.
The employee’s claim petition asked for temporary total and temporary partial disability benefits for a period of time after she stopped working for Custom Products of Litchfield, Inc. In order to receive disability benefits, however, an employee must show more that a wage loss. She must also prove that her work injury is a factor in either being unable to find work or in working at a lower wage than at the time of injury. There is no evidence that the July 2002 injury was a reason for the employee’s wage loss. The employee worked for four months after her injury at her regular job with no wage loss, her termination was not related to her work injury and there was no testimony that her work injury affected her ability to find work. The compensation judge’s decision on this point is affirmed.
In her various filings, the employee expresses concern about the intervention claims of her healthcare providers, arguing that she has gone through bankruptcy and has no personal liability for these bills.
The workers’ compensation law allows healthcare providers to join in an employee’s claim in order to receive payment for their bills from the employer and insurer if the employee is successful. That process, known as intervention, has nothing to do with any obligation that employee might have to a healthcare provider, and the compensation judge’s decision in this case as to the intervenor’s claims does not affect the employee.
An additional point on this issue should be made, however. In her appeal, the employee refers to additional medical treatment, and appears to be of the belief that this treatment is related to her July 2002 work injury. In her decision the compensation judge concluded that the 2002 injury was a temporary injury which was resolved as of October 17, 2003, and specifically held that no medical expense after October 17, 2003, was payable by the employer. Medical expenses that the employee incurs after October 17, 2003, are not the responsibility of Custom Products of Litchfield, Inc., and the employee should be aware of that fact.
The employee argues that her termination from Custom Products of Litchfield, Inc., in December 2002, was unfair because her supervisor acted inappropriately and because the paint book was her personal property and did not have to be turned over to the employer. The compensation judge did not determine that the employee was barred from receiving workers’ compensation benefits because of her termination. Beyond that, the question of competency or motivation of a supervisor is not the business of this court.
We find substantial evidence to support the compensation judge’s decision in this case. Her decision is affirmed.