MICHAEL S. LOEFFELBEIN, Employee/Appellant, v. WRIGHT TREE SERV., INC., and CNA INS. COS., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 12, 2008
MAXIMUM MEDICAL IMPROVEMENT - MULTIPLE CONDITIONS. While substantial evidence supported the compensation judge’s determination that the employee had reached MMI from the effects of his shoulder injury, remand was required for a determination as to whether the employee was suffering from a psychological condition causally related to the shoulder injury, and, if so, whether the employee had reached MMI from the effects of that condition.
Affirmed in part, vacated in part, and remanded.
Determined by: Wilson, J., Rykken, J. and Stofferahn, J.
Compensation Judge: Catherine A. Dallner
Attorneys: Gregg B. Nelson, Nelson Law Office, Inver Grove Heights, MN, for the Appellant. Philip C. Warner, Law Offices of Jeffrey A. Magnus, Edina, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s decision allowing discontinuance of temporary total disability benefits on grounds that the employee reached maximum medical improvement from the effects of his work-related shoulder injury. We affirm in part, vacate in part, and remand the matter for further proceedings consistent with this opinion.
On November 15, 2005, the employee sustained a work-related injury to his left shoulder while employed as a tree trimmer by Wright Tree Services, Inc. [the employer]. The employee testified that he was fired the following day when he reported continued pain to his supervisor. He then called the employer’s corporate office to report the injury, and, after a brief investigation, the employer sent the employee to Brainerd Medical Center for treatment.
Over the next eighteen months, the employee was treated or evaluated by several physicians, including Dr. Paul Biewen, of Orthopedic Consultants; Dr. Michael Freehill, of Sports and Orthopaedic Specialists; and Dr. Orlando Charry, of Fairview Pain Management Center. Diagnostic tests of the employee’s left shoulder eventually revealed a torn labrum with associated chondromalacia, a “Bankart-like lesion,” and a “chronic-appearing Hill Sachs defect,” but there was no evidence of tendinopathy, rotator cuff tearing, or bursitis. During this period, the employee underwent extensive conservative treatment, including lengthy physical therapy, injections, and use of narcotic pain medication, but he continued to complain of severe, ongoing pain, and physicians began to note that his pain complaints were not consistent with physical findings.
In the spring of 2006, Dr. Biewen reported having spoken to Dr. Freehill, a shoulder surgeon, about treatment options. According to Dr. Biewen’s June 23, 2006, report, Dr. Freehill “definitely is not recommending surgical intervention or shoulder manipulation with the concern that [the employee’s] pain would become more severe.” By late 2006, Dr. Biewen had become concerned about the employee’s use of narcotics, and he proposed a treatment plan on November 10, 2006, that included weaning the employee completely from Oxycontin and Oxycodone, having the employee perform the exercises he had learned in physical therapy, and having the employee participate in a search for work. However, in a note from a follow-up visit on December 1, 2006, Dr. Biewen indicated that the employee was “presenting with depressive symptoms” and that he saw the employee’s continued unemployment “more due to [the employee’s] emotional state” than to the employee’s “shoulder condition and physiological status.” By this time, the employee had apparently come under the care of both a psychologist and a psychiatrist. Records from this treatment are not, however, in evidence.
In February of 2007, the employee was seen again by Dr. Freehill, who indicated that, “[f]or the most part,” there had been “no change since his last visit on March 3, 2006, with the exception of having a depression and [being] on medication.” With regard to treatment possibilities, Dr. Freehill wrote as follows:
RECOMMENDATIONS: I have discussed with the patient that his recent MRI does indicate there are structural issues that could be corrected by surgery. However, his pain is disproportionate to his MRI findings. Subsequently, we are not sure if undergoing surgery would relieve his pain symptoms. The patient has had two prior injections. The first one gave him approximately 50 percent or moderate relief. The second injection did not seem to give him any relief at all. The patient has been dealing with these symptoms for one and one-half years. At this point in time, he has two options. He can continue to live with it or undergo a surgical intervention. I would recommend initial examination under anesthesia to determine the degree of instability and then to possibly undergo a diagnostic scope, possible Bankart repair versus labral debridement. The risks and benefits and alternatives were discussed with the patient as well as the rehab process and prognosis. I have recommended that he go back and discuss with his QRC and his Work Comp carrier to see if this would be approved if he elects to proceed in this direction. If he does, he will need a preoperative physical exam with his primary care physician. In the meantime, we will continue to have his work restrictions to be managed to Dr. Paul Biewin [sic] with Twin Cities Orthopedics.
Dr. Freehill did not explain the apparent change in his opinion as to the advisability of surgery.
The following month, in March of 2007, the employee was seen by Dr. Charry, at the Fairview Pain Management Center, on referral by Dr. Biewen. Dr. Charry noted that the employee had been hospitalized for depression and suicidal ideation in November of 2006, and, after examination, Dr. Charry diagnosed chronic pain syndrome and depression and indicated that the employee was a candidate for a multidisciplinary pain management program. That same day, the employee was evaluated by Dr. John Mullen, also at Fairview, who diagnosed depression and a “pain disorder associated with psychological factors and a general medical condition.” According to Dr. Mullen’s report, the employee had experienced difficulty with increasing depression, which “appears primarily associated with his adjustment difficulties in the context of his pain problem.”
On April 16, 2007, the employee was evaluated by Dr. Richard Strand, the employer and insurer’s examiner. Following his examination of the employee and review of the employee’s medical records, Dr. Strand concluded that the employee had sustained a shoulder strain in the November 15, 2005, work incident, explaining that there was no evidence of a shoulder dislocation or torn rotator cuff and that, while an initial EMG suggested that it was possible that the employee may have had a minor brachial plexus stretch, the follow-up EMG was normal. Dr. Strand also concluded the employee’s initial MRI, performed less than three weeks after the injury, had shown “chronic changes of inferior labral lesion which appeared to be old; the incident of November [15,] 2005 could not have generated those changes in that short period of time.” In Dr. Strand’s opinion, the employee’s work-related shoulder strain had not significantly aggravated his preexisting condition.
With regard to the employee’s ongoing complaints, Dr. Strand wrote that there was “no good evidence that the shoulder strain is the underlying cause of [the employee’s] chronic severe complaints of pain, [which] are certainly far out of proportion to his imaging findings, suggesting the possibility of a somatoform pain disorder, possibly on a nonorganic basis.” The doctor further indicated that the employee “had reached the end of healing as a result of his shoulder strain . . . within about six weeks,” with no permanent partial disability or need for restrictions related to the work injury, closing his report as follows:
An additional note should be made that Mr. Loeffelbein showed severe pain behaviors and multiple Waddell’s signs during his examination. This indicates to me that the minor changes on his MRIs are certainly not the cause of his claimed disability. I suspect that there may be a significant psychological component to this, possibly secondary gain, but certainly, I am firm in my opinion that there is a nonorganic pain syndrome involved in this case.
The employer and insurer served the employee with Dr. Strand’s report on May 9, 2007. The employee testified that the insurer subsequently refused to approve treatment recommended by Dr. Charry, including pool therapy. However, he also testified that, while the employer and insurer had never restricted him from doing so, he had not returned to either Dr. Biewen or Dr. Freehill for further treatment. He finally discontinued his use of narcotics, as had been recommended by Dr. Biewen, in the summer of 2007. While he has had rehabilitation assistance, he has not worked at all since his November 2005 injury.
The employer and insurer sought to discontinue temporary total disability benefits based on the employee’s attainment of maximum medical improvement [MMI], and the matter ultimately came on for hearing before a compensation judge on November 16, 2007. Evidence included the employee’s medical and rehabilitation records, the report of Dr. Strand, and the testimony of the employee and the employee’s wife.
In a decision issued on December 14, 2007, the compensation judge concluded that the employee had reached MMI from the effects of his work–related shoulder injury and that the employer and insurer were entitled to discontinue temporary total disability benefits as of August 7, 2007, 90 days post service of Dr. Strand’s report. 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 (2008). 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 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).
Pursuant to Minn. Stat. § 176.011, subd. 25,
“Maximum medical improvement” means the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability, irrespective and regardless of subjective complaints of pain. Except where an employee is medically unable to continue working under section 176.101, subdivision 1, paragraph (e), clause (2), once the date of maximum medical improvement has been determined, no further determinations of other dates of maximum medical improvement for that personal injury is permitted. The determination that an employee has reached maximum medical improvement shall not be rendered ineffective by the worsening of the employee’s medical condition and recovery therefrom.
A finding as to MMI is one of ultimate fact, to be determined by the compensation judge after consideration of such factors as the employee’s history of improvement, current treatment, preexisting conditions, and future treatment. See Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989).
In the present case, the employee contends that the compensation judge erred in relying on Dr. Strand’s opinion regarding MMI, in part because Dr. Strand’s opinions were “not based on a thorough exam, and were based upon incomplete medical foundation.” We are not persuaded. While the employee testified that Dr. Strand’s examination was very limited and incomplete, the compensation judge was not required to accept that testimony. See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989) (credibility determinations are for the compensation judge to make). Regarding foundation, the employee alleges that Dr. Strand improperly based his opinion on an MRI scan report that erroneously indicated that the employee had undergone prior shoulder surgery, when no such surgery had ever been performed. However, nothing in his report suggests that Dr. Strand was assuming that the employee had had surgery in the past; rather, he indicated that the findings on the employee’s initial MRI could not have developed in the short interval between the scan and the injury. According to Dr. Strand, the initial MRI showed no edema within the humeral head or glenoid, indicating that the employee’s condition was “not an acute injury.” In any event, the employee’s argument as to the foundation for Dr. Strand’s opinion has no merit.
Other evidence also supports the judge’s finding as to MMI. For example, Dr. Freehill’s February 2007 report indicates that there had been no real change in the employee’s symptoms since his prior evaluation nearly a year earlier, and the employee had not returned to either Dr. Biewen or Dr. Freehill for treatment in the eight months prior to hearing. Also, the employee’s wife testified that she had seen no improvement in the employee’s symptoms in the past year, and the employee himself testified that his symptoms had not changed appreciably since April or May of 2007.
The employee also argues that the compensation judge “exceeded her jurisdiction” in determining that the employee was not entitled to have the surgery recommended by Dr. Freehill. The judge, however, made no such finding. Rather, in her memorandum, the judge noted that the employee had not elected to proceed with the surgery when it was proposed in February of 2007 and that it was unclear whether Dr. Freehill was still recommending the procedure as of the hearing date, some nine months later. In other words, the judge was not persuaded, on this record, that surgery was still a reasonable potential treatment option. In any event, we simply see no express determination by the judge, either way, as to the employee’s entitlement to surgery, and we will not address the issue further. Because substantial evidence supports the compensation judge’s decision that the employee has reached MMI as to his shoulder condition, we affirm on that issue.
The employee also argues, however, that the compensation judge erred in allowing discontinuance of benefits based on MMI when the report of Dr. Strand did not address whether the employee had reached MMI from the effects of his depression. We agree that further proceedings are required.
It is well established that benefits may not be discontinued on grounds of MMI unless the employee has reached MMI as to all compensable conditions. Hammer, 435 N.W.2d at 529, 41 W.C.D. at 639. In the present case, the employee’s medical records contain repeated references to depression and other possible psychological problems, which several physicians have connected to the employee’s shoulder injury, and even Dr. Strand has indicated that the employee appears to be suffering from a somatoform pain disorder or other nonorganic pain syndrome. Given these circumstances, we find it troubling that the employee’s psychiatric records were not introduced at hearing and that neither party specifically raised the issue of the employee’s psychological condition to the compensation judge. There is also nothing in the hearing record that would allow us to ascertain whether the employer and insurer have admitted or denied liability for a consequential psychological condition or have paid for any related treatment. If the employee indeed has a compensable psychological condition related to his shoulder injury, discontinuance would not be appropriate absent service of MMI with respect to that condition.
The compensation judge’s failure to make any findings as to the employee’s psychological condition is not surprising, as it appears that the issue was not litigated. At the same time, the references in the record to the employee’s psychological condition are simply too numerous to ignore. We therefore vacate the judge’s decision allowing discontinuance and remand the matter for further hearing, including submission of additional evidence, on the issue of whether the employee has a compensable psychological condition and, if so, whether he has reached MMI from the effects of that condition.
 The employee had climbed an ice-covered tree to trim limbs near power lines. When his spikes broke out of the tree bark, he began sliding down the tree, and, to stop his rapid descent, he grabbed a limb in an adjacent tree, using his left hand. The employee testified that he felt a pop and experienced immediate pain in his shoulder as he grabbed the branch.
 Dr. Freehill’s own report of March 3, 2006, indicates that he had explained to the employee and his QRC that “there is no good surgical option with the condition his shoulder is in.” His diagnosis at the time was “neurogenic pain.”
 The employer and insurer had prevailed on the issue at the administrative conference level.
 According to Dr. Strand’s report, the first MRI was performed on December 9, 2005, and showed “some changes of the inferior glenoid and spurring of the humeral head, but no rotator cuff tear.” The radiologist’s report from this scan is not part of the record. The report from the employee’s October 11, 2006, MR arthrogram indicates that that scan showed “postoperative changes of prior labral repair.” It is apparently undisputed that the employee has never had shoulder surgery.
 We note in this regard that the parties did not make either opening statements or closing arguments.