SCOTT NORSTAD, Employee/Appellant, v. RIDGEVIEW MED. CTR., SELF-INSURED/BERKLEY ADM=RS CO., Employer, and UNIVERSITY OF MINN. PHYSICIANS and FAIRVIEW HEALTH SERVS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 2, 2008
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including medical records and expert medical opinion, supported the finding that the employee=s MMR vaccination resulted only in a temporary reaction and was not a substantial contributing cause of the employee=s demyelinating disease process or related disability.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Rolf G. Hagen
Attorneys: James Michael Gallagher, Minneapolis, MN, for the Appellant. David A. Christianson, Cronan Pearson Quinlivan, Minneapolis, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s determination that an MMR vaccination the employee received in conjunction with his employment resulted only in a temporary reaction and was not a cause or contributing factor to his acute demyelinating encephalomyelitis condition or to his permanent total disability. We affirm.
The employee, Scott Norstad, began working as a painter for the employer, Ridgeview Medical Center, on April 25, 2005. Because his employment was at a medical facility, the employer required that he undergo an MMR vaccination, which took place on June 8, 2005. Following the vaccination, the employee developed a reaction to the MMR vaccine, including a rash with nodular inflammation on his scalp, malaise, joint pain, headaches, cramping, swollen glands, and psychomotor slowing.
The employee initially treated for his symptoms with Dr. John Decker, his primary care physician at Apple Valley Medical Center. On June 16, 2005, the employee was seen to have multiple tender nodules on his scalp, but no rash. He was advised to return if he did not begin to feel better. On June 23, 2005, he returned with swollen glands in his neck and a feeling of fatigue. By July 12, 2005, the nodules had resolved but the employee continued to show symptoms characterized in the relevant chart notes as a possible idiosyncratic reaction to the vaccination. Dr. Decker referred the employee to a neurologist.
On July 26, 2005, the employee was seen for a neurological examination by Dr. Scott Callaghan at the Neurological Associates of St. Paul. The employee reported that after his vaccination he had developed malaise, joint pain, rash, cramping, and swollen glands, as well as a brief fever that resolved. Neurological examination confirmed that the employee exhibited psychomotor slowing. He had a flat affect and his speech was hypophonic with decreased prosody. Dr. Callaghan=s impression was of encephalopathy with psychomotor slowing, status post MMR injection. By history, he concluded that the condition was an associated reaction to MMR, although he noted that he had never seen an adult react to MMR vaccination. He recommended that the employee undergo an MRI of the brain with gadolinium enhancement and return in four weeks.
The employer and insurer disputed the employee=s claim of an injury and the request for payment of the recommended MRI scan, and the scan was not scheduled. The employee periodically returned to see Dr. Callaghan, who noted that the employee continued to show psychomotor slowing and flat, slow speech.
The employee was evaluated on behalf of the employer and insurer on December 14, 2005, by Dr. Jack Hubbard. The employee told Dr. Hubbard that he continued to have headaches, neck pain, dizziness and swelling. Dr. Hubbard found no evidence of nodules, but noted that the employee showed cervical myofascial trigger points. The employee=s speech had a flattened affect and was somewhat slurred, but showed no evidence of aphasia or dysarthria. The employee passed a mental state examination. Dr. Hubbard concluded that the employee=s headaches were due to myofascial trigger points. He found no evidence of an encephalopathy. In his view, the employee=s slow speech pre-existed the vaccination, as evidenced by several references to slowed speech in prior medical records. Dr. Hubbard acknowledged that the employee=s history could support the conclusion that he had an idiosyncratic reaction to the MMR vaccination, in the form of erythema nodosum and myalgia, but in his view any reaction had fully resolved. He did not believe that the employee needed further medical treatment, work restrictions, or MRI examination.
On January 31, 2006, the employee again saw Dr. Callaghan, who noted that the employee was developing primary deconditioning with complaints of muscle loss, and most likely had also developed a reactive depression.
In a letter dated February 27, 2006, Dr. Decker wrote a letter expressing disagreement with Dr. Hubbard, noting that as the employee=s primary care physician, he had noted the employee=s speech to have become considerably slower and more deliberate since the MMR injection. He stated that his impression from the changes in the employee=s appearance and demeanor was that something significant had happened to slow the employee=s speech and thought processes.
On February 28, 2006, a hearing was held before a compensation judge of the Office of Administrative Hearings. Among the issues presented were whether the employee had sustained a work injury; reimbursement for certain medical expenses; and authorization for the recommended MRI scan. Following the hearing, the judge found that the employee had in fact sustained a work injury in the form of a reaction to the MMR vaccination, and that the proposed MRI was reasonable and necessary to evaluate and diagnose the effects of the adverse reaction.
The employee underwent the MRI scan on May 16, 2006, and returned to Dr. Callaghan on May 23. Dr. Callaghan noted that the scan showed generalized cerebral and cereballar atrophy, with white matter changes and bihemispheric periventricular lesions with involvement of the corpus callosum and the right basoganglia. There was questionable enhancement of the right cerebellar area of encephalomalacia. Dr. Callaghan told the employee that the changes might well be due to the MMR vaccination, but wanted to rule out other possibilities. He recommended additional tests.
The employee underwent the further testing and returned to Dr. Callaghan on June 20, 2006. The doctor noted that the employee=s MRI and lumbar puncture results were consistent with a diagnosis of demyelinating disease, but noted that assigning a causal relationship to the MMR vaccination was difficult, although the employee was neurologically intact and without complaints until he had a reaction to the MMR. He decided to refer the employee for a second opinion.
On July 5, 2006, the employee was seen by Dr. Gareth J. Parry at the University of Minnesota Medical Center=s neurology clinic. The employee told him that he had been in good health prior to the MMR vaccination in June 2005, but shortly after had systemic illness with fever, nausea, vomiting, rash on his neck and scalp, lymphadenopathy, and pain down his legs. This progressed to multifactorial symptoms that included difficulty with walking and cognitive slowing. The employee continued to have aching pain in the proximal legs and significant fatigue, difficulty with attention and memory, slow thought processes, and near daily headaches. He had some vertigo. His speech had shown slowing and slurring for the last year. Dr. Parry=s impression was of a static encephalopathy which appeared to be temporally related to the MMR vaccination, or perhaps from toluene exposure. Although the employee=s cerebrospinal fluid testing had shown abnormalities, he did not think it likely that the employee had multiple sclerosis, as the history of symptoms was not consistent with that diagnosis. Dr. Parry thought that further testing, in addition to the MRI scan (which he had not yet seen), would be useful in evaluating the etiology of the employee=s symptoms.
After reviewing the MRI scan, Dr. Parry noted that the scan showed a pattern which was not typical for acute disseminated encephalomyelitis (AADEM@) or for toluene toxicity, but was consistent with MS. Since both the CSF and MRI results pointed to that diagnosis, he noted that he had begun to suspect the employee might have MS, despite the atypical history. A repeat MRI was suggested. He noted that treatment for MS might be considered if the employee continued to accumulate new lesions.
In a report dated July 17, 2006, Dr. Hubbard also provided a supplementary opinion after being provided with the MRI scan. Dr. Hubbard noted that the scans did show a demyelinating disorder, which he thought was most likely multiple sclerosis.
The employee underwent the repeat MRI scan on November 13, 2006, and returned to see Dr. Parry the following day. His neurological state was noted to be essentially stable. The employee continued to claim that all his neurological problems began shortly after the vaccination in June 2005, after which he neither recovered nor developed new symptoms. Examination showed profound psychomotor slowing. The repeat MRI had shown no interval change nor enhancement of symptoms, although the pattern remained very suggestive of MS. Dr. Parry noted his uncertainty over what to make of the situation, but opined that the employee might have had an episode of acute disseminated encephalomyelitis in June 2005, perhaps related to the vaccination, since there had been no clinical changes since that time and the MRI had remained entirely stable. Either way, he considered the employee=s prognosis to be poor. He was unable to work. Dr. Parry suggested a trial of rehabilitation therapy to improve the employee=s functioning.
In a letter to the employee=s attorney dated November 25, 2006, Dr. Parry opined that the employee most likely had experienced an episode of acute disseminated encephalomyelitis in June 2005, resulting from the MMR vaccination. He characterized the employee as currently suffering from severe psychomotor retardation, for which there was no medical treatment to help his recovery. He noted that the employee=s prognosis was poor and he was likely to remain disabled permanently.
On November 30, 2006, a hearing was held before a compensation judge over whether the employer and insurer should pay for Dr. Callaghan=s treatment and testing in June 2006. The compensation judge found that the treatment on the dates in question was reasonable diagnostic testing related to the injury. In her memorandum, the judge noted that her decision was based on the finding that the need for the testing was reasonably related to the injury, and that the issue of whether the employee=s demyelinating disease was caused or accelerated by the work injury was not before her and was not addressed.
Dr. Hubbard issued another supplemental report on December 26, 2006 after review of the records from Dr. Parry. Dr. Hubbard stated that his prior opinions remained unchanged. He specifically noted instances in the employee=s medical records prior to the MMR vaccination which he thought displayed a pattern of recurrent and varying neurological complaints since at least 1993. Specifically, in this and previous reports, Dr. Hubbard pointed to the following records:
On June 10, 1993, the employee was seen at the Apple Valley Health Center for dizziness, fever and headache. He was diagnosed with a viral syndrome. The doctor who saw him noted that his speech seemed slow.
On March 10, 1995, the employee returned to the Apple Valley Health Center and again complained of dizziness and fatigue. He had slurred speech. He was advised to watch out for inhalation of paint fumes.
On September 20, 1996, he was seen at Apple Valley and reported difficulty with swallowing and talking. He was diagnosed with an upper respiratory infection.
On October 1, 1998, at Apple Valley, he complained of being nervous, depressed, anxious and unable to sleep. He was seen to have a flat affect. The diagnosis was depression.
On May 2, 2001, the employee complained of fatigue and visual changes. He also had diabetes and a dry mouth.
On March 11, 2005, the employee reported that after increasing his blood pressure medications as recommended by Dr. Decker, he had noticed that his left cheek was numb, almost as if he had been given novocaine. There was no visual changes or speech slurring. He was diagnosed with Bell=s palsy.
Dr. Hubbard further noted that the employee=s MRI was very suggestive of MS, and that his CSF showed an abnormal immune state within the central nervous system, again characteristic of patients with MS. In his view, the employee=s problems were due to MS and not due to the MMR vaccination. Dr. Hubbard did not believe that the employee had ADEM, which he explained showed an onset of neurological worsening with a gradually improving course, while MS shows waxing and waning neurologic deficits. Finally, he pointed to recent studies questioning any causal relationship between MMR vaccinations and ADEM, and noted that no reports showed such a reaction causing ADEM in adults, in any event.
On July 9, 2007, the employee saw Dr. Hubbard for another medical examination on behalf of the employer and insurer. In his report dated July 11, 2007, Dr. Hubbard noted that the employee=s neurological examination was significantly changed since the previous examination in 2005. The employee=s speech was lower in volume and more dysarthric and there was a marked decline in his mental status exam score. Dr. Hubbard opined that there was a significant decline in cognitive functioning, which he considered to support the view that the employee had an ongoing progressive neurologic disorder, most likely MS, rather than a monophasic onset of acute disseminating encephalomyelitis. As such, the employee=s symptoms would not result from his vaccination.
In a letter dated July 16, 2007, Dr. Scott Crowe of the University of Minnesota Medical Center=s department of physical medicine and rehabilitation offered a contrary opinion. Dr. Crowe had followed the employee in physical medicine and rehabilitation since an initial consultation on November 29, 2006. In the view of Dr. Crowe, the employee had acute demyelinating encephalomyelitis, likely secondary to his reaction from the MMR vaccine received in June 2005. Dr. Crowe noted that testing had thoroughly established the debilitating nature of his ADEM. He pointed out that, while in earlier evaluations the diagnosis of multiple sclerosis had been entertained as part of his differential diagnosis, MS was no longer being considered by the treating physicians. Dr. Crowe further noted that MS was one of his subspecialty areas, and that, based on his professional experience, the employee=s symptoms and disease course were not consistent with multiple sclerosis.
On July 19, 2007, a hearing was held before another compensation judge to determine, among other things, the nature and extent of the employee=s work injury and whether the work injury was a substantial contributing factor in the need for the employee=s current disability and need for medical treatment. Following the hearing, the compensation judge found that the employee=s work injury, in the form of his reaction to the MMR vaccination, had been temporary in nature and had resolved by July 26, 2005, and that the employee=s subsequent disability and treatment were related solely to a pre-existing demyelinating disease process which was not caused or accelerated by the vaccination. The employee appeals.
The compensation judge adopted the medical opinion of Dr. Hubbard, finding that the employee=s MMR vaccination had resulted in only a temporary reaction which had resolved by July 26, 2005, and that the employee=s subsequent disability and treatment were related solely to a pre-existing demyelinating disease process which was not caused or accelerated by the vaccination.
I. Effect of Prior Findings.
The employee first argues that the compensation judge=s findings are inconsistent with the prior, unappealed findings made in the Findings and Order served and filed on April 7, 2006. The employee points out that these prior findings not only established that the employee had sustained a work injury in the form of a reaction to the MMR vaccination, but that maximum medical improvement had not yet been reached. In the second Findings and Order, served on January 29, 2007, a compensation judge found that medical expenses related to further medical testing in June 2006 were related to this work injury. Accordingly, the employee argues, the third compensation judge, who made the findings here appealed, was precluded from finding that the employee=s reaction to the vaccination had resolved by July 26, 2005.
We disagree. It is very clear that neither the 2005 nor 2006 hearings resolved the question as to the ongoing nature of, and causation for, the employee=s neurologic disorder. The compensation judge in 2005 determined that the MRI testing being requested by Dr. Callaghan was reasonably related to the work injury in that the testing was recommended in order to help evaluate the possibility that the employee had sustained an encephalopathy as a result of his adverse reaction to the MMR vaccination. This is not the same as a finding that the employee had proven a causal link between the vaccination and his neurologic disorder. Similarly, the findings in 2006 as to MMI were expressly only that MMI had not yet been legally demonstrated, in that further testing had not yet been performed which was needed for the diagnosis and evaluation of the employee=s condition.
In the second Findings and Order, served on January 29, 2007, a compensation judge again applied the doctrine that testing needed to evaluate the extent and nature of an injury may be compensable, Airrespective of whether the underlying condition turns out to be related to the injury.@ (1/29/2007 F&O: Memorandum at 4). The judge specifically noted that A[the] issue of whether the demyelinating disease was caused[,] aggravated or accelerated by the injury was not directly before the compensation judge . . .@
Finally, at the present hearing, the compensation judge specifically listed Athe nature and extent of the admitted 6/8/05 injury@ as the initial issue for determination, without any objection or qualification being made by the employee=s counsel.
Under the specific factual and procedural circumstances in this case, we do not think anything in the prior Findings and Orders precluded a later determination as to if, and when, the effects of the employee=s injury had in fact resolved.
II. Substantial Evidence.
The employee next contends that substantial evidence fails to support the compensation judge=s findings that the employee sustained only a temporary reaction to the vaccination and that the employee=s neurologic disorder is unrelated to that reaction.
This issue was ultimately one of causation. Questions of medical causation are issues of fact which fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). In addition, it is the obligation of the employee to establish by a preponderance of the evidence that there is a causal relationship between the work injury and the claimed benefits. Fisher v. Saga 463 N.W.2d 501, 43 W.C.D. 559 (Minn. 1990); Trettel v. Cambridge Reg. Ctr., slip op., (W.C.C.A. Aug. 5, 2004). Here, after considering all of the evidence, the compensation judge concluded that the employee failed to establish a causal relationship between the MMR vaccination and the employee=s neurologic disorder.
The question for this court is whether or not the judge=s findings were supported by substantial evidence, and not whether this court might have reached the same findings on the evidence. Here, we note that there was substantial evidence to support the compensation judge=s findings in the form of medical records, testimony, and expert medical opinion.
The compensation judge accepted Dr. Hubbard=s opinion that the employee had an ongoing, pre-existing progressive neurologic disorder which did not result from his vaccination. This opinion rested on Dr. Hubbard=s interpretation of the employee=s prior medical records as showing a pattern of recurrent and varying neurological complaints; on the nature of the MRI and CSF findings; and on a progression of symptoms rather than a static condition.
The evidence was conflicting, particularly over whether the employee=s condition had continued to worsen. In addition, some of the pre-existing medical records cited by Dr. Hubbard as evidence of prior neurologic complaints might have been more readily seen as the results of other factors. However, there was adequate evidence which the compensation judge could accept as consistent with Dr. Hubbard=s assumptions and interpretations. This was a difficult medical case and even the employee=s treating physicians expressed doubts about the correct diagnosis, noting that there were several factors that pointed towards MS rather than a vaccination reaction as the cause of the employee=s neurologic disorder. Ultimately, the issues in this case were determined principally on the basis of the compensation judge=s choice of expert opinion. The judge=s choice between conflicting medical experts will not be reversed by this court so long as there is sufficient foundation for the expert=s opinion. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985). The difference in viewpoint between Dr. Hubbard and the employee=s treating physicians rested not so much on a difference in the facts available to them, but instead on the interpretation each physician put on those facts.
The employee argues that, even if Dr. Hubbard=s opinions would have been a sufficient basis for the compensation judge=s findings, the compensation judge should not have considered Dr. Hubbard=s opinions, because portions of those opinions were rejected by the compensation judges who determined the issues presented at the two prior hearings. We note, however, as we have discussed above, that the issues presented at those hearings were different from those presented at the hearing immediately below. The compensation judge below was not barred from considering Dr. Hubbard=s viewpoint in the context of the causation question presented at the most recent hearing.
Overall, we see no clear basis on which to reverse the compensation judge=s reliance on Dr. Hubbard=s expert medical opinions, and affirm.