EUZELIA SPELLS, Employee, v. INDEPENDENT SCH. DIST. #625, SELF-INSURED/CCMSI, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 14, 2008
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence, including medical records and the employee=s testimony, support the compensation judge=s determination that the employee had not yet reached MMI as of December 15, 2006.
Determined by: Johnson, C.J., Wilson, J., and Pederson, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Russell G. Sundquist, Sundquist & Assocs., St. Paul, MN, for the Respondent. Thomas L. Cummings and Matthew P. Bandt, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Appellant.
THOMAS L. JOHNSON, Judge
The self-insured employer appeals the compensation judge=s finding that the employee had not reached maximum medical improvement (MMI) from the effects of her personal injury. We affirm.
Euzelia Spells, the employee, sustained an injury on June 6, 2006, arising out of and in the course of her employment with Independent School District #625, the employer. The self-insured employer admitted liability for the employee=s personal injury.
The employee saw Dr. Austin Indritz at Minnesota Occupational Health on June 6, 2006. She gave a history of slipping on grease at work and falling against a wall striking her mid-back. On examination, Dr. Indritz noted tenderness in the lower thoracic and upper lumbar areas. A straight leg raising test was negative as was a lumbar spine x-ray. Dr. Indritz diagnosed a lumbar contusion and recommended ibuprofen. On June 9, 2006, Dr. Vijay Eyunni at Minnesota Occupational Health diagnosed a resolving thoracic and lumbar strain, ordered physical therapy, and allowed the employee to return to work with restrictions. On June 14, Dr. Eyunni noted a history of primarily lumbar strain and stated the employee now had a thoracic and cervical strain as well. The doctor ordered physical therapy for the employee=s neck and upper back and continued her restrictions. On September 29, 2006, Dr. James Anderson ordered further physical therapy and continued the employee=s work restrictions. Dr. Anderson=s diagnosis remained cervical and upper thoracic strain and in October 2006, he ordered continued physical therapy.
An MRI scan of the employee=s cervical spine was obtained on November 9, 2006. The scan showed a segmentation anomaly at C3-4, mild to moderate stenosis with a central osteophyte at C4-5, and a small central disc protrusion with moderate stenosis at C5-6.
The employee next saw Dr. Susan Richner who diagnosed cervical and upper thoracic strain with right arm radicular symptoms. The doctor continued the employee=s work restrictions. On November 16, 2006, the employee reported she felt better, and on November 30, 2006, the employee reported she felt great, stated her symptoms had resolved and asked to have her restrictions lifted. Dr. Richner concluded the employee had reached maximum medical improvement, rated no permanent disability and released the employee to return to work with no restrictions, except a permanent restriction of five minutes maximum time in the freezer. Dr. Richner=s November 30, 2006, medical report stating the employee had reached MMI was served on the employee on December 15, 2006.
Following her release to return to work without restrictions, the employee worked for the employer until late December 2006. The employer then placed the employee on medical leave because the employer could no longer accommodate the employee=s freezer restrictions.
On March 23, 2007, the employee sought treatment from Richard Kragness, D.C. The employee gave the doctor a history of her injury and stated that as of November 30, 2006, she was doing well. The employee told the doctor that when she returned to work, she was working in a cooler lifting 50-pound bags and experienced a recurrence of her back pain with pain into the upper thoracic region and her right arm and hand. Dr. Kragness diagnosed a C5-6 disc protrusion with degenerative changes, neurovascular compression on the right and myofacial pain syndrome. The doctor instituted chiropractic manipulation therapy, trigger point therapy, and electrical muscle stimulation. By report dated March 27, 2007, Dr. Kragness opined the employee had not reached maximum medical improvement. In an April 23, 2007, report, Dr. Kragness provided work limitations of no lifting or repetitive motion with her right arm, limited turning of her head to the right, and no working in a freezer.
The self-insured employer sought to discontinue temporary total disability benefits contending the employee had reached MMI on December 15, 2006, based upon the medical report of Dr. Richner dated November 30, 2006. Following a hearing, the compensation judge found the employee had not yet reached MMI as of December 15, 2006. The self-insured employer appeals.
The appellant contends substantial evidence does not support the compensation judge=s finding that the employee had not reached MMI as of December 15, 2006. On November 30, 2006, the employee reported to Dr. Richner that she felt great, her symptoms had resolved and asked to have her restrictions lifted. The appellant asserts the employee reached MMI on that date. The fact the employee later had further treatment does not, the appellant contends mean the employee was not at MMI in November 2006. As a matter of law, the appellant argues the employee had to be at MMI as of November 30, 2006, when she no longer had any significant symptoms and was released from further treatment. Accordingly, the appellant asserts the compensation judge=s decision must be reversed. We are not persuaded.
AMaximum 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.@ Minn. Stat. ' 176.011, subd. 25. MMI occurs upon proof that the employee=s condition has stabilized and will likely show little further improvement. Polski v. Consolidated Freightways, Inc. 39 W.C.D. 740 (W.C.C.A. 1987). MMI may have been reached notwithstanding the fact that the employee could experience further exacerbations of symptoms. Patterson v. Denny=s Restaurant, 42 W.C.D. 868 (1989). Furthermore, a change in the employee=s condition for the worse is not inconsistent with a finding of MMI. Krutsch v. Federal Cartridge, 48 W.C.D. 156 (W.C.C.A. 1992); see also Link v. Bridgestone/Firestone, Inc., slip op. (W.C.C.A. Apr. 20, 1998). However, maximum medical improvement may not have been reached if the employee requires further treatment. In Walters v. Schult Home Corp., slip op. (W.C.C.A. Mar. 21, 1990), for example, the court found MMI had not been reached where the employee was to undergo facet injections to determine the source of her problems and future course of treatment. See also Lewandowski v. Connor, slip op. (W.C.C.A. Apr. 28, 1998). Ultimately, MMI is an issue of fact to be decided by the compensation judge after considering medical opinions, records, and other evidence, including the testimony of the employee.
The records of Minnesota Occupational Health prior to November 30, 2006, reflect consistent complaints by the employee of neck and right arm pain with tenderness to palpation and some limitation of movement on examination. The physicians at Minnesota Occupational Health consistently diagnosed a cervical and upper thoracic strain with right radicular symptoms. The employee received physical therapy, but had some difficulty attending all her appointments because she had to ride the bus. The employee testified she was told by her supervisor at work that to keep her job her restrictions had to be lifted. The employee stated that when she saw Dr. Richner on November 30, 2006, she asked to have the restrictions removed because she concluded she could not work with restrictions. The employee testified she was the sole support for two grandchildren and needed to work.
In March 2006, the employee saw Dr. Kragness who diagnosed a C5-6 disc protrusion with neurovascular compression and myofascial pain syndrome. The employee testified she was scheduled to see a doctor at the Sports & Orthopedic Clinic after the hearing. On June 8, 2007, the employee underwent an EMG ordered by Drs. Lisa Callies and Emily Hall which was normal. Dr. Rippe, the electromyographer, agreed the employee should obtain an orthopedic consultation.
The compensation judge concluded that as of December 15, 2006, all diagnostic studies had not been exhausted and that referral to an orthopedist might reasonably be expected to improve the employee=s condition. Further, the compensation judge could reasonably infer from the evidence that the employee asked that her restrictions be lifted in November 2006 in order to keep her job. There is substantial evidence of record to support the compensation judge=s findings in this case. The decision is, therefore, affirmed.