EVAN H. BAEDKE, Employee, v. KERRY, INC., and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 24, 2009
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. The determination of the compensation judge that the employee was not at maximum medical improvement from his work injuries is supported by substantial evidence and is affirmed.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Carol A. Eckersen
Attorneys: Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Respondent. Sandra J. Grove, Bakken, Robinson & Grove, Golden Valley, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s finding that the employee did not reach maximum medical improvement on October 1, 2007, and from the denial of their petition to discontinue. We affirm.
Evan Baedke was employed by Kerry, Inc., when he sustained two work injuries in May 2006. On May 19, 2006, he tripped over a conveyor belt and fell forward landing on outstretched arms. He experienced wrist, neck, shoulder and elbow pain. The next day, May 20, the employee had a second work injury when he stood and struck his head against an overhead cement beam while working in a scissors lift. He was wearing a safety helmet, but was knocked onto his buttocks and had head and neck pain with tightness in his neck.
The medical records in evidence indicate that the employee had a history of low back, left hip and left shoulder problems which were apparently associated with a work injury in October, 2004. In February 2006, he was receiving treatment at the United Clinics of Faribault County and Veteran’s Affair Medical and Regional Office Center (VAMROC) at Sioux Falls for panic attacks, anxiety and depression. He had been diagnosed with major depressive disorder, chronic pain syndrome, and anxiety disorder. However, he remained able to work at his job for the employer with no restrictions.
The employee was also treating before May 2006 at the Fairmont Orthopedics and Sports Medicine Clinic for care of his lumbar and sacroiliac complaints and chronic pain issues. On June 14, 2006, he began treating there for wrist and shoulder pain and neck pain which he attributed to the work incidents in May. He was placed on medium duty work restrictions with no overhead lifting and continued to work with the employer. On May 27, 2006, he was referred to physical therapy for his neck and upper extremity symptoms.
On July 19, 2006, the employee told a nurse practitioner at the Fairmont Clinic that he felt the physical therapy was aggravating his symptoms. The therapy was discontinued and an MRI scan was recommended. The MRI was done on August 23 and was read as showing no significant pathology. When the employee was seen on August 29, he reported continuing tenderness and pain of the cervical spine and discomfort with shoulder rotation as well as numbness in the third and fourth fingers of both hands. The employee declined a recommendation that he have physical therapy for the cervical spine.
The employee then began treating with his family doctor, Dr. Terence Cahill, at United Clinics of Faribault County. The initial diagnosis on September 7, 2006, was cervicalgia and anxiety. He was initially treated with medication and was subsequently referred to United Hospital outpatient rehabilitation for four weeks of rehabilitation services, three times per week. He was also given a referral for neurological consultation.
The employee was seen by Dr. Kimberly Aho, a neurologist at Mankato Clinic, on October 19, 2006. She recommended a number of diagnostic studies and recommended that rehabilitation should be suspended until the testing was done. Dr. Aho’s initial impression was that the employee had cervical neuralgia.
On December 13, 2006, the employee was evaluated on behalf of the employer and insurer by Dr. David Walk, a neurologist. Dr. Walk diagnosed either “occipital neuralgia or an unusual musculoskeletal pain complaint in the context of a preexisting pain syndrome.” He considered the discontinuation of physical therapy appropriate as it “appeared to have no effect.” He recommended an occipital nerve block. Should that prove ineffective, he recommended a multi disciplinary pain clinic consultation. Dr. Walk considered the employee’s condition to be related to his work injuries and he concluded that the employee had not reached maximum medical improvement. Dr. Walk also approved the work restrictions placed by the employee’s treating physicians.
Dr. Aho reevaluated the employee on February 21, 2007. She diagnosed myofascial pain syndrome and a right Horner’s syndrome as the result of injuries to his neck, head and spine on May 19 and May 20, 2006. In her chart notes of that date she agreed with Dr. Walk that the patient had not reached maximum medical improvement. Dr. Aho also agreed with Dr. Walk’s recommendation of an EMG and withheld approval of a nerve block until that procedure was done. The EMG was done on March 7 and was read as an "abnormal study with electro diagnostic evidence for bilateral chronic, and inactive low cervical (C7-C8) radiculopathies. These were also evidence for a left median neuropathy at the wrist. This is consistent with mild left carpal tunnel syndrome."
The employee returned to Dr. Aho on April 5, 2007. He had reported that his headache and neck pain symptoms seemed to be getting worse and that he had more pain into the right shoulder and upper back. The employee’s most significant complaint was severe headaches. Dr. Aho discussed occipital neuralgia. She did not believe he had reached maximum medical improvement, and recommended a trial of occipital nerve blocks and trigger point injections. She also agreed with Dr. Walk’s recommendation for a multi disciplinary pain clinic consultation. Occipital nerve block injections were done on April 27. When he returned to the Mankato Clinic, the employee reported that he had relief from his symptoms from the injection for about two hours, but that he felt his pain actually intensified after that.
The employee had continued to work for the employer in modified duties within his restrictions since the work injuries. On May 27, 2007, the employee had what he characterized as a “equilibrium episode” while at work when he turned his head to the right, felt a snap in his neck and lost his balance, falling onto his back. The fall resulted in severe back and abdominal pain. The employer took the employee off work due to safety concerns and the employee has not returned to work since that time.
Dr. Aho referred the employee to Dr. Terry Peterson, a physical medicine and rehabilitation specialist, for consultation. Dr. Peterson saw the employee on June 22, 2007, and diagnosed him with dizziness, occipital neuralgia, neck pain, and myofascial pain syndrome. Dr. Peterson changed the employee’s medication to see if his dizziness could be helped and she referred him for balance testing. The testing showed some basis for the dizziness, but Dr. Peterson felt, when she saw the employee again on July 13, that treatment should focus on his neck pain. She recommended increasing his Neurontin, adding Cymbalta, and physical therapy. In response the employee stated that his neurologist had recommended that he discontinue physical therapy and not return to it. Dr. Peterson noted that she would discuss her thoughts with Dr. Aho to see whether they could come up with a treatment plan together.
Dr. Aho saw the employee again on July 17, 2007. She recorded that the employee continued to be extremely dramatic in describing his pain. Her diagnosis was cervical strain, headaches, dizziness, and occipital neuralgia. She concluded that she had nothing further to offer by way of treatment and that no further follow up was necessary in the neurology department. Instead, she recommended that the employee follow up with Physician Assistant Michael H. McCarty at United Clinics of Faribault County and with Dr. Peterson for treatment, testing, and monitoring of his restrictions.
The employee had continued to treat with his family physicians at United Clinics for non-work injury conditions since his work injuries. On July 5, 2007, he consulted with PA McCarty for his chronic cervical pain. PA McCarty found tenderness in the cervical spine and also noted anxiety and a depressed affect. PA McCarty recommended that, “the patient should follow up with his neurologist for this as there is little that I can do . . . All conservative therapy has failed.” The employee was started on antidepressant and antianxiety medication. The employee returned to PA McCarty on July 23 asking to discuss his x-rays and laboratory reports. He expressed concern that no one believed him about his symptoms and he was reported as tearful.
The employee returned to Dr. Peterson on July 27, 2007. He discussed with Dr. Peterson numerous symptoms and complaints he had, most of which were not related to his work injuries, and she referred him back for those conditions to his family physician. She recommended an increase in his Neurontin prescription, continuation of his antidepressant and antianxiety mediation and “physical therapy for gentle work on his myofascial, trapezial, and cervical paraspinal muscle tenderness. He is not very enthusiastic about doing the physical therapy and he is not sure that it is going to help, but I think it is the best we can offer.” Dr. Peterson advised that the employee return after six weeks of therapy.
The physical therapy assessment recommended by Dr. Peterson was performed on August 15, 2007, at United Hospital. The employee reported at that time that he had tried therapy in the past with little success. He also reported his primary goal in receiving physical therapy was pain relief. During the evaluation the employee was felt to exhibit inconsistent reporting and inconsistent demonstration of symptoms and of cervical range of motion. The assessment concluded that the employee’s neck pain was chronic in nature and he was unlikely to benefit from physical therapy, other than educating the employee on pain management techniques. The employee was discharged from physical therapy on September 6, 2007, after six treatments. He reported no decrease in pain from treatment and stated that his neck pain had increased when performing gentle stretching and range of motion exercises.
On September 14, 2007, Dr. Miles J. Belgrade, a neurologist, examined the employee on behalf on the employer and insurer. Dr. Belgrade diagnosed occipital neuralgia and myofascial pain. He noted that the employee’s symptoms also showed some features of radicular pain. In addition, Dr. Belgrade concluded that the employee had somatoform disorder not otherwise specified and adjustment disorder with mixed emotional features. Dr. Belgrade noted that the employee had not been treated for about 1 year and 4 months and stated that the care was “starting to be limited to primary care management which is appropriate at this time.” Dr. Belgrade believed that the treatment provided to the employee had been appropriate, but that the employee was in need of no further treatment for his neck or shoulder symptoms. Dr. Belgrade was of the opinion that further psychiatric treatment was reasonable for the employee, but that this treatment was not related to the work injuries.
Dr. Belgrade concluded that the employee was at maximum medical improvement, that the employee had no permanent partial disability from the work injuries and that the employee should be restricted from work which required lifting over 30 pounds or frequent bending, head turning, neck flexion or extension, or balance on high places. In his report, Dr. Belgrade also stated that, “at this time, Mr. Baedke is not prepared to engage in appropriate therapies for the rehabilitation of muscle dysfunction of the neck from his work injury because of psychological factors that are interfering with his progress.”
The employer and insurer served the employee with notice of MMI on October 1, 2007, together with Dr. Belgrade’s report.
The employee was seen by Dr. Cahill at United Clinics on October 19, 2007, for follow-up and discussion of his neck, shoulder, and left hand pain. He told the doctor that Dr. Belgrade thought he had reached maximum medical improvement. Dr. Cahill noted that this then would be a good time for the employee to start making adjustments to deal with his chronic problems from the work injuries. However, Dr. Cahill commented that the employee, “continues to obsess” about needing further investigation of his headaches, abdominal pain, left hand discomfort, shoulder pain, and chronic back and neck problems, even though the problems had already been identified. Dr. Cahill recorded that he tried to convince the employee not to continue pursing additional evaluations that were unlikely to result in any solution to his problem, but that the employee seemed unable to accept this approach.
The employee returned to VAMROC at Sioux Falls on December 12, 2007, seeking help for the medical problems and chronic pain from the work injuries, but he also told the doctor that he had gradually become more and more depressed. He was referred to a depression case manager for depression management and for development of a self-help plan and to Dr. Mark Renner, a psychiatrist. Dr. Renner saw the employee on January 22, 2008. He diagnosed a major depression and placed the employee on medications, recommending that he return in one month.
The employee returned to the Mankato Clinic on February 8, 2008, for a follow up appointment with Dr. Peterson. The employee wanted to know whether Dr. Peterson agreed with Dr. Belgrade’s opinion that he had reached maximum medical improvement. Dr. Peterson wrote that it was not easy to give a clear answer to the question. She thought the employee’s myofascial pain had not been well treated previously, because he had not been able to tolerate physical therapy, which she thought was related to an underlying mood disorder. She recommended that the employee continue psychiatric care and stated that once his mood disorder was optimized, physical therapy for myofascial pain relief could again be tried. If he did not get pain relief from physical therapy, or was again unable to tolerate physical therapy, she stated that she would then recommend a pain rehabilitation program. She also recommended an increase in the employee’s Neurontin medication.
The employer and insurer served the employee with a notice of intent to discontinue temporary total disability on February 22, 2008, alleging that 90 days had elapsed since the service of MMI. An administrative conference was held on April 15, 2008, and the NOID filed by the employer and insurer was denied. On May 8, 2008, the employer and insurer filed a petition to discontinue benefits.
In a mental health note dated June 26, 2008, Dr. Renner stated his opinion that the employee’s major depressive episode was related to his 2006 work injuries, because although the employee had a history of past depression, the depression had been resolved and was not an active issue at the time of the injuries.
On July 17, 2008, Dr. Peterson reiterated her recommendation for continued psychological care followed by a retrial of physical therapy, or, if the employee was unable to continue psychological care, for participation at a pain rehabilitation clinic. She stated that the employee would be at MMI once the pain clinic treatment was completed.
On July 21, 2008, Timothy Soelter, a physician’s assistant at Fairmont Orthopedics and Sports Medicine, wrote a letter of expressing the view that the employee’s right shoulder could be helped with treatment, including physical therapy and a subacromial injection, and that he was not at MMI as far as the right shoulder was concerned.
A formal hearing on the proposed discontinuance was held on July 29, 2008. Following the hearing, the compensation judge determined that the employee had not yet reached MMI and she denied the employer and insurer’s petition to discontinue. The employer and insurer appeal.
The only issue for the compensation judge at the hearing was whether the employee had reached maximum medical improvement on October 1, 2007. The issue of MMI is one of ultimate fact to be decided by the compensation judge. Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989). The question for this court is whether the determination of MMI by the compensation judge is supported by substantial evidence when considering the record as a whole. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
The argument of the employer and insurer that the employee reached MMI on October 1, 2007, was based on Dr. Belgrade’s report of that date. Dr. Belgrade’s opinions, as set forth in that report, were quite straight forward. He stated that the employee’s diagnosis was occipital neuralgia and myofascial pain, the current treatment program of pain management through medication was reasonable, no additional treatment for the work injury was needed, the employee required some work restrictions, he had no permanent partial disability, and he was at maximum medical improvement. Dr. Belgrade also concluded that one of the psychological conditions he diagnosed, somatoform disorder not otherwise specified, was “intrinsic” to the employee and predated the 2006 injuries.
In contrast to Dr. Belgrade’s opinion, the compensation judge cited to P.A. Soelter at Fairmont Orthopedics and Sports Medicine who stated that the employee’s right shoulder condition was amenable to further treatment, including physical therapy and subacrominal injection and that the employee was not at MMI. The compensation judge also referred to Dr. Peterson’s reports in which she recommended that the employee continue psychological treatment and then retry physical therapy or, if physical therapy was of no benefit, then the employee should be referred to a pain clinic program. The employee testified at the hearing that he was receiving care for his psychological condition.
The underlying issue in this matter is the employee’s psychological condition. At the hearing, the parties discussed whether this issue would be considered at the hearing. The discussion was not on the record, but the parties’ positions were clear from the compensation judge’s comments on the record after the discussion took place. The employee argued that his psychological condition was a preexisting condition that had been aggravated by his work injuries and was therefore work related. The employer and insurer argued that the psychological condition was a non-work condition which prevented the employee from receiving medical care for his work injuries so as to result in the employee being at maximum medical improvement.
A petition to discontinue is given a hearing on an expedited basis and Minn. Stat. § 176.238, subd. 6, provides that an expedited hearing is “limited to the issues raised by the notice or petition unless all parties agree to expanding the issues.” At the hearing, the compensation judge stated, “at the time of the pretrial we also had discussions as to whether the employee had sustained an aggravation of a preexisting health condition or had sustained a superseding intervening cause of his disability. There was no agreement of the parties to expand the issue and that issue is not in dispute today. The nature and extent of the injuries or conditions from the dates of injuries is not in dispute today, only that which was indicated on the May 9, 2008, petition for discontinuance will be in dispute today or will be determined in this proceeding which is whether the employee has reached MMI as of October 1, 2007.” Both attorneys agreed with the compensation judge’s statement of the issues.
On appeal the employer and insurer argue that the compensation judge should have considered their position that the employee’s psychological condition prevented the employee from proceeding with the physical therapy recommended by his treating physicians. The employer and insurer contend that the compensation judge’s characterization of this position as “superseding intervening cause” was legal error.
It is true that “superseding intervening cause” has generally been used to refer to a situation in which an incident occurring after the work injury becomes the cause of the disability. There is, however, no obvious shorthand phrase for the legal position of the employer and insurer which was that an employee is at MMI when a non-work related condition prevents him from receiving the medical care necessary to improve his work injuries. It seems to us that the compensation judge’s use of “superseding intervening cause” to describe that position was not inappropriate. We also note that there was no objection to the compensation judge’s use of this phrase at the hearing.
The heart of the appeal, however, is not the particular phrase used to describe the defense raised by the employer and insurer, but is, instead, the compensation judge’s refusal to consider that defense.
In his October 1, 2007, report, Dr. Belgrade did not say that the employee needed physical therapy or that he recommended physical therapy for the work injuries. His statement on the issue of physical therapy must be read as a response to the employee’s physicians who raised the need for physical therapy as a reason why the employee was not at MMI. Dr. Belgrade stated the employee’s psychological condition would prevent any meaningful participation in physical therapy. In a supplemental report of June 19, 2008, he expanded on his opinion that the employee’s physical therapy would not be successful because of the employee’s psychological condition.
Considering this statement would necessitate determining whether the employee’s psychological condition is work-related. If the work injuries are substantial contributing factors in the employee’s present psychological condition, then the need for treatment of that condition to improve his situation is evidence that the employee is not at MMI. The reliance of the employer and insurer on Dr. Belgrade’s statement is based on a conclusion that the condition is not work related.
At the hearing, the parties apparently concluded that the question of the causal relationship between the work injuries and the psychological conditions was an expansion of the issues raised by the pleadings and the parties refused to agree to such an expansion.
Given the issue as presented to the compensation judge and the evidence presented on issue, we conclude substantial evidence supports the decision of the compensation judge. The decision is affirmed.
 Horner’s syndrome is a condition marked by drooping eyelid and constriction of the pupil as a result of an injury to the sympathetic nerve. Dorland’s Illustrated Medical Dictionary, 29th Ed. 2000.