RICHARD G. DONAHUE, Employee/Appellant, v. TOP TEMP., INC., and WESTERN NAT’L INS. GROUP, Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 2, 2009
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the medical records, the testimony of a co-worker, and expert medical opinion, supported the compensation judge’s finding that the employee’s work injury affected only the employee’s feet, that the employee was sufficiently recovered to be able to work without restrictions from the injury by June 22, 2007, and that the employee had reached maximum medical improvement by June 20, 2007.
Determined by: Stofferahn, J., Wilson, J., and Johnson, C.J.
Compensation Judge: Janice M. Culnane
Attorneys: Richard G. Donahue, pro se Appellant. Kathy Endres and Naomi Liebo Haun, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the discontinuance of temporary total disability benefits. We affirm.
Richard Donahue started working for the employer, Top Temporaries, in September 2006. He was assigned to Sanus Systems as a warehouse worker, weighing and wrapping pallets. On November 17, 2006, the employee was injured when he was caught between pallets on the floor and another pallet being moved by a fork lift. An accident report was prepared by the employee’s supervisor the same day, and signed by the employee. The report described the employee’s injury as a bruise to the right foot. It gave this description of the incident: “Right foot between 2 palletts [sic] forklift pushed them together.”
The employee was seen at NowCare by Dr. Kathy Wallek about an hour and a half after the injury. The employee complained of pain and numbness to the medial edges of both feet, worse on the right than the left. He had some radiating pain up to his knees, but denied any pain from or injury to the knees themselves. The doctor recorded that the employee had been moving pallets with another person who was working the forklift when his feet got pinned between two stacks of pallets. The employee’s right foot was tender to palpation, with erythema and mild edema on the medial edge of the foot. Right foot sensation was intact. The left foot was non tender without edema or laceration. The employee’s knees were not tender to palpation. An x-ray of the employee’s right foot showed a possible compression fracture irregularly along the first metatarsal. The employee was diagnosed with contusion to the right and left feet and a possible right foot fracture. He was referred to a podiatrist and given work restrictions.
The employee was seen by the podiatrist, Dr. J. C. Pellersels, on November 21, 2006. He complained of pain and numbness about the medial, dorsal, and lateral aspect of both feet which began suddenly after a forklift pinned his feet in what Dr. Pellersels characterized as a transverse plane injury. The employee also noted that he was having some hip and back problems from the injury. Dr. Pellersels diagnosed a foot crush injury with neuropraxia and a possible fracture to the accessory navicular on the right. The employee was given an aircast foam walker, and sent to physical therapy for evaluation and treatment to help with the nerve injury.
The employee returned to Dr. Wallek at NowCare on November 22, 2006. He now complained of knee, groin, hip, and low back pain, stating that he wanted to clarify the nature of his work injury. He reported that the injury had involved more than his feet being pinned between two pallets, although when seen before at the clinic, his foot injuries had been the most significant part of his symptoms. He now stated that his entire body had been pinned and crushed to the level of his upper chest, and that since Friday, November 19, he had started to have pain radiating upwards from his knees and including his groin and low back area. Dr. Wallek diagnosed a bilateral foot crush injury, a bilateral groin pull, and lumbar pain, likely muscular. She recommended that the employee treat his groin pain with ice and heat, and prescribed Vicodin and physical therapy. X-rays of the employee’s lumbar spine done the same day were read as normal.
On December 6, 2006, the employee was seen by Dr. Todd Leonard at the Ilko Family Medicine clinic in Woodbury. He informed the doctor that he was being treated for a crush injury and a fracture to his right foot. He had low back pain, pain into the buttocks and pain in his lower extremities. Dr. Leonard sent the employee to HealthEast Woodwinds for multiple x-ray studies of both his feet and ankles, his right and left femur, both knees, his right and left tibia and fibula, both hips, his pelvis and his low back. The x-rays of both feet were read as showing some abnormalities in the bones. The remaining x-ray studies were essentially negative. Dr. Leonard made no reference to any of the x-rays in his subsequent treatment of the employee.
The next day, December 7, 2006, the employee went to the urgent care department at HealthEast Woodwinds Hospital to complain that he had awakened that morning with some upper abdominal pain and a twitching sensation in his chest. He had tenderness in the left lower quadrant, with less tenderness on the right and epigastric areas. Because of the nature of the chest symptoms he was admitted to the hospital to rule out a possible cardiac etiology. A complete work up was undertaken. He was neurologically intact, blood tests and an electrocardiogram were read as normal, and a CT scan of the abdomen and pelvis revealed a normal distal colon, rectum and bladder. A chest x-ray was read as essentially normal. He was observed at the hospital over the next 24 hours and then discharged home.
On December 11, 2006, the employee returned to Dr. Leonard at the Ilko clinic over concerns about his low back pain, groin pain and knee pain, and tingling in his feet. He returned again on December 27, 2006, indicating that he had foot, back and neck pain which was still increasing. Dr. Leonard referred the employee for physical therapy.
The employee returned to his podiatrist, Dr. Pellersels, at Foot and Ankle Clinics on January 2, 2007. Dr. Pellersels found no evidence of edema, erythema, ecchymosis, or open lesions. He recommended continuing the employee’s physical therapy. The employee was casted for a foot brace. During January 2007, the employee continued in physical therapy at Therapy Partners at Dr. Pellersel’s direction both for his foot and ankle problems and for “lumbopelvic dysfunction.” On January 30, 2007, the employee returned to Dr. Pellersels for follow up of a crush injury to both feet and reported that his condition was not improving. Dr. Pellersels recommended physical therapy for the employee’s foot problems be discontinued and he referred the employee to a neurologist.
The employee was evaluated by Dr. Scott D. Callaghan on Feburary 15, 2007, at Neurology Associates. The employee told the doctor that he had sustained a crush injury at work when his feet, legs and chest were crushed by six tons of freight on a forklift. When he had tried to push the freight away, he had felt something in his neck. Since then, he had experienced severe pain in his feet, and cervical occipital headaches with nausea, photophobia and sonophobia. Dr. Callaghan noted that the employee’s neck was supple. Neurological examination showed a “spotty” decreased pinprick sensation displayed at random locations bilaterally in the employee’s feet, but was otherwise normal. Sensation was intact in the legs, thighs & upper extremities. Dr. Callaghan diagnosed a neuropathic process in the employee’s feet related to a crush injury. He considered the employee’s cervical occipital headaches to be musculoskeletal in origin. He prescribed Prednisone and Neurontin, and recommended an EMG study to rule out a lower extremity neuropathic process.
On February 19, 2007, the employee was seen by Dr. Jonathan H. Biebl at Summit Orthopedics for an orthopedic consultation on referral from Dr. Leonard. The employee claimed to have been crushed by a forklift between about six tons of freight. Most of his pain was in his feet, but he also reported migraine headaches secondary to neck pain, and low back and hip pain with prolonged sitting. The employee also stated that his left leg sometimes gave out and that he had left groin pain which was due to an abdominal injury. Dr. Biebl thought that there might be nothing to offer the patient from an orthopedic perspective, but recommended that the employee get an MRI as a final evaluation.
The employee underwent a lumbar MRI scan on February 21, 2007, at the direction of Dr. Callaghan. The scan showed small broad-based right lateral disc herniations at L3-4 with mild disc degeneration, and mild encroachment on the right L3 nerve, lateral to a mildly stenotic neural foramen. There was moderate L4-5 disc degeneration with an annular fissure and disc bulge. At L5-S1, there was a small contained broad-based central and right-sided disc herniation with mild to moderate disc degeneration and mild encroachment of the S1 component of the right L5-S1 nerve root sleeve. There was also moderate foraminal stenosis at L5-S1 with mild bilateral facet arthropathy. On February 26, 2007, the employee underwent nerve conduction studies of the bilateral lower extremities. The results were normal.
The employee was seen by Dr. John A. Dowdle at Summit Orthopedics on February 22, 2007, for evaluation of his back. He reported persistent and continued pain in the neck, mid back, low back, both arms and legs since a crush injury. On exam, range of motion in the neck was good, and back rotation and side bending were full. The employee could stand on his heels and toes, and his reflexes were symmetrical. Straight leg raising was negative and hip motions were normal. Dr. Dowdle diagnosed mechanical neck and low back pain with muscle strain. He recommended that the employee start an active exercise program at Physicians Neck and Back Care to increase his range of activity, then return in a month.
The employee returned to Dr. Biebl on March 6, 2007. He had not yet started the exercise program at Physicians Neck and Back Clinic. He continued to complain of a stiff back. Dr. Biebl noted that the MRI showed nothing that represented an acute lesion requiring surgery.
On March 15, 2007, the employee was evaluated at the Physicians Neck and Back Clinic for low back pain, mid or upper back pain, right leg pain and numbness, and left leg pain and numbness. The employee reported that he was standing between two stacks of freight when a forklift pushed the freight into him, “squishing his feet” and “crushing him from chest to feet.” However, after the release from the freight, he had been able to stand and walk. He had immediate right foot numbness and later developed low back pain, bilateral leg pain, mid back pain, and neck pain. The employee was diagnosed with mechanical low back pain, lumbar degenerative disc changes, and de-conditioning syndrome. A short-term, active rehabilitation program lasting 9-12 weeks was recommended.
On May 14, 2007, the employee returned to Dr. Biebl for back and leg pain, more on the right than the left. Dr. Biebl noted that the employee had pes planovalgus at both feet, and suggested that might be contributing to his back complaints. The employee was given work restrictions.
On May 31, 2007, the employee was discharged from his program of 22 therapy sessions at the Physicians Neck and Back Clinic. He reported that his low back pain and bilateral leg pain had improved, but that he still had pain with nearly all activities.
The employee was referred to Dr. Daren J. Wickum by Dr. Biebl for evaluation of orthotic management of his foot and ankle problems. Dr. Wickum saw him on June 1, 2007. The employee reported that he had been back to work on partial duty at a sitting job. He continued to report global ankle and foot pain with movement or standing. Dr. Wickum noted that nerve tests had shown no nerve damage and that x-rays of the employee’s feet and ankles showed no talocrural abnormalities. He considered the employee’s os trigonum on the left to be longstanding. On examination, there was minimal swelling about the ankles, greater on the right than the left. The employee reported excruciating pain with range of motion examination of the ankle. The employee was seen to ambulate with a labored gait and to limp. Dr. Wickum diagnosed bilateral foot and ankle pain with no specific distribution which failed to fit any specific deficit in terms of nerve or muscle function. The doctor concluded that orthotic management would not help the employee’s foot and ankle symptoms and that surgery was not an option. He recommended pain management.
On June 14, 2007, the employee was seen for an examination on behalf of the self-insured employer by Dr. Gary Wyard. The employee told Dr. Wyard that he had pain throughout his whole body, but primarily in the back and feet. Dr. Wyard noted by way of history that the employee stated he was “squished and crushed” by a forklift and freight weighing six tons, but that no ambulance was summoned. The doctor found the employee to be dramatic about his pain complaint, and to move slowly, grimace, groan and grunt. On examination, the employee’s neck, thoracic, and lumbar spine showed no list, tilt or splinting. The employee had full flexion, extension, side-bending and rotation. There was no back spasm. There was a full range of motion in both the employee’s shoulders, and in his elbows and wrists. No atrophy was present in the shoulder girdle or hands, and there was no shoulder impingement. Upper extremity reflexes were normal, and the mid back unremarkable. The employee was able to bend forward effortlessly, but showed generalized tenderness and a touch me not response in the lumbar spine. Straight leg raising was negative. There was full motion in the hips, knees and ankles, and no deformity or swelling in the employee’s feet.
Dr. Wyard concluded that the employee’s multiple complaints were subjective, and could not be objectively substantiated. He diagnosed gross functional overlay superimposed over preexisting degenerative disease of the lumbosacral spine. In his view, the employee reached maximum medical improvement from the November 17, 2006, work injury three months later. His medical care had been excessive, enabling, and contraindicated. Dr. Wyard further opined that the employee needed no work restrictions and no further treatment for the work injury.
The self-insured employer filed a notice of intention to discontinue wage loss benefits (“NOID”) effective June 20, 2007, based on Dr. Wyard’s opinion releasing the employee without restrictions. The self-insured employer also served the employee with Dr. Wyard’s MMI opinion.
The employee returned to Dr. Biebl on June 25, 2007. He recommended that the employee return to Dr. Dowdle and consider a pain clinic. Dr. Dowdle saw the employee on July 12, 2007. The employee was still having persistent mechanical neck and low back pain. Dr. Dowdle noted that the employee had previously shown massive muscle strain and degenerative disk changes in the low back. He recommended a medial branch block to see if that decreased the employee’s pain, in which case radiofrequency facet denervation might be appropriate.
The employee was seen at St. Joseph’s Hospital on July 23, 2007. He gave a history of a work injury resulting in chronic back pain since November 2006. The employee reported that his pain had increased over the last few days, with some occasional pain down the buttocks to the thighs occasionally. He was experiencing urgency in urination and the bowels. Examination was negative for abdominal pain or sensation changes in the perineum, and there was no weakness in the extremities. Straight leg raising caused no radicular changes or symptoms. Deep tendon reflexes were equal bilaterally equal. There were no signs or symptoms that would suggest a progressive process such as cauda equina. The employee was given a shot of morphine and referred to his primary physician with a recommendation for chronic pain treatment.
The employee was seen on July 30, 2007, for a second opinion by Bryan S. Russell, a doctor of podiatry. He described numbness and exquisite pain in both feet, stating that a forklift ran over the dorsum of his feet. He reported back treatment without improvement. Dr. Russell could not identify specific painful areas in the feet, which were uniformly tender. The employee stated that he was able to stand for no more than 20-30 minutes. X-rays showed no fractures or dislocations. Dr. Russell diagnosed a crush injury to the bilateral extremities with no acute fracture or dislocation. He could offer no definitive treatment to alleviate the employee’s pain, though he thought some medications might alleviate some of the burning and stinging. He deferred the issue of such medication to a neurologist or pain specialist.
The employee returned to Dr. Biebl on July 31, 2007. He had severe muscle spasms and could not assume a full upright posture. No gross neurologic changes were apparent. Dr. Biebl was unsure what treatment could be offered. He gave the employee a prescription for Flexeril.
On August 21, 2007, the employee was seen again by Dr. Dowdle. He reported a flare up of his back and leg pain. He had not yet had the recommended medial branch block. Dr. Dowdle diagnosed mechanical back pain and degenerative disc changes. He continued to recommend a medial branch block as a diagnostic and therapeutic tool to consider the utility of radiofrequency facet denervation. In his view, the employee was not a candidate for fusion. He considered the employee at a high likelihood of being permanently totally disabled. In a letter dated November 14, 2007, Dr. Dowdle noted that the employee, by history, had no back problems in the past, until he had an aggravation of his back condition on November 17, 2006, when he attempted to get out of the way of a forklift and strained to do so. He considered the employee to have reached maximum medical improvement, with a 3.5 percent permanent partial disability pursuant to Minn. R. 5223.0390, subp. 3b. In his view, the employee was not permanently totally disabled, but should observe work restrictions on bending and lifting.
At an administrative conference on the self-insured employer’s NOID held on August 27, 2007, the employee contended that discontinuance for lack of restrictions was not appropriate because he was still under restrictions relative to his low back condition. The self-insured employer responded that the low back condition was pre-existing and that the work injury had involved only the employee’s feet. The NOID was denied and the self-insured employer timely filed a Petition to Discontinue.
The self-insured employer served another notice of intention to discontinue wage loss benefits on October 3, 2007. This discontinuance was predicated on the contention that the employee was 90 days post maximum medical improvement, pursuant to Dr. Wyard’s MMI opinion, as of September 17, 2007. The employee objected to the proposed discontinuance. The issues presented by this NOID were consolidated with the self-insured employer’s Petition to Discontinue.
Dr. Dowdle saw the employee again on November 21, 2007. The employee continued to complain of persistent mechanical low back pain. Straight leg raising was restricted at 80 degrees. Hip motions were intact. Dr. Dowdle diagnosed a degenerative disk disease at L4-5 and L5-S1. He recommended a medial branch block and an active exercise program.
The matter was heard by Compensation Judge Janice Culnane on January 10, 2008. At the hearing, the employee testified to one version of the injury, in which he was crushed to chest level between the freight on the forklift and that on a stationary pallet, while the self-insured employer offered testimony from the forklift driver that the incident involved only the employee’s feet being pinned between the pallets of freight. Following the hearing, the compensation judge found that the work injury had resulted only in injury to the employee’s feet, and that he had been released to return to work without restrictions from June 22, 2007, through the date of the hearing. The judge also found that the employee had reached maximum medical improvement for his foot injuries on June 20, 2007. The self-insured employer was allowed to discontinue benefits from and after October 3, 2007, and were awarded a credit for benefits paid between June 22, 2007, and that date. The employee appeals.
In an appeal, this court determines whether the compensation judge’s findings are supported by substantial evidence. Minn. Stat. § 176.421, subd. 1. Substantial evidence is 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. 1989). If substantial evidence is found to exist, the findings are affirmed.
The employee and the forklift operator, Pedro Arana, gave very different testimony as to which parts of the employee’s body were pinned between the two pallets. The judge accepted Mr. Arana’s testimony. As a general rule, where witnesses give conflicting accounts of an event, this court accepts the judge’s choice as to which testimony should be adopted, unless the testimony accepted by the judge lacks credibility or is based on inadequate foundation (insufficient knowledge or understanding of the facts). Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).
The employee argues on appeal that his own account of the injury was very specific and detailed, while that of the fork lift operator, Pedro Arana, was confused, inaccurate, and contradictory. The employee points out that Mr. Arana testified that he did not physically come down from the fork lift to see what parts of the employee’s body were affected; the employee further claims that Mr. Arana testified that he was unable to see any part of the employee other than his feet. Accordingly, the employee asks how Mr. Arana could have had accurate knowledge of what parts of the employee’s body might have been crushed and injured. To the extent that the employee argues that Mr. Arana’s testimony shows that he could not see what parts of the employee’s body were injured, this argument is one of whether there was adequate foundation for Mr. Arana’s testimony. A witness’ account which has insufficient foundation is entitled to little weight. For this reason, we have closely examined Mr. Arana’s testimony to see whether it had sufficient foundation to permit the judge to rely on it for this purpose.
While Mr. Arana testified that he did not dismount the fork lift to examine where the employee had been pinned, a fair reading of his testimony is that he could see the employee’s toes and thus determine that his feet were pinned. He did not see any other part of the employee being pinned by the freight, although he was unable to see the back part of the employee’s feet or the area from the employee’s ankles to his knees. The compensation judge could reasonably conclude that Mr. Arana had a sufficient view of the incident so that his testimony could be adopted by the compensation judge, at least as it contradicted the employee’s claims of a crush injury extending from his feet to his upper chest. Since Mr. Arana’s testimony had sufficient foundation, and was adopted by the compensation judge, we accept the judge’s findings based on that testimony.
We note also that Mr. Arana also testified that the freight was set back about four inches from the edge of the pallet, from which the compensation judge could reasonably conclude that the employee’s body was not likely to have been crushed at levels higher than the height of the pallet itself.
The employee next argues that the transcript of the hearing does not address the contents of the employee’s medical records; he points to the numerous records in which he was treated for, diagnosed with, or given restrictions with respect to symptoms in various body parts in addition to the feet. We note, first, that it is customary that a compensation judge’s detailed review of the written exhibits take place outside the hearing. Such exhibits are alluded to at the hearing only as is necessary to offer them into evidence or object to their offer, or to the extent that they may be referred to in the questions and answers in the oral testimony.
The employee is correct in pointing out that these records disclose significant medical treatment to the employee’s low back and other areas in addition to his feet. However, the fact that treatment was provided does not necessarily prove that the work injury was the cause of the treatment. In the present case, the compensation judge noted that the timing of the complaints listed in the employee’s medical records showed that the employee did not complain of any symptoms except foot problems immediately after the injury, and only later added a number of other complaints. In addition, the judge noted that the medical records generally disclosed that the employee’s diagnosis and treatment for most of these other complaints, with the exception of his back problems, was based principally on subjective complaints of pain which did not correlate with any objective medical findings in x-rays or medical examination testing.
Further, Dr. Wyard diagnosed gross functional overlay superimposed over longstanding preexisting degenerative disease of the lumbosacral spine, and did not connect this condition to the employee’s work injury. Instead, he stated that the employee had sustained only an injury to the right foot, from which he had recovered sufficiently to return to work without any medical restrictions. The compensation judge accepted the medical opinion of Dr. Wyard. It is the role of the compensation judge to choose between competing medical opinions and this court will generally affirm a compensation judge’s decision based on that choice if the medical opinion upon which the compensation judge relied has adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); King v. Woodsmen Midwest, Inc., 65 W.C.D. 175 (W.C.C.A. 2004). Dr. Wyard’s opinion has adequate foundation and constitutes substantial evidence in support of the compensation judge’s decision.
The compensation judge’s decision is affirmed.
 Among testimony leading us to this conclusion, we note the following:
Q. Before you moved the pallet, did you have a chance to get off of the forklift and go look to see where Mr. Donahue was between the two pallets?
A. After I hit him, or the pallets hit him?
A. No, I didn’t get up.
Q. At some point in time, did you come round to look and see how Mr. Donahue was positioned between the pallets?
A. I didn’t go down because from where I was in the forklift I was able to look. When it happened I looked quickly. And I had to move the pallets quickly.
Q. Did you see any part of Mr. Donahue’s body touching the product on either side of his body?
A. No, I think I didn’t see any part of his body [ie., touching it] except the foot. I didn’t see - - I don’t think I saw the stomach or his legs [touching it]. In this part, in the front, no. (T. 35.)
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Q. Why were you not able to see Mr. Donahue’s foot or legs?
A. Yes, I could see them because the pallet was - - his foot was a little bit out from the pallet. Exactly, the legs from here to here (indicating), I couldn’t see them because they were (indicating) from the pallet.
THE COURT: You said from here to here you couldn’t see?
A. From here to here (indicating). (T. 40.)
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THE COURT: But you could see his toes sticking out?
A. Yes, those I could.
[Discussion about making a record of the measurements]
MR. LEVINE: He's gesturing that he could not see from his ankle to his knee.
MS. ENDRES: And now if I can just clarify something so we can get a clear record here. But you couldn’t see Mr. Donahue from his ankle to his knee, correct?
A. Yes, that exact part. I could not see it because the boxes were there, but I could see the end of his toes because his feet were like this (indicating). (T. 41.)