ANDREW D. GARSKI, Employee/Appellant, v. MACY’S, INC., SELF-INSURED, Employer.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 18, 2009
TEMPORARY TOTAL DISABILTY - SUBSTANTIAL EVIDENCE. Where the compensation judge relied on a medical opinion that the employee’s shoulder and neck injury had resolved, that the employee had reached maximum medical improvement (MMI) from his work injury, and 90 days had expired following service of notice of MMI, substantial evidence, in view of the record as a whole, supported the denial of the claim for ongoing temporary total disability benefits.
MEDICAL TREATMENT & EXPENSE – SUBSTANTIAL EVIDENCE. Where the compensation judge relied on a medical opinion that the employee had fully recovered from his injury, that he required no further medical treatment, and that he required no work restrictions as a result of his injury, evidence of the record, when viewed as a whole, supported the denial of the claim for authorization of a consultation with a physiatrist.
Determined by: Rykken, J., Stofferahn, J., and Johnson, C.J.
Compensation Judge: James F. Cannon
Attorneys: David B. Kempston, Law Office of Thomas D. Mottaz, Coon Rapids, MN, for the Appellant. Thomas L. Cummings, Jardine, Logan & O’Brien, Lake Elmo, MN, for the Respondent.
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge’s denial of his claim for temporary total disability benefits and denial of his medical request. We affirm.
On September 27, 2006, Andrew Garski, the employee, sustained an admitted injury to his right shoulder and neck, while employed by Macy’s, the self-insured employer. The employee had worked for Macy’s and its predecessor companies since 1994, and worked as a delivery man the entire time. His job required him to deliver furniture in the metropolitan area, which involved delivering a variety of items, varying in weight between 5 and 500 pounds, with an average of 12 to 14 deliveries each day. Over the term of his work with the employer, the employee sustained numerous work-related injuries to his neck and low back. He continued to work for the employer, however, following each of his injuries, and was able to perform his regular delivery duties up through the date of his injury on September 27, 2006.
On that date, the employee carried a king-sized mattress up a flight of stairs, with the assistance of a coworker. As the mattress lurched to the right and started to tip over a railing, the employee reached up to grab the mattress to prevent it from flipping over the railing. As he did so, he felt pain extending into the right side of his neck, down into his right shoulder and into his right arm. His right shoulder and neck pain continued following that injury, and he sought chiropractic treatment that same day at Olson Brothers Chiropractic, the clinic where he had received treatment following his earlier work-related injuries. His chiropractor, Dr. Olson, restricted the employee from work from September 28 to October 14, 2006. The self-insured employer admitted primary liability for this injury, and paid the employee temporary total disability benefits. The employee returned to work on a light-duty basis on October 15, 2006, but never resumed his regular furniture delivery position. In March 2007, the employer closed its warehouse, which resulted in a termination of the employee’s delivery position. At that time, the employer resumed payment of temporary total disability benefits and began to provide rehabilitation assistance.
The employee has remained under work restrictions from the time of his 2006 injury up through the date of the hearing in 2008. The employee received chiropractic treatment two or three times per week for two months following his injury. In the past, following his various work-related injuries, the employee’s symptoms were resolved through chiropractic treatment. Unlike his previous injuries, however, his symptoms did not resolve with treatment after his September 2006 injury. Since that injury, activities requiring lifting of his right arm over his shoulder have aggravated his neck and right shoulder symptoms.
By December 18, 2006, his treating chiropractors noted that the employee was feeling much better but still had frequent flare ups of his right upper back and right shoulder pain. They concluded that the employee was healing from a moderate to severe strain of his cervical, thoracic, and lumbar spine complicated by shoulder neuritis, and referred the employee for an MRI scan and for an orthopedic evaluation with Dr. Michael Nemanich. The MRI, taken December 19, 2006, showed a paralabral cyst associated with an apparent tear at the junction of the posterior and inferior labra. The scan also showed a down sloping acromion and mild AC joint degenerative hypertrophy, and mild to moderate supraspinatus tendinopathy.
Dr. Nemanich examined the employee on January 29, 2007, and diagnosed impingement syndrome of his right shoulder and cervicalgia, also known as cervical pain. On examination, the employee had tenderness in the paraspinous muscles of his neck with a moderate limitation of cervical motion. Dr. Nemanich also detected tenderness in the employee’s right shoulder at the subacromial space and over the biceps tendon. He treated the employee with a cortisone injection into his right shoulder, and advised the employee to continue with his therapy exercises. Dr. Nemanich commented that if the employee did not receive significant relief from the shoulder injection, he then would recommend an MRI scan of the cervical spine for further evaluation. On February 26, 2007, the employee reported that he had not obtained relief from that cortisone injection, and still felt tenderness in his neck and right shoulder and decreased range of motion of his neck.
Dr. Nemanich referred the employee to one of his partners, Dr. Edward Kelly, a shoulder specialist, for a second opinion. The employee reported continued shoulder pain. Dr. Kelly examined the employee on March 1, 2007, and detected tenderness at the subacromial space. Dr. Kelly diagnosed joint pain in the right shoulder, and recommended continued physical therapy, which the employee received in March and April 2007. Dr. Kelly assigned work restrictions for the next eight weeks, including no lifting more than 40 pounds and no over- head lifting with the right arm. In April 2007, in response to a letter from the employer’s medical management nurse, Dr. Kelly stated that it was too early to determine if the employee would require cervical spine or shoulder surgery, and anticipated that the employee might reach maximum medical improvement (MMI) and be released to full duty within four to six months.
The employee continued to follow up with Dr. Kelly throughout the spring and summer of 2007, during which time he continued to note symptoms in his neck and right shoulder. Dr. Kelly continued to assign work restrictions. In a chart note dated May 24, 2007, Dr. Kelly stated that the employee clearly had some posterior labral pathology and what appeared to be an ulnar neuropathy, and recommended an EMG for further evaluation of that potential ulnar condition. On June 20, 2007, the employee underwent an EMG of his right upper extremity, which was interpreted as showing no acute right cervical radiculopathy, plexopathy, or generalized peripheral neuropathy, nor right carpal tunnel syndrome. Dr. Kelly noted that the employee’s findings on EMG were normal and concluded that, based on the labral tear detected on the MRI scan, the employee would be a good candidate for a right shoulder arthroscopic assessment and posterior labral/SLAP repair.
Dr. Kelly ultimately performed surgery on the employee’s right shoulder on September 6, 2007. Dr. Kelly listed his post-operative diagnosis as Grade I degenerative-type posterior labral tear and posterior internal impingement along with subacromial impingement of the right shoulder. According to the employee, his right shoulder surgery alleviated some of his symptoms. He testified that the surgery helped “the nasty down deep pain in the center of the shoulder,” but did not relieve the pain radiating from his neck down into his right arm, nor did it alleviate his right ring and pinky finger symptoms.
The employee underwent physical therapy at Dr. Kelly’s referral. By December 2007, the employee reported that he continued to note tenderness over the anterior aspect of his shoulder, and that his pain increased with pushing motions. Dr. Kelly assigned restrictions of no overhead lifting, and recommended no lifting more than 30 pounds with his right arm. On March 4, 2008, at Dr. Kelly’s referral, the employee commenced a five-week work hardening program at the Fairview Institute for Occupational Rehabilitation. The goal of the work hardening program was to increase the employee’s ability to lift up to 50 to 100 pounds and to improve his functional mobility.
On March 18, 2008, the employee underwent an independent medical examination with Dr. Paul Wicklund. Dr. Wicklund determined that the employee sustained a shoulder strain on September 27, 2006, that led to impingement syndrome of the right shoulder which was treated by surgery in the nature of an arthroscopic decompression. Dr. Wicklund characterized that shoulder injury as permanent, resulting in a rating of 3% whole body impairment, and concluded that the employee had reached MMI from his right shoulder injury within four months of his 2007 surgery. Dr. Wicklund also concluded that the employee had sustained a cervical strain on September 27, 2006, which was temporary in nature, and that he had reached MMI from that injury within three months. As to the employee’s neck condition, Dr. Wicklund stated that “it’s my opinion that [the employee] had long-standing neck problems for years and was treated chiropractically for these. He has nothing more than age related degenerative arthritis of his cervical spine.” Dr. Wicklund concluded that the employee did not require any specific work restrictions for his right shoulder or neck, basing his conclusions on the lack of objective physical findings.
Dr. Wicklund also concluded that the employee did not require any further medical treatment for his shoulder and neck pain, with one exception. Dr. Wicklund recommended that the employee undergo an MRI of the cervical spine, even though he noted no signs or symptoms of a cervical disc problem, concluding that an MRI would be appropriate because the employee had experienced right-sided neck pain for so long.
The employee completed his work hardening program by April 8, 2008, but found that lifting anything beyond 50 pounds aggravated his neck and shoulder symptoms. According to notes prepared by the therapist who conducted the work hardening program, the employee reported continued right shoulder and neck pain, and that he was especially concerned about pain that extended into his neck from the back of his shoulder. He reported an occasional loss of strength in his right hand when grasping things, as well as occasional numbness and tingling into the ulnar aspect of his right hand. The therapist commented that it appeared the employee “would benefit from further medical investigation into his symptoms.”
The employee followed up with Dr. Kelly on April 10, 2008, reporting ongoing posterior shoulder and neck pain, moderate in nature, and that his pain was unchanged since before his surgery. The employee reported that his strength was improved with therapy. Dr. Kelly assessed impingement that had improved, but also noted the employee’s continued pain. Dr. Kelly assigned a permanent 50 pound lifting restriction, which was consistent with the restriction assigned by his physical therapist, and referred the employee for an MRI scan of his cervical spine to assess his continued pain.
On April 14, 2008, the employer served notice of maximum medical improvement on the employee, along with Dr. Wicklund’s report.
In addition to Dr. Wicklund’s opinions concerning MMI, the record contains two conflicting reports from Dr. Kelly addressing MMI. In a healthcare provider report dated April 4, 2008, Dr. Kelly listed a diagnosis of impingement resulting from the employee’s work injury, and assigned a 0% whole body impairment rating. In response to the question “Has the employee reached maximum medical improvement?” Dr. Kelly checked the box labeled “Yes,” and listed the date of MMI as being April 15, 2008. In a handwritten note dated April 15, 2008, however, generated in response to an April 4, 2008, letter from the employer, Dr. Kelly stated that the employee had not yet reached MMI from his September 27, 2006, work injury. He wrote that the “patient had another MRI 4/15/08 will follow up 4/24/08.”
On April 15, 2008, the employee underwent an MRI of his cervical spine. The scan demonstrated mild multilevel degenerative changes at the C2-3 and C3-4 levels. At the C5-6 level, the scan showed a degenerative bulge at the central portion of the spinal canal with no significant central or foraminal stenosis. Dr. Kelly referred the employee to Dr. Michael Smith, a cervical spine specialist, who examined the employee on May 13, 2008. Dr. Smith referred the employee for an additional EMG to determine if there had been “any evolution and/or to see if there are any cervical components to his complaints.” That EMG, conducted on June 4, 2008, was interpreted as normal. Dr. Smith advised the employee that the EMG study did not show any evidence of carpal tunnel syndrome, ulnar nerve problems by the elbow, or nerve problems emanating from his neck. Dr. Smith therefore recommended a “good rehabilitative approach” to manage the employee’s neck pain, shoulder condition, and general aerobic strength and endurance, and recommended that he seek treatment from a physiatrist for this type of treatment.
By mid-July, 2008, the employee again consulted Dr. Smith. The doctor noted degenerative changes in the employee’s neck, along with neck pain “that maybe be associated with a constellation of symptoms referable to [the employee’s] shoulder.” Dr. Smith referred him to Dr. Paul Biewen, a physiatrist, for further evaluation of his neck pain syndrome. The employer denied authorization for the employee to consult Dr. Biewen.
In August 2008, the employee began working in a temporary position for the Teamster’s Union driving a truck for a movie production company. At that point, evidently by agreement of the parties, rehabilitation services were suspended while the employee was working. He continued working at the truck driving position through November 19, 2008, when the movie production ended and the employee’s truck driving services were no longer needed. At the time of the hearing on November 20, 2008, the employee continued to note pain radiating from his neck into his right shoulder. He testified that his symptoms increased if he used his right arm overhead or at shoulder height, and that he was limited in sports activities. He also testified he did not feel he had fully recovered from the effects of his September 2006 injury, and testified that he wished to consult Dr. Biewen to learn if there was anything else that could be done to treat his condition.
In 2008, disputes arose concerning the employee’s ongoing entitlement to temporary total disability benefits. The employer initially filed a notice of intent to discontinue benefits (NOID) on April 14, seeking to terminate temporary total disability benefits effective April 4, 2008, based upon the opinions of Dr. Wicklund, and also filed a rehabilitation request, seeking to terminate vocational rehabilitation benefits. Following an administrative conference set to address both issues, a compensation judge denied the proposed discontinuance, determining that the employee required additional medical treatment for his neck and therefore had not reached MMI. The employer filed another NOID on August 1, 2008, alleging that the employee no longer had restrictions related to his work injury, and that 90 days had passed since the employee had been served with notice of MMI.
Following an administrative conference held to address the NOID, another compensation judge determined that reasonable grounds existed for discontinuing temporary total disability benefits, on the basis that the employee had reached MMI from his right shoulder injury and that his neck condition had resolved. The employee filed an objection to discontinuance.
The employee also filed a medical request seeking approval of a consultation with Dr. Biewen, for ongoing treatment of his work related right shoulder and neck condition. In its medical response, the employer denied the medical treatment, asserting that the employee had reached MMI with respect to his right shoulder and that his neck injury was temporary and had resolved.
Dr. Wicklund issued a supplemental report on November 10, 2008, in which he outlined his review of additional medical records. Dr. Wicklund again concluded that the employee had sustained a permanent right shoulder injury and a temporary neck strain as a result of his work injury on September 27, 2006, and that he had reached MMI for both conditions. He concluded that the employee needed no further medical treatment for his right shoulder or neck, and required no specific work restrictions with regard to his right shoulder or neck.
The employee’s objection to discontinuance and his medical request were addressed at a hearing on November 20, 2008. Because the employee’s temporary employment had ended on November 19, he amended his claim to include an ongoing claim for temporary total disability benefits, effective November 20, 2008. The hearing record remained open until December 26, 2008, to allow the employer to submit additional evidence in response to the employee’s claim for temporary total disability benefits; the employer ultimately submitted no additional evidence.
In his findings and order served and filed January 26, 2009, the compensation judge determined that the employer had reasonable grounds to discontinue the employee’s temporary total disability benefits, and also denied the employee’s request for authorization for a consultation with Dr. Biewen. The compensation judge concluded that the employee had fully recovered from his September 2006 right shoulder and neck injury, that he had reached MMI for his neck injury as of December 27, 2006, and that he had reached MMI for his right shoulder condition as of approximately March 18, 2008. The compensation judge concluded that because the employee had made a full recovery from his right shoulder injury and no longer needed restrictions related to his shoulder, and because his neck injury was temporary, he was no longer entitled to temporary total disability benefits, nor was the referral to a physiatrist reasonable and necessary or causally related to the employee’s work injury.
The employee appeals from the compensation judge’s findings concerning his right shoulder, contending that the compensation judge’s decision is not supported by substantial evidence and is clearly erroneous. The employee did not appeal the findings related to his neck condition and injury.
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).
The compensation judge denied the employee’s claim for ongoing temporary total disability benefits, on the basis that he had fully recovered from his September 2006 right shoulder and neck injury. The employee appeals, contending that the judge’s finding that he had recovered from his shoulder injury contradicts the testimony of the employee and the opinions of all of the employee’s treating and consulting doctors.
The dispute concerning discontinuance of temporary total disability benefits was initially addressed at an administrative conference before a compensation judge. Following that hearing, a compensation judge determined that reasonable grounds existed to discontinue payment of temporary total disability benefits. The employee objected to that discontinuance, and so the hearing held on November 20, 2008, was held on a de novo basis, to address the employee’s objection. In his findings and order, the compensation judge reached the same conclusions as did the judge who presided at the administrative conference, that is, that the employee had fully recovered from his right shoulder injury and surgery.
The employee argues that a comparison of the language utilized by the judge at the administrative conference with the language utilized by the compensation judge at the hearing suggests that the compensation judge appears to have copied, on an almost verbatim basis, the conclusions made by the judge who presided at the administrative conference. The employee raises this concern because the evidence presented at the respective hearings was quite divergent. The administrative conference was a short, summary proceeding with no testimony and no record; the evidentiary hearing included testimony by the employee and submission of extensive medical records. The employee argues that because the compensation judge at the evidentiary hearing used such similar language suggests that his review of the medical records, and his analysis, were limited.
While adoption of the language used by the judge who presided at the administrative conference may impose on this court an obligation of closer scrutiny of the compensation judge’s findings than would be required where the judge’s reasoning was more transparent in his decision, the issue on appeal is whether the findings are supported by substantial evidence. Where the findings are supported by the record, there is no error by the compensation judge in adopting the language of the judge who presided at the administrative conference. See generally Hagg v. Olympic Steel, Inc., slip op. at 9 (W.C.C.A. Sept. 1, 1998) (concerning a compensation judge’s adoption of proposed findings).
The employee also contends that his testimony corroborated the ongoing symptoms and limitations reported in his medical records and also corroborated that his symptoms are aggravated if he lifts over 50 pounds and that he continues to require work restrictions as a specific result of his shoulder injury. He contends that this unrefuted testimony confirms that he has been restricted since his 2006 injury, and that when his testimony is reviewed in conjunction with his medical records, the judge’s finding of a full recovery lacks support.
The employee also contends that the reports of the physical therapist who directed his work hardening program in 2008 support the employee’s testimony concerning his limitations. He notes that in the 25 therapy sessions that comprised the work hardening program, the physical therapist had closely examined the employee and had concluded that the employee had a reduced range of motion, a discrepancy in grip strength between his right and left hands, and persistent symptoms, all which contributed to his need for ongoing restrictions resulting from his right shoulder injury. The employee also argues that the opinion of the employee’s consulting surgeon, Dr. Michael Smith, does not support Dr. Wicklund’s conclusions and the judge’s findings. Dr. Smith concluded that the employee’s ongoing neck, right shoulder and right arm symptoms were in all likelihood the result of his shoulder condition, and he recommended additional work-up with Dr. Biewen.
The employee asserts that this is not the case of simply choosing one medical expert over another. He argues that the evidence of record does not support Dr. Wicklund’s conclusions, and that because the compensation judge’s findings concerning his shoulder condition rest entirely upon the opinions of Dr. Wicklund, and because Dr. Wicklund’s opinion is not supportable, the judge’s conclusions are erroneous.
This court is restricted by the standard of review set forth in Minn. Stat. § 176.421, subd. 1, which directs this court to determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” That standard was analyzed by the Minnesota Supreme Court in Hengemuhle, wherein the court concluded that substantial evidence supports findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239. The employee does not argue that Dr. Wicklund’s opinion lacks foundation, but, instead, that Dr. Wicklund’s opinion is not supported by the opinions and testimony of the employee, his doctors and his therapist. While it is true that Dr. Wicklund’s opinion concerning the nature of the employee’s shoulder condition stands alone among the other medical opinions in the record, we defer to the compensation judge’s choice between conflicting medical opinions, concluding that it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). The employee here argues that the medical opinion of Dr. Wicklund could not reasonably be accepted by the compensation judge as adequate. Even in cases, however, where this court may have arrived at a different conclusion than this compensation judge reached after reviewing the entire record, this court should not disturb findings of fact “unless they are clearly erroneous in a 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., 304 Minn. at 201, 229 N.W.2d at 524.
In summary, the compensation judge concluded that the employee’s shoulder and neck injury has resolved, that he has reached MMI from his shoulder injury, and that the employee needs no further medical treatment as a result of his September 27, 2006, injury. The record as a whole, including the employee’s medical records, includes support for the compensation judge’s conclusions. We are aware that there also is substantial evidence in the record to support factual conclusions and a result contrary to the one reached by the compensation judge. However, it is this court’s function on factual review to assess whether substantial evidence exists to support the conclusion reached by the judge. Land v. Washington County Sheriff’s Dep’t, slip op. (W.C.C.A. Dec. 23, 2003); see also Ask v. Winona Health, No. WC08-156 (W.C.C.A. Oct. 29, 2008); Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (“whether [the appellate court] might have viewed the evidence differently is not the point, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate”). The compensation judge heard the employee’s testimony at the hearing, he had available for his review the employee’s extensive medical records and arrived at these conclusions, recited in his findings: that the employee has fully recovered from his shoulder injury such that he no longer requires work restrictions, that he has reached MMI from his right shoulder injury, and that, because the statutory 90-day period has expired since service of the notice of MMI, he is no longer entitled to temporary total disability benefits.
In close cases such as this, where there is evidence supporting both sides of the argument, and where the compensation judge has chosen the opinion of one medical expert over the opinions of others, we defer to the decision of the compensation judge unless there is clear error. Id. In this case, we do not find clear error. And because the record supports the compensation judge’s determination that the employee has fully recovered from his shoulder injury, he did not err by denying the employee’s request for a consultation with Dr. Biewen. The judge’s conclusions were soundly based on the substantial evidence in the record, and, under our standard of review, we must affirm.
 Drs. Dennis and Daniel Olson render chiropractic treatment at Olson Brothers Chiropractic. The first name of the chiropractor, however, as recorded on the September 27, 2006, chart note is illegible.
 The date on this healthcare provider report is difficult to read, but appears to be April 4, 2008.