KAREN E. BOOTHBY, Employee/Appellant, v. DIVINE HOUSE, INC., and AMERICAN COMP. INS. CO./RTW, INC., Employer-Insurer/Cross-Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 16, 2010
CAUSATION - TEMPORARY AGGRAVATION. Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee’s 2006 work injury was a temporary aggravation of a pre-existing condition.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion and medical records, supports the compensation judge's finding that the employee failed to establish entitlement to temporary benefits from and after July 12, 2009.
REHABILITATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical and vocational opinions and medical and vocational rehabilitation records, supports the compensation judge's denial of the employee's request for rehabilitation services.
MAXIMUM MEDICAL IMPROVEMENT - SERVICE OF MMI REPORT. Where the parties stipulated to service of the medical opinion on which the compensation judge relied in finding that maximum medical improvement [MMI] had been reached, the finding that the employer and insurer failed to prove service of MMI is vacated.
Affirmed as modified.
Determined by: Stofferahn, J., Rykken, J., and Pederson, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: DeAnna McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant. Eric S. Westphal and Adam J. Brown, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Cross-Appellants.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s determination that the employee's injury was temporary and had fully resolved by October 31, 2006, from the finding that she was not temporarily totally disabled after June 12, 2009, and from the denial of her request for vocational rehabilitation services. The employer and insurer cross-appeal the finding that service of maximum medical improvement [MMI] was not established. We affirm, as modified.
The employee, Karen E. Boothby, was born in 1944 and is currently 66 years old. She has a GED and work experience of driving a truck, operating a combine, and working as a waitress and cook, laundry worker, housekeeper, cashier, and dietary aide.
In January 1991, the employee was working as a dietary aide at St. Francis Hospital when she sustained a work injury while taking a heavy load of garbage out to a dumpster and felt a “crack” in her back. She had received intermittent chiropractic care since 1989 and, after her 1991 injury, continued to treat chiropractically with Dr. Alisa Mitskog for low back and bilateral leg pain, which she reported had worsened after the January 1991 work injury. She continued to work without time loss at the hospital and at a second job the employee also held. In October 1991, the employee sustained a further work injury to her low back while lifting a case of pineapple. She again felt a “crack” in her back and now experienced numbness in her legs. The employee initially treated chiropractically with Dr. Mitskog, who took her off work for several weeks.
A CT scan of the employee’s lumbosacral spine was done on November 23, 1991, and showed what was described as a possible focal minimal herniation at L5-S1 on the left and centrally with questionable clinical significance. On January 17, 1992, an MRI scan was performed which was read as showing impingement on the left anterior aspect and “probably also” on the right and central aspects of the L4-5 disc sac with a suspicion of impingement on both L5 roots. There was a slight displacement of the left S1 root by a herniation of the L5-S1 disc.
Dr. Mitskog continued chiropractic treatment but also referred the employee for a consultation with Dr. Jeffrey Stavenger, an orthopedic physician. Dr. Stavenger saw the employee on January 22, 1992. Examination showed that the employee's lumbar range of motion was limited by pain, but there was no evidence of any neurological deficit. Dr. Stavenger diagnosed a soft tissue injury. He recommended a progressive back strengthening program which he considered the only form of treatment likely to give long term benefit. He also released the employee to return to work at one of her jobs and then slowly increase activity as tolerated.
The employee was evaluated by Dr. John A. Dowdle on May 27, 1992. Her chief complaint was intermittent pain in her lower back, which ranged from mild to severe depending on her activity level, along with occasional bilateral leg pain and numbness. Lumbar range of motion was limited, but the employee’s examination was otherwise normal. Dr. Dowdle considered the most significant radiological finding to be generalized dehydration with loss of disc space height at L5-S1. He diagnosed mechanical low back pain with degenerative disc disease and recommended that the employee limit bending, avoid prolonged single positions, repetitive bending and overhead work, and observe a 25 pound lift limit. In his opinion the employee did not require further chiropractic treatment or physical therapy. Dr. Dowdle suggested that if the employee’s symptoms persisted, a discogram and possible fusion at the lumbosacral level might be considered. He rated the employee with a 7 percent permanent partial disability for degenerative disc disease, and apportioned one fourth of the disability to each of the 1991 work injuries and one half to a pre-existing condition. In July 1992, he opined that the employee had reached MMI.
The employee was evaluated by Dr. Alexander Lifson at the Institute for Low Back Care on January 7, 1993. The employee complained of persistent low back and neck pain with occasional aching and numbness in her lower extremities which had not resolved. The employee noted that she had continued to work until January 1992 but had not been able to perform her job as a dietary aide since that time. She had not experienced any improvement with chiropractic treatment, physical therapy, traction or exercise. No spasm was seen on examination although range of motion was slightly restricted. Dr. Lifson noted that the employee's CT showed a slight narrowing of L5-S1 disc space and minimal bulging without nerve root compression. He diagnosed lumbar degenerative disc disease at L5-S1 resulting in mechanical back pain. He disagreed with Dr. Dowdle's suggestion of fusion surgery, but felt that the employee might benefit from a structured exercise program. Dr. Lifson also rated the employee's permanent partial disability at seven percent. He restricted her to work requiring no more than 20-25 pounds lifting on an occasional basis, and thought it would be beneficial if she could change positions frequently.
In April 1993, the employee settled her claims arising out of the 1991 work injuries on a full, final and complete basis, except for future reasonable medical treatment, in return for a lump sum payment.
The record does not reveal further treatment for the employee's low back condition following the 1993 settlement until after the 2006 work injury which is the subject of the current claim. The employee testified that her condition had fully resolved by some time in 1992 and that she was not troubled by back or leg pain during this interval. However, there are passing references to her back pain in the medical records after the 1993 settlement. On May 6, 1993, a chart note at the Dakota Clinic states that the employee “continues to have problems with her back.” In February 1997, during a routine physical exam, the employee stated she was now using natural vitamins which she felt had “improved her back pain.”
After the 1993 settlement, the employee first worked for Dairy Queen, full time but on a seasonal basis. She testified that she did not have any problem with her back in doing this job, although it required prolonged standing. The employee also worked at a convenience store as a cashier, and as a cook at a bar and grill. In 2003 the employee began work at Divine House, the employer here, as a human services technician. The job entailed providing foster care for three disabled adults residing at the employer’s facility in Wheaton. She worked overnight shifts and the work was full time. In addition to monitoring and assisting residents, she did laundry and cleaning tasks at the house. She also worked full-time at a second job at a local bar and grill and did both jobs for two years, until she quit the job at the bar in 2005.
On May 4, 2006, the employee was assisting a resident onto the toilet when she felt pain in her back from her waist down her legs. She finished her shift and was seen by Kathy Kremer, a nurse practitioner at the Wheaton Community Clinic, on the following Monday, May 8, where she complained of an acute onset of pain in the low back when she was lifting a patient at work. Palpable spasm and tenderness were noted in the spinal region and range of motion was seen to be compromised due to acute pain. There were no radicular symptoms. The employee was given Vicodin and Ibuprofen and advised to ice her back. She was also referred for physical therapy at Big Stone Therapies.
On May 26, 2006, the employee was seen in follow-up at the Wheaton Clinic and reported that physical therapy was providing some improvement. She was authorized to return to work on a limited basis without twisting, bending or lifting. NP Kremer recommended an MRI scan and also advised a consultation with Dr. Sunny Kim, an orthopedic surgeon. The insurer refused to authorize these recommendations.
The employee was evaluated for the employer and insurer on October 31, 2006, by Dr. Richard Strand, an orthopedic surgeon. The employee stated that physical therapy had helped at first, that she was off work initially, and then did sedentary work for about 2 weeks before returning to her regular work duties in August 2006. She had not had further treatment since the end of May 2006. When seen by Dr. Strand, her complaints were of low back pain and occasional leg pain, but no tingling, weakness, or numbness in the legs. Dr. Strand diagnosed degenerative disc disease of the lumbar spine. He noted the employee's long history of chronic low back pain related to the prior injuries. In his opinion, the 2006 work injury had caused a temporary aggravation of her underlying lumbar condition, which would have likely healed by May 26, 2006. Dr. Strand found no objective evidence of any permanent injury or impairment from the 2006 work injury, and he concluded no further medical care was needed. He placed no restrictions from the 2006 injury, but noted that restrictions from prior injuries would still apply. In his opinion, the employee had reached MMI by May 26, 2006.
The employee reached a partial settlement with the employer and insurer in January 2007. The agreement settled the employee's claims for temporary benefits and associated interest, fees and penalties through May 31, 2006. The employer and insurer also agreed to pay reasonable and necessary medical expenses for treatment at the Wheaton Clinic and Big Stone Therapies through May 31, 2006, and approved payment for a lumbar MRI that had been recommended by physicians at the Wheaton Clinic.
The employee underwent a lumbar MRI scan on January 3, 2007. The scan was read as showing “degenerative disc disease at L5-S1 to a moderate degree. Mild dehydration at other lumbar levels.” There was a broad-based disc bulge at L4-5 with mild central canal stenosis. At L5-S1, there was a broad-based posterior bulge that protruded on the left lateral recess and mildly narrowed the left neural foramen. Mild bulging was also present at L2-3 and L3-4 without canal stenosis.
The employer and insurer requested that Dr. Strand review the MRI scan. On February 10, 2007, Dr. Strand wrote a letter noting that he had reviewed both the new MRI from January 2007 and the prior scan from 1992 and that he considered the findings to further support his opinion as set out in his October 31, 2006, report.
The employee’s attorney requested a record review and opinion from Dr. Sunny Kim. Dr. Kim offered the opinion that the May 4, 2006, work injury was a permanent rather than a temporary aggravation of the employee’s underlying condition. Dr. Kim stated that his opinion was predicated on the view that the employee had been free of low back symptoms between 1993 and May 2006, since she had not sought medical treatment in that time.
On January 16, 2008, the employee was seen for a consultation by Dr. James E. Andrews, a physiatrist at the Fergus Falls Medical Group. Dr. Andrews diagnosed degenerative disc disease at multiple levels with a possible radicular component. He felt that the employee had been given only minimal physical therapy, and recommended further physical therapy with traction. He also suggested consideration of an epidural steroid injection at L5-S1.
The employee was again seen by Dr. Andrews on August 26, 2008. She had not had a significant change in her condition from the physical therapy. The employee's exam was normal with the exception of some paraspinal spasm. Dr. Andrews offered an epidural steroid injection, which the employee declined. In his view, the employee had not yet reached MMI.
The employee continued to work at her regular job during this period, although there is some indication that she was doing primarily light housekeeping and cooking. At some point, apparently in the spring of 2008, the employer instituted long overnight shifts, with some employees working, for example, from 3:00 p.m. to 9:00 a.m. the following day. The employee testified that she found these shifts difficult because “it was just too many hours. And that was too much on your feet and up and down, and with all the cleaning and stuff.” It is not clear from the record how many shifts per week the employee worked, but she contined to work in this job through 2008.
The employee was seen by Dr. Andrews on November 17, 2008, and reported that she was working 20 hour shifts. On examination, there was paraspinal spasm, the employee’s gait was antalgic, and there was some pain with forward flexion and hip movement. The examination was otherwise normal. Dr. Andrews recommended that the employee avoid overhead activity and significant flexion or twisting. Dr. Andrews suggested that she be evaluated for surgery by Dr. Jeffrey S. Gerdes at Minnesota Neurosciences.
An MRI scan of the employee's lumbar spine was performed on December 23, 2008, at the recommendation of Dr. Andrews. When compared with the January 3, 2007, MRI, no significant interval changes were noted.
Dr. Gerdes saw the employee on March 17, 2009. In chart notes and a subsequent report, he noted his recommendations. His diagnosis was lumbar stenosis with low back and buttock pain. He offered four options for the employee:
1) that she live with her current pain;
2) that she continue conservative treatment with physical therapy and steroid injections;
3) that she undergo an L4-5 decompression to address her lower extremity symptoms, but not necessarily her back pain; and
4) that she have an instrumented lumbar fusion if symptoms persisted in spite of an extensive course of conservative treatment.
He did not feel there was any urgent indication for surgery at that time, and noted that lumbar fusion should be only considered as a last resort. The employee has testified that she has decided not to have surgery.
The employee's attorney referred her to Ione Tollefson, a qualified rehabilitation consultant [QRC], who met with the employee on April 30, 2009. The employee was then continuing to work alternating between a 25 hour work week and a 31 hour work week. Ms. Tollefson issued a report dated May 4, 2009, indicating that she found the employee qualified for rehabilitatiion services.
In a letter dated April 29, 2009, in response to a letter from the employee’s attorney, Dr. Andrews offered the opinion that the employee had sustained a work injury and developed significant chronic low back pain. He recommended that she work no more than four hours per day with no lifting greater than 20 pounds, and perform no overhead lifting or significant flexion or twisting.
QRC Tollefson reported on June 15, 2009, that she continued in her efforts to assist the employee with rehabilitation. On June 12, 2009, QRC Tollefson reported that the employer had advised her on June 12, 2009, that there was no work within the employee's new restrictions.
The employee filed a claim petition in July 2009, seeking temporary total disability compensation from June 12, 2009, and continuing, payment of various outstanding medical bills, and payment of 10 percent minimum permanent partial disability.
On July 27, 2009, Dr. Andrews, apparently without seeing the employee again, issued new restrictions taking her off work from July 12, 2009, to date. The form noted that the next date of evaluation of the restrictions was “unknown.” Subsequently, Dr. Andrews signed an unemployment form taking the employee entirely off work from July 12, 2009 through “the present.”
The employee was seen again by Dr. Strand for evaluation on behalf of the employer and insurer on June 25, 2009. In his report from that evaluation, Dr. Strand noted that the employee was not currently receiving any treatment and was not working. She complained of pain in the lumbosacral region and bilateral leg pain, left greater than right. On examination, Dr. Strand noted decreased range of motion in all ranges with complaints of pain with all motion, including pain with rotation. There was no tenderness in the sciatic notches or SI joints. The employee's neurological examination was normal. Dr. Strand diagnosed degenerative disc disease and degenerative spondylosis of lumbar spine with spinal stenosis. He repeated his prior opinions, but added that the only treatment he would recommend would be a lumbar steroid injection. He did not see any need for restrictions due to the 2006 work injury, but opined that her prior condition warranted restrictions of no lifting over 25 pounds and no repetitive bending or lifting. He considered that the employee was able to work 8 hour days, but that she needed to be able to change positions. In his opinion, she had reached MMI by May 26, 2006, when she had been allowed to return to work.
On September 16, 2009, QRC Tollefson reported that she had met with the employee and that, based on the notes from Dr. Andews taking the employee off work, she could not recommend job placement services. On November 13, 2009, QRC Tollefson filed a rehabilitation request seeking payment of rehabilitation expenses in the amount of $1,928.39.
The employer and insurer had the employee seen on March 9, 2010, for a vocational evaluation by David Berdahl. After meeting with the employee, reviewing the medical and vocational records, and having his staff conduct a labor market survey, Mr. Berdahl offered the opinion that, if the employee were able to work even four hours per day under the restrictions previously given by Dr. Andrews, she would be employable in the $7 to $9 per hour range.
A hearing was held before Compensation Judge Jane Gordon Ertl on April 7, 2010. At the beginning of the hearing, the parties stipulated that Dr. Strand’s MMI opinions on MMI had been served on November 10, 2006, and again on July 22, 2009. Following the hearing, the compensation judge accepted the opinion of Dr. Strand that the employee's 2006 work injury was temporary in nature. She found that the employee had reached MMI no later than the date of Dr. Strand’s October 31, 2006, report, but found that service of MMI had not been proven. She further found that the employee had failed to prove a need for restrictions associated with the 2006 injury. Accordingly, the judge denied the benefits sought by the employee, and also denied the QRC's request for payment for services.
The employee appeals from the findings concerning the nature and extent of injury and attainment of MMI, and from the denial of the benefits claimed. The employer and insurer cross-appeal from the finding that service of MMI was not established.
1. Temporary Injury.
In her brief, the employee argues that there was substantial evidence in this case to support a finding that the employee's 2006 work injury was a permanent, rather than temporary, aggravation of her prior condition. Citing Wold v. Olinger Trucking, slip op. (W.C.C.A. August 29, 1994), the employee discusses a number of factors which that case noted may be used in determining whether an injury is temporary. She contends that application of these factors favor the finding of a permanent injury.
We do not agree. The analysis the employee presents is not so clear cut. In it, for example, she bases comparisons between the 2006 and prior injuries on the medical restrictions most recently offered by Dr. Andrews, although the compensation judge’s memorandum reveals that she did not find Dr. Andrews’ opinions and restrictions persuasive, and instead expressly adopted the opinion of Dr. Strand. Similarly, the comparisons regarding the employee’s symptoms before, between and after the various injuries is tied to the employee’s testimony that she was pain free from 1993 to 2006, a contention which the compensation judge’s memorandum labels as “suspect.” In Wold, we noted that the list of factors contained therein was neither definitive nor exhaustive, and that the weight to be given the various factors was a question for the compensation judge. When viewed in the light of the judge’s assessment of the various medical opinions and evidence and of the credibility of testimony offered at the hearing, the factors the employee discusses do not require a finding of a permanent injury.
Further, the question for our review is not whether substantial evidence might have been present to support a finding contrary to that made in the case, but whether the finding actually made has substantial support in the record. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).
We conclude that the finding by the compensation judge of a temporary injury has substantial support in the evidence. Among other matters, we note that the employee has not actively treated for the 2006 work injury since 2008; that her examination findings have continued to be largely normal with the exception of range of motion restricted by complaints of pain; that the radiological studies do not show evidence of traumatic injury; and that the radiographic findings are consistent with a simple progression of the employee's underlying degenerative disc disease. The compensation judge specifically adopted and relied on Dr. Strand’s opinions in finding that the employee’s physical injury was temporary in nature and had fully resolved by the date of Dr. Strand’s October 31, 2006, report. We have held on a number of occasions that a well-founded medical opinion may serve as the basis for finding substantial evidence which supports a compensation judge’s determination. Heitland v. R.O. Drywall, slip op. (W.C.C.A. Apr. 5, 2005).
The employee, however, argues that Dr. Strand’s reports are internally inconsistent, and that his medical opinions rest on a basis for distinguishing between temporary and permanent injury that is contrary to established law. She contends that Dr. Strand’s report thus lacked proper foundation and that it was error for the compensation judge to rely on Dr. Strand’s opinions. We disagree.
As an example of an internal inconsistency, the employee notes that Dr. Strand on October 31, 2006, recorded that the employee described current pain complaints, but nonetheless offered the view that the effects of her 2006 work injury had already resolved. We do not think this is a logical inconsistency, since the opinion offered was not that the employee was now pain free or that she required no restrictions, but that the employee’s pain and restrictions were the result of her pre-existing degenerative disc disease and 1991 work injuries, and that any aggravation from the 2006 work injury had now subsided.
Similarly, we do not agree with the employee’s contention that Dr. Strand’s opinion was clearly predicated on factors contrary to established law. The employee’s argument here is that Dr. Strand expressly noted that in assessing the permanent versus temporary nature of the 2006 work injury, he took into account the extent and timing of her ability to return to work in late May 2006. The employee argues that the question of whether the employee could return to work has no place in an assessment of the permanent or temporary nature of an injury. We need only note in response that the factors cited by the employee from Wold v. Olinger Trucking, supra, include “the extent of restrictions . . . and . . . the nature and extent of the employee’s work duties” during the various periods.
Dr. Strand examined the employee on multiple occasions and reviewed the employee’s medical records. We see no defect in the foundation for his opinion, and will not here reverse the compensation judge’s findings made in reliance on Dr. Strand’s expert opinions.
2. Temporary Total Disability and Rehabilitation.
The compensation judge denied the employee’s request for temporary total disability benefits from and after June 12, 2009, having found that the employee's 2006 injury was a temporary aggravation from which the employee had recovered, without a need for further work restrictions, as of May 26, 2006. Since we have affirmed those findings, the denial of temporary benefits is accordingly also affirmed, and we do not reach the employee’s arguments over whether the denial of benefits would or would not have been justified on possible alternative grounds based on the judge's finding that the employee did not conduct a diligent job search.
Similarly, as a result of our affirmance of the findings as to the employee’s recovery and lack of work restrictions, we affirm the denial of rehabilitation benefits and of payment for the charges of QRC Ione Tollefson.
In Finding 21, the compensation judge found that “the employee reached MMI from the May 4, 2006, injury, pursuant to the report of Dr. Strand dated October 21, 2006, but the employer and insurer did not establish that service of maximum medical improvement was established.” The employer and insurer cross appeal seeking vacation of the determination that they failed to establish service of MMI. We note that the parties stipulated to service of MMI at the beginning of the hearing, and that the employee has conceded on appeal that this finding results from an apparent oversight or error by the compensation judge. We accordingly vacate that portion of Finding 21 holding that service of MMI was not established.