JACQUELINE D. GARCIA, Employee/Appellant, v. ALLINA LABORATORY SERVS., SELF-INSURED/GALLAGHER BASSETT SERVS., INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 3, 2010
CAUSATION - REFLEX SYMPATHETIC DYSTROPHY; EVIDENCE - MEDICAL EXPERT OPINION. Where the diagnosis of the employee’s orthopedist upon examination was only of “possible” RSD, where the RSD diagnosis of the employee’s family practitioner was based almost exclusively on the employee’s complaints rather than on objective clinical findings, and where the employee’s pain specialist had not been permitted to examine the employee’s injured hand closely by touch and had not been shown surveillance videos taken of the employee the day before and the day after his examination of her, the compensation judge’s granting of discontinuance in reliance on the opinion of the employer’s neurologist, who had seen the videos and had found no causally related RSD, was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Danny P. Kelly
Attorneys: Michelle Barone Osterbauer, Jospeh J. Osterbauer, and Kirsten M. Tate, Osterbauer Law Firm, Minneapolis, MN, for the Appellant. Kris Huether, Brown & Carlson, Minneapolis, MN, for the Respondent.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge’s denial of payment for a chronic pain consultation and from his granting of discontinuance of temporary total disability benefits. We affirm.
On February 1, 2009, Jacqueline Garcia sustained a work-related injury to her dominant left hand when she sliced off the tip of her thumb in the course of her work as a histology tech with Allina Laboratory Services, while preparing slides using a tissue-cutting device called a “microtome.” Immediately subsequent to her injury, Ms. Garcia [the employee] was taken to the emergency department at Abbott Northwestern Hospital, where the thumb nail bed was found to be intact, the wound was scrubbed and dressed, and the employee was released with care instructions and a recommendation that she follow up with occupational health. The employee was thirty-seven years old on the date of her injury and was earning a weekly wage of $848.86. Allina Laboratory Services [the employer], which was self-insured on that date, acknowledged liability for the injury and commenced payment of benefits.
On February 2, 2009, the day after her injury, the employee saw her family physician, Dr. Daniel Florey, who diagnosed a work-related finger laceration and restricted the employee from working. The employee’s thumb was very painful on that date, and Dr. Florey noted that the employee was concerned that her injury would set off the reflex sympathetic dystrophy [RSD] that she had a history of in her right upper extremity, related to removal of a bone spur in her right wrist about three years earlier. When he saw the employee again about a week later, on February 10, 2009, Dr. Florey reported that the employee “has had some redness on her thumb and hand,” but he diagnosed nevertheless a “[w]ell healing lesion on the tip of the left thumb.” He concluded, however, that the employee’s “RSD may be re-exacerbated by this injury,” in that “[h]er pain does seem to be out of proportion to the degree of injury,” adding, incorrectly, “but it is on the same limb as the previously existing RSD.”
On February 25, 2009, the employee saw pain specialist Dr. Angelito Sajor at United Pain Center, who found at the employee’s left thumb a “[w]ell-healed wound over the distal aspect of the left thumb with mild swelling. No color changes. No sudomotor changes. Good range of motion of the joints.” At the employee’s right upper extremity, the doctor found “[m]ild color changes noted over the dorsal aspect of the right hand characterized as patchy areas of reddish discoloration, good peripheral pulses, good capillary refill. No changes in the nail beds or hair growth pattern. No swelling.” He found also that “[t]emperature of the left upper extremity is 31.9 degrees centigrade. Right upper extremity is 30.9 degrees centigrade. No tremors noted. Full range of motion over the elbow and the wrist joint. No allodynia noted.” Dr. Sajor concluded that the employee had “less than five criteria for complex regional pain syndrome, which includes pain, color changes, temperature changes, response with stellate ganglion block in the past,” noting, “At this point in time, it is difficult to determine if this is complex regional pain syndrome or neuropathic pain syndrome.” Dr. Sajor prescribed medication, recommended an electromyelogram of the right upper extremity, and issued work restrictions releasing the employee to return back to work on March 21, 2009, depending on her progress.
The employee saw Dr. Sajor again on April 1, 2009, on which date the doctor found a “[w]ell-healed wound, no swelling, no color changes, full range of motion” upon examining her work-injured thumb. Upon examining her right upper extremity, where the employee had experienced RSD symptoms in the past, he reported “[n]o color changes noted, good peripheral pulses, no swelling, feels warm to touch.” Dr. Sajor prescribed medications, released the employee to return to work, and recommended a functional capacity evaluation to better assess her functional capacity for daily living and working activity. On that same date, April 1, 2009, the employee also saw Dr. Florey again, who noted that the employee’s skin had been healing well but that she still had 7/10 pain that radiated down her thumb and into the thenar eminence, had tenderness with gripping, had minimal grip strength in her left hand, and was unable to hold her wrist in flexion or extension due to pain in the thumb.
On April 24, 2009, the employee was examined by Physician’s Assistant Sarah Martin at Tria Orthopedic Center, to whom she complained of sharp radiating pain and pain to the touch in her left thumb, although PA Martin reported that the thumb was now healed and normal appearing and x-rays showed no significant bony or soft tissue abnormality. PA Martin had the employee fitted with a splint to permit her to carry out her daily work activities without restrictions, and she recommended a silicone sleeve for some support and to help with desensitization. At her occupational therapy appointment three days later, on April 27, 2009, the employee was encouraged to use her left hand more, even though it was painful, her therapist noting that “either way she is hurting so she might as well hurt using her hand versus not doing anything - - especially if [her] goal is to [return to work].”
The employee was not feeling any improvement, and on April 29, 2009, with the employee now complaining of burning pain in her elbow, Dr. Florey referred the employee for consultation with a hand surgeon. On April 30, 2009, the employee was examined by orthopedist Dr. Stephen Olmsted, who diagnosed a left thumb laceration with dystrophic appearance, “possible neurogenic or sympathetic mediated pain or RSD.” Dr. Olmsted concluded that the employee’s history of RSD in her right upper extremity “may pre-dispose her for a similar type of phenomenon on the left upper extremity.” He noted that the left thumb wound had healed nicely, with no further treatment required, but he indicated that “secondary effects from the laceration seem to be affecting the function of the hand and thumb,” which he recommended addressing “more from the RSD type standpoint with therapy” at a pain clinic. On May 27, 2009, the employee’s occupational therapist noted, “no changes in [the employee’s symptoms] - - still very guarded with thumb. Nerve pain? Neuroma? Feel more may be going on than CRPS [complex regional pain syndrome (RSD)]?”
The employee saw Dr. Florey again on June 24, 2009, when she reported to him no improvement in her injured thumb, rating her pain at 10/10 at its worst and at 3/10 at its best. She indicated that moving and pressure made the pain worse. She described the pain, which she said was recently radiating up to her elbow, as “sharp / dull / throbbing / aching / cramping / burning.” Dr. Florey found no swelling or erythema, but the employee was tender to even superficial palpation over the MP joint of her thumb, and Dr. Florey concluded that her condition “appears to be RSD triggered by her work injury.” On July 8, 2009, the employee filed a medical request, seeking payment for a consultation with pain specialist Dr. Todd Hess.
About a week after filing her request, on July 14, 2009, the employee saw Dr. Florey again, seeking his advice about certain job offers that the employer had issued to her. She indicated at the time that the pain in her thumb was now radiating with burning and throbbing all the way to her shoulder, reaching a 10/10 level “a few times a day,” and that moving her arm or touching the thumb or squeezing the thenar eminence made the pain worse. Dr. Florey reported that the employee also continued to have pain in her right arm, which had gotten worse since her injury to her left thumb. While noting that the employee had no erythema and no bruising, Dr. Florey again reported that the employee had very limited grip strength in her left hand, although she was “unable to allow me to palpate the thumb.” Dr. Florey concluded that the employee’s work-related left thumb injury “may have triggered RSD in her left upper extremity,” and he reiterated his belief that the employee could not do any work with her left hand, noting also a concern “that her right arm RSD will be further exacerbated by repetitive work with the right arm” while the left rests.
On August 20, 2009, the employer denied the employee’s request for a consultation with Dr. Hess, on grounds that the employee’s left thumb injury had healed and there was no evidence that it had in any way caused or aggravated any complex regional pain syndrome. An administrative conference was held on August 24, 2009, pursuant to which, by an order issued August 26, 2009, the employee’s request for the consultation was granted.
On that same date, August 26, 2009, the employee was evaluated for the employer by neurologist Dr. Joel Gedan, who reviewed the employee’s medical records, took a history of the employee, and performed a physical examination. Upon examination, Dr. Gedan found normal skin over the left thumb and hand, no discoloration or unusual mottling of the skin, normal and symmetric skin temperature in both hands, normal mild sweating in the palms of both hands, and no edema, as confirmed with symmetric circumferential measurements. Dr. Gedan also found no trophic changes, no tightness or shininess of the skin, no atrophy in the subcutaneous tissue of the fingertips, no evidence of demonstrable decreased passive range of motion of the joints, normal growth and appearance of skin, hair, and nails, and no evidence of demineralization or other abnormality on the April 24, 2009, x-ray of the employee’s left thumb. Based on these findings, Dr. Gedan concluded that there was no clinical evidence of reflex sympathetic dystrophy, peripheral nerve injury, complex regional pain syndrome, or any other demonstrable abnormality in the employee’s left upper extremity. His diagnosis was of “a well-healed laceration and avulsion of the tip of the left thumb with complaints of pain that are not anatomic or explainable on the basis of any known injury and in the absence of any objective findings on examination.” He considered the employee’s left upper extremity prognosis to be excellent from a medical standpoint, with no residual injury present and maximum medical improvement [MMI] having been reached on or before the date of his examination. The employee’s only current condition, he concluded, was “self-limited use of the left upper extremity, possibly associated with an unshakable delusion that there is an injury present.” It was Dr. Gedan’s opinion that the healthcare provided to the employee through June 24, 2009, had been reasonable and necessary and causally related to her work-injured condition but that any treatment since that date had been unlikely to result in any improvement in that condition, as evidenced by the fact that, by her own admission, the employee’s condition had only continued to worsen. He considered the employee to be physically unrestricted by her left upper extremity from working, and he expressly declined to recommend referral to a pain clinic, in the absence of any objective findings of persisting injury. On September 8, 2009, based on the opinion of Dr. Gedan, the employer filed a request for formal hearing on the issue of the employee’s entitlement to a consultation with Dr. Hess.
On September 17, 2009, the employer issued to the employee a written offer of her pre-injury job, based upon the opinion of Dr. Gedan that the employee was able to return to her normal and customary job duties. Pursuant to that offer, the employee did return to work at her pre-injury job on September 27, 2009, but she worked only about four hours before cutting her left thumb again. She was seen again the following day, September 28, 2008, by Dr. Florey, who noted that the employee’s hand was swollen and that her husband had reported the hand being hot through the night. Upon further examination, Dr. Florey, perhaps confusing the employee’s two hands, noted in part as follows: “Right hand is slightly swollen compared to the left hand. There is some erythema on the dorsal aspect of the right hand. The left hand appears pale, especially on the palmar aspect of the hand in comparison to the left [sic]” (underscoring added). Identifying a “small cut on the tip of the left thumb that is not bleeding,” Dr. Florey diagnosed a finger laceration and released the employee to work through October 14, 2009, subject to restrictions including no use of the left hand or arm. On October 16, 2009, Dr. Florey expressed concern “about the possibility of RSD given the [employee’s] symptoms” and, noting again that she was “unable to use her left hand/arm,” he released to her work with restrictions through December 13, 2009, reiterating her need to see a pain specialist.
On October 23, 2009, Dr. Olmsted issued a narrative report to the employee’s attorney. In his report, while acknowledging that he had not seen the employee since his April 30, 2009, examination of her, Dr. Olmsted reported that his diagnosis on the latter date had affirmatively been “neurogenic pain sympathetic mediated complex regional pain syndrome.” Although his earlier report had contained no restrictions, he indicated in this report that “[r]estrictions at the time of her evaluation on 4/30/09 would include no heavy gripping, grasping or lifting, or high demand repetitive use of the upper extremity.”
On December 1, 2009, the employee was surveillance videographed performing various activities, some with her left hand, including holding the leash with that hand while she walked her dog and opening the door to a Caribou Coffee establishment with that hand.
The following day, December 2, 2009, the employee was examined by pain specialist Dr. Hess at the United Pain Center, regarding CRPS-like symptoms in her left upper extremity. In his report on that date, Dr. Hess noted the employee’s history of right upper extremity RSD/CRPS symptoms, which had been first noted after a surgery for a bone spur and were now well controlled. Dr. Hess noted that the employee’s complaints were now of “quite severe” “burning and shooting” pain in her left upper extremity, particularly in the area of the forearm and thumb. He reported that the employee described her pain as “throbbing, crushing, wrenching, heavy, tender, spreading, intense, squeezing, agonizing, and continuous.” He indicated that she reported that her pain “interferes significantly with work, recreation, exercise, relations with family, friends, and household chores.” Noting on examination that the employee had swelling, sweating, and temperature and color changes in her left upper extremity, but no hair or nail changes, Dr. Hess diagnosed mild to moderate CRPS and recommended in part physical therapy specifically for RSD/CRPS, biofeedback therapy very urgently, and methadone medication if oxycodone was not working.
On December 3, 2009, the day after her examination with Dr. Hess, the employee was surveillance videographed again, performing various activities, including the following with her left hand: twice unlocking the door to her car trunk, talking on her cell phone, taking photographs with her cell phone, and text messaging with her cell phone.
At his examination of the employee on December 11, 2009, Dr. Florey reported that Dr. Hess had diagnosed RSD and that the employee appeared “[m]inimally tender over the proximal lower arm” and would not allow palpation of her left thumb due to pain. Although he found “no swelling, no erythema” in her left thumb, he stated in his report of workability that the employee was “unable to use her left hand/arm,” and he released the employee to return to work through February 5, 2010, with restrictions indicating as much.
On January 12, 2010, the employer filed a petition to discontinue the employee’s temporary total disability benefits, on grounds that the employee had been released to return to work without physical restrictions, that she had reached MMI with regard to her work injury, and that she had constructively refused to return to work at her pre-injury job when it was offered to her.
On February 1, 2010, the employee was examined again by Dr. Florey, who noted that she continued to have pain but was in “[n]o acute distress.” He noted also that “[t]here appears to be some atrophy of the thenar muscles on the left hand,” that light touch was neurologically normal on the second through fourth fingers of the left hand, but that he was “unable to access on [sic] the left thumb due to pain.”
In a narrative report to the employee’s attorney on February 21, 2010, Dr. Hess reiterated his diagnosis of the employee’s left upper extremity condition as CRPS, indicating that it was his opinion that that the employee’s pain from that condition was related to her work injury of February 1, 2009.
On February 25, 2010, Dr. Gedan testified by deposition, having by that date also reviewed the surveillance clips of the employee performing daily activities just before and after her examination by Dr. Hess. In his testimony, Dr. Gedan essentially reiterated conclusions that he had stated in his report of August 26, 2009, noting in addition his observation of a marked discrepancy between the employee’s claimed level of disability and the level of disability that he saw evident in her on the surveillance videos. Further, he testified to his opinion that the employee had reached MMI in June of 2009 and that her referral to Dr. Hess had not been reasonable and necessary or causally related to her February 2009 work injury.
The employer’s September 8, 2009, request for formal hearing and its January 12, 2010, petition to discontinue benefits came on for hearing on February 26, 2010. Issues at hearing included (1) whether the employee’s consultation with Dr. Hess at United Pain Center had been reasonable, necessary, and causally related to the employee’s work injury, and (2) whether it was reasonable for the employer to discontinue the employee’s temporary total disability benefits on grounds (a) that she had been released to return to work without restrictions, (b) that she had reached MMI, and (c) that the employer had offered her her pre-injury job back and, after trying it for only one shift, she had constructively refused to return to work. Evidence admitted at hearing included the testimony of the employee, in part that she is at times able to use her left hand and at other times not, that her pain comes and goes and is not always present. She testified that her pain was present on the day that she returned to her histology tech job on September 27, 2009, and that she had been unable to perform her pre-injury job without further injury on that date because of the continuing disability of her left thumb. She testified that prior to her work injury on February 1, 2009, her pre-existing susceptibility to RSD had not affected her ability to work. Also offered into evidence at hearing were the video surveillance clips taken of the employee on December 1 and 3, 2009, together with additional clips taken on four dates in September and October of 2009.
By findings and order filed April 27, 2010, in reliance in part on the opinions of Dr. Gedan, the compensation judge concluded in part that the employee was released to return to work without restrictions by September 4, 2009, upon service of Dr. Gedan’s August 26, 2009, report, and that the employee had reached MMI with regard to her work injury on that same date with service of that same report. On those findings, the judge granted the employer’s request to discontinue payment of temporary total disability benefits as of September 4, 2009. The employee appeals.
STANDARD OF REVIEW
In reviewing cases 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. 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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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 the evidence or not reasonably supported by the evidence as a whole.” Id.
At Finding 25, the compensation judge concluded that the employee had been released to return to work without restrictions on September 4, 2009, with service of Dr. Gedan’s August 26, 2009, report. At Finding 26, the judge concluded that the employee reached MMI on that same date with that same service. Pursuant to these findings, the judge granted in Order 2 the employer’s petition to discontinue the employee’s temporary total disability benefits. The employee contends that the judge erred in concluding that the employee had reached MMI and in granting the discontinuance “solely on the medical opinion of the IME doctor when the overwhelming and substantial evidence clearly shows the employee suffers from ongoing pain and disability.” We are not persuaded.
In his memorandum, the compensation judge expressly indicates that he “carefully reviewed the reports and opinions of Dr. Hess and Dr. Florey” before deciding not to adopt them and that he “carefully considered the entire record in this matter, including the testimony at trial,” before issuing his decision. Nor, although that memorandum is otherwise very brief, do we have any basis for concluding that the judge’s review of those opinions and that record was not thorough, given the copious findings of the judge reiterating salient elements of that evidence. The employee argues that three physicians who examined her - - Drs. Florey and Hess and also Dr. Olmsted, “opined that [she] suffers from RSD or CRPS.” The diagnosis of orthopedist Dr. Olmsted upon direct examination in April of 2009, however, was only of “possible neurogenic or sympathetic mediated pain or RSD” (emphasis added), only to be modified into a more certain diagnosis about six months later, without re-examination of the employee and without explanation. The diagnosis of family practitioner Dr. Florey evolved into more certainty over the course of more examination of the employee, but it was repeatedly based almost exclusively on complaints of the employee rather than on any objective clinical findings, the employee repeatedly denying the doctor permission to touch the injured hand for close inspection of temperature and other material diagnostic symptoms. Moreover, Dr. Florey repeatedly deferred to the opinions and diagnoses of experts more knowledgeable than he in the syndrome at issue. Such experts were pain specialist Dr. Hess and neurologist Dr. Gedan, both of whom were essentially denied opportunity by the employee to physically examine the injured hand closely by touch. Moreover, there is no evidence that any medical expert other than Dr. Gedan was ever given opportunity to assess the nature of the employee’s complaints in light of the surveillance videos.
In this context, it was not unreasonable for the compensation judge to weigh the opinions of Drs. Olmsted and Florey less heavily than the opinions of Drs. Hess and Gedan, and it was the judge’s prerogative to rely on the expert opinion that he found most persuasive in light of the employee’s own testimony, the surveillance videos in evidence, and other elements of the evidentiary record - - that being the opinion of Dr. Gedan. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (the trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence); see also Even v. Kraft, Inc., 445 N.W.2d 831, 834, 42 W.C.D. 220, 225 (Minn. 1989) (“[a]lthough the Workers’ Compensation Court of Appeals is required to look at all the evidence in performing its review function, it must give due weight to the compensation judge’s opportunity to judge the credibility of the witnesses and must uphold the findings based on conflicting evidence or evidence from which more than one inference might reasonably be drawn”), citing Hengemuhle, 358 N.W.2d at 59-60, 37 W.C.D. at 239; see also Even, 445 N.W.2d at 835, 42 W.C.D. at 225 (assessment of witnesses’ credibility is the unique function of the trier of fact), citing Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988).
Because it was not unreasonable under our well established standard of review, we affirm the compensation judge’s decision in its entirety. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 The employee appealed nominally also from the judge’s denial of her request for payment for her consultation with Dr. Hess, but she has not addressed that issue in her brief, and therefore we will not address it. See Minn. R. 9800.0900, subp. 1 (“[i]ssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court”).
 The employee appealed from Findings 24 through 27, in which the compensation judge drew inferences from the evidence upon which he based his denial of the employee’s request for payment for a consultation with Dr. Hess and his granting of the employer’s petition to discontinue benefits. The employee appealed also, however, without explanation, from Findings 8 through 23 in their entirety, which, so far as we can see, contain, with few if any exceptions, only reiterations of uncontestable facts evident in the record and no contestable judicial inferences.