NADIA JACKSON, Employee/Appellant, v. ROBBINSDALE REHAB. CARE CTR. and ZURICH AM. INS./GALLAGHER BASSETT SERVS., INC., Employer-Insurer, and PAR, INC., BROOKDALE HEALTH, NORTH MEM’L CLINIC, NORAN NEUROLOGICAL CLINIC, APEX CHIROPRACTIC, MINNESOTA DEP’T OF HUMAN SERVS./BRS, and METROPOLITAN HEALTH PLAN, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 10, 2010
CAUSATION - TEMPORARY INJURY. Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee’s 2006 work injury was a temporary injury that had resolved as of December 7, 2006, and was no longer a substantial contributing factor to the employee’s claimed ongoing disability.
CAUSATION - PSYCHOLOGICAL INJURY. Substantial evidence, including expert opinion and medical records, supports the compensation judge’s finding that the employee’s 2006 work injury did not result in a consequential psychological injury.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion and medical records, supports the compensation judge’s findings that the employee was not temporarily totally disabled after November 12, 2006.
REHABILITATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical and vocational opinions and medical and vocational rehabilitation records, support the compensation judge’s denial of the employee’s request for rehabilitation services.
PENALTIES. Under the factual circumstance of this case, the evidence adequately supported the compensation judge’s denial of penalties.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Catherine A. Dallner
Attorneys: Nadia Jackson, pro se Appellant. Richard W. Schmidt, Cousineau McGuire, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The pro se employee appeals from the compensation judge’s denial of her claim of a psychological injury consequential to her 2006 work injury, from the finding that the employee’s physical injury was temporary and that it had fully resolved by December 7, 2006, from the finding that she was not temporarily totally disabled after November 12, 2006, from the finding that the employee did not cooperate with vocational rehabilitation services and the denial of her request for further vocational rehabilitation, and from the judge’s denial of her request for penalties. We affirm.
The present claim involves a work-related injury sustained by the employee, Nadia Jackson, on September 28, 2006, while she was working at the Robbinsdale Rehabilitation Care Center. She had an earlier work injury in May 2004 while employed at Maranantha Care Center as a nursing assistant. The injury occurred while transferring a patient. The employee had minor low back pain at first but her back pain increased and she was seen at the hospital the next day where she was given Vicodin.
The employee then treated at NorthPoint Health and Wellness Clinic on May 10, 2004, where she was seen by Dr. Janna Carlson. The employee was reporting pain in the mid to low back and pain into the right leg. She was prescribed Motrin, physical therapy, home exercises, and a 10 pound lifting restriction was imposed. In her next two visits to Dr. Carlson, the employee reported some improvement in her symptoms.
The employee also treated with Dr. Sean Flood at the Columbia Park Medical Group starting on May 28, 2004. She complained of back pain from the base of her neck down to the gluteal area with intermittent right leg radiculopathy. Dr. Flood diagnosed acute lumbosacral strain with right low back pain, right leg radiculopathy, and a magnified pain reaction. He prescribed pain medication and physical therapy.
At some point the employee discontinued physical therapy in favor of chiropractic treatment, which she initiated with Nevin Rosenberg, D.C., in late June 2004. An MRI scan of the lumbar spine on July 6, 2004, done at Dr. Rosenberg’s request, revealed a small bulge at L4-5 and L5-S1 with mild narrowing of the right neuroforamen. The radiologist noted that this might be the source of the employee’s symptoms.
The employee returned to the NorthPoint clinic on August 9, 2004, saw Dr. Martha Anderson, and stated that her pain continued despite her chiropractic treatments. She reported pain in the back, down her legs, in her shoulders, upper back, arms, and chest, and headaches. She was diagnosed with chronic pain. The employee asked for a neurosurgery evaluation. The doctor provided medication and referrals for a second opinion and a pain clinic.
The employee’s chiropractor rated her with seven percent permanent partial disability pursuant to Minn. R. 5223.0390, subp. 3.C.(2), and opined that she had reached maximum medical improvement [MMI] on October 14, 2004.
When the employee was seen again by Dr. Anderson on December 8, 2004, she stated that she was much better but still had occasional pain in the buttocks, sometimes in her upper shoulders, and still had headaches. By that time, she had been approved to return to work. Dr. Anderson stated that the employee’s depression was now her main problem, she prescribed Zoloft, amitriptyline, and pool therapy.
The employee testified that she remained off work to recuperate until March 2005, when she began working for the Robbinsdale Rehabilitation Care Center as a nursing assistant. She was injured at work on September 28, 2006, while transferring a patient with a co-worker. When the patient slipped, the employee had to bear the patient’s full weight. The employee subsequently experienced severe constant back pain radiating down her right leg, intermittent numbness on the bottom of her foot, and constant neck pain.
The employee was evaluated the following day by Dr. Catherine DeMoss at the North Memorial Occupational Health Clinic. Lumbar range of motion was greatly reduced, straight leg raising was positive on the right, and palpitations revealed diffuse tenderness in the lower lumbar spine. She was diagnosed as having an acute low back strain with possible right sacroiliac radiculopathy. She was treated with a Toradol injection and given prescriptions for Flexeril and Ibuprofen. The employee was advised to do no lifting over 5 pounds and to avoid kneeling, squatting, twisting, turning, or bending at the waist.
On September 30, 2006, the employee was seen at the North Memorial Health emergency department for worsening pain. She was taken off work entirely through October 3, 2006.
The employee had chiropractic treatment and physical therapy at Brookdale Health from October 2, 2006, through the end of the year. She was taken entirely off work by chiropractor Mark Lutz from September 28, 2006, through the date of an anticipated reevaluation on November 12, 2006, which was to include physical performance testing to determine appropriate restrictions.
On November 2, 2006, the employee was seen by Dr. Anderson at NorthPoint. Dr. Anderson noted the employee winced and seemed to have frequent pain during the interview, but not as much during the physical examination. The employee reported that she had been depressed previously and more so recently. Dr. Anderson noted that Ms. Jackson had “chronic back pain, but I think the main issue is depression.” Dr. Anderson restarted her on Zoloft, noting past good response. She was also prescribed Flexeril and ibuprofen at her request and was continued in physical therapy. No restrictions were imposed.
The employee was seen by Dr. Henry Kerandi at NorthPoint on November 9, 2006, for an orthopedic evaluation. On examination, her back appeared normal. There was vague tenderness around the lumbar paraspinal area but no point tenderness. Dr. Kerandi assessed back pain secondary to a work-related injury. She was continued on current medications, referred to physical therapy, and referred for a neurological evaluation.
On November 15, 2006, the employee was seen by Dr. Stephen Thatcher at Hennepin County Medical Center. She was diagnosed with low back pain with radiculopathy. She was referred to orthopedics and encouraged to continue physical therapy. No work restrictions were given.
An MRI of the lumbar spine was done at the recommendation of Dr. Lutz on November 29, 2006, at Hennepin County Medical Center. It was read as normal.
On December 4, 2006, the employee filed a claim petition seeking temporary total disability compensation and medical expenses. The employer and insurer answered on January 5, 2007, denying a work injury or, in the alternative, alleging that any such injury was a temporary aggravation to a pre-existing condition. They also alleged that the employee’s claimed disability and need for treatment was the result of causes wholly unrelated to the claimed 2006 work injury.
The employee was seen by Dr. Michael Wengler for an orthopedic evaluation at Hennepin County Medical Center on December 7, 2006. On examination, the lumbar spine showed no spasm and lordosis was normal; no objective findings were noted. She was diagnosed with a lumbar strain secondary to a lifting incident in September 2006. She was advised that she had no condition requiring surgery, an occasional nonsteroidal anti-inflammatory would be appropriate, and she should attend physical therapy or work hardening. She was told to follow up as needed.
The employee was evaluated by Dr. Prafal Kelkar at the Noran Neurological Clinic on December 14, 2006. She described both the 2004 and 2006 work injuries, stating that the second injury was similar to the first. She complained of neck pain and right-sided occipital headaches, along with right hand tingling, pain in the right mid-thoracic paraspinal muscle, back pain less than in 2004, and right leg burning with tingling and numbness in the right foot. Tinel’s and Phalen’s signs were positive, but all other examination findings were normal. The employee was treated with a trigger point injection and an occipital nerve block for occipital neuralgia. She was also diagnosed with possible right carpal tunnel syndrome. EMG testing of the right upper extremity was recommended. Dr. Kelkar also suggested an MRI of the cervical and thoracic spine might be considered for her complaints of burning in the right thigh and numbness in the right foot.
EMG studies on December 14, 2006, confirmed carpal tunnel at the right wrist, but showed no evidence of brachial plexopathy or cervical radiculopathy.
The employee returned to Dr. Anderson at NorthPoint on January 25, 2007. She requested another referral to the Noran Clinic, a referral for physical therapy at the Courage Center, and a referral to occupational therapy. She stated she thought she was disabled from work on the basis of her back pain. Dr. Anderson mentioned to her that she had received a Courage Center referral previously but had chosen not to pursue evaluation for pool therapy. The employee stated that she wanted to do it now and was given a new referral. She was also referred to occupational therapy.
On February 1, 2007, Dr. Kelkar saw the employee in follow up. He reported that her exam remained normal. The employee indicated that her right occipital neuralgia pain had resolved after the injection but had since returned. Dr. Kelkar administered a repeat occipital nerve block and trigger point injection. He referred Ms. Jackson for orthopedic evaluation of carpal tunnel syndrome and recommended an EMG of the right lower extremity.
On March 9, 2007, the employee returned to Dr. Anderson complaining of an exacerbation of pain, with burning mid back pain which had been present for a couple of weeks. She attributed this to shoveling after a snowstorm one week before. She did not want to go back to the Noran Clinic for more injections. She was taking ibuprofen, but did not find it helpful. Her physical examination was unremarkable. The employee stated that she was finding the Zoloft helpful for her depression, and that she was now able to get up in the morning and complete tasks. She was continued on the Zoloft and referred for counseling. Dr. Anderson assessed, “chronic and recurring back pain, which I think is related to depression.” The employee was given Ultram and authorized to return to work without any restrictions.
Also on March 9, the employee was seen by psychologist Mark Brownell for a diagnostic assessment on referral from Dr. Anderson. The employee reported that she had experienced a depressed mood since her work injury in 2004, but that Zoloft had helped her sleep and mood. She was diagnosed with “history of depression that appears to be responding to treatment with Zoloft.”
The employee was seen at PAR Rehabilitation for vocational placement assistance on March 23, 2007. Her Job Placement Plan called for weekly meetings, but the employee was not seen again until May 17, 2007. On July 24, 2007, PAR filed a closure report noting that the employee had not been seen since May 17, 2007, and that attempts to contact her had not been successful.
An evaluation on behalf of the employer and insurer was conducted by Dr. Paul Yellin on April 13, 2007. Dr. Yellin noted the history of cervical and lumbosacral strain secondary to the injury at Maranantha Care Center in 2004. He concluded that the September 28, 2006, work injury likely had caused a temporary recurrence of her cervical and/or lumbosacral strain. Dr. Yellin felt that there was no objective evidence of any residual problems related to the 2006 injury, noting that her MRI scans since the 2006 injury were negative and that there was an absence of objective findings during evaluation by other physicians, including Dr. Wengler in December 2006. In his opinion, the employee had no permanent disability from the 2006 injury, and did not require any work restrictions as a result of the injury. Dr. Yellin saw no need for any future treatment related to the September 28, 2006, incident and stated that the employee had reached MMI.
On a return visit on April 16, 2007, Dr. Kelkar noted that the employee’s headache was substantially resolved with occipital nerve blocks. She continued to have pain and a burning sensation in the mid-thoracic area, but had temporary relief after a therapeutic injection. She also reported right carpal tunnel symptoms and bilateral knee aching. Dr. Kelkar administered a repeat occipital nerve block on June 13, 2007. He put the employee on work restrictions which limited bending and lifting while the cause of her mid thoracic symptoms was investigated and suggested a new MRI be done to ensure no disc bulges existed at that level.
On April 21, 2007, an MRI of the thoracic spine was performed and the results were read as within normal limits.
On October 3, 2007, Dr. Kelkar noted that the employee was reporting increased thoracic pain, but was no longer having headache or neck pain. She was referred for a pain clinic consultation. She was to follow up as needed.
The employee was evaluated by Jerrald Miller, D.C., at Apex Chiropractic on July 31, 2007. She reported an initial work injury in 2004 and a re-injury at work in 2006, stating that her symptoms following the 2004 injury had improved but persisted. She reported neck pain, numbness and tingling in her arms and hands bilaterally, low back stiffness, and pain radiating down both legs to the knees. She also reported weakness in her arms, hands, legs, and feet. She had frequent headaches. Dr. Miller diagnosed chronic neck pain, headaches, numbness and tingling into extremities as a result of work injuries, chronic thoracic pain as a result of previous injuries, and chronic lumbosacral pain with radiation into the lower extremities as a result of previous injuries. He stated that she had permanent partial disability as a result of the injuries, but he could not determine the extent to which her symptoms were related to which injury. Dr. Miller noted that the employee had restrictions in place from a previous provider. He recommended a minimum of 24-36 visits annually over the next two years. The employee continued chiropractic treatment at Apex Chiropractic through August 21, 2007.
On September 25, 2007, the employee returned to NorthPoint Health and Wellness. She complained of back pain and requested pain medications. She was prescribed Naprosyn and Flexeril and scheduled for follow-up, but failed her visit with Dr. Anderson on October 1, 2007. On November 29, 2007, Dr. Anderson noted that Ms. Jackson was taking Naprosyn fairly regularly for back pain.
In December 2007, the employee was hired by an employer, St. Daniels, where she worked until some time the following February. She also worked for two to three months part-time during the first few months of 2008 doing office work and answering phones for a company called CCP.
The employee’s chiropractor, Jerrald Miller, signed a health care provider report on March 24, 2008, stating the employee had not yet reached MMI.
The employee was reevaluated by Dr. Yellin on April 4, 2008. Dr. Yellin again stated that there was no objective pathology to substantiate any residual problems to her neck, mid back, or low back. He concluded that the 2006 injury had caused a temporary aggravation of her preexisting condition which had resolved no later than December 7, 2006, when she was evaluated by Dr. Wengler. He again stated that she had no permanency or disability from the injury and did not require any physical restrictions.
On September 22, 2008, Ms. Jackson was seen by Adele Starr, APRN, at NorthPoint with complaints of chronic neck, upper, and low back pain which had worsened in the past month after she lost coverage for chiropractic treatment. She reported shoulder pain and some pain that radiated into her buttocks and right leg to the knee. She was interested in physical therapy. She stated that the pain started in her neck and radiated down to her low back and that she had herniated discs at the thoracic level. Physical examination was unremarkable. She was prescribed Naproxen and Flexeril and referred to physical therapy.
The employee was hired by Masterson Personnel in March 2009 but decided not to start work following the initial period of training as the job conflicted with providing daycare supervision for her children.
A hearing on the claim petition was delayed as the result of several continuances requested by various parties and other scheduling issues. On July 18, 2009, the employee filed a new claim petition seeking temporary total disability from September 28, 2006, to November 15, 2007, temporary partial disability from July 2007 to the present, medical treatment expense reimbursement, and rehabilitation services. The employee filed an amendment to her claim petition on February 3, 2010, seeking penalties against the employer and insurer.
The employee was reevaluated by Dr. Yellin on December 18, 2009. The employee reported that she was no longer receiving medical or chiropractic treatment, having last treated chiropractically with Dr. Wolfe in May or June 2009. She was not working and was receiving state disability payments. Dr. Yellin’s physical examination of the employee was reported as essentially normal. He found no objective pathology to substantiate any residual problems in her neck, mid back or low back. In his opinion, her history was consistent with a cervical, thoracic, and lumbosacral strain, now resolved. He did not believe that she had sustained any permanent partial disability. In his view, she was able to work without any work restrictions as a result of the alleged 2006 injury and needed no further medical or chiropractic treatment. He considered MMI to have been reached at the time of his earlier examination on April 13, 2007.
A psychological examination was conducted on behalf of the employer and insurer on January 14, 2010, by Dr. Thomas G. Gratzer. Dr. Gratzer offered the opinion that the employee had an adjustment disorder with mixed anxiety and depressed mood. In his opinion, this condition related to psychosocial stresses separate from the physical stresses of the 2006 work injury. Dr. Gratzer further concluded that the employee’s psychological condition would not disable her from employment or require work restrictions or limitations.
On February 15, 2010, the employee was seen by David Berdahl for a vocational evaluation on behalf of the employer and insurer. The employee was at that time living on state disability payments and had filed for Social Security disability. She was not working. Mr. Berdahl noted that the employee had completed CNA training at Minneapolis Technical College, had finished a two-year degree in information science technology in 2001, had a Microsoft Certified Systems Engineer certificate, and had completed a program in 2003 to learn insurance coding for medical statements. She had also completed a four-month course in 2007 to learn property and apartment management. A labor market study was conducted. In Mr. Berdahl’s opinion, even if the employee were subject to light duty restrictions, she would be employable in jobs available in the $7.50 to $13.00 per hour starting salary range. Based on her job search history, he concluded that the employee had voluntarily withdrawn from the labor market.
On April 26, 2010, a hearing was held before Compensation Judge Catherine Dallner to consider the employee’s claims. At the hearing, the employee claimed a mid-back and neck injury and consequential depression, but was not claiming a low back injury or that her carpal tunnel syndrome was work-related.
Following the hearing, the compensation judge determined that the employee had sustained a personal injury to her mid-back and neck on September 28, 2010. The judge found that the injury was temporary in nature and had resolved by December 7, 2006. The judge also concluded that the employee had not sustained a consequential psychological injury. Temporary total disability was awarded from September 28, 2006 through November 12, 2006. The compensation judge further found that the employee had failed to cooperate with rehabilitation and that she was not entitled to additional vocational rehabilitation services. Certain medical expenses prior to the resolution of the injury were awarded, and the judge also awarded reimbursement to the Minnesota Department of Human Services for subsistence benefits paid during the periods of temporary total disability and for certain medical expenses. Finally, the judge found that the employer and insurer had not unreasonably delayed payment, their denial of the employee’s claim was not frivolous, and declined to award penalties. The employee appeals.
STANDARD OF REVIEW
When an appeal is taken from a compensation judge’s factual findings, this court’s review on appeal is limited to a determination of whether the judge’s findings and order are “clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1(3). If the judge’s factual determinations are adequately supported by substantial evidence, and not clearly erroneous, we must affirm. Substantial evidence supports the findings if, in the context of the record as a whole, 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 the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must 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 Food Prods., Inc., 304 Minn. 196, 201, 229, N.W.2d 521, 524 (1975).
1. Temporary Injury
In finding that the employee’s physical injury was temporary in nature and had fully resolved by December 7, 2006, the compensation judge expressly relied on the opinions of expert medical examiner Dr. Paul Yellin. If there is a disagreement between one or more doctors in a case about the medical diagnosis or treatment, it is the job of the compensation judge to review the differing opinions and to choose which opinions appear most credible and most consistent with the evidence as a whole. The opinion of a medical expert, where adopted by the compensation judge, may serve as the basis for her decision, so long as the expert had a sufficient factual basis or foundation for the opinion from an examination of the employee and review of the employee’s medical records. See, e.g., Heitland v. R.O. Drywall, No. WC04-263 (W.C.C.A. Apr. 5, 2005).
Here, Dr. Yellin examined the employee on three separate occasions and reviewed the employee’s medical records from her treating physicians. The compensation judge was entitled to rely on Dr. Yellin’s opinions, which constitute substantial evidence in support of her findings. In addition, we note that the compensation judge in her memorandum detailed other factors which she also considered and which supported her reliance on Dr. Yellin’s opinion, including numerous examinations which failed to show any objective findings, and the fact that MRI and other medical imaging and testing were all normal.
We cannot conclude from the record that the compensation judge erred in adopting Dr. Yellin’s opinion that the employee’s 2006 injury was a sprain/strain which had resolved by December 7, 2006, and we must affirm.
2. Psychological Injury
The compensation judge’s determination that the employee did not have a psychological injury as a result of the 2006 work injury is also based on her choice of expert opinion. The judge here adopted the opinion of Dr. Gratzer. Dr. Gratzer’s report clearly reveals that he had a sufficient factual background through review of the employee’s records, examination of the employee, and through psychological testing given to the employee, to give an expert opinion in the case. As with other issues, the compensation judge’s memorandum details at considerable length additional factors she considered and which also support her decision. We accept the compensation judge’s finding on this issue since it has substantial support in the record.
3. Temporary Total Disability
The compensation judge granted temporary total disability benefits through November 12, 2006, the last date that the employee was taken completely off work before the compensation judge determined that the employee’s injury had fully resolved on December 7, 2006. The employee argues that the restrictions imposed by her chiropractors were never formally lifted, and that the compensation judge should have awarded further temporary total disability for later periods. Dr. Yellin’s opinion, adopted by the compensation judge, was that the employee was no longer in need of restrictions as of December 7, 2006, at the latest. As for the period between November 12 and December 7, the judge noted that the restrictions through November 12 were based on a scheduled reevaluation which the employee cancelled. It was not unreasonable for the judge to conclude that the work restrictions had expired, particularly where the employee was seen during the same period by other physicians who did not impose work restrictions. We therefore affirm the denial of temporary total disability compensation after November 12, 2006.
The compensation judge found that the employee’s injury had fully resolved by December 7, 2006, without any residual disability, and denied rehabilitation benefits. The finding as to the resolution of the employee’s injury has already been addressed above. An employee who has no disability or restrictions from a work injury is not entitled to rehabilitation services. Farnsworth v. Northwest Airlines Corp., 68 W.C.D. 150 (W.C.C.A. 2008). We affirm the denial of rehabilitation services.
The employee asked for penalties against the employer and insurer. Penalties payable in the form of additional benefits to an employee are addressed by Minnesota Statutes § 176.225. Subdivision 1 of that statute allows assessment of a penalty in the form of additional compensation of up to 30 percent to an employee where the employer or insurer has presented a defense which is frivolous or made for the purpose of delay. Subdivision 5 requires a penalty on benefits which are payable when payments are inexcusably delayed.
The compensation judge found that the employer had raised good faith defenses to the employee’s claims, and she denied the employee’s claim for penalties under Minnesota Statutes § 176.225, subd. 1. Since this was not a case of delay of payment, no penalty was awarded under subdivision 5. Whether a penalty is appropriate under Minn. Stat. § 176.225 is a question of fact for the compensation judge. Maxfield v. Stremel Mfg. Co., slip op. (W.C.C.A. Jan. 6, 1999).
In her brief, the employee argues that the employer and insurer failed to timely file a first report of injury and did not serve or file a written denial of claim within 14 days of knowledge of the injury. The employee contends that the judge erred in failing to award a penalty based on the alleged failure to file a first report of injury or to timely deny her claim. She further contends that the alleged failure to timely deny the claim required the compensation judge to find in her favor on all issues as though uncontested.
The evidence was very unclear as to when the employer had knowledge of the injury, or of whether a first report was prepared or filed or whether or when a denial of claim was served. We conclude that the compensation judge did not err by failing to impose a penalty based on the evidence presented to the compensation judge.
6. Other Matters
The employee’s brief to this court also raises concerns over leave the employee feels she was denied under the Family Medical Leave Act (FMLA), and also raises factual disagreements with the employer over her termination from employment. Both the compensation judge and this court may only decide issues arising under the Minnesota Workers’ Compensation Act. FMLA leave is not governed by the workers’ compensation act, and the compensation judge properly failed to make any findings with respect to it. Similarly, none of the workers’ compensation issues presented in this specific case were affected by the facts surrounding the employee’s termination, and the judge again properly did not address that question.
The compensation judge’s findings and order are affirmed.