CHARLES H. WILLIAMS, Employee/Appellant, v. POSTAL FLEET SERVS. and CONTINENTAL INDEMNITY CO., Employer-Insurer, and NORAN NEUROLOGICAL CLINIC and ACUITY, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 22, 2010
TEMPORARY BENEFITS - FULLY RECOVERED. Substantial evidence, including expert opinion and evidence bearing on the employee’s credibility, supported the compensation judge’s decision that the employee had fully recovered from the physical and psychological effects of his work-related motor vehicle accident.
Determined by: Wilson, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Jennifer Patterson
Attorneys: Carter J. Bergen, Woodbury, MN, for the Appellant. Thomas J. Peterson, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s decision that he had fully recovered from the effects of his work-related injuries as of February 15, 2010. We affirm.
The employee has a long history of injuries and treatment dating back to the 1970s, when he injured his left shoulder while serving in the Marine Corps. He underwent at least three surgeries for this condition and was rated as having a 10% disability. He was later involved in at least two motor vehicle accidents, and he sustained injuries, to both knees, in yet other incidents, undergoing two right knee surgeries in the early 1990s and two left knee surgeries in the mid-1990s. In August of 1997, his physician permanently restricted him to “totally sedentary” work. Medical records from that period indicate also that the employee had a history of a low back injury in 1982, with scan evidence of a herniated L4-5 disc, and a history of a herniated disc at C6-7 “in the very distant past.” A 1989 MRI of the cervical spine, conducted to assess the source of continued left shoulder and left arm pain, disclosed disc bulges at C5-6 and C3-4, as well as disc protrusion, probable osteophyte formation, and associated lateral stenosis at C6-7. A lumbar MRI performed in December of 1996 disclosed multilevel disc and facet degeneration. The employee was also evaluated and treated for left hip pain, with x-rays revealing degenerative changes in both hips, more advanced on the left than on the right. It appears that, after the knee injuries, especially, the employee was off work for quite some time due to complaints of chronic pain.
The employee’s job history following his time in the Marine Corps consisted primarily of welding work until the late 1990s, when he become a truck driver. He began his job with Postal Fleet Services, the employer herein, in February of 2008.
The employee’s driving job for the employer involved hauling mail, typically from the airport to the post offices in downtown Minneapolis and St. Paul. According to the written job description, the employee was expected to lift up to 75 pounds. Mail and packages were conveyed in wheeled containers, which, fully loaded, weighed from 200 to 1000 pounds. Each day the employee would pick up a tractor at the employer’s yard and drive to another location to pick up an empty semi-trailer. He would then drop off the empty trailer at the airport and pick up a loaded trailer to drive to the post office, where he often helped unload the containers filled with mail. The length of the employee’s shift varied, but it was not unusual for him to work eleven hours. In an eleven-hour shift, the employee typically made seven round trips to move the mail.
On April 26, 2009, the employee was involved in a work-related accident when his truck was struck in an intersection by a car that had run a red light. The force of the impact from the collision was sufficient to break the employee’s seatbelt, and he was thrown to the right. At least some of the occupants of the other vehicle were seriously injured, and the employee believes one of them died. The employee apparently experienced a brief loss of consciousness and came to to find someone helping him from the truck. An ambulance took him to Hennepin County Medical Center [HCMC] for evaluation.
HCMC records indicate that the employee was complaining of right shoulder pain, right flank pain, right-sided lumbar pain, nausea, and headache. On exam, the employee had a normal range of motion of the neck, with pain in the paraspinous muscles, and he moved all extremities normally but had pain with full extension of his right shoulder. The soft tissues of the employee’s right shoulder were tender, and he was noted to have some abrasions and contusions in that area. He also had an abrasion and a small amount of swelling on the right side of his forehead, but he was awake and oriented. Various tests were performed, including a head CT, which was negative. X-rays showed degenerative changes in the employee’s thoracic and lumbar spine, but there was no evidence of fracture. The employee was given pain medication, which helped his headache and nausea, but he continued to complain of right flank pain. On discharge following his evaluation, the employee’s diagnoses were closed head injury, right shoulder pain, right flank pain, and tachycardia. He was prescribed pain medication and advised to follow up with his usual physician in two days.
On April 28, 2009, the employee sought treatment at Buys Chiropractic Clinic, complaining of headaches, right shoulder pain extending into his hand, pain in the left thigh and leg, and cervical, thoracic, and lumbar spine pain. He subsequently received chiropractic care at this facility through the end of the year, averaging at least seven visits a month.
The employee was seen by several other medical providers in the months following the collision, including Dr. Chad Evans, of Noran Neurological Clinic, Dr. David Spight, of the Institute for Low Back and Neck Care, and Dr. Ronald Wutchiett, a psychologist. Diagnostic tests included thoracic and cervical x-rays, a cervical CT scan, a CT scan of the head, an MRI of the brain, a cervical MRI, and an EMG. The EMG, head CT, and brain MRI were normal. The cervical CT and MRI scans showed degenerative changes and/or disc bulges or herniations, and stenosis, at multiple levels, and thoracic studies similarly disclosed degenerative changes and/or herniations.
The employee’s primary complaints in the months following the accident were of headaches, neck pain, and middle/upper back pain. Other symptoms noted in the employee’s records included intermittent nausea, left hip pain, neck pain radiating down the left arm, changes in hearing, left knee pain, partial facial numbness, problems with concentration and memory, and dizziness. Diagnoses by treating physicians included myoligamentous and soft tissue injury related to the collision; occipital neuralgia; mild traumatic brain injury; cervicogenic headaches; left shoulder pain, “likely referred pain from cervical radiculopathy;” cervical disc bulges, degenerative changes, and stenosis; ulnar nerve entrapment on the left; post-traumatic chronic neck pain; possible cervical radiculitis with no clear distribution; cervical spondylosis; and post-traumatic headaches. Treatment for the employee’s physical symptoms included medication, use of a cervical collar, cervical epidural injections, chiropractic treatment, and therapy in a MedX program. In general, the employee’s reported physical symptoms did not improve, despite treatment, to any great extent. In fact, the MedX program allegedly made him worse.
With respect to the employee’s psychological condition, Dr. Wutchiett diagnosed the employee as suffering from an adjustment disorder with anxiety and elements of post-traumatic stress, a pain disorder with both psychological factors and a medical condition, and insomnia secondary to pain and distress. Concluding that the employee was a reasonable candidate for short-term psychotherapy, Dr. Wutchiett provided counseling.
In August of 2009, the employer and insurer placed the employee under surveillance, and in September of 2009, the employer and insurer had the employee evaluated by Dr. Richard Strand and Dr. Thomas Gratzer. In his report, Dr. Strand concluded that the employee had sustained multiple contusions and strains secondary to the April 26, 2009, accident and that he had healed from those conditions as of September 2, 2009, the date of his exam. Dr. Gratzer, who performed a psychiatric examination, diagnosed the employee as having an adjustment disorder with anxious mood, and a personality disorder, not otherwise specified, the latter of which was unrelated to the employee’s work accident. In Dr. Gratzer’s opinion, it was reasonable for the employee to have four to six sessions of psychotherapy with Dr. Wutchiett to deal with grief and guilt issues related to the accident. Both Dr. Strand and Dr. Gratzer reported that the employee was, in their opinion, able to work without restrictions.
For several days in December of 2009, the employee attempted to work for the employer in a light-duty, sedentary position. He reported, however, that, because regulations precluded him from taking his prescribed medications while on the job, his symptoms increased. Dr. Evans therefore restricted the employee from working.
In February of 2010, after reviewing additional records from Dr. Wutchiett, Dr. Gratzer concluded that the employee had reached maximum medical improvement from the effects of any work-related post traumatic stress disorder or grief symptoms, explaining that treatment records did not document any ongoing symptoms of those conditions but rather instead anger and irritability that “likely reflect an interplay between [the employee’s] preexisting personality disorder and perceptions of mistreatment by others.”
On February 18, 2010, the matter came on for hearing before a compensation judge for consideration of the employer and insurer’s petition to discontinue benefits and the employee’s claim for certain treatment expenses, including a request for authorization for medial nerve injections and branch blocks. The employer and insurer admitted that the employee had sustained strains and sprains and had developed an adjustment disorder as a result of the accident, but they asserted that those conditions had resolved. Evidence submitted at hearing included the employee’s extensive medical records, photographs from the accident, a DVD of the surveillance conducted in August 2009, the reports of Drs. Strand and Gratzer, and the employee’s testimony.
In a decision issued on March 29, 2010, the compensation judge concluded that the employee had fully recovered from the physical and psychological effects of his work injuries as of February 15, 2010. The judge therefore granted the employer and insurer’s request to discontinue benefits and denied the employee’s claim for treatment expenses. The employee appeals.
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).
1. Physical Injuries
At hearing, the employee was claiming that he had ongoing symptoms and restrictions related to headaches and to cervical, thoracic, and lumbar spine problems, and that he also had left shoulder and left knee pain, all as a result of his April 26, 2009, accident. The employer and insurer contended that the employee had fully recovered from the physical effects of the collision, in accordance with the opinion of Dr. Strand.
In her decision, the compensation judge first outlined the employee’s extensive history of preexisting injuries and treatment for various conditions, including his multiple knee and shoulder surgeries and treatment for neck, low back, and left hip symptoms. Then, after describing the employee’s job duties and the nature of the April 26, 2009, collision, the judge made a number of findings explaining her ultimate conclusion that “the employee [was] not a reliable source of information about the effects of his April 26, 2009, work injury.”
Specifically, the judge was unpersuaded by the employee’s contention that he had experienced left shoulder symptoms immediately following the accident, explaining as follows on this point:
The HCMC emergency room records and the Buys Chiropractic Clinic records both document that the employee initially reported right shoulder and arm symptoms only, without left shoulder symptoms. The initial right shoulder symptoms are consistent with initial right rib findings on examination. The employee’s testimony that he either intended to say left shoulder, or that both the emergency room personnel and his chiropractor mistakenly documented right shoulder symptoms instead of left shoulder symptoms, is inconsistent with his initial treatment records. It is highly unlikely that both the emergency room personnel and the treating chiropractor would have documented right shoulder symptoms and findings including, but not limited to, a bruise on the inner and upper right arm, if the employee had reported left shoulder symptoms. The healthcare treatment records have been given more weight then the employee’s testimony. The April 26, 2009, MVA caused initial symptoms in the right shoulder, and not the left.
Observing that, “[w]hen under observation by a healthcare provider or his QRC, the employee avoided moving his neck at all, turning with his torso instead of just his head when he wanted to look to the right or left,” the judge went on to note that the surveillance video from August 2009 showed the employee
running errands and performing activities including, but not limited to, walking slowly but in a normal fashion, pushing a grocery cart, bending to pick up bags from the grocery cart, moving his neck side to side to look around, bending to remove a trailer hitch from his vehicle, using his arms below shoulder height with fluid motions, getting into his vehicle with fluid motions, pumping gas and using his left arm to reach up and back to get his seatbelt and extend it across his body to fasten it. As supported by the opinion of Dr. Strand, who examined the employee on September 2, 2009, when the employee refused to move his head and neck at all, would not move his thoracic and lumbar spine through a range of motion, complained of pain with any motion of his left shoulder, hip and knee, and had restricted left shoulder range of motion, the employee’s actual functional abilities as shown on the August surveillance video [are] inconsistent with the highly restricted way the employee presented himself for physical examination to treating and examining doctors.
The judge further found that the employee had given “inaccurate and incomplete histories” to his healthcare providers after the April 26, 2009, work-related collision, as to the extent of his preexisting conditions and treatment. Other evidence that may have influenced the judge’s credibility determination includes testing by both Dr. Wutchiett and Dr. Gratzer, indicating that the employee is prone to exaggeration, and several notations in the employee’s pre-injury medical records, documenting concerns by treating physicians that the employee’s subjective complaints had no explainable organic basis.
The employee concedes that credibility determinations are for the compensation judge to make. See Evan v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). He argues, however, that, even assuming that he is not a reliable source of information about his condition, his treatment records amply demonstrate that he has ongoing symptoms, necessitating restrictions, as a result of the April 26, 2009, accident. We are not persuaded that the judge’s decision is clearly erroneous or unsupported by substantial evidence.
There is no dispute that the employee sustained some injuries in the work-related motor vehicle collision. The issue is whether the compensation judge erred in accepting Dr. Strand’s opinion that those injuries were merely strains and sprains that had healed by the time of Dr. Strand’s September 2, 2009, examination. In his brief, the employee cites a number of medical records purportedly documenting the ongoing nature of various conditions. However, nearly all limitations and findings on exam after September 2, 2009, were based on the employee’s subjective complaints. That is, the employee’s medical records contain primarily repeated references to tenderness, distress from neck pain, persistent headaches, and limited range of motion due to pain.
We acknowledge that diagnostic scans establish that the employee has degenerative changes, herniations, and/or stenosis, essentially throughout his entire spine. However, Dr. Evans, the employee’s treating physician, admitted that the findings on scan preexisted the accident; he concluded only that the employee was not symptomatic prior to the accident. Furthermore, we would note, as the compensation judge did, that neither Dr. Evans nor Dr. Spight were fully aware of the employee’s pre-injury health history. Moreover, neither doctor apparently viewed the surveillance evidence, and neither doctor issued a narrative report on causation.
Contrary to the employee’s contention, this case rests, in the end, on the compensation judge’s assessment of the employee’s credibility. It is reasonably inferrable that the employee’s treating doctors simply assumed, in light of the employee’s scan results and reported subjective complaints, that the employee was experiencing continuing symptoms as a result of his April 26, 2009, accident. Because she rejected the employee’s account of his ongoing symptoms, the compensation judge also rejected the premise for the medical evidence supporting the employee’s claim. Under these circumstances, we cannot conclude that the judge erred in accepting the opinion of Dr. Strand regarding the nature and extent of the employee’s physical injuries. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). We therefore affirm the judge’s decision that the physical effects of the April 26, 2009, collision had fully resolved as of September 2, 2009.
2. Psychological Condition
The employer and insurer conceded that the employee had developed an adjustment disorder as a result of the April 26, 2009, accident. They contended, however, that that condition had resolved, in accordance with the February 10, 2010, opinion of Dr. Gratzer. The compensation judge accepted Dr. Gratzer’s opinion and concluded that the employee had fully recovered from the adjustment disorder by February 15, 2010. More specifically, in her findings, the compensation judge indicated that, “[a]s supported by the opinion of Dr. Gratzer, by February 15, 2010, the employee recovered from the adjustment disorder . . . and, to the extent the employee was receiving ongoing counseling, he was receiving that counseling for pre-existing personal and family issues.”
On appeal, the employee contends that his treatment records do not support the conclusion that counseling was directed toward personal or family issues. This contention has some merit. What Dr. Gratzer actually concluded reads, in pertinent part, as follows:
In my initial report, I noted that Mr. Williams would benefit from a short course of 4-6 therapy visits with Dr. Wutchiett to address grief issues. It is unclear to what extent recent therapy by Dr. Wutchiett focused on grief issues. Therapy records document issues of anger, irritability, and frustration as well as perceptions of mistreatment by his employer and worker’s compensation. To the extent that Mr. Williams has psychosocial stresses related to perceptions of mistreatment by worker’s compensation or an unsupportive work environment, these psychosocial stresses are separate from physical stresses of the April 26, 2009 accident. In addition, as I indicated in my initial report, Mr. Williams has a long history of anger and irritability reflecting his preexisting personality disorder n.o.s.
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I would also note that therapy records do not document ongoing symptoms of post traumatic stress disorder or grief symptoms related to the fatality in the traffic accident. Rather the treatment records document anger and irritability which likely reflect an interplay between Mr. Williams’ preexisting personality disorder and perceptions of mistreatment by others. Again this is separate from the April 29, 2009 accident.
Given the content of Dr. Gratzer’s report, it is possible that the judge intended to say that the employee had been receiving counseling for personality issues, rather than personal issues. In any event, the judge also expressly accepted Dr. Gratzer’s earlier opinion that adjustment disorders are self limiting and heal with time, with or without treatment. Finally, the employee has already received as much or more treatment than Dr. Wutchiett and Dr. Gratzer predicted would be necessary, and the employee did not offer any opinion evidence indicating that he necessarily requires additional treatment to deal with any continuing psychological effects of his work injury. Given the evidence as a whole, the judge’s alleged misstatement about the nature of the employee’s psychological treatment provides insufficient grounds to overturn the judge’s ultimate conclusion on this issue. The judge’s decision is affirmed.
 Apparently the knee injuries were work-related, occurring during the employee’s employment by employers not involved in the current proceedings.
 Most of the employee’s treatment as of the hearing date was for cervical and thoracic symptoms.
 For example, in a February 1996 note, Dr. Jeffrey Ley wrote that he could not relate the employee’s complaints of numbness and tingling in his leg to “any specific organic cause or organic explanation,” noting also that the employee was very focused on attributing his symptoms to his job at the time. In an earlier note from 1993, another physician observed that he was becoming “somewhat cautious of [the employee’s] overall attitude toward work.” And, in a 1997 record, Dr. Harry Robinson noted that the employee had reported having had “up to 14 falls with his knee giving out, which is difficult to explain.” Dr. Robinson found himself “at a loss to diagnose the underlying pathology.”
 Dr. Strand declined to give an opinion as to the employee’s alleged continuing headaches, vision changes, and hearing loss, characterizing those symptoms as outside the area of his expertise. Again, however, these complaints are subjective. The employee’s brain MRI was unremarkable, and it does not appear that any further investigation of these complaints has been performed. Certainly there is no medical opinion that the employee even actually suffers from either vision changes or hearing loss, much less that he developed these conditions due to the accident at issue here.
 The compensation judge apparently chose February 15, 2010, rather than February 10, 2010, as the date of recovery because Dr. Gratzer’s report was served on the employee on the latter date.
 Dr. Wutchiett recommended 10 sessions; Dr. Gratzer thought that 4-6 visits would be sufficient. The employee saw Dr. Wutchiett 11 times after the initial evaluation. In notes from the employee’s last therapy session of February 10, 2010, Dr. Wutchiett indicated that the plan was for the employee to follow up “as needed” to manage anxiety, irritability, and pain related to the accident.