LYNDON E. BRUNS, Employee, v. THE ZERKE CO. and CONTINENTAL INDEM. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 13, 2011
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE; DISCONTINUANCE. Where he was treating only the employee’s bilateral shoulder condition, expressly did not treat cervical conditions, and had referred the employee to other physicians and ultimately to a chronic pain specialist for treatment of his neck, the treating orthopedist’s opinion that maximum medical improvement had been achieved applied only to the employee’s shoulder conditions, and the compensation judge’s denial of discontinuance on the grounds that the employee had not yet reached MMI with regard to “all compensable injuries” was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Jane Gordon Ertl
Attorneys: DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Respondent. M. Shannon Peterson, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge’s finding that maximum medical improvement has not been reached and that the employee is entitled to ongoing temporary total disability benefits. We affirm.
On May 4, 2007, Lyndon Bruns [the employee] sustained work-related injuries to his neck and left shoulder when the vehicle that he was driving was broadsided by another vehicle on his driver’s side, in the course of his employment as a courier with The Zerke Co. [the employer]. The employee informed his employer of the accident immediately after its occurrence, and his employer’s son subsequently arrived to assist him in completing his day’s deliveries in a different vehicle. On the day following the injury, the employee sought treatment for resulting neck and shoulder pain at a Douglas County emergency room, where a CT scan of his cervical spine was conducted and was read to reveal degenerative changes in the interspaces and facet joints, but no evidence of any fracture. The employee was issued a sling for his left arm and was advised to follow up with his treating doctor if symptoms persisted or worsened. The employee sought treatment the following day, May 6, 2007, with chiropractor Dr. Michael Buffington, who performed chiropractic adjustments, arranged whirlpool therapy, and advised rest and ice for the next few days.
On May 16, 2007, the employee commenced treatment with medical physician Dr. Scott Hegstad “for evaluation of his neck and shoulders.” Dr. Hegstad diagnosed “[c]ervical and shoulder strain post motor vehicle accident, 05-04-07” and recommended continuation with anti-inflammatory medication and periodic chiropractic interventions. When Dr. Hegstad saw the employee again on May 30, 2007, the employee was continuing to have “a lot of neck and shoulder pain,” accompanied sometimes by headaches and double vision.
Eventually, on July 19, 2007, the employee commenced treatment with Physician Assistant Lance Beebout at Alexandria Orthopedic Associates. He complained to PA Beebout of bilateral shoulder pain, left greater than right, of neck pain, and of blurred vision and headaches. PA Beebout noted that examination revealed significant cervical spine pain, without radiculopathy, “most likely secondary to severe aggravation of underlying broad based c-spine degenerative disc disease occurring during the [motor vehicle accident].” He ordered MRI scans of both shoulders, requested authorization for physical therapy, and referred the employee to physiatrist Dr. Maria Zorawska at the Central Minnesota Spine Center for further evaluation.
When she saw the employee on August 1, 2007, Dr. Zorawska noted some limited range of motion and evidence of pain in both the employee’s neck and his shoulders. The doctor supposed that the shoulder pain was attributable to a rotator cuff tear and that the neck pain was due to multilevel degenerative disc and facet joint disease, as evident on the employee’s May 5, 2007, CT scans. On those conclusions, the doctor ordered an MRI scan of the cervical spine, in addition to the shoulder scans that had been ordered by PA Beebout. The shoulder scans were conducted on August 8, 2007, and both were read to reveal tendinopathy of the supraspinatus tendon, with mild to moderate AC joint arthrosis and other essentially degenerative changes. The cervical scan was conducted on August 22, 2007, and was read to reveal multilevel degenerative disc disease, with narrowing and dehydration, especially at the C2 through C6 interspaces, and a mild compression fracture of the superior endplate of T1. About a week later, on August 29, 2007, the employee saw Dr. Hegstad again, who noted that the employee had seen “both [PA Beebout] in regard to his shoulder and Dr. Zorawska in regard to the neck.”
In follow-up on the cervical CT scan on September 6, 2007, Dr. Zorawska noted that the employee was scheduled for cortisone injections into both shoulders, and she instructed him to return for a follow-up visit after completion of the injections, so that she could give him her recommendations, “depending on the amount of pain in the neck and still in the shoulders after the procedure.” On that same date, September 6, 2007, the employee saw PA Beebout again, who administered injections into both of the employee’s shoulders, which resulted in an immediate fifty percent reduction in his pain. PA Beebout concluded that this initial response would be “extremely helpful for Dr. Zorawska in determining level of cervical spine involvement,” noting that “[t]here is without question internal shoulder pathology at play however I also feel that there is also underlying cervical spine pathology causing a portion of the presenting pain.” Upon follow-up on October 25, 2007, PA Beebout noted again the employee’s reduction in shoulder pain consequent to his injections, adding that the employee “does continue to have C-spine discomfort but to a lesser degree since the shoulder feels better.” The employee’s diagnosis on that date was degenerative cervical disc disease, bilateral rotator cuff tendonitis with degenerative tears, and bilateral subacromial impingement in his shoulders. PA Beebout recommended physical therapy for a comprehensive rotator cuff strengthening program, directing the employee to return in a month for a recheck of his shoulders and to follow up with Dr. Zorawska regarding his cervical spine pain.
On January 7, 2008, about eight months after his 2007 work injury, the employee sustained another work-related neck and shoulder injury, when he slipped and fell onto his left elbow in the course of his work for the employer. The employee was fifty-eighty years old on the date of this injury and was earning a weekly wage of $550.96, and the employer and insurer again acknowledged liability for the injury. On January 9, 2008, the employee returned to see PA Beebout, to whom he reported severely increased left shoulder pain and little to no strength in the shoulder. PA Beebout administered a subacromial left shoulder injection, restricted the employee from lifting over five pounds, ordered an MRI scan, and recommended that the employee follow up with Dr. Zorawska regarding his cervical spine, “since he didn’t show up for his followup visit.” The MRI scan was conducted on January 30, 2008, and was read to reveal full-thickness tears of both the supraspinatus and the infraspinatus tendons, along with humeral head subluxation and moderate AC joint arthrosis. PA Beebout referred the employee for a surgical evaluation to orthopedic surgeon Dr. Dennis Weigel, who examined the employee on February 20, 2008, and recommended open rotator cuff repair with subacromial decompression. The employee apparently was restricted subsequently from working, the employer and insurer evidently commenced payment of wage replacement benefits as of May 28, 2008. On July 7, 2008, under a diagnosis of “[l]eft massive rotator cuff tear and acromioclavicular joint arthrosis,” Dr. Weigel performed an open rotator cuff repair with subacromial decompression and acromioclavicular joint resection on the employee’s left shoulder.
Treatment continued with Dr. Weigel in the months that followed, and, as the employee’s repaired left shoulder healed, his right shoulder became more symptomatic. A repeat MRI scan of the right shoulder, conducted on November 6, 2008, was read to reveal a progression of degenerative changes since the previous examination, and on January 26, 2009, the doctor discussed with the employee the chronicity of the tear and the option of right shoulder surgery. The employee’s left shoulder problems continued as well, but his medical request for continuing treatment was denied pursuant to an administrative conference, and on March 30, 2009, the employee filed a request for formal hearing. On April 2, 2009, the employee underwent a left shoulder gadolinium arthrogram and MR arthrography, which was read to reveal recurrent tears of the same tendons that had been surgically treated in July of 2008. A week later, on April 9, 2009, the employee returned to see Dr. Hegstad, who diagnosed chronic shoulder pain with rotator cuff compromise, together with “[c]hronic neck pain post injury in 05-07,” noting that the employee was expected to be a candidate for additional shoulder surgery. At the employee’s follow-up with Dr. Weigel on June 15, 2009, options regarding the left shoulder were reviewed, and the employee indicated that he was not interested in further surgery, for either shoulder. Dr. Weigel found this position reasonable, given the employee’s less than optimum results in previous surgeries, and he recommended a Functional Capacities Evaluation [FCE] and a pain clinic evaluation, “to help deal with the chronic pain associated with the massive rotator cuff tear.” Dr. Weigel noted that he and the employee also discussed bilateral hand numbness that had been “going on for some time,” together with tingling in the employee’s toes. The employee agreed to consider referral to a neurologist regarding these symptoms, which Dr. Weigel indicated did not sound to him to be related to the employee’s neck, but he “defer[red] to the opinion of [a] neurologist regarding this issue.”
The matter was first heard on July 8, 2009, on the issues of whether or not the employee had sustained a work-related low back injury on May 4, 2007, and/or January 7, 2008, and whether or not certain periods of chiropractic care with Dr. Buffington for the employee’s work injuries had been reasonable and necessary. The parties stipulated at that hearing that the employee had “sustained an injury to his neck and shoulders” as a result of his work activities for the employer on those dates. The compensation judge subsequently concluded that the employee had sustained injuries to his neck, shoulders, and low back as a result of his May 4, 2007, work injury, that the low back injury had fully resolved on or before January 23, 2008, that the January 7, 2008, injury was a temporary aggravation of the left shoulder condition that fully resolved by February 6, 2008, and that none of Dr. Buffington’s treatments at issue had been reasonable and necessary.
On July 13 and 14, 2009, the employee underwent the recommended FCE, which resulted in permanent restrictions against doing any squatting, reaching above shoulder level, crouching, carrying over twenty-four pounds, lifting over ten pounds at waist level, lifting at all to and from the floor or to shoulder level, grasping, manipulating, or frequent rotating of the neck, together with other, lesser, restrictions. On August 14, 2009, those restrictions were adopted by Dr. Weigel.
On September 1, 2009, Dr. Weigel completed a Health Care Provider Report related to the employee’s injury of January 7, 2008. Dr. Weigel indicated in that report that the injury had occurred when the employee had fallen on his left elbow, that the employee had reached maximum medical improvement [MMI] related to that injury on August 14, 2009, and that consequent to that injury the employee had sustained a 15% whole body impairment, 6% related to the right shoulder and 9% related to the left. On September 2, 2009, the employer and insurer served on the employee a Notice of Intention to Discontinue [NOID] his temporary total disability benefits. The NOID was based on Dr. Weigel’s report and on a contention that the employee had “reached MMI for his left and right upper extremity injury(s).” The NOID asserted further that the employee would “be compensated Temporary Total Disability benefits 90 days post MMI or through 11/30/09.” When he saw the employee again on October 5, 2009, Dr. Weigel noted that there was no change in the location, quality, severity, or timing of the employee’s pain, and he reiterated his concurrence in the physical restrictions identified in the employee’s July 2009 FCE report.
The employer and insurer’s NOID was eventually addressed at an administrative conference, and by an order on discontinuance issued December 8, 2009, discontinuance of the employee’s benefits was granted. On December 31, 2009, the employee filed an Objection to Discontinuance, alleging entitlement to temporary total disability benefits continuing from September 2, 2009, based on the October 5, 2009, report of Dr. Weigel and the employee’s July 14, 2009, FCE report.
On January 6, 2010, in a report to the employee’s attorney, Dr. Weigel indicated that he had “treated and followed [the employee] for quite some time for his bilateral shoulder conditions” and that “[g]iven the duration of symptoms I do feel he is at maximal medical improvement.” Notwithstanding this MMI opinion, however, Dr. Weigel went on to state that had had referred the employee to a pain clinic in order to “allow him to engage in a functional and productive lifestyle,” indicating further that he did not treat cervical conditions, which “certainly may be playing into [the employee’s] chronic condition.”
On January 19, 2010, on referral from Dr. Weigel, the employee commenced treatment with Dr. Majid Ghazi at MeritCare Chronic Pain Services for assessment of his “[n]eck and shoulder pain.” Dr. Ghazi diagnosed chronic left shoulder pain, cervical spondylosis, and cervicogenic headache. In addition to proposing physical and opioid therapy for the employee’s left shoulder pain, Dr. Ghazi proposed cervical branch blocks and radiofrequency denervation of cervical facet joints in the employee’s neck, together with a repeat MRI scan of the cervical spine, to rule out nerve root compression as a cause of paresthesia and numbness in the employee’s arms and hands.
On March 1, 2010, the employee was evaluated for the employer and insurer by orthopedic surgeon Dr. Richard Strand. In his report on April 2, 2010, Dr. Strand indicated that the employee had complained to him of “pain in his left shoulder from the base of the neck to the anterior shoulder down to the left elbow,” “some posterior neck pain,” and some “right shoulder pain laterally.” It was Dr. Strand’s opinion that the employee had sustained minor strains of his neck and shoulders on May 4, 2007, and that he had already at that time “well-documented preexisting findings for chronic impingement of his shoulders and degenerative changes of his cervical spine.” It was his opinion that those May 2007 injuries had fully resolved, that the January 2008 injury was an injury to only the left shoulder rotator cuff and not to the right shoulder or the neck, that the employee did not require any further medical care that would be reasonable and necessary and causally related to his work injuries, that the employee was able to work with restrictions, and that he had reached MMI with regard to all of his work injuries by August 14, 2009.
On April 14, 2010, the employee saw Nurse Practitioner Rhonda Blickensderfer at Dr. Ghazi’s clinic, to discuss a “plan of treatment in regard to neck and shoulder pain,” which the employee described as constant and sharp and at a level seven on a scale of one to ten.
On May 25, 2010, Dr. Weigel reported that the employee’s chief complaint was of his left and right shoulder pain and hand numbness. He noted that physical therapy had not been effective, that there was no change for the better in either shoulder, and that the employee had indicated that “things are worse.” The doctor identified musculoskeletal issues only at the employee’s right “[s]houlder girdle and arm,” “[e]lbow and forearm,” and “[w]rist and hand” and left “[e]lbow and forearm” and “[w]rist and hand.” Suspecting that the employee’s problems were related to bilateral carpal tunnel syndrome with underlying diabetic neuropathy, the doctor recommended a neurology consultation and an EMG, noting that the employee’s restrictions were still “as outlined on the FCE that was previously done last year.”
The matter eventually came on again for hearing on June 2, 2010. Issues at hearing were whether or not the employee had reached MMI with regard to his work injuries with service of Dr. Weigel’s report of September 1, 2009, and whether the employee was entitled to temporary total disability benefits from December 1, 2009, until about May 26, 2010, when he would have been paid such benefits for one hundred four weeks. The parties stipulated at hearing to permanent injury to both shoulders and “only to injury to the cervical area.” Evidence admitted at hearing included the testimony of the employee, in part that he continued to obtain chiropractic treatment even after the decision of July 8, 2009, paying for it himself, because “it’s the only relief I get in my neck.” Evidence also included the testimony of QRC Ione Tollefson, in part that the pain clinic to which Dr. Weigel referred the employee was the type of program that treats with injections and medications, rather than simply educating the patient to deal with his or her pain holistically through such things as exercise, relaxation, and bio-feedback. By findings and order filed June 25, 2010, the compensation judge concluded in part that the employee had reached MMI with regard to his shoulder conditions but not with regard to his neck condition. On that conclusion, the judge ordered the employer and insurer to pay temporary total disability benefits from December 1, 2009, until about May 26, 2010, as claimed by the employee. The employer and insurer appeal.
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.
In her memorandum, the compensation judge cited case law to the effect that an employee must reach MMI relative to “all compensable injuries presently contributing to [his] disability before temporary total disability benefits can be discontinued on the basis of MMI” (emphasis in original). Drake v. Delta-Royal/Stencel Trucking, 41 W.C.D. 1100, 1104 (1989), citing Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 529, 41 W.C.D. 634, 641 (Minn. 1989). It was the judge’s conclusion that, notwithstanding the MMI opinions of both Dr. Weigel and Dr. Strand, MMI had not yet been reached in this case because, although he had declined Dr. Weigel’s offering of further surgical treatment for his shoulders, the employee remained a candidate for pursuing Dr. Ghazi’s recommendation of cervical branch blocks and radiofrequency denervation of cervical facet joints as a means of curing his neck pain. The judge summarized her reasoning as follows:
Although there appears to be more significant treatment for the employee’s shoulder conditions, there is frequent mention in the medical records of neck pain and the employee received neck treatment after the motor vehicle accident. Dr. Weigel confirmed in his January 6, 2010 letter that he does not treat cervical conditions. Consequently, his opinion regarding maximum medical improvement is determined to be limited to the employee’s shoulder conditions. Dr. Ghazi, in his report of January 19, 2010, has opined that the employee should have cervical medial branch blocks and radiofrequency denervation of the cervical facet joints. He also recommended a repeat MRI to rule out nerve root compression. His recommendations for the employee’s neck are determined to be for treatment purposes, not only for pain management. Based on these recommendations for further treatment, it is determined that the employee is not at maximum medical improvement regarding his neck, and therefore is not at maximum medical improvement for all conditions.
The employer and insurer contend that, by disregarding opinions expressed in treating physician Dr. Weigel’s health care provider report of September 1, 2009, in that doctor’s report of January 6, 2010, and in Dr. Strand’s IME report of April 2, 2010, the compensation judge erred as a matter of law in finding that the employee had not reached MMI with regard to his neck condition. They argue that the employee is subject to permanent work restrictions, as established in his FCE and adopted by Dr. Weigel, implying that no improvement in the employee’s function was anticipated by either of those sources. They argue further that Dr. Weigel’s referral to Dr. Ghazi was “designed to help the employee manage his pain, not to improve his symptoms or his functioning.” With regard to Dr. Ghazi’s specific recommendations regarding the employee’s neck, they argue,
The fact that further treatment is recommended, including a referral for another MRI of the cervical spine, does not negate the finding [by Drs. Weigel and Strand] of maximum medical improvement. By the time Employee saw Dr. Ghazi, it had been two and one-half years since his first work injury and approximately one and on[e]-half years since his left shoulder surgery. Dr. Ghazi is in the business of pain management.
With regard to Dr. Weigel’s caveat that he does not treat cervical or cranial conditions, they argue that
Dr. Weigel is a licensed physician and has been trained to make referrals where additional treatment is outside of his specific area of expertise. Dr. Weigel did not make a referral for additional treatment of the cervical spine or any cranial condition. He acknowledged that cervical or cranial conditions “may be playing into his chronic condition.”
We are not persuaded.
The parties stipulated, at both the hearing below and the earlier hearing in this matter, on July 8, 2009, that the employee sustained a work related injury to his shoulders and neck. The only issue before the judge that remains under review by this court is whether the employee’s ongoing neck condition was amenable to significant lasting improvement at the time of the hearing. Minnesota Rules 5221.0410, subpart 3, provides that the following four factors are to be considered as indicators that an injured employee has reached MMI with regard to his or her work injury: (1) “there has been no significant lasting improvement in the employee’s condition, and significant recovery or lasting improvement is unlikely, even if there is ongoing treatment”; (2) “all diagnostic evaluations and treatment options that may reasonably be expected to improve or stabilize the employee’s condition have been exhausted, or declined by the employee”; (3) “any further treatment is primarily for the purpose of maintaining the employee’s current condition or is considered palliative in nature”; and (4) “any further treatment is primarily for the purpose of temporarily or intermittently relieving symptoms.”
Prior to Dr. Weigel’s conclusion that MMI had been reached in the employee’s case, the employee had declined the option of further shoulder surgery, presumably compelling Dr. Weigel’s conclusion based on factor (2) of Rule 5221.0410, subpart 3, at least with regard to the employee’s bilateral shoulder condition. The compensation judge concluded in her memorandum that Dr. Weigel’s MMI opinion was limited to the employee’s bilateral shoulder condition, since Dr. Weigel’s treatment of the employee for over two years has been limited exclusively to the employee’s shoulders and, by his own admission, Dr. Weigel does not treat cervical conditions. It is true that Dr. Weigel did adopt the expressly permanent physicalrestrictions identified in the employee’s FCE report, one of which did pertain to frequent rotation of the employee’s neck. But nowhere in his September 1, 2009, MMI report did Dr. Weigel expressly comment on the employee’s neck condition or even articulate its diagnosis, and we conclude that it would not have been unreasonable for the compensation judge to infer that, in adopting the restrictions of the FCE, Dr. Weigel’s attention was primarily on the other copious and detailed lifting and other shoulder-related restrictions, rather than on that single clearly neck-related one. This conclusion is further supported by the fact that the employer and insurer’s own September 2, 2009, NOID was based on Dr. Weigel’s MMI report in support of their claim that the employee had “reached MMI for his left and right upper extremity injury(s)” (underscoring added). Further, on June 15, 2009, Dr. Weigel had expressly “defer[red] to the opinion of [a] neurologist regarding” the question of possible cervical pathology, and, in the doctor’s January 6, 2010, report to the employee’s attorney, it was very reasonably implied that his opinion pertained to the employee’s bilateral shoulder conditions, the only condition for which Dr. Weigel had been treating the employee “for quite some time.”
With regard to the employer and insurer’s argument that Dr. Weigel’s referral to Dr. Ghazi was only “designed to help the employee manage his pain, not to improve his symptoms or his functioning,” we would note Dr. Weigel’s statement on January 6, 2010, that, notwithstanding his MMI opinion, he had recommended referral to Dr. Ghazi because he thought it “appropriate to pursue avenues to allow [the employee] to engage in a functional and productive lifestyle” (underscoring added). Given this language, it would not have been unreasonable for the compensation judge to understand Dr. Ghazi’s treatment program to be, pursuant to the testimony of QRC Tollefson, the type of program that treats an injury more physiologically, with injections and medications, rather that simply through educating the patient to endure and to “deal” with his or her pain. Nor would it have been unreasonable, we conclude, for the judge to conclude that such a program was more likely to lead to long term improvement in symptoms, rather than mere temporary maintenance.
The date of MMI under Minnesota law is a question of ultimate fact to be determined by the compensation judge. See Hammer, 435 N.W.2d at 528, 451 W.C.D. at 639. The compensation judge concluded that the employee had not yet reached MMI with regard to his neck injury as well as his shoulder injuries and so had not yet reached MMI with regard to “all compensable injuries presently contributing to [his] disability” (underscoring in original), Drake, 41 W.C.D. at 1104, citing Hammer, 435 N.W.2d at 529, 41 W.C.D. at 641. Notwithstanding the MMI opinions of Drs. Weigel and Strand, we conclude that, because it was not unreasonable, the compensation judge’s conclusion to that effect was not clearly erroneous and unsupported by substantial evidence, and so we affirm it and the judge’s award of continuing benefits, accordingly. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 We note also the employee’s argument that Dr. Strand’s is the only MMI opinion expressly addressing the employee’s neck and that that opinion is technically moot as a basis for discontinuance of the employee’s benefits, in that the earliest it could have been served on the employee would have been in April or May of 2010. By ninety days after that date, they argue, the employee would have already been paid his statutory limit of 104 weeks of temporary total disability benefits.