LAWRENCE E. EGLY, Employee/Appellant, v. ANOKA COUNTY CORRECTIONS and AMERICAN COMP. INS./RTW, INC., Employer-Insurer, and NEUROLOGICAL ASSOCS., ABBOTT NORTHWESTERN HOSP., SUBURBAN IMAGING, MEDICA HEALTH PLANS, FAIRVIEW HEALTH SERVS., and NORTHWEST ANESTHESIA, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 9, 2011
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence in the form of a well-founded medical opinion supported the compensation judge’s decision that the employee’s treatment and disability in 2008 was not causally related to his work injury in 2006.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Penny Johnson
Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Appellant. Kelly B. Lambert, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s determination that his 2006 work injury was not related to his medical treatment and disability in 2008. We affirm.
Lawrence Egly injured his low back at work on September 29, 2006, as he was lifting a computer tower. He was employed at the time as a detective in the criminal investigation division of the Anoka County Sheriff’s Office.
The employee saw his family physician at RiverWay Clinic, Dr. Roman Smulka, on October 9, and reported low back pain on his right side. Dr. Smulka provided Aleve and Vicodin. The employee returned on October 16 with complaints of continued pain. He was sent to physical therapy and placed on lifting restrictions for three weeks. On November 27, Dr. Smulka lifted the restrictions. In a healthcare provider report dated December 7, 2006, Dr. Smulka stated the employee was at maximum medical improvement [MMI] and had no permanent partial disability. No further treatment was planned.
The employee saw Dr. Smulka for other problems on two occasions in 2007. The chart notes for those visits list “unspecified backache” as a medical problem of the employee in addition to a number of other conditions. The employee testified that he continued to have low back pain during this time at a level of 1 or 2 on a 10 point scale. He described this pain as being at his belt level and slightly to the right of center. The employee missed no time from work and was able to do his regular job.
The employee saw a physician’s assistant at RiverWay Clinic on April 23, 2008, for an examination prior to having nasal cartilage surgery. On examination, pain at the right SI joint and paraspinal muscles was noted when changing positions. No treatment for this back pain was provided.
On June 9, 2008, the employee returned to RiverWay Clinic because of “persistent low back pain.” He reported that it had been present for 8 weeks and had “started insidiously after he had done a lot of lifting and twisting. No specific injury.” Pain was reported to be at a 6 out of 10 level with some radiation into his buttocks. Straight leg raising elicited pain in his low back but not into his legs. An MRI and an epidural injection were recommended.
The MRI, done on June 11, was read as showing “broad posterior disc protrusion L4-5 is fairly shallow.” There did not appear to be any displacement or compression of the nerve root.
The employee returned to the clinic and saw Dr. Smulka on June 24. It was noted that the employee was in physical therapy and had “some pain on/off to left back/buttock area.” The employee was advised to return as needed.
On July 27, 2008, the employee went to the emergency department at Mercy Medical Center with right leg pain and cramping that had been present for about a week. A venous clot was found in his knee and the employee was started on Coumadin. He went back to RiverWay Clinic on July 30 to discuss this condition. It was noted at that time that he had a deep vein thrombosis in 2002 and Dr. Michael Otto ordered an MRI. The MRI, which was done on July 30, had findings that were “consistent with chronic severe Achilles tendonitis.” Based on these findings, it was recommended that the employee see an orthopedist, Dr. Joseph Flake.
Dr. Flake saw the employee on August 5, 2008. On examination, Dr. Flake found weakness in the right leg muscles and positive straight leg raising on the right. He diagnosed “right L5 radiculopathy with motor weakness.” He concurred with the employee’s decision to see Dr. Walter Galicich, a neurosurgeon.
Dr. Galicich noted right foot drop and prescribed an updated lumbar MRI when he saw the employee on August 20. The new MRI showed a right disc herniation at L4-5 with nerve root contact. Dr. Galicich performed a right L4 hemilaminectomy with lateral recess decompression on August 25. The employee’s symptoms were relieved by the surgery but he continued to experience right foot drop. The employee’s last visit with Dr. Galicich was February 2, 2009.
In a letter to the employee’s attorney on March 23, 2009, Dr. Smulka provided the opinion that the 2008 symptoms and treatment were related to the 2006 work injury. The employee filed a claim petition in December 2009 seeking various workers’ compensation benefits which were alleged to be due as the result of his 2006 work injury. The employer and insurer admitted the 2006 work injury but denied a relationship between that injury and the medical care and disability in 2008.
The employee was evaluated at the request of the employer and insurer by Dr. David Carlson on March 18, 2010. Dr. Carlson reported a history that, after the September 2006 work injury, the employee was released to work without restrictions in November 2006 and “in fact did fine after that until April 2008 when he reported that he was having increasing low back pain and right-sided pain including a foot drop.” Later, Dr. Carlson noted the employee had missed no time from work as a result of the 2006 injury. Dr. Carlson concluded that the employee’s work injury in September 2006 was a “lumbosacral musculoligamentous strain, which resolved.” Dr. Carlson’s opinion was that the leg pain in 2008 and the eventual surgery in August 2008 were not related to the 2006 injury and were the result of lifting and twisting in April 2008.
The employee’s claim was heard by Compensation Judge Penny Johnson on September 9, 2010. In her Findings and Order issued on September 20, the compensation judge found the opinion of Dr. Carlson to be more persuasive than the “rather weak opinion of the treating family practitioner.” The employee’s claims were denied and the employee appeals.
At the hearing, the compensation judge considered whether the employee’s low back symptoms and treatment in 2008 were related to the 2006 work injury. On this question, the compensation judge found the opinion of the independent medical examiner, Dr. Carlson, most persuasive and determined there was no casual relationship. The employee’s claims were denied.
On appeal, the employee argues that the compensation judge erred in relying on Dr. Carlson’s opinion. The employee contends that Dr. Carlson’s opinion was based on incorrect history and was inconsistent with the employee’s testimony, testimony which the compensation judge found very credible. Finally, the employee claims the compensation judge improperly dismissed Dr. Smulka’s opinion because he was not a specialist.
The employee’s claim that Dr. Carlson had an incorrect history is based on the comments in his report that the employee’s back injury in 2006 had “resolved.” The employee states that, to the contrary, he continued to have symptoms from the time of injury. Dr. Carlson, however, noted that the employee lost no time from work as a result of the 2006 incident, that he had been released to return to work in November 2006 with no restrictions, that he had done his usual job until April 2008, and that he had received no medical care for his low back in the intervening period. Given that evidence, we conclude that Dr. Carlson’s use of the word “resolved” represents his medical conclusion and not a medical history. His conclusion is not inconsistent with the employee’s testimony. Dr. Carlson’s report incorporated the information provided by the employee at the hearing.
Dr. Carlson’s medical opinion had adequate foundation. See Grunst v. Immanuel-St. Joseph’s Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988); Klemek v. J-Berd Mech. Contractors, No. WC10-5087 (W.C.C.A. Sept. 14, 2010). We have said in a number of cases that where a compensation judge’s decision is based on a well-founded medical opinion, that decision will generally be affirmed. Voshage v. MNSCU, Winona State Univ., 65 W.C.D. 167 (W.C.C.A. 2005); Wanecke v. Mason Bros. Co., No. WC08-151 (W.C.C.A. Dec. 23, 2008).
The employee contends, however, that the compensation judge improperly dismissed the opinion of the treating physician, Dr. Smulka, in accepting Dr. Carlson’s opinion. We disagree and believe that the compensation judge’s memorandum makes it clear that she carefully considered Dr. Smulka’s opinion as well as Dr. Carlson’s opinion. It is the function of the compensation judge to choose between competing medical opinions. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Caven v. Ag-Chem Equip. Co. Inc., slip. op. (W.C.C.A. Sept. 14, 1993).
We believe that in considering conflicting medical opinions it is not unreasonable for the compensation judge to consider the doctor’s experience and qualifications. We note, however, that the compensation judge did not fail to accept Dr. Smilka’s opinion only because of Dr. Smulka’s professional background. She also referred in her memorandum specifically to rather weak causal relationship opinion expressed by Dr. Smulka in his report. His opinion on that issue, in its entirety, as set out in his March 23, 2009, report was “based on chart review, the patient’s complaint, the back problems seem to stem back to the initiating injury in 2006 with no other major injuries noted.” We do not believe it was error for the compensation judge to find his opinion less persuasive than the opinion of Dr. Carlson.
The compensation judge’s decision is affirmed.