NICOLE L. FELLBAUM f/k/a NICOLE WHIGHT, Employee/Appellant, v. NORTHERN HABILITATIVE SERVS., INC., and CARE PROVIDERS WORKERS’ COMP. GROUP/MEADOWBROOK INS. GROUP., Employer-Insurer, and PIKE LAKE DENTAL CTR., BLUE CROSS BLUE SHIELD OF MINN., and SMDC HEALTH SYS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 18, 2011
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supported the compensation judge’s denial of medical expenses and permanent partial disability benefits, for tooth loss, on causation grounds. However, because the compensation judge gave inadequate rationale for denying the employee’s claim for testing for hearing loss, the matter was remanded for reconsideration of that issue.
Affirmed in part, reversed in part, and remanded in part.
Determined by: Wilson, J., Pederson, J., and Milun, C.J.
Compensation Judge: Catherine A. Dallner
Attorneys: Stephanie M. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Appellant. Timothy J. Manahan and Autumn K. Capelle, Brown & Carlson, Minneapolis, MN, for the Respondent.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s denial of certain treatment expenses, medical mileage, and benefits for permanent partial disability due to tooth loss. We affirm in part, reverse in part, and remand the matter for reconsideration as specified in this opinion.
On August 1, 2006, the employee sustained a work-related injury when she was kneed in the right lower jaw, near her chin, by a client of her employer, Northern Habilitative Services, Inc. The incident occurred while the employee and two clients were on a ride at an amusement park. The employee testified that she blacked out for a few seconds and that her jaw was “obviously sore” when she came to. Then, when she got off the ride, she yawned, her jaw popped, and she experienced sharp pain. Still later that day, she found herself unable to bite down when trying to eat.
The employee first sought treatment following the August 1, 2006, incident two days later, on August 3, 2006. Her complaints at that time included right ear pain, hearing loss, and pain on the right side of her jaw. A hearing test showed “right borderline-normal low frequency hearing loss.”
The employee subsequently received extensive treatment and evaluation for persistent complaints of right temporomandibular joint pain. An MRI performed on November 3, 2006, showed no significant arthritic changes and was read as negative except for a “[m]ildly reduced forward translocation of the right mandibular condyle in relation to the temporal eminence.” The employee participated in physical therapy, but her complaints of jaw pain increased, and, in February of 2007, she underwent an arthrocentesis, a procedure to address inflammation in her jaw.
In March of 2007, the employee was given a night guard to help address her habit of clenching and grinding her teeth, which she indicated had begun after her August 2006 injury.
The employee testified that, at some point in 2007, she began experiencing intermittent spasming of her jaw, which allegedly caused her teeth to bump together forcefully. Incidents of this kind were reported in Dr. Nathan Pedersen’s dental records from April and May of 2007. Dr. Pedersen eventually referred the employee for x-rays of specific teeth, including tooth #9, the tooth just left of center in the employee’s upper jaw. The employee also continued to complain of ongoing right temporomandibular joint pain.
On October 22, 2007, the employee was seen by Dr. Richard Kronzer, complaining of pain in tooth #9. That tooth was found to be absessed, and Dr. Kronzer performed a root canal procedure that same day. Several days later, Dr. Kronzer surgically removed the root tip of that tooth. The employee subsequently underwent additional procedures on tooth #9, due to ongoing pain, including extraction and two attempts at dental implants.
In August of 2009, the employee returned to her primary health care provider, complaining of ongoing hearing loss in her right ear. The employee was then referred for testing. In response to questions by the employee’s attorney, Kimberly Lakhan, PA-C, indicated that the August 1, 2006, incident was “probably a significant aggravating factor with respect to [the employee’s] hearing loss and ongoing need for observation as well as ongoing need to address the temporomandibular joint problems.” The employee also obtained opinions from Dr. Kronzer and Dr. Pedersen about the cause of her symptoms and need for treatment of tooth #9. The self-insured employer obtained contrary opinions from its independent examiner, Dr. Eric Schiffman, D.D.S.
The employee claimed entitlement to treatment expenses and permanent partial disability benefits as a result of the August 1, 2006, incident, and the matter came on for hearing before a compensation judge on September 16, 2010. The employer admitted that the employee had sustained a personal injury in the August 1, 2006, incident but denied liability for the claimed benefits, primarily on causation grounds. Evidence included the employee’s testimony; records from the employee’s treatment following the August 1, 2006, incident; records from the employee’s treatment prior to August 1, 2006, incident, including records pertaining to treatment for depression and anxiety; and Dr. Schiffman’s report.
In a decision issued on November 15, 2010, the compensation judge concluded, in part, that the employee’s evaluation for hearing loss on October 16, 2009, was not reasonable or necessary to treat the effects of the August 1, 2006, injury. The judge awarded reimbursement of $9.00 for the employee’s copays for prescriptions written in 2006, but she denied the other claimed medical expenses, medical mileage, and benefits for permanent partial disability, on causation grounds. 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 (2010). 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. Opinion of Dr. Schiffman
The compensation judge based her denial of most claimed treatment expenses and permanent partial disability benefits on the opinion of Dr. Schiffman, the employer’s independent examiner.
Dr. Schiffman began his analysis by noting that the employee had a long history of anxiety and depression, that individuals with anxiety can express that anxiety by clenching and grinding their teeth, and that the employee’s stress had already been linked to one of the employee’s preexisting physical complaints, that is, irritable bowel syndrome. Dr. Schiffman then went on to list his diagnoses: right TMJ arthralgia (that is, TMJ pain/jaw joint pain); myofascial pain of the right masseter muscle (that is, jaw muscle pain); and neuropathic pain, involving the trigeminal nerve, in the area of the extraction site of tooth #9.
On the issue of causation of the employee’s current temporomandibular disorder [TMD], Dr. Schiffman concluded that
It is my opinion that her current TMD consisting of the right TMJ athralgia and myofascial pain are not related to the August 1, 2006 incident. It is my opinion that her current diagnosis of TMD is directly related to her habit of clenching and grinding her teeth. It is well known in the TMD literature that oral habits like clenching or grinding of teeth (i.e. bruxism) [are] a form of trauma to the jaw and can cause jaw symptoms including jaw pain.
As for the employee’s trouble with tooth #9, Dr. Schiffman wrote,
Relative to the problems she developed with tooth #9, it is my opinion that this is not currently related to the August 1, 2006 incident. The rationale for this is that she did not develop pain in the area of tooth #9 until over one year after the August 1, 2006 incident. Furthermore, she never reported any trauma to her teeth anywhere in the dental records prior to this time, i.e. over one year after the August 1, 2006 incident. It is my opinion that the reason why she started to experience pain in tooth #9 was because of her clenching and grinding of her teeth which traumatized her tooth. When she was seen for endodontic treatment on October 25, 2007, there was no documentation of any fracture to this tooth. It was not until February 16, 2009 that she was diagnosed with the fracture to this tooth. It is well known that teeth treated endodontically are weakened and are much more prone to fracture than normal teeth. Given that, she reported that she had stopped wearing her nightguard when having the endodontic treatment and never resumed using it, it would be my opinion that the fracture to her root was secondary to her clenching and grinding habits. The assessment of development of neuropathic pain per her report was after the implant was placed in the extraction site of tooth #9. It is my opinion that the reason why she developed her current pain (i.e. neuropathic pain) in the gingival/gum area was a direct result of the surgical intervention to the area and is not related to the August 1, 2006 incident.
Later in that same report, Dr. Schiffman noted that “there was no documentation that [the employee] had any trauma to her teeth in [the August 1, 2006] accident” and that it was “documented that she had muscle spasm and bit down on this tooth and cracked it per her report months later . . . [and] experienced pain resulting in the endodontic treatment,” that the “pain in tooth #9 was because of her bruxism.”
At the hearing before the compensation judge, the employee sought to exclude Dr. Schiffman’s opinion, arguing that the doctor issued “a number of psychological opinions about the impact of the employee’s stress and anxiety,” when he was not a psychologist and was therefore unqualified. However, Dr. Schiffman made no psychological diagnoses himself but rather relied on the employee’s history of treatment for anxiety and depression as described in the employee’s medical records. He then went on to reference literature establishing a connection between stress and anxiety and the tendency to clench and grind teeth. Because Dr. Schiffman was clearly qualified to base his opinion on dental or medical literature on that issue, we decline to conclude that the compensation judge erred on admitting Dr. Schiffman’s opinion on that basis. That is, contrary to the employee’s contention, we do not see the compensation judge as having based her decision on acceptance of a “psychological opinion from a dentist.”
The employee also objected to Dr. Schiffman’s opinion on other foundation grounds, contending that he “met with the employee on a single occasion, and it [sic] appears not to have reviewed all the relevant medical records.” However, the employee did not cite any specific records not reviewed by Dr. Schiffman and also failed to establish, either at hearing or on appeal, just why the purportedly unreviewed records should be viewed as critical to the doctor’s opinion. We therefore reject the employee’s argument on that basis as well.
Finally, we note that the compensation judge not only accepted Dr. Schiffman’s opinion but also explained why she rejected the causation opinions of some of the employee’s treating dentists. That is, some providers apparently based their opinions on the assumption that the employee was struck forcefully in the mouth during the August 1, 2006, work-related incident. That assumption is not borne out by the record.
The judge’s decision to accept the causation opinion of Dr. Schiffman over the opinions of the employee’s treating dentists is not clearly erroneous or unsupported by the record as a whole. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
2. Admission of the Employee’s Past Psychological Treatment Records
The employee contends that evidence about her past psychological treatment was irrelevant and unduly prejudicial to her claim. We are not persuaded. As the employer points out, the employee received treatment for anxiety and depression only about a month prior to the August 1, 2006, work injury. Dr. Schiffman’s report reasonably establishes the relevance of anxiety to the question of teeth grinding and clenching, an alternative explanation for some of the employee’s symptoms and need for treatment. We find no error in the compensation judge’s ruling on this issue.
3. Hearing Loss Evaluation
On August 24, 2009, the employee was seen by her usual treating physician, Dr. Nkiruka Udejiofor, asking for a referral for treatment of depression. According to the doctor’s notes from that visit, the employee “also has right ear hearing loss due to [a work-related] injury. She reports continuing decline since then. Needs revaluation.” Dr. Udejiofor referred the employee for testing, which was performed at Duluth Clinic on October 16, 2009. Subsequently, on February 11, 2010, in response to questions from the employee’s attorney, Kimberly Lakhan, PA-C, reported that the employee had “mild mid frequency conductive hearing loss in the right ear.” Also according to Ms. Lokhan, the employee’s August 1, 2006, work injury to the jaw was “probably a significant aggravating factor with respect to her hearing loss and ongoing need for observation as well as ongoing need to address the temporomandibular joint problems.” Such hearing loss “is something that can be seen with a traumatic injury and/or inflammation within the middle ear space and surrounding structures.”
The compensation judge denied the employee’s claim for the October 16, 2009, evaluation, explaining in her memorandum as follows:
The care and treatment provided to the employee by the Duluth Clinic on October 16, 2009 regarding hearing loss is not reasonable or necessary to cure or relieve the effects of the employee’s personal injury of August 1, 2006. No explanation is provided as to the necessity for having the employee undergo another hearing test four years after her work-related injury of August 1, 2006. The only records from St. Mary’s Duluth Clinic Medical Center for the date of October 16, 2009 are an audiology department testing results report from Licensed Audiologist Michelle Foss and a rehabilitation evaluation by Physical Therapist Robert W. Field. The report of Kimberly J.T. Lakhan dated February 11, 2010 is not persuasive. There is no indication in any of the medical records submitted into evidence that Physician Assistant Lakhan has examined or evaluated the employee. Ms. Lakhan responded to a letter that Attorney Balmer addressed to Ms. Foss (presumably the Michelle Foss who performed the hearing test on October 16, 2009.) Ms. Lakhan does not provide any explanation as to why repeat hearing testing was performed on October 16, 2009.
On appeal, the employee argues that the compensation judge erred in denying the claimed treatment expenses for the reasons given in her memorandum. We agree. Dr. Udejiofor’s records contain adequate explanation of his referral for additional testing. And the fact that Ms. Lakhan may not have actually evaluated the employee’s hearing loss herself has no necessary bearing on her ability to render an opinion.
The compensation judge erred in her reasons for denying this claim, and the employer submitted no medical opinion evidence expressly indicating that the employee’s hearing loss is not related to the August 1, 2006, incident. At the same time, the judge was not required to accept the evidence supporting the employee’s claim; she needed only to have a reasonable explanation for rejecting it. See, e.g., Tuomela v. Reserve Mining Co., 299 Minn. 203, 216 N.W.2d 638, 27 W.C.D. 312 (1974). Under the circumstances here, we conclude that it is appropriate to reverse the judge’s decision and remand the matter for reconsideration and new findings on this issue.
4. Physical Therapy - October 2009
The compensation judge denied the employee’s claim for expenses related to physical therapy the employee underwent in October 2009. The employee appeals, arguing that her testimony at hearing adequately explained her need for this treatment - - that Dr. Schiffman had forced her jaw open, causing an immediate increase in pain. While we agree that the compensation judge could have found the employee’s testimony on this issue adequate to make an award, the judge was not required to do so.
In her memorandum, the judge explained her reasoning on this issue as follows:
The care and treatment provided to the employee by the Duluth Clinic Fitness and Therapy Center from October 15, 2009 through October 21, 2009 is not causally related to the employee’s personal injury of August 1, 2006. The only medical record submitted into evidence regarding this care and treatment is the rehabilitation evaluation performed by Physical Therapist Robert W. Field on either October 15, 2009 or October 16, 2009. Both dates are contained in the medical record of Physical Therapist Field. No other medical records regarding care and treatment provided to the employee by Duluth Clinic Fitness and Therapy Center during October of 2009 were submitted into evidence. The employee already had undergone two courses of physical therapy, as recommended by her treating physicians, the first in December of 2006 and January of 2007 and the second in June of 2007. The employee had discontinued both courses of physical therapy with no improvement in any of her symptom complaints regarding her right-sided temporomandibular joint. Physical Therapist Field indicates that the referring provider is Dr. Puffer. The medical records from Dr. Puffer at Northern Oral and Maxillofacial Surgeons do not include any office notes after September of 2009. There is a letter from Dr. Puffer dated October 13, 2009 which indicates that the employee was treated in his office on October 13, 2009 and that she would be on medication that would make it necessary for her to be off work until October 19, 2009. There is no explanation of the reason that employee was seen by Dr. Puffer on October 13, 2009, his diagnosis, the reasons for the medication being prescribed, or the type of medication.
Finding no reversible error in the compensation judge’s rationale or resulting finding, we affirm the judge’s decision on this issue.
5. Medical Mileage
The compensation judge denied all claimed medical mileage. On appeal, the employee contends that the mileage itemization “represents not only mileage that is claimed for dates of service on which treatment was not paid by the self-insured employer but also dates on which the employer/insurer admittedly paid.” We would note that an employer’s voluntary payment of medical expenses does not by itself automatically establish the compensability of the treatment at issue. As such, medical mileage for such treatment is similarly not automatically owed. At the same time, it does not appear that the compensation judge considered the employee’s argument. We therefore reverse and remand the matter to the judge for reconsideration and further findings on this issue as well.
 According to a December 28, 2006, physical therapy note, the employee reported that she was doing “a lot of clenching at work” secondary to stress and that she found school to be very stressful “and she finds herself clenching a lot.”