MARIA JALLO, Employee, v. VILLA ST. VINCENT, SELF-INSURED/BERKLEY RISK ADM’RS CO., Employer/Appellant, and METROPOLITAN ORTHOTIC LAB., INC., CENTRAL MINN. SPINE CARE CTR., ALTRU HEALTH SYS., RIVERVIEW HEALTHCARE ASS’N, and MINNESOTA DEP’T OF LABOR & INDUS./VRU, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 10, 2011
CAUSATION - MEDICAL TREATMENT. Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee’s work-related knee injury substantially contributed to the employee’s need for knee surgery.
CAUSATION - CONSEQUENTIAL INJURY. Substantial evidence, including expert opinion, supported the compensation judge’s conclusion that the employee sustained a temporary low back injury as a consequence of her work-related knee injury.
TEMPORARY BENEFITS - SUBSTANTIAL EVIDENCE. While another fact finder might have decided the matter differently, there is adequate evidence to affirm the compensation judge’s award of wage loss benefits prior to August 19, 2009.
MEDICAL TREATMENT & EXPENSE. The compensation judge’s decision ordering the employer to pay for future, unspecified, reasonable and necessary medical care requires the employer to do nothing more than already required by statute and provides no basis for any relief on appeal.
Determined by: Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Harold W. Schultz, II
Attorneys: John P. Bailey, Bailey Law Office, Bemidji, MN, for the Respondent. Edward Q. Cassidy and Pamela Abbate-Dattilo, Fredrikson & Byron, Minneapolis, MN, for the Appellant.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge’s award of medical expenses related to the employee’s knee surgery, from the judge’s conclusion that the employee sustained a low back injury as a consequence of her knee condition, from the judge’s award of wage loss benefits prior to August 19, 2009, and from the judge’s order as to the employer’s liability for future medical expenses. We affirm.
The employee began working as a nursing assistant for Villa St. Vincent [the employer] in 1998. She subsequently sustained several injuries, including a back injury in 1999, which resulted in little or no time off work.
The first injury directly relevant to these proceedings occurred on May 24, 2007, when the employee struck her right knee on a wheelchair as she was helping a resident bathe. X-rays taken that day revealed no abnormalities, but the employee’s knee was later noted to be quite bruised and swollen. The employee was prescribed a knee brace and was subsequently off work periodically due to complaints of continued right knee pain. Treatment included an injection and physical therapy.
An MRI scan of the employee’s right knee taken on August 3, 2007, was read to reveal slightly increased joint fluid, mild diffuse cartilage thinning within the patellofemoral joint, and slight increased signal within the posterior horn of the medial meniscus. According to the radiologist, a “[t]ear within the posterior horn of the medial meniscus is difficult to exclude.”
On August 30, 2007, the employer had the employee evaluated by Dr. Bradley Helms. Dr. Helms concluded that the employee had sustained a contusion in the May 24, 2007, incident, which had resolved with no residual effects. Dr. Helms also noted that the employee had patellofemoral arthritis, which had developed over time and was not related to her contusion.
Also on August 30, 2007, Dr. Paul MacLeod, one of the employee’s treating physicians, concluded that, because the employee’s knee condition had remained symptomatic despite conservative care, a diagnostic arthroscopy was the only remaining treatment option. In conjunction with this opinion, Dr. MacLeod noted that, while “the MRI is negative, it is equivocal for a medial meniscus tear.” Dr. MacLeod also raised the possibility that the employee had developed a sympathetic dystrophy.
Around this same time, also in August of 2007, the employee began complaining of low back pain. She sought treatment for these symptoms from Dr. Rose Brandt, who had been providing care for her knee condition.
The employer declined to pay for any treatment after August 10, 2007. As a result, the proposed arthroscopic surgery on the employee’s right knee was delayed. The employee finally underwent that surgery on November 8, 2007. As subsequently described in a report by Dr. Loren Vorlicky, another of the employer’s independent examiners,
There is an operative note of November 8, 2007. Preoperative diagnosis is right knee medial meniscus tear. Postoperative diagnosis is right knee plica and redundant fat pad. Procedure performed is right knee arthroscopy [with removal of] redundant fat pad and plica excision. The report states that the knee was in excellent condition. Articular surface of the patella had minimal Grade II chondromalacia. The rest of the articular surface was essentially normal and was [in] pristine condition. The medial and lateral femoral condyles and tibial plateaus were normal. Menisci were probed and felt to be intact, both medially and laterally. No loose bodies were appreciated. They did identify a redundant fat pad and small plica, and this was debrided with a shaver.
The employee returned to work for the employer in late December 2007, wearing what she described as a tall knee brace. She apparently had some wage loss due to an inability to work a full shift. She worked intermittently, with restrictions, over the next several months.
On about March 30, 2008, the employee allegedly heard a “pop” and experienced low back pain while reaching under a wheelchair to grab a catheter bag at work. A first report of injury was completed the following day, and the employee began receiving treatment from Paul Reese, a physician assistant at Riverview Healthcare. PAC Reese later indicated that the employee should remain off work pending completion of an MRI scan. By this time, the employee had begun receiving rehabilitation services from a QRC of the Vocational Rehabilitation Unit of the Department of Labor & Industry.
In June of 2008, the employee was evaluated by Dr. Vorlicky, who concluded that the employee’s May 2007 knee injury was merely a contusion, which would have resolved within four to six weeks, and that treatment subsequent to the end of that period would not have been reasonable or related to the work injury. Dr. Vorlicky also concluded that the employee’s back complaints were not related to her knee injury and that the employee had no permanent partial disability, need for restrictions, or need for further treatment either for her back or for her knee.
The employee underwent a lumbar MRI scan on August 19, 2008. According to the radiologist’s report, the scan disclosed a very minimal degenerative change at L4-5 and mild disc space narrowing, a mild posterior bulging disc, a mild to moderate degenerative apophyseal change, and mild degenerative dehydration within the disc at L5-S1.
In late November 2008, the employer formally offered the employee her pre-injury job as a nursing assistant. The employee declined the offer because no provision had been made to accommodate the restrictions recommended by her doctors. The employer then terminated the employee from her employment. As of the time of her discharge, the employee apparently had not worked a shift at the employer for more than six months.
Also in November of 2008, the employee was seen by Dr. Sunny Kim, on referral from PAC Reese, for evaluation of her continuing low back complaints. Dr. Kim diagnosed lumbar facet syndrome and discogenic pain at L4-5, advised the employee to observe restrictions on bending, twisting, and lifting, and indicated that the employee should undergo a lumbar medial bundle branch block. The employee was not able to afford the recommended treatment. In April of 2009, Dr. Kim noted that the employee remained restricted to very light-duty work, with lifting limited to no more than 10 pounds.
In a letter dated August 19, 2009, the employee’s QRC wrote to the employee’s attorney as follows:
As you know, Ms. Jallo has had difficulty receiving medical treatment for her back because her file remains denied by the insurer, and she has been unsuccessful in her attempts to obtain Medical Assistance for treatment.
She has been released for light duty work by Dr. Kim, but Ms. Jallo does not feel she can work on any sustained or consistent level for an employer. I have discussed this matter with her on various occasions in the past. For that reason, the VRU has not initiated any job search activities with her.
I believe we are at a point with our services at least, where we either must try some job search activities, or we need to close her file with the VRU.
The employee’s rehabilitation file was later closed after the employee continued to decline to participate in job search activities.
The employee was evaluated, at the request of her attorney, by Larry Stember, D.C. Dr. Stember issued two reports as to the employee’s diagnoses and the cause of her knee and back conditions. Dr. Vorlicky also evaluated the employee again at the employer’s request. His opinions as to causation remained essentially unchanged.
In February of 2010, the employee obtained a job at Care and Share in Crookston, Minnesota, preparing meals. She works nine hours or less per week.
The matter came on for hearing before a compensation judge on April 15, 2010. Issues included the nature of the employee’s May 24, 2007, knee injury, whether that knee injury substantially contributed to the employee’s need for knee surgery, whether the employee sustained a back injury as a consequence of her knee condition, whether the employee had sustained a low back injury at work on March 30, 2008, and, if so, the nature of that injury, and whether the employee was entitled to the claimed wage loss and medical expense benefits. Evidence included the employee’s medical and rehabilitation records, reports from the independent examiners, and DVDs from surveillance activity.
In a decision issued on June 18, 2010, the compensation judge concluded that the employee’s May 24, 2007, knee injury substantially contributed to her need for knee surgery in November of 2007; that the employee’s knee injury caused a temporary injury to her low back during the second half of 2007, necessitating the low back treatment rendered during that period; and that the employee sustained a work-related low back injury, as claimed, on March 30, 2008, necessitating subsequent low back treatment and the need for restrictions. The judge awarded the claimed treatment expenses and also awarded wage loss benefits until August 19, 2009. Wage loss benefits after that date were denied based on the employee’s failure to cooperate with rehabilitation efforts. The employer 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. Knee Surgery
The compensation judge concluded that the employee’s May 24, 2007, knee injury was a substantial contributing cause of the employee’s subsequent need for knee surgery, performed on November 8, 2007. On appeal, the employer contends that substantial evidence does not support the compensation judge’s decision, arguing that “medical records establish that on May 24, 2007, the employee sustained [only] a mild contusion to her right knee, which resolved several weeks later.” Furthermore, according to the employer, the surgery was not “reasonable and necessary.” We concede that a number of medical records would support the conclusion that the employee’s right knee injury was merely temporary. However, there is also evidence to the contrary, and we do not find the compensation judge’s decision on this issue either clearly erroneous or unsupported by substantial evidence.
In a letter to the employee’s attorney dated January 12, 2009, Dr. MacLeod, the employee’s knee surgeon, wrote as follows:
I do feel that the patient’s injury contributed to the need for intervention, both medically and surgically for 2 reasons. The first being that contusion to the knee can aggravate a preexisting plica and make it more thickened and fibrotic and excision thereof can reduce her symptoms and resolve her issues. The second reason is because the patient had no problems prior to injury we did do an MRI and worked the knee up and following surgical intervention the patient got better. The patient was not getting better prior to surgical intervention and the patient had no problems with her knee prior to contusing her knee or injuring her knee as you described on May 24, 2007.
The compensation judge expressly accepted the opinions of the employee’s treating physicians on the question of causation.
The employer challenges the compensation judge’s reliance on the opinion of Dr. MacLeod, arguing that Dr. MacLeod proposed surgery to repair a possible meniscal tear, which even he thought was probably not present, and that Dr. MacLeod based his opinion as to the reasonableness of the surgery on an assumption that the employee “got better” following the procedure, which, according to the employer, is not supported by the record. These arguments have no merit. Dr. MacLeod characterized the surgery as exploratory from the outset. While he discovered and repaired a previously unknown condition, that fact is irrelevant given his opinion tying that condition to the work injury. As for the employer’s second argument, the evidence as to the extent of the employee’s improvement, post-surgery, is conflicting. In any event, an employee’s failure to experience improvement due to a surgical procedure is not automatically dispositive as to the compensability of that treatment.
A compensation judge’s choice between conflicting expert opinions is generally upheld unless the facts assumed by the expert are not supported by substantial evidence. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge in the present case was entitled to rely on the opinion of Dr. MacLeod, and the employer has offered no compelling arguments to the contrary. We affirm the judge’s decision on this issue.
2. Temporary Back Injury
The employee claimed that her right knee condition contributed to her subsequent low back symptoms and need for treatment. In response to questions by the employee’s attorney, PAC Reese wrote a letter, addressing the issue of causation as follows:
Your second question to this states, “Were the knee problems a substantial contributing cause of those back problems which arose subsequent to her knee injury of May 24, 2007?”
This is a very difficult question for me to answer since that initial injury was 5 months prior to when I first saw her. I know that at the time she was experiencing the low back pain with muscle spasms, which she told me she had been seen and treated for previously. As to the cause, could this have been a contributing factor? I feel that is a probability; but as far as my diagnosing that, I did not. I was treating her low back pain with palpable spasms, but that was a theory she told me they were working on at that time.
Dr. Brandt, for her part, wrote,
This is in regards to Maria Jallo, who I have seen in the past. I last saw her on October 26, 2007. Prior to that, on October 2, 2007, she came into the clinic complaining of low back pain as well as right knee pain. She had injured her right knee a few months prior to that and was seeing Dr. MacLeod for treatment of the knee. Because of the knee pain that she was having, she started having some back pain as well. I did feel that these back pain issues were mostly musculoskeletal in nature. I did feel that the knee problem contributed significantly to the back problems. At that time, we did treat her conservatively. I did recommend doing some physical therapy and I also gave her some pain medication and antiinflammatories as well. If she did not improve, we were considering doing an MRI. However, I did not see her back for this concern after this visit. I do feel that this conservative therapy was reasonable and necessary treatment.
I have not seen Maria since her March 30, 2008 injury, and therefore I am unable to give any information related to that.
The compensation judge concluded that “the employee sustained a temporary consequential injury to her back during the second half of 2007 as a result of the right knee injury and that consequential injury was a substantial contributing factor to the back treatment rendered to her in 2007.” In his memorandum, the judge further explained, “The employee had a few visits for her low back towards the last few months of 2007. The treatment to the low back resulted from the right knee injury. PAC Reese addresses this as well as Dr. Brandt. Causation is established for that care.”
On appeal, the employer argues in part that the medical records contain “no objective evidence that the employee’s back pain is related to her knee injury,” arguing also that the employee has a history of preexisting low back symptoms and treatment. The employer also contends that the compensation judge erred in relying on the opinions of PAC Reese and Dr. Brandt to support his conclusion that the employee’s knee condition led to a temporary low back injury and need for treatment. Again, we are not persuaded.
The fact that the employee had a preexisting back condition provides no basis to reverse the judge’s decision on this issue. In fact, it is evident from his findings that the judge was well aware of the employee’s prior back complaints and considered those complaints and related treatment when evaluating the employee’s current claim. Similarly, nothing in the law required the judge to base his decision on “objective evidence that the employee’s back pain is related to her knee injury.” For purposes of this appeal, the dispositive question is whether the compensation judge erred in relying on the opinions of the employee’s medical providers.
The employer contends that PAC Reese’s opinion is insufficient to support the judge’s decision, in that it was equivocal. PAC Reese did, however, write that he viewed the connection between the employee’s knee condition and her back condition to be “a probability.” Dr. Brandt’s opinion, in any event, is not equivocal. Rather, Dr. Brandt concluded that the employee’s knee problem “contributed significantly to the back problems.” The employer alleges that Dr. Brandt’s opinion is incomplete, because she last saw the employee in October of 2007, and she would not offer any opinion as to the effects of the March 2008 back injury. However, the issue raised by the employer on appeal is whether the compensation judge erred in concluding that the employee had sustained a temporary injury to her low back, due to her knee condition, necessitating a “few treatments” at the end of 2007. The effects of the employee’s March 2008 back injury have no bearing on whether the employee’s low back treatment at the end of 2007 was reasonably required due to the claimed consequential injury. Dr. Brandt’s opinion is clearly adequate to support the judge’s conclusion as to the occurrence of a temporary low back injury during the second half of 2007. We therefore affirm the judge’s decision on this issue as well.
3. Wage Loss Benefits
The compensation judge concluded that the employee was entitled to wage loss benefits from August 11, 2007, through August 19, 2009. However, the judge denied benefits after August 19, 2009, based on the employee’s failure to cooperate with rehabilitation by concluding “on her own that she was not able to perform any work on a full-time basis.” On appeal, the employer contends that the judge should also have denied wage loss benefits prior to August 19, 2009, in that the employee “failed at all times to cooperate with rehabilitation services.”
The employer’s argument on this point is not entirely without merit, in that the employee has apparently never been willing to look for full-time work, despite being released by her physicians to do so, contending that her symptoms flare up too unexpectedly to make a full-time commitment to an employer. Some of the records would also support the conclusion that the employee is prone to exaggerating her symptoms. However, the record nevertheless contains evidence adequate to support the compensation judge’s award.
We note initially that the employee was not formally terminated from her employment with the employer until she refused the offer of her pre-injury job in November of 2008. And, because the employer denied liability for medical treatment beginning August of 2007, the employee was often unable to undergo the treatment recommended by her physicians. In fact, rehabilitation records reflect that the QRC was often waiting to see if the employee would be able to secure alternate funding for proposed care, and, while he waited, the QRC was in effect performing medical monitoring rather than encouraging the employee to start job placement activities. It was not until August 19, 2009, the cut off date chosen by the compensation judge, that the QRC indicated that the rehabilitation file would need to be closed if the employee would not engage in job search activities. As such, while the date chosen by the compensation judge is arguably arbitrary, and another fact finder might have decided the matter differently, we find adequate basis to affirm the compensation judge’s award of wage loss benefits prior to August 19, 2009.
4. Future Medical Expenses
The compensation judge ordered the employer to provide reasonable and necessary medical treatment to the employee, without specifying the nature of that treatment. In his memorandum, the judge indicated that “[s]ome additional treatment will probably result in noteworthy improvement. That care will be suggested by the treating physicians.”
The employer contends that nothing in the record supports the compensation judge’s conclusion that additional treatment “will probably result in noteworthy improvement.” This is true. However, the judge’s order requires the employer to do nothing more than the law already requires: to provide whatever treatment is reasonable and necessary to cure or relieve the employee from the effects of her work injury. See Minn. Stat. § 176.135, subd. 1. As such, while gratuitous, the judge’s order provides no grounds for any relief. No further discussion on this point is required.
We affirm the judge’s decision in its entirety.
 The surgical report itself was not submitted into evidence.
 The opinion of Dr. Stember, who evaluated the employee at the request of her attorney, also supports the compensation judge’s decision that the employee’s knee injury caused the employee to experience low back symptoms. In his October 22, 2009, report, Dr. Stember wrote as follows:
Ms. Jallo was using a knee brace or cane from 5-24-07 up to the time of her surgery of 11-08-07 which would have altered her gait. A brief review of the lumbosacral biomechanics as it relates to the lower extremity is important to better understand and appreciate the nature of the injuries sustained. When trying to decrease loading on the right knee this would have imposed asymmetrical loading into the lumbosacral junction and sacroiliac joints. This would also have imposed a compressive loading on the lower lumbar discs and the sacroiliac joint. The type of repetitive micro trauma and micro loading into those specific anatomical entities over a period of time develops a weakness and pain sensitivity.
In its brief, the employer argues that the compensation judge “explicitly rejected the opinion of chiropractor Stember.” We, however, find no language in the compensation judge’s decision that can be construed as an “explicit” rejection of Dr. Stember’s opinion on this issue.