ELMIRA KIRK, Employee/Appellant, v. FINGERHUT DIRECT MKTG. and GENERAL CAS. INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 23, 2011
CAUSATION - MEDICAL TREATMENT. Substantial evidence supported the compensation judge’s determination that the employee failed to prove a causal link between her 2006 work injury and surgical treatment proposed by her current physician.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Catherine A. Dallner.
Attorneys: Shannon A. Nelson, Jackson S. Baehman Law Office, Woodbury, MN, for the Appellant. David O. Nirenstein and Jaclyn S. Millner, Fitch, Johnson, Larsen & Held, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s determination that she failed to meet her burden of proof in establishing her January 6, 2006, work injury as a substantial contributing factor to a proposed two-level fusion. We affirm.
The employee, Elmira Kirk, sustained her first known workers’ compensation low back injury in April 1999 while lifting a 50-pound bag of dog food. The medical records from that injury were not in evidence and it is not known where she treated for this injury. The employee testified that she was off work for about one or two months and that an MRI scan of her lumbar spine was done. The employee may have been having low back symptoms in 2001, since a chart note from the Greenville (Mississippi) Clinic for an unrelated condition mentions that “her low back pain is better.” The employee testified that her symptoms in 1999 were different than those in 2006, that she had no leg symptoms, and that her symptoms had completely resolved before 2005.
The employee began working for the employer, Fingerhut Direct Marketing, in July 2005 as a customer service representative. Her job duties involved taking orders and payments over the telephone and entering that information into a computer. On January 6, 2006, the employee sustained an admitted low back injury while on a smoking break outside the employer’s building. The injury took place when she slipped on ice and fell, landing on the left side of her buttocks and hitting her head on a wall.
The employee was seen at the St. Cloud Medical Group that same day by Dr. Basil LeBlanc. Her chief complaint was of a head injury with headache and dizziness, but she was also experiencing pain in her left buttock area and the middle of her back. She was advised to use ice and ibuprofen and instructed to remain off work until her next appointment.
The employee returned to the St. Cloud Medical Group in follow up on January 9, 2006, and was seen by Dr. Philip Bachman. She had “a little bit of low back discomfort,” a continuing headache, and tightness in the left shoulder and neck up to her head. The employee reported some discomfort on forward flexion, but backward extension was performed without difficulty. She was diagnosed with headache, neck pain, and low back strain, referred for physical therapy, and released to work at her usual job provided she could take frequent breaks to move and stretch.
When the employee next returned to the St. Cloud Medical Group on January 11, 2006, she was having increasing headache pain and nausea and was feeling unsteady and having difficulty walking. The pain in her neck and lower back had also continued and she had increased discomfort with neck movement. Dr. Bachman noted that her unsteadiness might be due to low back pain rather than to her headaches. The employee was advised to continue physical therapy and was provided with a work form indicating that she should limit her computer time.
The employee was next seen by Dr. Bachman on January 18, 2006. Her neck pain had diminished and she no longer had much of a headache. She did still have “some achiness and tightness” in her lower back which would get worse if she sat for extended periods. Only minimal discomfort was exhibited with range of motion testing. She was released to return to work without restrictions. Dr. Bachman anticipated she would reach maximum medical improvement in two weeks.
The employee attended four of her five scheduled physical therapy sessions through January 27, 2006, but failed to keep her last scheduled appointment. On February 3, 2006, the employee returned for a scheduled appointment with Dr. Bachman. She still had occasional headaches and neck discomfort but stated that these symptoms had continued to diminish. She still had pain in her low back area which now radiated into her left leg. Range of motion was good and without difficulty. Straight leg raising was negative and strength testing was equal bilaterally. Dr. Bachman told the employee the importance of following through with her exercises and her physical therapy. She was again released to work without restrictions. The employee was scheduled to return to see Dr. Bachman on February 9, 2006, but cancelled that appointment. She did not return for further treatment there.
Some time in March 2006 the employee quit her job with the employer because her husband had been offered a better job in Tulsa, Oklahoma. Before that job started, she and her husband returned to Greenville, Mississippi, where they owned a house which they needed to “get . . . up to standard.” They lived in Greenville between March 2006 and October 2006, when they moved on to Tulsa.
While in Greenville, the employee returned for treatment to the Greenville Clinic, where she was seen on April 18, 2006, by Beth Eubank, a nurse practitioner. The employee gave what was described in the chart as an “intricate and complicated subjective” account of her symptoms after a fall at work in January 2006. She was still having right knee pain, left leg pain, low back pain, and headaches. There was a hematoma on her left lower leg which the employee said was from the injury. Straight leg raising was negative. The employee was prescribed Relafen for pain and it was recommended that she have MRI scans of the right knee and the lumbar spine. She was told to avoid heavy lifting or bending until after the MRI results had been reviewed. Physical therapy was also instituted.
The employee was seen again by Beth Eubank at the Greenville Clinic on May 2, 2006. She characterized her pain as starting in her back and radiating down into her thighs, and stated that she was having difficulty with mobility and weakness in her legs. Straight leg raising was now positive at 45 degrees bilaterally. Ms. Eubank’s assessment was of possible back pain with possible nerve root impingement and knee pain due to osteoarthritis, worsening with her injury. She advised the employee to continue physical therapy and anti-inflammatory medications, to take Ultram for pain, and to return in three weeks.
The employee underwent an MRI of her low back on May 22, 2006, at the Greenville Clinic. It was read as showing normal bone signal, lumbar curvature and disc height, and neural foramen were widely patent. A desiccated disc at L5-S1 with focal mild convex midline bulging was noted at L5-S1, which the radiologist considered “probably insignificant.” The employee did not return for further treatment at the Greenville Clinic.
The employee and her husband moved to Tulsa in October or November 2006. Shortly after arriving in Tulsa, the employee began working as a customer service representative for Direct TV. She held this job until January 2007 when she left due to migraine headaches. In May 2008, the employee started working for Dish Network doing telephone tech support. She worked there until January 2009 when she left because of diabetes and her impending gallbladder surgery.
Although her husband’s job provided the employee with medical coverage until he was laid off in May 2009, the employee did not have further treatment for her low back or radicular leg symptoms until January 2010; she did treat for other complaints and had gallbladder surgery in 2009. The employee testified that she tried to obtain authorization by telephone from the insurer to pay for medical treatment for her low back in Tulsa in October 2006, but was told that her case had been closed. She further testified that she contacted the insurer again by phone two more times. The insurer acknowledged that at least one call had been received from the employee in November 2008. That call was taken by claims analyst Maggie Miller. Ms. Miller testified that because the file had been closed in December 2006, and, because there had been no activity on the file for two and half years, she had asked the employee to send information about medical treatment after that date and a list of her recent employments so that the claim could be evaluated. She had no personal knowledge as to whether the employee might have spoken to other claims personnel previously. The employee did not respond to the adjuster’s request for information.
The employee retained her Minnesota attorney in October 2009. After a request for certification of a dispute was filed, the employer and insurer agreed to authorize an evaluation appointment for the employee at the Concentra Medical Clinic in Tulsa.
The employee was seen at Concentra Medical Clinic by Christian D. Nielsen, D.O., on December 3, 2009. Dr. Nielsen’s notes quote history the employee provided about her 2006 work injury as follows: “I was at work slip on ice and injured left side of my body, head, my right left [sic] and left ankle.” She reported her current complaints as pain in the left hip and down the left leg, worse in the ankle; her right knee was also painful and would occasionally give out. She also attributed daily headaches to hitting her head during the 2006 work injury. No medical records other than the May 2006 lumbar spine MRI were available to Dr. Nielsen at the time of his examination. Dr. Nielsen recorded that the employee was neurologically intact, with normal gait and posture. There was no palpable bony or muscular tenderness in her back. Her left lumbar spinal areas had normal sensation and straight leg raising was negative. There was some hip tenderness over the greater trochanter and some knee tenderness over the patella. X-rays showed some degenerative arthritis involving the left hip and right knee. Dr. Nielsen’s assessment was hip contusion, knee strain, lumbar strain and a closed head injury. He noted that the employee’s main problem areas appeared to be the left hip and right knee, and suggested that all medical records should be reviewed and that a full orthopedic evaluation of the low back, left hip, and right knee might be helpful.
The employee was next seen for her low back by Dr. Steven C. Anagnost at the Tulsa Spine and Orthopedic Institute on January 7, 2010. She complained of low back pain and left leg radiculitis, and right hip pain. The back pain was a deep achiness, and her leg pain was described as a burning sensation radiating to her right leg, buttock, calf, and plantar right foot. She related her symptoms to the 2006 work injury, stating that “she never hurt before she slipped and fell,” and that, while her pain had been fairly tolerable so that she was able to do her regular work, she had continued to have symptoms and treatment since the 2006 injury. Dr. Anagnost noted that straight leg raising was positive on the left with dysesthesias in the plantar left foot. There were diminished reflexes at the S1 spinal level on the left. The doctor’s assessment was of an L5-S1 lumbar disc herniation and segmental instability with left leg radiculitis. The employee also had right knee pain which he attributed to degenerative joint disease. Dr. Anagnost noted that he had no prior radiographic studies to assess the extent of the employee’s condition at the time of the work injury. However, he opined that because he had “no prior history of any injury and no other intervening injuries,” the major cause of her current condition and need for treatment was directly related to the 2006 injury. He recommended an MRI scan. The employee was told she could continue working at her regular work duties.
The employee had an MRI of the lumbar spine at the Spine and Orthopedic Institute on January 25, 2010. The scan was read as showing mild degenerative changes of the lower lumbar spine, a possible left far lateral annular tear at the L4-5 disc without focal disc herniation, and disc desiccation and minimal posterior disc bulging at L5-S1.
The employee returned to Dr Anagnost to discuss the MRI results on the following day, January 26, 2010. Straight leg raising on this date was negative. The employee’s subjective dysesthesias were noted to be in the S1 distribution. Dr. Anagnost noted the L5-S1 disc appeared desiccated, with collapse and partial protrusion; there was also facet arthrosis and hypertrophy at the same level. He concluded that the majority of the employee’s symptoms were from the L5-S1 level. He prescribed injections, physical therapy for strengthening and conditioning, and weight loss. The employee had an epidural steroid injection at L5-S1 on February 2, 2010.
On March 4, 2010, the employee was seen for evaluation on behalf of the employer and insurer by Dr. William Gillock. She gave a history of her 2006 injury and subsequent treatment. Her recent steroid injection had provided pain relief for three days and physical therapy had helped some. The employee also told Dr. Gillock about the 1999 work injury lifting dog food, stating that she had received conservative care and fully recovered. She denied any injury subsequent to January 6, 2006. Her current complaints were of pain in the lower back radiating down the left leg. She stated that the back pain had been present since the 2006 injury. On examination, her posture and gait were normal and there was no tenderness to palpation. Sensory examination was normal and deep tendon reflexes of the lower extremities were symmetrical. Straight leg raising, however, was positive at 30 degrees elevation. Dr. Gillock noted the abnormal MRI and diagnosed a disc protrusion at L5-S1. He opined that the 2006 work injury appeared to be the cause of current complaints based on the employee’s history that her symptoms never resolved and had been ongoing. He concurred in the recommendation for a series of lumbar epidural injections. If unsuccessful, he recommended four to eight weeks physical therapy, and if the employee failed to improve, a referral to an orthopedic specialist. He did not believe work restrictions were necessary.
The employee had a second steroid injection on March 8, 2010. She returned to see Dr. Anagnost in follow up to the injection on March 1, 2010. The employee reported significant continued pain. Straight leg raising was positive. Dr. Anagnost again questioned the employee as to whether she had ever had any back injury prior to that in 2006 “which they specifically deny.” Dr. Anagnost recommended a discogram. If her results were concordant with her pain, he proposed then reviewing whether she met surgical criteria, as she had exhausted conservative treatment.
The discogram and a post discogram CT scan were performed at the Tulsa Spine and Specialty Hospital on April 19, 2010. Discography at L4-5 resulted in the employee reporting pain across her back which she described as the typical area of her pain. At the L5-S1 level, the employee reported pain across the low back into the left hip down the left leg, and some pain extending into the right leg. The CT showed questionable anterior changes at L3-4. At the L4-5 level, there was right and left posterolateral annular tearing with intraforaminal herniation of nuclear material on the left. Degenerative fissuring was present throughout the L5-S1 disc and subtle left paracentral disc bulging was seen. There was an anterior herniation of disc material beneath the anterior longitudinal ligament. The scan suggested that left intraforaminal and extreme left lateral herniation might also be present at this level.
Dr. Anagnost saw the employee again on April 23, 2010. She reported that her back pain, radiculitis, and weakness in the lower extremities were worsening. Dr. Anagnost recommended surgery in the form of decompression and stabilization at L4-5 and L5-S1 with interbody fusion and stabilization.
The employee filed a claim petition on May 11, 2010, seeking approval for the surgical procedure recommended by Dr. Anagnost. The employer and insurer answered, denying a causal link between the 2006 injury and any need for surgery in 2010.
The employee was seen by Dr. Randall L. Hendricks at Central States Orthopedic Specialists on June 25, 2010, on behalf of the employer and insurer. He agreed that her symptoms and findings suggested either an L5 or S1 radiculitis and that Dr. Anagnost’s surgical recommendation was reasonable due to left leg radiculitis and positive discogram. However, he did not believe the need for surgery to be related to the January 2006 work injury. In his view, the work injury in 2006 had caused a temporary injury in the form of a lumbar strain that resolved within four to six months. He based this presumption in part on the lack of significant radicular symptoms at the time of the initial injury and on the employee’s lack of treatment for several years after moving to Tulsa. Dr. Hendricks found it particularly odd that a hematoma was noted in the medical records at the Greenville Clinic on April 18, 2006, which the employee claimed to have sustained in the January 6, 2006, work injury, since, in his opinion, this was a finding that would not last so long after an injury. This led him to question the employee whether she had sustained another, more recent fall, which she denied. He thought that the employee’s earlier back condition was significant and that she probably had a degenerative disc at L5-S1 prior to the fall in 2006. He attributed her current need for treatment to the effects of her obesity on pre-existing degenerative changes.
On July 15, 2010, a hearing was held before a compensation judge at the Office of Administrative Hearings to determine whether the two-level fusion recommended by Dr. Anagnost was causally related to the January 2006 work injury. Following the hearing, the compensation judge found that the employee had failed to prove that there was a causal relationship between that injury and her need for surgery. The employee appeals.
The employee argues on appeal that the compensation judge’s determination is clearly erroneous and manifestly contrary to the weight of the evidence. She contends that the evidence overwhelmingly supported a finding of a causal link between the 2006 injury and the need for surgery.
The employee points out that the medical records demonstrate that she consistently gave a history which associated the onset of her low back and leg pain with the 2006 work injury. Further, she testified that she had not sustained any further low back injury since that time, and notes that the employer and insurer have failed to offer evidence that any other injury occurred since 2006 to account for her symptoms. She notes that the initial MRI scan in 2006 showed a desiccated and mildly bulging disc at L5-S1, and that the surgery has been recommended due in part to a disc herniation at that same level, as shown on the April 2010 CT scan. Finally, she points to the medical opinion of Dr. Anagnost, to the medical opinion of Dr. Gillock, and to the fact that even Dr. Hendricks acknowledged that it was at least possible that the employee’s L5-S1 disc could have been injured in the 2006 fall. She contends that this evidence was certainly sufficient to meet her burden of proof on causation, and that the compensation judge clearly erred in finding that she had failed to do so.
We note that while this evidence might have been sufficient to sustain a contrary finding in this case, the question for our review is not whether the evidence might have supported a contrary finding, but whether the finding actually reached by the compensation judge was adequately supported by the record. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984), Paoli v. Rainbow Foods, No. WC05-304 (W.C.C.A. July 28, 2006). We find adequate support in the evidence.
The employee’s low back symptoms during the first several months following the injury were relatively minor, characterized variously as “a little bit of low back discomfort” or “some achiness and tightness,” and her examination findings were largely normal. She was able to return to work without restrictions shortly after the injury. Her diagnosis was of a lumbar strain and by January 18, 2006, her physician was anticipating that she would reach maximum medical improvement in two weeks. A week or so later the employee stopped coming to scheduled physical therapy. She saw her physician last on February 3, 2006, failed to appear for a scheduled appointment on February 9, and sought no further treatment in Minnesota although she did not move to Mississippi until some time in March. These circumstances support an inference that the employee’s low back symptoms, to the extent related to her 2006 work injury, had largely abated, and were consistent with Dr. Hendricks’ subsequent opinion that the employee’s 2006 work injury resulted in a strain that resolved not long afterwards.
Once in Mississippi, the employee worked on getting a home there “up to standard.” She did not seek any treatment for her low back until mid-April 2006, a hiatus of more than two months from the last treatment in Minnesota. At that time, the employee had a hematoma present on her leg that she associated with the January 9 work injury. Dr. Hendricks noted, however, that this was an acute condition that would not be present three months after the injury. The employee again discontinued treatment for her low back by the end of May 2006, and did not resume any treatment for low back problems until 2010. During the interval, the employee had no restrictions and continued working in jobs similar to that held on the date of injury.
Shortly before she discontinued treatment in 2006, the employee underwent an MRI scan of her low back which found desiccation and a minor bulge at L5-S1 which was interpreted as “probably insignificant.” Although this level was one of the two levels for which surgery was recommended after the employee began treatment for low back problems in 2010, the condition identified in 2010 was significantly more serious. The problems noted in 2010 included not only a herniation at the same L5-S1 level that showed desiccation and insignificant bulging in 2006, but also indicated a herniation at the L4-5 level, a level where no problems had been identified in the 2006 scan.
The timing and nature of the symptoms, treatment, and radiologic findings could be viewed as consistent with Dr. Hendricks’ opinion that the employee’s underlying low back condition had been temporarily aggravated by the 2006 work injury, which resolved and returned the employee to baseline, and then simply deteriorated further as a result of aging, obesity and other similar factors.
Although the employee testified that she first experienced low back and leg symptoms similar to those for which she now requires surgery following the 2006 work injury, and those symptoms continued without interruption from 2006 to 2010, the employee’s treatment history could be viewed as showing a contrary picture. The weight to be given to each portion of the evidence is a matter for the compensation judge. The compensation judge may have given greater weight to inferences based on the history of treatment and the nature of the symptoms and examinations recorded in the contemporary medical records than she gave to the employee’s recollection or credibility. Even v. Kraft, Inc., 445 N.W.2d 831, 834, 42 W.C.D. 220, 225 (Minn. 1989); Madden v. Prairie Cmty. Servs., No. WC06-161 (W.C.C.A. Jan. 5, 2007).
The employee relied heavily on the medical opinion of Dr. Anagnost that the employee’s current symptoms were causally linked to the 2006 work injury. However, as the compensation judge noted, Dr. Anagnost recorded more than once in his records that the employee denied any prior back injuries. The employee testified that she did at some point tell Dr. Anagnost about her 1999 work injury, but nothing in his records notes a 1999 injury. The compensation judge was not clearly in error in concluding that Dr. Anagnost’s opinion was founded on an inaccurate history of the employee’s back conditions and injuries. The compensation judge’s memorandum reveals that she also gave less weight to Dr. Anagnost’s opinion because he was apparently unaware that the employee’s 2006 MRI showed no problem at the L4-5 disc. The employee argues that these defects in foundation were not ones of material fact. We disagree, since Dr. Anagnost specifically stated that his opinion linking causation to the 2006 work injury was based on the absence of any prior back injury.
The employee next points out that Dr. Gillock also expressed the opinion that the employee’s disc herniation at L5-S1 was, by history, causally related to the 2006 work injury. Since Dr. Gillock was given a history that included the 1999 work injury, she argues that his opinion should have been persuasive even if Dr. Anagnost’s was discounted. We note, however, that Dr. Gillock specifically stated that he had no medical records to review other than the employee’s 2006 MRI scan report. The compensation judge could reasonably have concluded that Dr. Gillock’s opinion was not based on a full understanding of all the underlying facts.
In any event, even if we were to conclude that both Dr. Anagnost and Dr. Gillock had sufficient foundation for their opinions, the choice between well-founded medical opinions is one committed to the compensation judge. Nord v. City of Cook, 360 N.W.2d 337, 27 W.C.D. 364 (Minn. 1985). Having reviewed the matter, we cannot say that the compensation judge erred in finding that the employee failed to prove her case by a preponderance of the evidence. The compensation judge’s conclusion is not clearly erroneous and is adequately supported by the evidence as a whole. Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 229 N.W.2d 521 (Minn. 1975). We affirm.
 In light of the complaints discussed subsequently in the report, it seems probable that “knee” was omitted or mis- transcribed where the first “left” appears, “left” being recorded or transcribed twice by error.