MARIETTA OUNASSER, Employee/Appellant, v. GOLDEN LIVING CTR. ROCHESTER W. and INSURANCE CO. OF THE STATE OF PA./CONSTITUTION STATE SERVS. CO., Employer-Insurer, and MAYO CLINIC and BLUECROSS BLUE SHIELD OF MINN., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 28, 2011
CAUSATION - MEDICAL TREATMENT; MEDICAL TREATMENT & EXPENSES - REASONABLE & NECESSARY. Substantial evidence supports the compensation judge’s determination that the medical expenses claimed by the employee are related to the work injury and were reasonable and necessary.
PRACTICE & PROCEDURE - MATTERS AT ISSUE. Where the parties agreed as to the scope of the compensation judge’s award, the compensation judge’s decision is modified to reflect that understanding.
Affirmed in part, modified in part, and vacated in part.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Jennifer Patterson
Attorneys: Steven S. Fuller, Fuller Law Firm, Rochester, MN, for the Respondent. Christine L Tuft, Arthur Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s decision that the recommended medical treatment was related to the employee’s work injury of October 20, 2009, and was reasonable and necessary. The employer and insurer also argue on appeal that the compensation judge’s decision was an improper expansion of the issues raised at hearing. We affirm in part, modify in part, and vacate in part.
Marietta Ounasser began working for the employer, Golden Living Center West, in Rochester in January 2005. The employee worked as a certified nursing assistant [CNA]. She assisted in the care of elderly residents and, with the help of a co-worker, was required to lift and move residents.
The employee had rotator cuff surgery to her right shoulder in 1989 following an automobile accident. There are no medical records from this procedure in evidence but Dr. Mark Friedland, in his independent medical examination [IME] report, referred to this history and it was accepted by the compensation judge as accurate. The employee told Dr. Friedland that after she healed from this procedure, she had no residual weakness, no limitation in range of motion, and had no need for further treatment. The employee testified she had no restrictions at the time she began working for the employer and was able to perform her job without difficulty.
The employee also advised Dr. Friedland that she fell in an icy parking lot at work in March 2006. She fell backwards, landing on her buttocks and hands. Dr. Friedland’s report references medical records from the Mayo Clinic in which the employee was noted to have cervical and wrist pain. She was diagnosed as having sustained a cervical strain and bilateral wrist sprains and was taken off work for one week. Again, there are no medical records in evidence concerning this incident. The employee did not treat for this injury after March 15, 2006, and had no ongoing work restrictions.
The employee’s medical records in evidence are from the Mayo Clinic and begin March 12, 2009, following a work injury. There is some question as to the nature of the injury sustained at that time. Dr. Friedland recorded a history that the employee had the gradual onset of right shoulder and left elbow pain after assisting a male resident with passive range of motion exercises with his legs. Dr. Mioki Myszkowski, the employee’s treating doctor, recorded a one month history of right shoulder and left elbow pain which was worse with heavy lifting on the job. The employee was treated for these conditions from March to September 2009. Treatment consisted of physical therapy and therapeutic injections. The employee was placed on work restrictions on an intermittent basis. In a letter to the employer’s workers’ compensation insurer in July 2009, Dr. Myszkowski advised that the diagnosis was bicipital tendonitis, supraspinatus tendonitis, and lateral epicondylitis.
Dr. Myszkowski found the employee to be at maximum medical improvement [MMI] for the March 2009 injury as of September 10, 2009. No permanent partial disability or restrictions were provided and Dr. Myszkowski did not contemplate a need for further treatment.
The injury at issue in the present case occurred on October 20, 2009. The employee slipped and fell on a soapy floor in a resident’s bathroom. When she fell, she struck her head on the sink and landed on her right shoulder. She was seen at Mayo’s emergency department where she complained of a headache, right-sided neck pain, right shoulder pain, and right hip pain. She was diagnosed with a minor closed head injury, cervical strain, and right shoulder and hip contusions. She was treated with pain medication and the use of a cervical collar.
Follow-up care was provided by Dr. Myszkowski, who diagnosed right shoulder pain and depression when she saw the employee on November 6. With regard to the right shoulder, Dr. Myszkowski noted, “patient has a history of right shoulder pain, which was stable. This was also considered a work-related injury. Her fall has exacerbated her pain. She now has difficulty with right upper extremity abduction, adduction, forward flexion, and internal and external rotation.” Physical therapy was recommended, as well as “high-dose ibuprofen therapy for the next ten days.” The employee’s depression was felt to be related to marital issues.
The employee was also evaluated on November 6 by Dr. Keith Bengston at the Mayo Clinic Spine Center for her neck pain. At that time, she had “pain and stiffness in her lower neck as well as out into the upper trapezius muscles.” Dr. Bengston placed her on light duty until he could review flexion/extension x-rays of her cervical spine. The x-rays did not show signs of instability and Dr. Bengston advised her that she “should try to get back to more normal activities.”
The employee was given work restrictions from Dr. Myszkowski from November 6, 2009, through February 6, 2010. She was not to lift, carry, push, or pull more than five pounds with her right arm and was to avoid repetitive gripping and pinching with her right hand.
Dr. Bengston saw the employee again for her cervical spine complaints on November 20. She was not improving and Dr. Bengston prescribed “right-sided C5-6 and C6-7 facet injections.” The employee saw Dr. Bengston on December 10 and he noted that the injections had been denied by the workers’ compensation insurer. He recommended the injections again and prescribed physical therapy until the injections were approved.
The employee returned to Dr. Myszkowski on December 15 for her neck and shoulder pain. It was noted that physical therapy had not yet been scheduled because of coverage problems with the workers’ compensation insurer. Dr. Myszkowski stated that physical therapy for the shoulder problems would be beneficial. Dr. Myszkowski noted “It is our goal to keep the patient off of any narcotic medications as her current pain issues may be chronic.”
Physical therapy for the employee’s right shoulder and neck began on December 23, 2009, at the Work Rehabilitation Center at the Mayo Clinic. Dr. Bengston noted improvement in her condition from the therapy when he saw her for the cervical spine injury on January 5, 2010.
The employee returned to Dr. Myszkowski on January 26. Mild improvement in her symptoms was noted and Dr. Myszkowski modified the employee’s restrictions and advised continuing therapy. A note from the Work Rehabilitation Center dated February 19 stated, “Call from work comp - the patient is being denied for the therapy at this time.” No physical therapy was provided to the employee after that date.
On February 22, 2010, Dr. Myszkowski noted “worsening pain in the upper back, right shoulder, and right trapezius region. She has weakened in the right upper extremity. She has significantly reduced range of motion in the right shoulder. Patient reports the shoulder pain as a burning sensation that extends down the right arm and gets worse with use.” Dr. Myszkowski recommended physical therapy and review by Dr. Bengston of other treatment options. The employee returned to Dr. Myszkowski on March 8 with her situation essentially unchanged.
The employee was terminated by the employer some time in March 2010 for reasons not set out in the record before us.
On April 1, 2010, the employee saw Dr. Myszkowski again. Since the last visit, she had received a cervical facet injection. After the injection, her pain was 0 out of 10. Her shoulder condition was essentially unchanged and Dr. Myszkowski recommended an orthopedic consultation.
Dr. Friedland conducted his IME of the employee on April 26, 2010. His report considered three work injuries: March 6, 2006, March 6, 2009, and October 20, 2009. His opinion was that the March 2006 injury had been a temporary exacerbation of a preexisting degenerative condition. Dr. Friedland stated that there was no work injury in March 2009, based on the history he obtained. Finally, he concluded that the October 2009 injury was a temporary exacerbation of preexisting shoulder and cervical conditions. The exacerbation, in his opinion, resolved no later than the date of the independent medical examination. In Dr. Friedland’s opinion, the employee’s ongoing shoulder symptoms were related to the rotator cuff condition which had been the subject of surgery in 1989.
The employee continued to treat for her shoulder and neck symptoms at the Mayo Clinic. The last treatment note in evidence is from Dr. Myszkowski on August 19, 2010. The employee was seen primarily for neck pain. Dr. Myszkowski found “reproducible tenderness over the right trapezius extending up to the right occiput” and “reproducible pain at the anterior shoulder.” Dr. Myszkowski recommended a physical therapy program and stated that since the employee had received a shoulder injection in June, “it may yet be too early for another injection.”
Dr. Myszkowski wrote a letter to whom it may concern on September 9, 2010. She noted the employee had been under her care for “musculoskeletal and acute/chronic pain issues.” She referenced the treatment in March 2009 as being for right bicep tendonitis, right supraspinatus tendonitis, and left lateral epicondylitis.” Dr. Myszkowski stated “her pain was clearly related to her work responsibilities to include repetitive movements using her arms and pulling or lifting heavy objects/patients.” Dr. Myszkowski also referenced the employee’s history of a fall in October 2009. “This injury which occurred at work resulted in severe right-sided neck pain, an exacerbation of her right shoulder pain, and right hip pain. Because her pain was significant and persistent, she was subsequently seen by several specialists at Mayo Clinic to include the Spine Center and orthopedics. She was subsequently diagnosed with cervical spondylosis, cervical myalgia, and rotator cuff tendonitis. We continue to consult with specialists as needed for ongoing pain issues associated with her fall.”
The employee filed a medical request in April 2010, seeking payment for physical therapy and the injection recommended by Dr. Myszkowski in March. An administrative conference was held on the request on June 2 and a decision on June 29 awarding the requested treatment was issued. The employer and insurer requested a formal hearing.
This matter was heard by Compensation Judge Jennifer Patterson on September 24, 2010. Before the hearing, the attorneys discussed the issues to be considered by the compensation judge. The compensation judge identified the issues as being whether the requested treatment was causally related to the October 2009 work injury and whether it was reasonable and necessary. The treatment at issue was identified as physical therapy which had not yet taken place and the right shoulder injection which had been done in June 2010.
In her decision, the compensation judge found that the employee’s October 2009 injury had not resolved and the employee “continued to suffer from the effects of the neck and right shoulder injury through September 24, 2010.” The employer and insurer were ordered to pay for treatment of the employee’s neck and shoulder provided between October 20, 2009, and September 24, 2010, and treatment after that date on an ongoing basis. The employer and insurer have appealed.
The employer and insurer raise two issues on appeal. First, they argue that substantial evidence does not support the compensation judge’s decision that the employee’s condition and need for treatment is related to the October 2009 work injury and that the proposed treatment is reasonable and necessary. Second, they contend that the compensation judge’s decision improperly expanded the issues presented to her at the hearing. We consider each of these issues in turn.
Causation and Necessity of Treatment
On appeal, the employer and insurer argue that the compensation judge erred in rejecting the only medical opinion on causation and necessity, that of Dr. Friedland. We disagree. The employee’s treating doctors expressed medical opinions concerning causal relationship between the work injury and the employee’s ongoing symptoms numerous times as noted in the Mayo Clinic records between October 2009 and September 2010. Dr. Myszkowski’s letter of September 9, 2010, which we have quoted at some length earlier, also provides the requisite opinion on causation. Similarly, in continuing to recommend physical therapy and injections, the treating doctors provided opinions that the proposed treatment was reasonable and necessary.
In her decision, the compensation judge identified the evidence she found persuasive: the nature of the employee’s injury, the employee’s testimony, treatment recommendations, and the opinion of Dr. Myszkowski. We find that this evidence constitutes substantial evidence to support the compensation judge’s decision.
Despite the employer and insurer’s argument to the contrary, this is a case in which the compensation judge was required to make a choice between competing medical opinions. She chose to rely on the opinion of the doctor who treated the employee after the injury and rejected the opinion of the IME that the employee’s symptoms were a consequence of surgery which had been done more than 20 years ago. We find nothing unreasonable in the compensation judge’s choice and her decision is affirmed. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59. 37 W.C.D. 235, 239 (Minn. 1984).
Expansion of Issues
The employer and insurer argue on appeal that the issues at hearing were limited to the causation and reasonableness of two specific treatment recommendations - - physical therapy and a right shoulder injection. They contend the compensation judge’s decision instead found all medical treatment received by the employee from October 2009 and September 24, 2010, to be causally related and reasonable. Further, the compensation judge awarded “ongoing” medical care after the date of hearing. The employer and insurer argue that the decision represents an improper expansion of the issues.
In response, the employee describes this issue in her brief as a “tempest in a teapot.” The employee states further “when the record is reviewed as a whole, Judge Patterson’s decision clearly goes to only the already completed injections and ongoing physical therapy.”
Given the employee’s position, we see no dispute between the parties. The employee is not advancing the broad interpretation of the compensation judge’s decision feared by the employer and insurer. Accordingly, we see no reason to address this issue. However, because language in the compensation judge’s decision does not reflect the parties’ understanding, we vacate Finding 19 of the Findings and modify the compensation judge’s award to order payment for the physical therapy recommended by Dr. Myszkowski and the shoulder injection done in June 2010.
We have not vacated Finding 18 in which the compensation judge determined that “the employee did not heal from a temporary injury to her neck and right shoulder by April 26, 2010, and continues to suffer from the effects of her neck and right shoulder injury through September 24, 2010.” As we discussed earlier, substantial evidence supports that finding. Further, the defense raised by the employer and insurer was that the employee’s current condition was not related to her October 2009 work injury. The compensation judge’s finding on this point was necessary to resolve the issues presented at hearing. Johnson v. Metz Baking Co., No. WC08-230 (W.C.C.A. May 1, 2009).
 The insurer for the March 2009 injury is also the insurer for the present claim.