WILLIAM A. SECHRIST, Employee, v. WILL DO TRUCKIN, INC., and GREAT WEST CAS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 23, 2011
EVIDENCE - EXPERT MEDICAL OPINION. Although the doctor’s reports were not very copiously detailed, where the doctor had made no factual assumptions affirmatively contradicted by the evidence, and where the doctor had indicated clearly that he had reviewed not only the IME’s report but also records of chiropractic treatment evidencing the employee’s complaints of pre-existing right shoulder pain, the court would not reverse the judge’s decision on grounds that the treating doctor’s opinion, on which the court had relied, was without proper foundation.
CAUSATION - SUBSTANTIAL EVIDENCE. Where the judge reasonably assessed the delay in the employee’s request for surgery, the employee’s pre-injury chiropractic treatment, the employee’s history of restrictions, and the onset of the employee’s symptoms, the compensation judge’s finding of a work-related shoulder injury was not clearly erroneous and unsupported by substantial evidence.
Determined: Pederson, J., Johnson, J., and Wilson, J.
Compensation Judge: Rolf G. Hagen
Attorneys: Kirsten M. Tate and Michelle Barone Osterbauer, Osterbauer Law Firm, Minneapolis, MN, for the Respondent. Gregg A Johnson and Joseph P. Mitchell, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge’s award of payment of the expenses of proposed right shoulder surgery and post-operative physical therapy. We affirm.
On November 18, 1996, William Sechrist was involved in a motor vehicle accident in which he sustained multiple injuries, including injuries to his cervical spine, his thoracic spine, his lumbar spine, his left knee, and his right shoulder. Following the accident, Mr. Sechrist was treated first conservatively, by both medical and chiropractic physicians, and eventually surgically, by orthopedic surgeon Dr. Douglas Becker. An MRI scan of the right shoulder on January 20, 2000, was read to reveal evidence of bursitis with bursal thickening, his symptoms “most consistent with impingement syndrome of the shoulder.” Mr. Sechrist’s shoulder symptoms apparently did not abate, and, on April 14, 2000, upon the employee’s rejection of a cortisone injection option, Dr. Becker performed an arthroscopic subacromial decompression of the employee’s right shoulder, in treatment of a right-shoulder impingement syndrome. Dr. Becker noted ten days later, on April 24, 2000, that Mr. Sechrist was recovering “extremely well” and did “not have any discomfort.” By May 22, 2000, Dr. Becker indicated again that Mr. Sechrist was “doing remarkably well,” again with “no significant discomfort” and with “full motion of the shoulder which is quite smooth,” his impingement sign negative and his rotator cuff not tender. Following his recovery, Mr. Sechrist was apparently released to return to work essentially without restrictions. On August 18, 2000, however, Dr. Becker requested that Mr. Sechrist be excused from work from July 6, 2000, through August 10, 2000, due to a re-injury of his right shoulder, and about seven months later, on March 7, 2001, the doctor permanently restricted Mr. Sechrist to limited repetitive overhead activities and limited lifting of over fifteen pounds with his right arm.
On July 18, 2007, Mr. Sechrist began treating for about a year and a half with chiropractor Dr. Katherine Gravesen, to whom he complained of pain at all levels of his spine. By September 12, 2007, he had begun complaining also of right shoulder and left wrist pain, which he felt had “improved 75%, since his accident.” Over the course of the following months, the employee’s chiropractic treatment continued to focus primarily on back and neck pain, with only occasional notation of some loss of joint play in the right shoulder, usually with palpation. On June 2, 2008, Mr. Sechrist also complained to Dr. Gravesen of shoulder discomfort sustained pushing a motorcycle, and on July 7, 2008, he began complaining through about mid November 2008 of a “catch” in the shoulder “on and off since the accident.”
In March of 2008, the employee had begun working as a pick-up and delivery truck driver with Will Do Truckin, Inc. [the employer], at which job he continued to work until January 15, 2009, without further right-arm-related restrictions on either his work activities or the activities of his normal daily life. On January 15, 2009, while so employed, the employee sustained an injury to his “arm and elbow” when he slipped on some ice in the course of his employment. The employee was forty-seven years old on that date and was earning a weekly wage of $315.00.
The employee was initially treated on the day after his injury at the Fairview Red Wing Clinic, where he complained of “elbow pain secondary to falling on his outstretched right hand,” explaining that, at the time of his injury, he felt as if his “elbow ben[t] the wrong way.” The employee’s pain on that date was focused in the elbow joint, and his shoulder appeared “[n]ormal upon inspection with no deformity, scapular winging or atrophy. No pain upon palpation. [Range of motion] normal as able to assess without moving elbow.” On January 30, 2009, the employee began treating regularly with orthopedic surgeon Dr. Robb Rutledge, who eventually released the employee to return to work on March 4, 2009, reiterating on December 11, 2009, that his permission to work was unrestricted. The employee’s symptoms apparently never fully abated, however, and on February 16, 2010, Dr. Rutledge requested approval for referral of the employee to an “elbow/shoulder specialist.”
On March 8, 2010, about fourteen months after his January 15, 2009, injury, the employee began treating again with Dr. Becker, to whom he reported an injury to his right shoulder and right elbow. He reported to Dr. Becker that he had fallen on his outstretched dominant right arm and had hyper-extended the elbow, following which he had heard a snap and felt a jolt of pain that “went all the way up to his shoulder.” Dr. Becker noted that the employee “has had shoulder pain, but the elbow pain has been more problematic.” Upon examination, Dr. Becker noted “severe audible and palpable subacromial crepitus and cuff tenderness with a positive impingement sign,” noting that the employee “had a previous decompression which was asymptomatic prior to this injury.” Dr. Becker ordered an MRI scan, which revealed “subscapularis partial surface tearing penetrating 30% into the tendon over a distance of 6 mm and with some AC hypertrophic change, and some early hypertrophic change in the glenohumeral joint,” and Dr. Becker administered an injection. With symptoms remaining essentially unchanged by August 25, 2010, and noting that the employee “has been symptomatic for a prolonged period of time,” even while remaining without formal restrictions, Dr. Becker recommended both right shoulder and right elbow surgery.
On October 19, 2010, the employee was examined for the employer and insurer by orthopedist Dr. Paul Wicklund. In his report on October 28, 2010, Dr. Wicklund diagnosed a healed fracture of the right elbow, right ulnar neuropathy, mild impingement of the right shoulder, and a “30% tear of the subscapularis muscle.” With regard to the employee’s right shoulder, Dr. Wicklund concluded that the employee did not seem symptomatic enough to proceed with a decompression, and it was his opinion that the tear in the employee’s subscapularis muscle did not appear to have resulted in any weakness in internal rotation.
On January 6, 2011, about two years after the employee’s January 2009 work injury, Dr. Becker performed a right elbow open partial medial epicondylectomy and right elbow subcutaneous ulnar nerve transposition. The employer and insurer ultimately acknowledged liability for a right elbow injury and commenced payment of workers’ compensation benefits. About a month and a half later, in a very brief letter to the employee’s attorney dated February 16, 2011, Dr. Becker indicated that his treatment of the employee, “including treatment to [the employee’s] right shoulder, was reasonable and necessary and due to the [January 15, 2009] accident.” On February 28, 2011, Dr. Becker’s Nurse Practitioner, Angela Finn, issued a return to work form, indicating that the employee was being treated for shoulder and elbow injuries and could return to work on March 1, 2011, temporarily restricted from repetitive use of the right arm, from overhead use of the right arm, and from lifting over three pounds with the right arm, adding that he “may drive automatic transmission.”
On March 14, 2011, the employee filed a medical request, asserting entitlement to compensation for a right shoulder injury sustained in his January 2009 work injury. In a medical response filed March 18, 2011, the employer and insurer denied that request. On April 15, 2011, in a report supplemental to his report of October 28, 2010, Dr. Wicklund opined that the employee did not sustain an injury to his right shoulder on January 15, 2009, as he had implied in his earlier report, explaining that a review of additional medical and chiropractic records since his earlier report had indicated to him that the employee “had problems with his right shoulder that pre-date the alleged right shoulder injury on January 15, 2009.” The doctor indicated that he based his revised opinion “on the records that suggest ongoing right shoulder pain after [the employee’s] subacromial decompression in 2000,” opining now that “[t]he surgical procedure recommended by Dr. Becker is unrelated to the January 15, 2009 injury. It is related to his previous right shoulder problems and previous surgery. It is a reasonable approach.”
The employee’s February 28 restrictions had been reissued on March 24, 2011, and were reissued again on April 18, 2011. On that same date, Dr. Becker released the employee PRN with regard to his elbow, indicating that the employee was still “awaiting approval for his right shoulder surgery.” Responding to specific interrogatives of the employee’s attorney as to whether the employee’s January 15, 2009, injury was a substantial contributing factor in his current shoulder condition, Dr. Becker opined that “[t]here is no history of significant preexisting disease as it pertains to [the employee’s] right upper extremity,” that “[y]es,” “the proposed surgery is reasonable and necessary,” and that there was no history of outside activities becoming a contributing factor in his January 6, 2011, elbow surgery.
On April 27, 2011, Dr. Becker submitted another “Narrative Report” to the employee’s attorney, in which he reviewed his treatment of the employee since January 19, 2000. In a “narrative report addendum” submitted May 6, 2011, Dr. Becker opined formally that in March of 2010 the employee had reported that “he had not had recent significant symptoms in the right shoulder until the January 15, 2009 work exposure and work injury.” In his report, the doctor indicated that he had reviewed Dr. Wicklund’s addendum IME report and other “outside records,” specifically records of the employee’s chiropractic treatment between February of 2001 and November of 2008, “that indicate a complaint of right shoulder pain.” The doctor went on to acknowledge that the employee did have a pre-existing history of right shoulder disease, but he reiterated that the January 15, 2009, incident was nevertheless “a significant injury to his right elbow and right upper extremity,” a “substantially aggravating factor” that had led to “markedly severe and increased right shoulder pain” apparently the result of “partial subscapularis rotator cuff tearing and posttraumatic bursitis.”
The matter came on for hearing on May 6, 2011. Issues at hearing were whether or not the employee had sustained a personal injury to his right shoulder as a result of his employment on January 15, 2009, and, if so, the nature and extent of that injury and whether or not the proposed surgery and post-operative physical therapy are reasonable and necessary treatment for that injury. The parties stipulated at hearing in part that no treatment parameter defense was being raised regarding either the surgery or the post-operative physical therapy. Evidence admitted at hearing included the employee’s medical and chiropractic records and the testimony of only the employee.
By findings and order filed June 6, 2011, the compensation judge concluded in part that the employee had sustained a personal injury to his right shoulder as a result of his work injury on January 15, 2009. On that conclusion, the judge found also that the employee had incurred a reasonable need for the right shoulder revision, arthroscopic debridement, decompression, A.C. resection, probable arthroscopic subscap repair, and post-operative physical therapy as had been proposed by Dr. Becker. On those findings, the judge ordered the employer and insurer to pay all costs incident to that treatment. The employer and insurer appeal.
STANDARD OF REVIEW
In reviewing cases 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. 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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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 the evidence or not reasonably supported by the evidence as a whole.” Id.
The compensation judge found that the employee sustained a personal injury to his right shoulder as a result of his work accident on January 15, 2009, and that that injury had in turn resulted in a reasonable need for recommended surgery and follow-up physical therapy. The employer and insurer contend that that conclusion is unsupported by substantial evidence, arguing both that the expert medical opinion on which the judge relied was without proper foundation and that certain other findings on which the judge based his determination were unsupported by the evidence.
1. Foundation for Dr. Becker’s Opinion
With regard to foundation for Dr. Becker’s opinion, the employer and insurer argue first that no “comprehensive narrative report” by Dr. Becker was ever submitted into evidence in support of the employee’s claim, that no medical deposition was ever taken of the doctor, and that any medical opinions of the doctor that were offered in support of the employee’s claim “were ambiguous and tentative at best.” They acknowledge submission of the narrative report issued by Dr. Becker on February 16, 2011, and the addendum to that report issued on May 6, 2011, apparently implying that neither of those reports was an adequately “comprehensive” report. They contend, however, that the February 2011 report, while asserting that the employee was “under [Dr. Becker’s] orthopedic care,” contained “no indication Dr. Becker reviewed outside medical records” and did “not mention or explain the absence of objective right shoulder symptoms and the normal examinations of the right shoulder between January 15, 2009 and March 8, 2010. Further, they contend that, while the May 2011 report does indicate that the doctor reviewed “outside records,” there is no indication what outside records were actually reviewed. They argue that Dr. Becker ultimately referenced only six chiropractic visits at which the employee complained of right shoulder pain prior to the January 15, 2009, incident, while the record contains many more visits at which the right shoulder was addressed. They go on to enumerate, for instance, twelve occasions on which the employee complained of actual right shoulder “pain,” eight occasions where right shoulder “catching” was noted, thirteen occasions where the employee received chiropractic “adjustments,” thirty-two occasions where the chiropractor noted a “loss of joint play” in the shoulder upon palpation, and two occasions where specific, discrete injuries were addressed. Many of these occasions were occasions where more than one of the above symptoms or events were at issue.
The employer and insurer contend further that, not only did Dr. Becker ignore substantial pre-existing problems in the employee’s right shoulder, but the doctor’s records also reveal too little detailed information about the nature and extent of the employee’s activities and right shoulder symptoms after his work injury to provide adequate foundation as to the cause of his right shoulder problems. They argue, for instance, that there is no evidence that Dr. Becker ever reviewed the Fairview Red Wing medical records, where the employee treated for more than a year from the day after his work incident through March 8, 2010. These records, they suggest, not only contain no mention of any indication of right shoulder pain, contrary to the doctor’s suggestions on May 6, 2011, but affirmatively indicate, in office records of the first two visits, that the shoulder was “normal upon inspection with no deformity, scapular winging or atrophy,” no pain upon palpation,” and normal in range of motion and strength. “In short,” the employer and insurer conclude, “Dr. Becker simply relied on the subjective history provided by the employee, which is contradicted by the medical records not reviewed by Dr. Becker.” We are not persuaded.
We acknowledge that Dr. Becker’s records and reports are less than amply detailed with information from the employee’s medical records both before and after his January 15, 2009, work incident. Our general rule on review remains, however, that “the trier of fact's choice between experts whose testimony conflicts is usually upheld [unless] the facts assumed by the expert in rendering his opinion are not supported by the evidence.” Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985). While it may be true that Dr. Becker’s reports are not very copiously detailed, we find in them no factual assumptions affirmatively contradicted by the evidence. Nor is it necessary for a medical expert to demonstrate awareness of every relevant fact in order for his opinion to be credited by the compensation judge. See Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994). Dr. Becker indicated clearly, in his May 6, 2011, addendum report, that he had reviewed not only Dr. Wicklund’s addendum report but also records of the employee’s chiropractic treatment that evidence the employee’s interim complaints of right shoulder pain. Moreover, it remains true that Dr. Becker was the physician most familiar with the employee and his condition, and it was the compensation judge’s prerogative to rely on his opinion over that of another doctor, absent evidence that it was based on premises unsupported by the evidence. We will not reverse the judge’s decision on grounds that Dr. Becker’s opinion was without proper foundation.
2. Substantial Evidence Aside from Medical Opinion
Aside from the foundation for Dr. Becker’s opinion, the employer and insurer contend that the compensation judge’s decision was also based on several specific findings that are each unsupported by substantial evidence. Specifically, they contend that the judge erred in finding the following: (1) that the delay in the appearance of right shoulder symptoms after January 15, 2009, was simply analogous to the delay in the appearance of right shoulder symptoms after the employee’s 1996 shoulder injury; (2) that the employee’s chiropractic treatment pre-dating his January 2009 injury was primarily in the nature of care and treatment for the employee’s spine, and there was a long hiatus in treatment from June 2003 through July 2007; (3) that the employee was not restricted from performing his normal job activities from March 2008 until the January 2009 incident, after which the employee returned to work with modifications; and (4) that the employee began experiencing right shoulder pain immediately following the January 2009 incident but that symptomatology was merely overshadowed by the care and treatment that the employee was receiving for his right elbow injury at the time. We are not persuaded.
On the fourth page of his six-page memorandum, the compensation judge found it “interesting to note and to compare that[,] when the employee sustained injury in 1996[,] the symptoms did not become severe enough to warrant surgery until significantly later . . . . The same scenario seems to apply to the current fact situation.” The employer and insurer appear to see this merely “interesting” two-sentence observation, in the context of a six-page memorandum, as a principal basis for the judge’s finding of a work injury in this case. We cannot see it as such. If it is to be read as implying anything more than an observation of coincidence - - and we are not at all sure that it is - - it may imply only that this particular employee has a history of working through pain without complaint perhaps somewhat longer than another employee might. Beyond that, it appears to us irrelevant.
At Finding 2.e., the compensation judge concluded that the employee’s chiropractic treatments with Dr. Froehle from April 14, 2000, through June 2, 2003, and with Dr. Gravesen from July 18, 2007, through January 29, 2009, “were primarily in the nature of care and treatment of the employee’s spine and periodic adjustments to the employee’s right shoulder.” On page 7 of his memorandum, the judge noted that “there was a long hiatus in care and treatment referable to the right shoulder from approximately June 2003 to July 2007.” The employer and insurer contend that “[t]he compensation judge erroneously ignored or, at a minimum, did not address the extensive treatment the employee received and the specific injuries the employee sustained involving the right shoulder in the years leading up to the January 15, 2009 incident. They argue that “[t]he fact that more of the chiropractic treatment was related to the spine is entirely irrelevant in determining the nature and extent of the employee’s pre-existing right shoulder condition.” We conclude, however, that the judge neither ignored nor insufficiently addressed the chiropractic treatment undergone by the employee in the interim between his April 2000 decompression surgery and the January 2009 accident in which he alleges occurred his current rotator cuff tear. The judge acknowledged that those treatments entailed “periodic” “adjustments” (plural), and he appears to give no more emphasis to the severity of the employee’s back problems at the time than to the severity of his shoulder problems - - although, on our review, the shoulder treatment does appear to be an only incidental element of the employee’s concern at the time. The number of references to, for instance, “loss of joint play” does not, we conclude, prove the criticality of the employee’s shoulder treatment during that period, unexplained as it is in the chiropractic record or in the employer and insurer’s arguments before the judge or this court.
At unappealed Finding 2.g., the compensation judge concluded that, “at no time during the period from March 2008 until 01/15/2009, was the employee restricted or in any way precluded from performing his normal job activities [or] engaging in normal daily life activities as a result of his right shoulder condition.” In his memorandum, the judge notes that, subsequent to January 15, 2009, “[t]he employee underwent physical therapy at the direction of Dr. Rutledge commencing March 2009” and “returned to work and worked with modification until approximately December 2009.” The employer and insurer assert that “[t]his reasoning is clearly erroneous,” contending “first and foremost” that “the employee’s work activities were not, in fact, restricted from January 15, 2009 through December 2009.” They argue that the employee was off work for the six or seven weeks immediately following the injury as a result of his right elbow condition, not his shoulder condition, and that thereafter he was released to work without restrictions, which he did until his January 6, 2011, elbow surgery. The judge’s conclusion, however - - in his memorandum, not in a finding - - was not that the employee worked with formal restrictions after his return to work but that he worked “with modification” until essentially the time of his elbow surgery. Clearly the employee’s right elbow problems required him to “modify” his right-hand gear-shifting and other work activities, even as a threshold to his right shoulder problems. The employer and insurer acknowledge that, subsequent to the employee’s full recovery from his right elbow surgery, the doctor saw a need to impose more formal right arm restrictions specifically related to the employee’s right shoulder. That these shoulder-related restrictions were effectively unnecessary while the employee was already “modifying” his activities preparatory to his elbow surgery does not undermine the judge’s conclusion that the employee was working “with modification” also supportive of his shoulder condition up to the time of the elbow surgery.
At Finding 3.c., the compensation judge concluded that “following the 01/15/2009 work injury, the employee began to experience right shoulder pain and symptomology,” but that “care and treatment of the employee’s right elbow overshadowed any initial care and treatment to the right shoulder.” The employer and insurer contend that substantial evidence does not support a conclusion that the employee experienced immediate shoulder pain at the time of his injury or that it was overshadowed at the time by elbow pain. They argue that the judge himself, in reaching this conclusion, at no point indicated reliance on the employee’s credibility, which credibility the employer and insurer argue is “highly questionable,” given the employee’s repeated response in testimony that he “could not recall” the facts of his experience accurately. Whether or not the judge relied importantly on the employee’s testimony in this regard, we conclude that evidence in the medical record itself and elsewhere is sufficiently substantial to support the judge’s conclusion.
The employee’s first notice of the injury to his employer was of an injury to his “arm and elbow,” not just to the latter. Given the mechanism of the injury, the first examining physician on the day after the injury immediately examined him for shoulder as well as elbow injury, although the former was initially found normal “as able to assess without moving elbow.” Even prior to Dr. Becker’s treatment of the employee, Dr. Rutledge referred the employee to an “elbow/shoulder specialist.” Upon commencing treatment soon thereafter with Dr. Becker, the employee reported an injury to both his right elbow and his right shoulder, with pain that Dr. Becker reported to have run “all the way up to his shoulder,” noting reasonably, in light of the record to that point, that the employee “has had shoulder pain, but the elbow pain has been more problematic.” Upon examination, Dr. Becker noted “severe audible and palpable subacromial crepitus and cuff tenderness with a positive impingement sign,” and an MRI scan of the shoulder revealed a partial rotator cuff tear. Already then Dr. Becker, too, credited a work-related shoulder injury enough to recommend a surgical repair, and in his May 6, 2011 addendum report he addressed directly the issue here at hand, concluding that, while the employee did have a pre-existing history of right shoulder disease, the January 15, 2009, incident was a “substantially aggravating factor” that had led to “markedly severe and increased right shoulder pain” apparently the result of “partial subscapularis rotator cuff tearing and posttraumatic bursitis.”
We conclude, in light of the supportive expert medical opinion and all other evidence in this case, that it was not unreasonable for the compensation judge to find that the employee sustained a compensable right shoulder injury on January 15, 2009. Therefore we affirm. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73.
 See the third paragraph on page 8 of the judge’s memorandum.
 See Finding 2.e. and the second last paragraph on page 7 of the judge’s memorandum.
 See Finding 2.g.
 See Finding 3.c.