JULI A. TODD, Employee/Appellant, v. WEST WIND VILL. and MINNESOTA HEALTH CARE ASS’N/CCMSI, Employer-Insurer, and PRIME W. HEALTH, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 10, 2011
EVIDENCE - EXPERT MEDICAL OPINION. Where the opinion of the medical expert on whom the judge relied was not without sufficient foundation by its failure to address the date of the employee’s first treatment for depression, and where arguable factual errors in that opinion were neither importantly relevant nor dispositive as to the directness of the causal relationship between the employee’s work injury and her subsequent depression condition, the compensation judge’s denial of benefits for a consequential depression injury was not reversible on grounds of insufficient foundation for the credited medical opinion.
CAUSATION - CONSEQUENTIAL INJURY; CAUSATION - PSYCHOLOGICAL CONDITION. Where the judge reasonably concluded that the employee’s claim centered not directly enough on the work injury itself but on the employee’s job loss, the compensation judge’s denial of the employee’s claim to compensation for a consequential depression injury was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, J., and Milun, C.J.
Compensation Judge: Jane Gordon Ertl
Attorneys: DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant. George W. Kuehner, Jardine, Logan & O’Brien, Lake Elmo, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge’s conclusion that the employee did not sustain a psychological disability consequent to her low back work injuries. We affirm.
On April 8, 2008, Juli Todd sustained a work-related injury to her low back while transferring an obese resident in the course of her employment as a certified nursing assistant with West Wind Village [the employer]. Ms. Todd [the employee] was forty-three years old on that date and was earning a weekly wage of $568.50. She reported her injury but did not seek medical treatment at that time. On September 25, 2008, the employee sustained also a Gillette-type injury to her low back, due to her strenuous work activities with the same employer. The employee was treated initially for her low back condition by Dr. Anthony Lussenhop, who prescribed physical therapy but initially imposed no work restrictions. When physical therapy did not resolve the employee’s symptoms, on October 22, 2008, Dr. Lussenhop imposed restrictions limiting the employee to ten pounds of lifting and eight-hour work shifts, with no repetitive bending and twisting and no lifting from the floor. The employer had no work for the employee within those restrictions, and the employee has not returned to work with the employer since that time. By letter to the employee’s attorney dated December 11, 2009, Dr. Lussenhop opined in part that the physical demands of the employee’s work
prior to April 8, 2008 at [the employer] including multiple transfers of heavy residents did cause a previously asymptomatic condition to become symptomatic, namely low back strain with low back pain. The work activities that took place between April 8, 2008 and September 25, 2008 continued to aggravate her low back condition.
The medical treatment provided, the requests for physical therapy, and ongoing treatment for her back pain were causally related to the original April 8, 2008 work injury, and subsequent work activities at [the employer].
On January 7, 2009, the employee filed a claim petition, alleging entitlement to temporary total disability benefits continuing from October 22, 2008, together with rehabilitation and unspecified medical benefits, resulting from her work injuries on April 8 and September 25, 2008.
On April 30, 2009, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Tilok Ghose. In his report on May 26, 2009, Dr. Ghose diagnosed subjective symptoms of pain with no objective evidence of muscle spasm, tightness, or other abnormal condition. It was Dr. Ghose’s opinion that the employee’s symptoms were not related to any employment activities at the employer, and he did not recommend any restrictions or further medical care or treatment. He concluded that the employee’s physical examination had been completely normal and that she had reached maximum medical improvement [MMI] with regard to her work injuries without sustaining any permanent partial disability.
On September 3, 2009, the employee was examined by Dr. Robert Vennerstrom, who diagnosed persistent low back pain of unclear etiology and referred the employee to physiatrist Dr. James Andrews. When he examined the employee on September 16, 2009, Dr. Dr. Andrews diagnosed lumbar spondylosis with suspected facet arthropathy and related pain, and he referred her for repeat physical therapy and, in the event that she should not respond to that, for an L3-S1 medial branch blockade. On November 13, 2009, the employee underwent a health maintenance exam with Dr. Patricia Lindholm, who noted that the employee had “been unable to work for over a year due to a back injury,” that the employee’s husband suffered from severe depression and had himself been out of work for over two years, and that “[s]he feels financially stressed.” With that, the doctor diagnosed chronic pain syndrome, acute major depressive episode “which may be related to [her chronic pain syndrome],” and gastroesophageal reflux disease. When he saw her again on November 17, 2009, Dr. Andrews noted that the employee had experienced minimal improvement with physical therapy, and he scheduled her for diagnostic medial branch blocks. By letter to the employee’s attorney dated December 8, 2009, Dr. Andrews opined in part that the employee’s work for the employer prior to April 2008 was a substantial contributing cause of her lumbar spondylosis with associated facet syndrome. On December 9, 2009, the employee underwent the first of two bilateral L3 to S1 medial branch blocks, administered by Dr. Andrews, and on December 30, 2009, she underwent a second such procedure. A hearing had been held on the employee’s claim petition on December 15, 2009, following which, under findings and order filed March 22, 2010, the employer and its insurer were ordered to pay temporary total disability benefits continuing from October 22, 2008.
On January 18, 2010, the employee commenced treatment with psychologist Dr. Mary Schmidt, at Lakeland Mental Health Center, where she was diagnosed with major depressive disorder and prompt intervention was recommended. In her diagnostic summary, Dr. Schmidt stated,
[the employee] will also [follow] through with a physician regarding her back. She is hopeful that if the pain is decreased her mood might improve somewhat. She is also hopeful that the court case will be positive regarding Work[ers’] Comp. They are struggling financially since her husband is not working and going through Work[ers’] Comp issues. She is looking forward to retirement if necessary.
The following day, January 19, 2010, given her two successful diagnostic medial branch blocks, the employee underwent a bilateral medial branch radiofrequency ablation from L3 to S1, performed by Dr. Andrews. About a month later, on February 17, 2010, the employee reported to Dr. Lindholm that over 80% of her pain had resolved, although she was still having problems in her relationship with her daughter and with workers’ compensation issues.
On April 15, 2010, the employee returned to see Dr. Vennerstrom, who noted that the employee’s pain had decreased by about 80% since her medial branch ablation but that she was still taking pain medications and medication to help her sleep. On that information and upon examination, Dr. Vennerstrom released the employee to work with restrictions against lifting over forty pounds more than occasionally and against pushing or pulling over seventy-five pounds more than occasionally. He permitted her to lift up to ten pounds and to push or pull up to twenty-five pounds on a fairly regular basis.
The employee continued to treat with Dr. Lindholm for “major depressive disorder” without significant improvement, and on April 20, 2010, Dr. Lindholm referred her for psychiatric treatment. On April 21, 2010, the employee commenced treatment with psychologist Jerilyn Mitchell, who diagnosed major depressive disorder, severe without psychotic features, together with chronic pain with psychological and medical factors. Ms. Mitchell’s diagnosis also noted that psychosocial stressors were severe and included the following: (1) “[p]ersistent severely depressed mood and adverse effect on her behavior and relationships”; (2) “[p]ersistent pain though lessened”; (3) “[f]inancial hardship with continued risk of foreclosure and associated worry and an inability to seek gainful employment”; and (4) “[h]usband’s serious persistent mental illness with decreased ability to be supportive and an adverse effect on marital and family relationships.” Ms. Mitchell also noted adjustments in the employee’s medications and that the employee would be continuing to counsel with Dr. Schmidt.
Also on April 21, 2010, the employee saw Dr. Andrews again, who opined that she was now at MMI with regard to her low back condition, and he recommended a functional capacity evaluation [FCE]. Dr. Andrews’ report of MMI was served on the employee on April 30, 2010, and the employee saw him a final time on May 19, 2010, on which date the doctor strongly reiterated his recommendation of an FCE. There are no records of any low back treatment after May 19, 2010.
The employee saw Ms. Mitchell again on May 2, 2010, when the psychologist noted that the employee’s mood appeared “slightly better, but not significantly so.” When she saw the employee again on May 19, 2010, Ms. Mitchell encouraged her to spend some time each day in an enjoyable activity, although the employee had reported that “she does get some complaints from her disabled husband that she is ‘running away’.”
Although the employee’s stress with her children was evidently improving at the time, on June 3, 2010, Dr. Schmidt noted the employee’s reports of significant stress in various other aspects of her life. These included her marriage, her efforts to work through her own and her husband’s workers’ compensation issues, and her physical low back pain, which the employee hoped would remain manageable in the wake of her recent apparently successful nerve block. When the employee saw psychologist Mitchell again on July 7, 2010, the latter noted that the employee’s depression was “not responding as well as it could,” and she prescribed a new medication.
On July 9, 2010, the employee executed a Job Placement Plan and Agreement with her QRC, David Aarhus, from whom she had been receiving rehabilitation assistance since January of 2009. In that same month, the employee evidently accepted the first of three jobs in the Herman, Minnesota, area, and temporary total disability benefits were discontinued and temporary partial benefits were commenced. After seeing her once the previous month without evidence of much improvement, the employee saw Ms. Mitchell for the last time on August 9, 2010, at which time Ms. Mitchell, on a continuing diagnosis of major depressive disorder with chronic pain, concluded, “With improved employment and a chance to succe[ed], the [employee’s] mood is expected to improve.” In September of that year the employee announced that she wanted a divorce from her husband and to move on in her life, after which she quit her jobs in the Herman area and relocated to Fergus Falls.
By October of 2010, Dr. Schmidt’s records indicate that the employee “is sleeping well, denies any crying spells, energy good, concentration good. Anxiety is down. She’ll continue to follow through with healthy coping skills.” Her progress was considered fairly stable, but records for October 6, 2010, indicate that her stress was continuing, with principal issues being parenting and family therapy. On October 7, 2010, the employee filed a medical request, alleging entitlement to payment for treatment of an injury in the nature of depression consequent to her low back work injuries of April 8 and/or September 25, 2008.
Upon her relocation to Fergus Falls, the employee began a job as a personal care attendant at Accra Home Care Services on October 15, 2010. By October 21, 2010, Dr. Schmidt’s records indicate that, while she was somewhat more depressed and receiving further medication, the employee’s progress toward her goals was stable. She had no negative feelings toward her husband, believing that things were getting resolved, and the employer and insurer filed a medical response denying liability for any claimed consequential psychological condition.
On November 2, 2010, the employee was referred by the emergency department at Lake Region Healthcare for hospitalization for depression, for symptoms including thoughts of suicide. The emergency department admission record indicated that she had moved out of her family home, that she was drinking excessively in bars, and that marriage counseling efforts were not going well. In her assessment the following day, Ms. Mitchell noted that the employee’s “mood changed noticeably about two years ago when she was forbidden to continue in a job that she enjoyed.” Ms. Mitchell’s discharge summary about nine days later indicates that
[t]he primary symptoms of mood and conduct disorder that were less promin[e]nt at discharge had followed loss of employment and had not been observed before. Psychosocial stressors of note before loss of employment included: foreclosure of home, husband’s loss of work with related pain and irritable mood, consequent constant family conflict.
On December 8, 2010, the employee underwent a diagnostic assessment for counseling with Lutheran Social Services. The report of that assessment asserts in part that the employee’s depression “[s]tarted when she couldn’t work. She has always worked and has been a hard worker. Also had back pain.”
On December 23, 2010, Ms. Mitchell issued a report to the employee’s attorney, in which she stated in part as follows:
While there were certainly stressful conditions prior to [the employee’s] restriction from all work related to her April 8, 2008 and September 25, 2008 injuries, being told that she could no longer return to work was a critical event in [the employee’s] life. I had opportunity to observe [the employee] when she accompanied her husband to his psychiatry appointments before she was restricted from work, and after she was restricted from work and lost her job. I noted a significant change in affect after that job loss.
(Underscoring in original.) Later in that same report, Ms. Mitchell goes on,
The severe psychosocial stress level from no income, continued threat of loss of their home, limited ability to engage in normal daily activities, and the conflict within her household certainly affected her ability to adjust to the change, but [the employee] had been taking these stressors in stride until she herself, was unemployed.
(Underscoring in original.) Subsequent to this report, on January 6, 2011, the employee reported to her QRC that her work at Accu Care was as much as she could handle, and her rehabilitation services were discontinued.
On January 19, 2011, the employee was evaluated for the employer and insurer by psychologist Dr. Stanley Ferneyhough. In his report on February 7, 2011, Dr. Ferneyhough opined that the employee’s clinical history did not support her claim of a psychological injury consequent to her work injuries. He acknowledged that she had many mental health issues, but he opined that those conditions were not caused or contributed to in any way by the work injuries at issue. The doctor suggested that the employee’s drug abuse, her failed marriage, her children’s decision to live with their father, and significant other problems regarding her children were the principal causes of the employee’s psychological condition and that that condition was not substantially contributed to by her 2008 work injuries. On March 2, 2011, after reviewing additional records, Dr. Ferneyhough issued a supplementary report, in which he reiterated that the employee’s mental health diagnoses were not causally related to her work injury or related physical disability.
The matter came on for hearing on March 3, 2011. Issues at hearing were whether the employee had sustained an injury in the nature of depression consequent to her low back work injuries of April 8 and September 25, 2008, and whether she was therefore entitled to payment of psychological and psychiatric treatment expenses. Evidence admitted at hearing included testimony from the employee, in part that, since her medial branch block procedures, she occasionally feels “pings” in her low back, particularly when she overworks it, but that overall she is much, much better. She testified also that she did not receive any real benefit from her treatment with Dr. Schmidt.
By findings and order filed April 4, 2011, in reliance on the opinion of Dr. Ferneyhough and in rejection of the opinion of Ms. Mitchell, the compensation judge concluded in part that the employee had not proven that she had sustained a compensable depression injury consequent to her work injuries of April 8 and September 25, 2008, or that she was entitled to payment for any medical treatment related to such an injury. The employee appeals.
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.
In reliance on the opinion of Dr. Ferneyhough and in rejection of that of Ms. Mitchell, the compensation judge concluded that the employee had not proven that her 2008 work injuries were a substantial contributing factor in her need for psychological or psychiatric treatment. The employee contends that the compensation judge erred as a matter of law in accepting the opinion of Dr. Ferneyhough, both on grounds of its omission of certain information and on grounds of the accuracy of the facts it included, noting that she objected at hearing to receipt of the opinion into evidence on foundational grounds but was overruled by the compensation judge. She contends further that, in addition to erring in accepting the opinion of Dr. Ferneyhough, the judge herself made mistakes of fact in concluding that the employee’s work-related injuries were not a substantial contributing factor in the development and treatment of the employee’s psychological condition. We are not persuaded.
1. Foundation and Factual Accuracy of Dr. Ferneyhough’s Opinion
The employee asserts that “[t]he most glaring error made by the Psychologist Ferney[h]ough in reaching his conclusion is his failure to address the fact that [the employee] first sought medical care for her depressive symptoms on November 13, 2009,” contending that this omission “is fatal to his expert opinion.” Generally speaking, flaws in the foundation for an expert opinion are normally less about the omission of certain specific pieces of information than they are about reliance on information that is patently false or inaccurate. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (“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”); Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994) (while adequate foundation is necessary for a medical opinion to be afforded evidentiary value, the expert need not be made aware of every relevant fact).
In this case, it is evident that Dr. Ferneyhough’s evaluation was both thorough and detailed, including as it did (1) a review of the records of the employee’s treatment at eight different facilities, including her treatment at the Fergus Falls Medical Group, where she treated with Dr. Lindholm on November 13, 2009, (2) a face-to-face interview with the employee for over two hours, and (3) over two hours of testing. Nor is it dispositive that Dr. Ferneyhough, having apparently reviewed Dr. Lindholm’s November 13, 2009, records, did not find it necessary to address those records. Cf. Rothwell v. State, Dep't of Natural Resources, slip op. (W.C.C.A. Dec. 6, 1993) (a compensation judge has no obligation to acknowledge specifically every item of medical evidence considered). Particularly in light of the fact that that November 13, 2009, appointment was, after all, over a year after the last of her work injuries and less than eight months, in fact, before she was back to work at other employment, we conclude that Dr. Ferneyhough’s opinion does not fail on grounds that he did not address the fact that the employee first sought medical care for her depressive symptoms on November 13, 2009.
In addition to arguing this omission in the opinion of Dr. Ferneyhough, the employee goes on to assert that “multiple factual statements in Psychologist Ferney[h]ough’s report upon which he relied in reaching his conclusion are inaccurate.” As examples of such inaccuracies, the employee suggests that the doctor presumed the following: (a) that the employee’s depression started in 2010, about which the employee states, “Nothing could be further from the truth.”; (b) that following an affair with her employer’s brother in the fall of 2010, the employee lost her job with Accra Care, which the employee asserts is incorrect, since the employee continues to work for Accra Care; (c) that two of the employee’s older children had undergone chemical dependency treatment, which the employee alleges is not factually correct; (d) that the employee was engaged in drug abuse both before and after her 2008 work injuries, which the employee contends is untrue, her only use of unauthorized drugs since her early twenties having been some marijuana seven years ago on her birthday; (e) that all but one of the psycho-social stressors identified by the doctor occurred in 2010, apparently ignoring stressors at work closer to the time of the work injury; (f) that bipolar disorder is one of the employee’s diagnoses, while nowhere in any medical records is there support for such a diagnosis; and (g) that differences in the employee’s leg lengths might be a source of the employee’s low back and leg pain, notwithstanding a settled finding that the employee’s low back condition and symptoms are work-related.
Even were we to accept that each of these inferences by the employee about Dr. Ferneyhough’s perceptions and their inaccuracy is itself accurate, we cannot conclude that any of them, either individually or as a group, rises to the level of seriously undermining either the foundation for the doctor’s opinion or that opinion’s credibility. While the relevance of each of the referenced facts is perhaps arguable, none appears to us to be dispositive of the issue before either Dr. Ferneyhough or the compensation judge - - the directness of the causal relationship between the employee’s physical work injury and her subsequent psychological problems. We conclude that the compensation judge’s reliance on the expert opinion of Dr. Ferneyhough was not unreasonable and is not a basis for reversal. 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.
2. Other Factual Errors in the Judge’s Findings
At Finding 11, the compensation judge concluded that, “[b]ased upon a preponderance of the evidence, the employee has not established that the 2008 work injuries were a substantial contributing factor in the need for treatment she received for a psychological or psychiatric condition.” In her memorandum, the compensation judge explained that, in her report dated December 23, 2010, on which the employee relies, the employee’s medical expert, Ms. Mitchell,
does not center on the work injury itself, but on the [employee’s] job loss. Ms. Mitchell’s report is not convincing that the work injury was a substantial contributing factor to the employee’s diagnosed mental health condition, when viewed in conjunction with all of the other stressors in the employee’s life.
In her brief, the employee cites several past decisions of this court and the supreme court, which she contends support her position that the judge’s finding and explanation are factually incorrect, contending that “[t]he only reason that [the employee] lost her job at [the employer] was the work related back injuries, subsequent pain, and ongoing physical restrictions imposed by her treating doctors for those work injuries.” We are not persuaded on this issue either.
What appears to have been the basis of compensation in the cases cited by the employee was not the loss of a job or the diminished self esteem stemming from a lesser paying job but the chronic pain with which the employee had to deal with in the context of those stresses. In the present case, the judge found no evidence of a significant ongoing pain pattern regarding the employee’s low back. While acknowledging the psychological distress often associated with pursuing a workers’ compensation claim, the judge correctly noted that disability related to such distress, as opposed to disability related to the work injury itself, is generally not compensable. See, e.g., Hendrickson v. Geo. Madsen Constr. Co., 281 N.W.2d 672, 31 W.C.D. 608 (Minn. 1979). She reasonably concluded also that Ms. Mitchell’s causation opinion, centered as it was on the employee’s job loss, did not convincingly establish that the employee’s work injury was a substantial contributing factor in the employee’s diagnosed mental health condition. This was especially true when viewed in the context of all of the other stressors in the employee’s life. As this court explained in Melartin v. Mavo Sys., Inc., intervening non-medical factors separating the personal injury from the claimed compensable consequence may render the claimed consequence too remote to be compensable. “Where the personal injury is not the medical cause of the claimed consequence, it is less likely the claimed consequence is compensable.” Melartin v. Mavo Sys., Inc., 65 W.C.D. 405,414 (W.C.C.A. 2005). In the present case, the judge reasonably concluded that “it cannot be concluded, without more convincing explanation, that [the intervening non-medical stressors in the employee’s life] were not the primary stressors in her life, rather than the work injury.”
We conclude that it was factually reasonable and legally proper for the judge to conclude in her memorandum that the employee’s position centers not directly enough on the work injury itself but on the employee’s job loss. On that basis, we affirm the compensation judge’s conclusion in Finding 11, that, “[b]ased upon a preponderance of the evidence, the employee has not established that the 2008 work injuries were a substantial contributing factor in the need for treatment she received for a psychological or psychiatric condition.” See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 See Dotolo v. FMC, 28 W.C.D. 205, 375 N.W.2d 25 (Minn. 1985) (the employee’s work-related physical condition of tinnitus led to the development of depression); Miels v. N.W. Bell Telephone, 37 W.C.D. 164, 355 N.W.2d 710 (Minn. 1984) (the employee’s extreme pain and despair resulted in his severe mental derangement); Reyes v. Walmart, 61 W.C.D. 835 (W.C.C.A. Sep. 2001) (the employee was disabled from working by the chronic pain that developed from his physical injury); Boschee v. Edina Care Ctr., 57 W.C.D. 180 (W.C.C.A. 1997) (the employee’s major diagnosed depression was caused by a somatoform pain disorder); Luna v. Wilson Foods, slip op (W.C.C.A. Apr. 3, 1998) (the employee’s chronic pain was so severe that the employee would request that someone shoot him to put him out of his misery); Danielson v. Range Reg’l Health Servs., No. WC07-272 (W.C.C.A. Jun. 3, 2008) (the employee’s shoulder injury resulted in chronic impingement and eventually three additional surgeries).