EVARISTO TREVINO, Employee, v. HOLTMEIER CONSTR., INC., SELF-INSURED/THE BUILDERS GROUP/MEADOWBROOK INS. GROUP, Employer/Appellant, and MINNESOTA DEP’T OF EMPLOYMENT & ECON. DEV., MANKATO CLINIC, PAR, INC., and ORTHOPAEDIC & FRACTURE CLINIC, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 19, 2011
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s determination that the employee developed complex regional pain syndrome [CRPS] as a substantial result of his work injury.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the award of temporary total disability benefits where the employee was not released to return to work by his treating doctors.
PERMANENT PARTIAL DISABILITY. An award of minimally ascertainable permanent partial disability may be made when the employee has not reached maximum medical improvement [MMI].
Determined by: Stofferahn, J., Milun, C.J., and Wilson, J.
Compensation Judge: Bradley J. Behr
Attorneys: Kristina Lund Alcantara, Robichaud, Anderson & Alcantara, Minneapolis, MN, for the Respondent. Timothy P. Jung, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for the Appellant.
DAVID A. STOFFERAHN, Judge
The self-insured employer appeals from the compensation judge’s determination that the employee developed Complex Regional Pain Syndrome [CRPS] as a substantial result of his work injury and from the compensation judge’s award of temporary total disability and permanent partial disability benefits. We affirm.
Evaristo Trevino, the employee, sustained an admitted injury to his left wrist while working as a laborer for Holtmeier Construction, Inc., the employer, on May 13, 2008. The employee was using a sledgehammer to break up concrete when he felt pain in his left wrist.
The employee was at that time living and working in the Mankato area and he sought medical attention at Now Care Medical Center in Mankato on May 14. He saw Physician’s Assistant Robin Eckstrom with complaints of left wrist pain for “the last three or four days.” No specific incident was reported but it was noted that he worked in construction and did “a lot of shoveling, mixing of mud, et cetera.” Tenderness was found in the radial aspect of his left wrist and tendonitis was assessed. He was given a splint, a prescription for pain relievers, and work restrictions. The employee testified he returned to work at his regular job.
The employee returned to Now Care on May 20 for a recheck of his condition. He reported his employer had not been following his restrictions and his symptoms were worse. Tenderness with palpation and range of motion testing was noted on exam. The diagnosis continued to be tendonitis. The employee was given a Medrol Dosepak and instructed to continue to use ibuprofen he had been prescribed. The work restrictions were continued and the employee was advised to return on May 28.
In follow-up on May 28, the employee reported improvement in his pain but stated he was still having increased pain at work. Previous treatment and restrictions were continued and the employee was advised to return in seven days. It was felt that a referral to physical therapy might be considered at that time if there was no improvement in the employee’s condition.
When the employee returned on June 7, 2008, the history taken stated, “He states that it is much better. He does not have any pain.” The employee was released to return to work with no restrictions. He returned on June 16, however, and reported increased pain in his left wrist after pulling a ladder out of a ditch. The assessment was made of a re-exacerbation of his tendonitis and the employee was referred for physical therapy.
QRC Debra Michels was asked to provide disability case management services to the employee and began working with him on June 17, 2008.
On June 18, 2008, the employee was evaluated at Physical Therapy Sports Medicine at the Orthopaedic & Fracture Clinic in Mankato. Physical therapy for three times a week for the next two weeks until his recheck appointment was recommended. The records indicate the employee participated in the recommended physical therapy program.
The employee was seen in follow-up by Dr. John Springer on July 14, 2008. His diagnosis was “left wrist deQuervain’s stenosis tenosynovitis.” Dr. Springer felt this condition “should resolve with a period of rest and range of motion and strengthening through physical therapy.” Instead of formal physical therapy, home exercises were recommended. The employee was also given work restrictions of no lifting more than five pounds with his left hand. When the employee returned on July 31, Dr. Springer advised an MRI and stated, “I am not sure why he’s having such ongoing discomfort.”
Because the employee had some metal in his left hand from an earlier injury, the radiologist concluded an MRI would be unsafe and conducted a CT scan on August 20, 2008. The CT scan was read as showing a “very subtle complete fracture through the most distal lateral aspect radial styloid with early subchondral sclerosis.” Dr. Springer concluded “going from the report, this fracture could be treated conservatively.” He told the employee he did not need to use a splint and could lift up to twenty-five pounds with the left hand but to do no digging or shoveling with that hand.
The employee saw Dr. Springer again after having returned to work, working eleven hours a day with increased pain. Dr. Springer concluded that the “non-displaced radial styloid fracture noted on CT scan appears to be healing fine.” Work restrictions were continued and Dr. Springer noted “I stressed to him that if he has unable to handle the rigors of the construction trait [sic] then he may be forced to seek other forms of employment.” When the employee returned on October 3, Dr. Springer increased the lifting limit on his left hand to thirty five pounds.
The employee was laid off from his job on October 26, 2008, when the construction season ended. He has not worked anywhere since then. QRC Michels discontinued services to the employee on December 17, 2008.
Dr. Springer saw the employee again on December 2, 2008. In the history on that date, he stated that the employee “has no complaints of pain or discomfort and his wrist feels normal.” The employee was released to return to work with no restrictions and told to see Dr. Springer on a PRN basis. Dr. Springer also concluded the employee was at maximum medical improvement [MMI] and had no permanent partial disability. The employee testified at the hearing however that he did not believe he was able to work without restrictions at that time and that he continued to have pain in his wrist.
The employee had no medical treatment for his work injury until he returned to Dr. Springer on April 23, 2009, because he was continuing to have pain in his left wrist. Dr. Springer’s physical exam did not show any abnormal findings. Dr. Springer assessed “persistent tendonitis about the left wrist.” He recommended continued exercises.
QRC Michels instituted statutory rehabilitation services for the employee in May 2009. She requested a second opinion for the employee with Dr. Edwin Harrington and the employee saw Dr. Harrington on May 18, 2009. Dr. Harrington found diffuse palpable tenderness and limited range of motion. Dr. Harrington recommended an MRI and placed a lifting restriction of twenty pounds on the employee’s use of his left hand.
The MRI was done on May 26, 2009, and was read as showing “multiple ganglion-type cysts along the radial side of the wrist, largest 9.2 mm. This can be a sequelae of trauma or secondary to chronic repetitive trauma.” After reviewing the MRI, Dr. Harrington recommended surgery to remove the ganglion cysts. He stated “this has a 50-70% chance of resolving his symptoms.”
Dr. Harrington performed surgery on June 22, 2009, an excision of “left volar wrist ganglion” and a deQuervain’s release. The employee was taken off work following his surgery. At follow-up four days after the surgery, the employee was prescribed a wrist cock-up splint. The employee was continued off work. The employer began payments of temporary total disability benefits as of the date of surgery.
At the end of July 2009, the employee selected Sara Holcomb from Professional Associates of Rehabilitation [PAR] to be his QRC. Thereafter, Ms. Holcomb accompanied the employee to medical appointments and continued to provide rehabilitation services.
The employee had a number of physical therapy sessions from July 2 through July 28, 2009. He returned to Dr. Harrington on July 30 and advised him that he continued to have left wrist pain and that he felt the therapy had not been of any help. Dr. Harrington found limited motion of the wrist due to pain and some mild swelling. Additional physical therapy was advised.
The employee had nine more physical therapy sessions and then saw Dr. Harrington on September 9, 2009. He told Dr. Harrington he continued to have severe pain. Dr. Harrington found “pain out of proportion to physical findings” and he noted that “his response to pain carries a poor prognosis.” Additional physical therapy focusing on “desensitization” was recommended.
The employee had nine more physical sessions and then saw Dr. Harrington on October 21, 2009. The employee complained of pain and swelling but Dr. Harrington found no swelling on exam. Dr. Harrington noted mild atrophy in the left arm but stated “there is no sign of reflex sympathetic dystrophy.” Dr. Harrington discussed treatment options with the employee and his QRC and recommended a pain clinic. Dr. Harrington concluded “he is still disabled from work unless there is light-duty work available.” Dr. Harrington completed a work ability report on that date indicating the employee was unable to work.
The employee’s pain clinic appointment had been scheduled for November 18 but had to be rescheduled because of a physician’s illness. In the interim, he returned to Dr. Harrington on December 2. Dr. Harrington found tenderness in the wrist and increased skin warmth with “profound sweating on the volar surface of the left palm and hand.” Dr. Harrington diagnosed “reflex sympathetic dystrophy [CRPS] left hand.”
The employer had the employee evaluated on November 3, 2009, by Dr. Jeffrey Husband. The symptoms the employee reported to Dr. Husband included “a sensation like a tendon is being stretched, from his thumb up to his forearm. He has numbness and tingling in dorsum of the thumb and index finger with sharp knife-like hand pain that increases with range of motion. At times, he has sudden radial sided wrist pain, which radiates proximally. The pain increases with thumb range of motion, lifting, gripping, and twisting.” After conducting a physical examination and reviewing the medical records, Dr. Husband concluded that the employee’s work injury in May 2008 had resolved as of December 2, 2008, when the employee was released to return to work without restrictions. Dr. Husband also concluded the employee was at MMI and was entitled to 7.5% permanent partial disability for limited wrist motion under Minn. R. 5223.0470, subp. 4.A.(2)(c). The employer discontinued temporary total disability benefits on the basis of Dr. Husband’s report and thereafter refused to pay for the employee’s medical treatment.
The employee had a pain consultation at the Mankato Clinic on December 8, 2009, with PA-C Todd Leech. On exam, positive Phalen and Tinel signs were found, marked tenderness to palpation over the surgical incision site was noted, and discoloration and abnormal sweating were observed. The assessment indicated that “this is suggestive of complex regional pain syndrome.” A number of treatment options were considered, including a neurological evaluation, a prescription for tramadol, and the possibility of cervical stellate ganglion blocks.
Dr. William Laney at Orthopaedic & Fracture Clinic saw the employee on December 22, 2009. He found “significant sweating in the palm of the left hand compared to the right.” Dr. Laney diagnosed “reflex sympathetic dystrophy [CRPS] left hand” and recommended that the employee should have injection therapy as recommended by the pain program at Mankato Clinic. Dr. Laney continued to restrict the employee from all work.
There was a delay in the employee being able to see the neurologist and while waiting, the employee returned to Dr. Harrington on January 22, 2010. The examiner reported “increased sweating is evident (throughout entire hand c/w RSD).” The left hand was also “exquisitely tender.” Dr. Harrington asked another physician to do stellate ganglion blocks. She agreed to do so but recognized, as did Dr. Harrington, that “pain clinic approach is too slow and not what I requested.” Dr. Harrington continued to restrict the employee from all work and on February 11, 2010, completed a healthcare provider report stating that the employee was not at MMI.
The employee, accompanied by his QRC, saw neurologist Dr. Kimberly Aho on March 1, 2010. After reviewing the employee’s history and performing an examination, she recommended an EMG to evaluate possible peripheral nerve damage. The EMG was done on April 5, 2010, and was read as normal.
The employee moved to Colorado in April 2010 to be closer to his family and because he had no income. He received no medical care there, generally because he had no insurance and could not afford treatment.
The employee returned to Minnesota in August 2010 and saw Dr. Harrington on August 3. On exam, profuse sweating in his left palm along with “horrible” wrist motion was found. No swelling was seen. Dr. Harrington stated that the employee does “have clinical signs of reflex sympathetic dystrophy.” He continued to recommend a pain clinic and stellate ganglion blocks.
The employee also met with PA-C Leech at Mankato Clinic on August 11, 2010. They discussed treatment options for the employee. Dr. Harrington’s recommendation of stellate ganglion blocks was reviewed. PA-C Leech stated in his chart note “in the past this has been the recommendation of Mankato Pain Clinic and Spine Center; however, there have been issues with workers’ compensation claim denial.” The employee received no treatment for his condition at that time.
At the request of the employee’s attorney, he was evaluated by Dr. R. Wynn Kearney at the Orthopaedic & Fracture Clinic on August 26, 2010. Dr. Kearney reviewed the employee’s medical records, examined the employee, and generated a seven page report dated November 8, 2010. Dr. Kearney noted
His left hand and wrist demonstrates slightly shiny skin. This is true when compared with the right hand. There is mild edema which is demonstrated by visual observation and also with measurement as noted below. He is warmer and moister on the left hand than he is on the right hand and that is true of the palm, the wrist, and the fingers compared with the right hand.
His impression was:
1) Ganglion cyst secondary to direct injury.
2) De Quervain’s stenosing tenosynovitis related to same injury.
3) Complex regional pain syndrome.
4) Reflex sympathetic dystrophy left hand and wrist.
5) Diffuse radial left wrist pain.
6) Causalgia of the left upper extremity involving the hand and wrist.
Dr. Kearney was of the opinion that the employee was at MMI, “at least his condition appears to have stabilized.” He concluded that the employee’s “continuing symptoms, findings, and treatment at this time was necessitated by the work-related injury that occurred on or about May 11, 2008.” Dr. Kearney opined that the employee was able to return to work using his left hand and wrist only as a helper for light activities and that the employee had a total permanent partial disability of 26.14%. The rating was based on the schedule for reflex sympathetic dystrophy as well as loss of range of motion in the wrist and weakness with pinch and grasp involving the forearm.
Dr. Husband prepared a supplemental report of February 9, 2011, after reviewing additional medical records, including Dr. Kearney’s report. He stated that he had “concerns about the diagnosis of complex regional pain syndrome” but that he could not “completely exclude” that diagnosis, “although I think it is unlikely.” In any event, he did not believe the employee’s condition was related to the May 2008 work injury, noting that the employee did not have CRPS when he saw him on November 3, 2009.
The employee’s claim petition was heard by Compensation Bradley Behr on February 7, 2011. Issues for determination at the hearing were 1) the nature and extent of the employee’s May 2008 work injury and specifically whether the employee developed CRPS or RSD as a result of the injury; 2) the employee’s claim for temporary total disability from May 18, 2009, to June 21, 2009, and November 11, 2009, to January 9, 2011; 3) whether the employee had reached MMI from his work injury; 4) the extent, if any, of permanent partial disability; 5) whether the treatment by Mankato Clinic, Mankato Surgery Center, and Orthopaedic & Fracture Clinic were related to the work injury as well as reasonable and necessary; 6) the employee’s entitlement to rehabilitation and payment of the bill from PAR. The employee and QRC Holcomb testified at the hearing; all other evidence was submitted by report.
The compensation judge issued his findings and order on March 29, 2011. He determined that the employee suffered from CRPS as a substantial result of his May 13, 2008, work injury; that the employee was entitled to temporary total disability benefits for the periods claimed and that he was medically disabled due to left wrist pain from November 16, 2009, through the date of hearing; that the employee had not reached MMI as of the date of hearing; that the employee was entitled to permanent partial disability for the loss of range of motion and ulnar deviation of the left wrist but was not entitled to permanent partial disability for the CRPS since recommended treatment had not yet been provided; that the medical treatment at issue was causally related to the work injury as well as reasonable and necessary; and that the employee is entitled to rehabilitation and the bill for rehabilitation services from PAR should be paid. The employer appeals.
1. Nature and Extent of Injury
The compensation judge determined that the employee developed CRPS as a substantial result of the May 13, 2008, work injury. The employer on appeal argues that this finding is not supported by substantial evidence and is contrary to the rules and to case law.
In his memorandum, the compensation judge thoroughly set out his review of the evidence on this issue. He noted that a number of the employee’s healthcare providers had diagnosed CRPS and “cited objective findings, including increased warmth, skin color changes, swelling, reduced range of motion, skin shininess, and excessive sweating.” He also commented that the IME, Dr. Husband, did not diagnose CRPS but did not provide “an alternative explanation” for the employee’s symptoms. The compensation judge stated he found the opinions of Dr .Harrington, Dr. Laney, Dr. Kearney, and PA-C Leech to be persuasive on the diagnosis and on the causal relationship between this condition and the employee’s work injury.
In response, the employer in its brief refers to two articles from medical periodicals which discuss methods of diagnosing CRPS. In doing so, the employer apparently seeks to challenge the diagnostic approach used by the employee’s providers and relied upon by the compensation judge. Since this argument is essentially cross-examination of the employee’s health providers, the material should have been presented to the compensation judge and argued at the hearing. It is not the role of this court to weigh the persuasiveness of medical evidence and we defer to the compensation judge’s consideration of the evidence as presented at the hearing on this issue.
The employer also argues the diagnosis of CRPS in this case is not consistent with the requirements of Minn. R. 5223.0410, subp. 7. That rule sets out criteria to be applied in reaching a diagnosis of RSD and similar conditions “for purposes of rating under this part.” No award of permanent partial disability for CRPS or RSD was made here and the rule cited by the employer does not apply to the present case.
The compensation judge’s determination on this issue is affirmed.
2. Temporary Total Disability
The compensation judge awarded temporary total disability benefits from May 18, 2009, when the employee saw Dr. Harrington through June 21, 2009, the day before his surgery and from November 16, 2009, when benefits were discontinued because of Dr. Husband’s opinion to January 9, 2011, when the employee apparently reached the end of his 104 week entitlement to temporary total disability benefits. The employer argues that the employee was not entitled to temporary total disability benefits because he failed to engage in a diligent job search.
QRC Deborah Michels worked with the employee when rehabilitation services were reinstated in May 2009. Ms. Michels noted in her initial report of May 11, 2009, that the employer had not brought the employee back to work after the construction season started. In her next report written on June 9, 2009, Ms. Michels reported that the employee saw Dr. Harrington on May 18, had an MRI on May 26, visited Dr. Harrington again on May 28, was scheduled for surgery on June 8 but had surgery postponed and was now scheduled for surgery on June 22. There was no indication in the QRC’s report that the employee was expected to engage in job search during this time period.
Given this evidence, we conclude the compensation judge did not err in concluding that the employee was temporarily totally disabled from May 18, 2009, through June 21, 2009.
The next period of temporary total disability at issue was from November 16, 2009, through January 9, 2011. Benefits were discontinued in November 2009 on the basis of Dr. Husband’s opinion as set forth in his November 10, 2009, report.
The employee was treating with Dr. Harrington in November 2009. He had seen Dr. Harrington on October 21 and was taken off work at that time. On December 2, Dr. Harrington diagnosed CRPS for the first time and continued the employee’s absence from work. By that time, the employee was working with a different QRC, Sara Holcomb, and she continued to be his QRC through the date of hearing.
At no time after November 16, 2009, had Dr. Harrington released the employee to work. As a result, rehabilitation, as reflected in the QRC’s reports and filings as well as her testimony, did not include job search but was aimed at assisting the employee in his medical treatment.
The employer, however, focuses on a comment made by Dr. Harrington on October 21, 2009, in his chart notes where he stated that the employee “is still disabled for work unless there is light duty work available.” The employer concludes from this statement that Dr. Harrington released the employee to work and since the employee did not look for work after that date, he was no longer entitled to benefits.
Weighing the medical evidence and reaching conclusions as to the ability of the employee to be employed is a determination to be made by the compensation judge after considering the evidence. The compensation judge here accepted the work ability reports of Dr. Harrington dated October 21, 2009, December 2, 2009, December 22, 2009 and January 22, 2010, that the employee was not able to work. He also accepted the opinions of Dr. Laney as set out in his chart note of December 22, 2009, that the employee was not able to work.
The medical evidence as well as the testimony of the employee and the QRC provide substantial evidentiary support for the compensation judge’s determination that the employee was unable to work during the period claimed and he was entitled to temporary total disability benefits. His decision on this point is affirmed.
3. Permanent Partial Disability
At hearing, the employee claimed permanent partial disability sustained as a result of CRPS. The compensation judge denied this claim, finding that “since the employee had not yet received the recommended treatment in the form of stellate blocks, he did not yet qualify for permanent partial disability rating for that condition.” The compensation judge also found that the employee had a “demonstrable loss of extension of the left wrist” as a result of the injury and was entitled to 7.5 % permanent partial disability under Minn. R. 5223.0470, subp. 4.A.(2)(c), and that the employee had a “demonstrative loss of ulnar deviation” and was entitled to 2% permanent partial disability under Minn. R. 5223.0470, subp. 4.B.(1)(b). The employer appeals from this award.
On appeal, the employer argues that the award of permanent partial disability for the employee’s loss of range of motion in the left wrist is premature. The employer contends that since the compensation judge found the employee was not at MMI because of the need for treatment for his CRPS, the treatment might also improve the left wrist range of motion and, as a result, reduce the permanent partial disability sustained by the employee. We are not persuaded.
There is no statutory provision which prohibits an award of permanent partial disability before an employee reaches MMI. Instead, Minn. Stat. § 176.021, subd. 3, provides that “if doubt exists as to the eventual permanent partial disability, payment should be made when due from the minimum permanent partial disability ascertainable, and further payment shall be made upon any later ascertainment of permanent partial disability.”
For injuries occurring between July 1, 1993, through August 8, 2010, permanent partial disability for CRPS is evaluated under Minn. R. 5223.0400, subp. 6. That rule establishes the extent of permanent partial disability by referring to Minn. R. 5223.0540, which sets levels of ratings for amputations of the upper extremities. Neither of those rules refer to Minn. R. 5223.0470, the rule used to evaluate the employee’s loss of wrist function and the rule under which the compensation judge awarded permanent partial disability. We find no provision in the rules, and the employer provides no specific cite, which uses wrist range of motion as a factor to be considered in evaluating permanent partial disability for CRPS.
The compensation judge’s award of permanent partial disability is based on substantial evidence, the well-founded opinion of Dr. Kearney and, with respect to loss of extension, the opinion of Dr. Husband as well. The compensation judge’s decision on this issue is affirmed.
 There is some question about the precise date of this incident with some records and the employee’s testimony referring to an injury on May 11, 2008. We use the date adopted by the compensation judge.