JUDITH BOWMAN, Employee/Appellant, v. HEALTHEAST BETHESDA REHAB. HOSP., SELF-INSURED/SPECIALTY RISK SERVS., INC./SEDGWICK CMS, Respondent.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 28, 2012
CAUSATION - PRE-EXISTING CONDITION. Where there was evidence in the medical record that the employee’s ulnar nerve condition was the result of pre-existing arthritis and not the result of the work injury, the compensation judge’s conclusion that the cause of the employee’s wage loss, need for rehabilitation, and need for medical treatment was unrelated to her work injury was not clearly erroneous or unsupported by substantial evidence.
Determined by: Hall, J., Milun, J., and Stofferahn, J.
Compensation Judge: Peggy A. Brenden
Judith Bowman, Pro Se Appellant. Karen M. Charlson, Felhaber, Larson, Fenlon & Vogt, Minneapolis, MN, for the Respondent.
GARY M. HALL, Judge
The employee appeals from the compensation judge’s conclusion that the employee’s work injury was not a substantial contributing factor in the wage loss, rehabilitation, or medical expenses claimed by the employee in this action. We affirm.
Judith Bowman [the employee] has been subject to several variously disabling conditions of the right wrist and left wrist and right arm since at least September of 2004. On September 8, 2004, on referral from Dr. Elizabeth Wegner, she saw hand surgeon Dr. Paul Donahue concerning a history of a painful mass of fluctuating size that had developed on her right wrist over the course of the past two weeks. Examination revealed the mass to be a ganglion cyst, and Dr. Donahue recommended continued splinting and observation for a month, anticipating surgery only if the cyst increased in size and pain, noting that there was a 7% risk of recurrence with surgery. When the cyst had grown larger and more painful by November 22, 2004, Dr. Donahue planned surgical excision, which he performed on December 2, 2004. The employee evidently recovered well from the surgery, and she was released to return to work on December 24, 2004, although some aching in the wrist continued through at least January 12, 2005.
On March 14, 2006, the employee saw Dr. Donahue with “a new problem.” About a week earlier, the employee had had a sudden onset of ulnar-sided right wrist pain, which, following an x-ray, Dr. Donahue concluded was stemming from “arthritic joint [disease] involving the lunotriquetral joint.” Dr. Donahue administered a cortisone injection and scheduled a recheck in four weeks. The injection helped for only a day or two, and on March 27, 2006, Dr. Donahue ordered an MR/arthrogram, together with physical therapy and a prescription of a more rigid splint for work, and he restricted to ten pounds the employee’s lifting with her right hand. The MR/arthrogram was read to reveal a tear of the scapholunate ligament, a possible tear of the lunotriquetral ligament, and a possible partial tear of the triangular fibrocartilage, and on April 11, 2006, Dr. Donahue referenced what he described as an “anterosseous cyst of the triquetrum,” which he concluded was “causing the most of [the employee’s] symptoms.” The doctor diagnosed “LT ligament tear with impingement symptoms, triquetral cyst,” noting that the employee “is not able to work at the present time as she is not allowed back to work with restrictions.” On May 25, 2006, the employee underwent a diagnostic arthroscopy of her right wrist, together with an ulna-shortening osteotomy in her right arm, which entailed installation of a locking plate. Follow-up included application of a cast on June 5, 2006, which was subsequently removed on July 13, 2006.
On August 16, 2006, the employee reported new symptoms of swelling and pain in her left wrist due to an apparent ganglion cyst in that wrist, and Dr. Donahue injected the left wrist on that date and eventually, on September 15, 2006, performed an excision of the cyst. On December 13, 2006, the employee reported some mildly increased pain on the ulnar side of her right wrist, other pain on the radial side of her right hand, and some “burning pain” in the ulnar styloid area. Dr. Donahue presumed that the ulnar-sided pain was due to irritation from the installed plate, noting expressly that the employee “will need to have the plate removed next spring.” On a follow-up visit to Dr. Donahue on February 14, 2007, the employee reported only mild continuing pain in the ulnar border of her right forearm, and she had full wrist extension and ulnar deviation without pain in the extremity. Her grip strength was also fairly strong, she had full pronation and supination, and her x-rays revealed her osteotomy to be well healed, but, because the employee was still having tenderness over the distal ulna, Dr. Donahue recommended removal of the surgically installed plate in “several months.” Meanwhile, the doctor released the employee, who had been off work entirely for about eleven months, to return without restrictions to her job as a registered nurse, planning to see her back again in April “for plate removal in later April or May” “[i]f pain persists.”
About a month later, on March 12, 2007, the employee sustained a work-related injury to the same right wrist while helping to move an obese patient in the course of her work as a registered nurse with Bethesda Rehabilitation Hospital [the employer]. The employee was fifty-three years old on that date, had been back at work for about three weeks, and was earning an average weekly wage sufficient to entitle her to the maximum compensation rate in effect on the date of her injury. Two days later, on March 14, 2007, the employee returned to see Dr. Donahue in follow-up on her ulna-shortening osteotomy, which x-rays revealed to be “healing quite well” with “no evidence for nonunion.” Dr. Donahue diagnosed the recent injury as a wrist “contusion,” restricted the employee from lifting over fifteen pounds with her right hand “for the time being,” and planned for removal of the ulnar plate in late May. The self-insured employer acknowledged liability for the contusion and commenced payment of benefits.
On March 23, 2007, the employee was examined by Dr. Terese Shearer regarding her increasing right arm pain, having awakened that morning with “constant throbbing pain” in her arm and with her hand turning purple. Upon examination, Dr. Shearer diagnosed paresthesias and severe right arm pain “with pain symptoms disproportionate to findings,” noting “[q]uestion reflex sympathetic dystrophy.” In a work/activity status report on March 26, 2007, Dr. Donahue still diagnosed the employee’s condition as “ulnar shortening osteotomy of the right wrist” but now checked “yes” as to whether that condition was work related. In his office notes the following day, Dr. Donahue indicated that the employee had full range of motion in her wrist but tenderness on the plate in the ulnar forearm, and he made plans to remove the plate in three weeks’ time.
On April 4, 2007, Dr. Donahue wrote to claims representative Lisa Van Steen, stating that the employee had been having ongoing pain in the ulnar side of her wrist in the area of her implanted plate ever since undergoing the ulna-shortening osteotomy in May of 2006. He went on to state that the employee’s pain “was exacerbated by a work injury on March 14, 2007” but that “[t]he need for plate removal is not related to the work injury of March 14, 2007[;] she was planning to undergo plate removal regardless of this recent injury.” On April 11, 2007, the employee was served with a Notice of Intention to Discontinue [NOID] her temporary total disability benefits, on grounds that Dr. Donahue had determined that her work injury had resolved and that the need for surgical removal of her ulnar plate was not work related.
On May 14, 2007, the employee underwent surgery to remove the plate that had been implanted in the context of her May 2006 ulnar osteotomy, following which she was fitted with a cast and restricted from working for three weeks. On May 17, 2007, an administrative conference was held on the insurer’s NOID, pursuant to which, on May 24, 2007, the insurer’s request to discontinue the employee’s benefits was granted. Recovery from the employee’s plate removal surgery went well, and on June 19, 2007, her cast was removed. Upon follow-up on July 11, 2007, the employee was still having some hypersensitivity around the scar, and Dr. Donahue concluded that, “given her numerous problems with the wrist, she should remain on permanent restrictions to avoid lifting over 20 pounds [with] the right hand. She may need to look for other employment . . . .” A week later, on July 17, 2007, the doctor wrote a brief letter “To Whom It May Concern,” addressed to the employee at her home address, stating that the employee “is presently under work restrictions,” having “been treated for injury of the wrist, which was a work-related injury,” and that “[s]he has undergone surgery for this” and “is still under restrictions due to this injury.”
On September 10, 2007, the employee filed a claim petition, alleging, consequent to her work injury on March 12, 2007, entitlement to temporary total disability benefits continuing from July 11, 2007, compensation for an undetermined amount of permanent partial disability, and rehabilitation benefits.
On September 17, 2007, upon follow-up of her ulna-shortening osteotomy and excision of the wrist ganglion, the employee complained of “diffuse pain in the wrist,” and Dr. Donahue diagnosed “[l]eft [sic] wrist pain, ongoing, status post ulnar osteotomy,” now noting “I think this is secondary to degenerative arthritis developing at the wrist.” He recommended an anti-inflammatory and splinting for any heavy work, indicating further that he did not have any other specific treatments to offer “and certainly would not recommend further surgery for this.” On that same date, the doctor completed a Health Care Provider Report, in which he indicated that the employee had now reached maximum medical improvement, without any permanent partial disability with regard to her condition, which he described as “ulnar impingement syndrome,” checking “Yes” to the query as to whether it was “aggravated or accelerated by the employee’s alleged employment activity or environment.” On November 28, 2007, again in follow-up on the employee’s ulna-shortening osteotomy, Dr. Donahue diagnosed scaphotrapezial joint arthritis, stating “I think this is causing the majority of her symptoms.”
On December 7, 2007, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Mark Fischer. Upon interview of the employee, examination of her medical records, and examination of her physically, Dr. Fischer diagnosed “[d]iffuse right forearm irritation (tentinitis) radial sensory nerve irritation,” with a possible “element of low-grade wrist arthritis as well.” With regard to causation of the employee’s condition, Dr. Fischer stated, “The cause of this severe pain syndrome is unknown. It did begin at the time of her most recent injury but her symptoms are out of proportion to any injury identified. Her symptoms have actually gotten worse since Dr. Donahue removed the plate.” It was Dr. Fischer’s opinion that the employee’s work incident of March 12, 2007, could have caused a sprain/strain type injury to the employee’s forearm or wrist but that there was no evidence that it caused an injury severe enough to be still giving her pain. Dr. Fischer opined further that the employee’s plate removal surgery on May 14, 2007, and any subsequent casting or need for restrictions or treatment at a pain clinic were unrelated to her work injury. The doctor concluded also that the employee had attained maximum medical improvement with respect to her right arm without any evidence of permanent partial disability related to her March 2007 work injury. By the employer’s letter dated January 4, 2008, the employee was served with Dr. Fischer’s December 7, 2007, report opining that the employee had reached maximum medical improvement with regard to her March 2007 work injury.
In the months that followed, the employee began complaining of pain in her left wrist similar to that in her right, together with continuing mild tenderness in the area of her ulna-shortening osteotomy scar. Dr. Donahue diagnosed in part chronic pain with mild osteoarthritic changes and degenerative arthritis and recommended that the employee follow up with a rheumatologist. A cortisone injection on June 2, 2008, brought no improvement, and on August 1, 2008, Dr. Donahue indicated to an insurance adjuster that he had recommended partial fusion of the employee’s right wrist and that, in order to return to employment, she would be restricted permanently to light duty work. By September 22, 2008, with the employee still complaining of ongoing pain also in her left wrist and x-rays revealing arthritic changes bilaterally, Dr. Donahue had made plans for surgery on the right wrist and permanently restricted the employee from working at all with her right hand and from lifting over ten pounds with her left, noting to an insurance adjuster, “I do not believe she is able to resume working as a nurse.” By April 15, 2009, the employee’s bilateral wrist pain had worsened to a level nine on a scale of one to ten, having grown sharp and burning and constant, and ten months later, on February 17, 2010, Dr. Donahue declared the employee’s “[b]ilateral wrist pain” to be of “undetermined etiology.” His diagnosis on August 4, 2010, was of “[b]ilateral arm pain” of “undetermined etiology,” and he recommended that the employee follow up at a pain clinic, stating, “I do not have anything to offer for her” and “[h]er mild osteoarthritic changes in the wrists are not causing her present symptoms.”
The matter eventually came on for hearing on August 3, 2011, with the employee now appearing pro se. The parties stipulated at hearing in part that the employee had sustained a work-related injury to her right wrist on March 12, 2007, with the employer admitting only a temporary injury on that date. Issues at hearing included the employee’s entitlement to certain wage replacement, rehabilitation benefits, and payment of medical expenses consequent to her March 12, 2007, work injury. Evidence admitted at hearing included primarily testimony by the employee and records of her medical treatment dating back to September 8, 2004.
By findings and order filed August 24, 2011, the compensation judge concluded in part that the employee had sustained a work-related contusion on March 12, 2007, that was a substantial contributing factor in the employee’s inability to work from March 14, 2007, through May 14, 2007. The judge concluded also, however, that the surgical removal of the plate in the employee’s right arm and her consequent time off work to recover from that surgery were not related to her March 12, 2007, work injury. The judge concluded further that the employee failed to proved that her March 12, 2007, work injury was a substantial contributing factor in her right wrist condition since the date of her surgery, May 14, 2007. On those findings, the judge concluded finally that the employee had failed to proved that her March 12, 2007, work injury was a substantial contributing factor in the wage loss, rehabilitation, and medical expenses that she was claiming in this action.
In her memorandum, the judge explained that, although the employee was released without restrictions in February 2007, the employee was still having pain and puffiness in her right wrist upon her return to work that month. She explained further that, although the employee’s work injury resulted in an increase in pain, the employee’s heightened pain was not a factor in her May 2007 plate-removal surgery, which had been anticipated in advance of her work injury, and there was no indication that the work injury hastened the need for that surgery or prolonged the period of recovery after it. The judge explained that the medical evidence “strongly suggests” that the employee’s right wrist condition is the result of arthritis or some other unknown cause and that no evidence suggests that the employee’s work injury either caused, aggravated, or accelerated the employee’s symptoms or limitations since May 14, 2007. Finally, noting the employee’s reliance on Dr. Donahue’s September 17, 2007, health care provider report, the judge indicated that she found particularly persuasive the fact that “[t]he injury identified in the Health Care Provider Report is ‘ulnar impingement syndrome’--this is a condition that preexisted the March 12, 2007 work injury,” whereas “[t]he injury sustained on March 12, 2007, was a contusion.” 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]act findings 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 employee contends that the compensation judge erred when she found the employee failed to establish through the medical evidence that the employee’s work injury was a substantial contributing factor in her wage loss, rehabilitation requirements, or medical expenses since May 14, 2007. The employee further contends that the judge failed to consider the medical evidence that the employee’s work injury was a substantial contributing factor in her total claim. First, the employee argues, the judge failed to consider the April 4, 2007, progress note, post-dating her work injury, which specifically noted that her pain in the area of the plate was exacerbated by her March 2007 work injury. Second, the employee argues, the judge failed to consider the statements of Dr. Donahue on July 17, 2007, and September 17, 2007, that indicate that her treatment at those times was due to a work related injury, as well as Dr. Donahue’s diagnosis on August 1, 2008, wherein the doctor indicates that the employee’s osteoarthritis of the right wrist was at that time “traumatic.” The employee maintains that she is entitled to wage replacement, medical expenses, and retraining, in that the February 14, 2007, progress note that preceded her March 2007 work injury anticipated removal of her wrist plate only if her pain persisted, and, she argues, she was essentially pain-free until her work injury. We are not persuaded.
The main issue in the case is whether substantial evidence supports the judge’s finding that the medical records taken as a whole do not support a causal relationship between the employment activities and the right wrist condition. We review the judge’s decision under substantial evidence in view of the entire record as submitted under established legal principles.
The findings of the compensation judge are to be affirmed if they are supported by evidence a reasonable mind might accept as adequate. The WCCA should consider the evidence which supports the compensation judge’s findings, opposing evidence, and evidence from which conflicting inferences can be drawn. The WCCA, however, must give “due weight to the opportunity of the compensation judge to evaluate the credibility of witnesses.” Where more than one inference may reasonably be drawn from the evidence, the compensation judge’s findings shall be upheld. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985) (citation omitted) (quoting Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239-40 (Minn. 1984)).
The employee states the Health Care Provider Report by Dr. Donahue lists the date of injury as March 12, 2007, and specifies the injury was caused, aggravated or accelerated by the employment activities at the hospital. The employee argues that Dr. Donahue’s report is substantial evidence to find the ulnar nerve impingement condition was not a pre-existing condition, but a condition caused by work activities on March 12, 2007. The compensation judge, however, noted in her memorandum that the “medical evidence strongly suggests that the right wrist condition, since recovery from surgery, is the result of arthritis or unknown causes.” The judge further noted that there was no medical support from September 8, 2004 to February 16, 2011 in the medical records from Summit Orthopedics or Metropolitan Hand Surgery Associates to support the causal connection between the condition and work injury. Based on the medical evidence, the judge concluded that the employee’s medical history plainly shows the employee’s condition was present before the March 12, 2007 injury.
Conflicts in expert medical opinions and other reliable evidence must be resolved by the compensation judge. The judge found the injury sustained on March 12, 2007 to be a contusion that did not cause, aggravate or accelerate the employee’s impingement syndrome. The compensation judge found that the evidence failed to establish that the employee’s work injury was a substantial contributing factor in her wage loss, rehabilitation requirements, or medical expenses since May 14, 2007.
Substantial evidence supports the judge’s findings that the condition that caused the wage loss, need for rehabilitation and medical expenses is unrelated to the work injury. The compensation judge’s decision is affirmed.