SAMMY L. YARBROUGH, Employee, v. FIRST STUDENT, INC., SELF-INSURED/GALLAGHER BASSETT SERVS., INC., Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 19, 2012
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee’s work injury remained a substantial contributing factor in the employee’s chronic pain condition.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Substantial evidence supports the compensation judge’s finding that the recommended medical treatment of a TENS unit and aqua therapy is reasonable and necessary.
Determined by: Milun, C. J., Wilson, J., and Hall, J.
Compensation Judge: Kathleen Behounek
Attorneys: Friedrich A. Reeker, Bloomington, MN, for the Respondent. Michael J. Patera, Brooklyn Park, MN, for the Appellant.
PATRICIA J. MILUN, Judge
The self-insured employer appeals from the findings that the employee’s work injury was not temporary in nature and continued to be a substantial contributing factor in his ongoing disability, need for restrictions, and medical treatment; and from the award of temporary total disability benefits and medical expenses. We affirm.
Sammy Yarbrough, the employee, began working for First Student, Inc., the employer, which was self-insured for workers’ compensation liability, in 1998. The employee was initially hired as a bus aide and later took on the job duties of a lot attendant. In that position, the employee was responsible for the care and maintenance of the buses and the property. Maintenance work for the buses included checking and filling fluids in buses as well as moving and hooking up trailers to charter buses. Maintaining the property required the employee to shovel snow, mow the grass, empty trash cans, clean up fuel spills, and keep the fuel island clean and supplied. The employee’s job duties could be strenuous at times and required lifting up to 120 pounds with frequent bending.
The employee had a history of pre-existing cervical problems before the January 12, 2010, injury. In 2005, he suffered a work injury with the employer. A cervical MRI performed on November 23, 2005, revealed moderate right C5-6 disc herniation with right central canal and foraminal stenosis. He received further care that month at the University of Minnesota Hospital requiring a cervical epidural steroid injection, with minimal relief. In 2006, the employee underwent an anterior cervical discectomy, decompression, and fusion at C5-C6 with instrumentation. Following surgery, he continued to have cervical symptoms and pain behavior. He completed therapy at the Physicians Neck and Back Clinic on August 17, 2006. A Twin Cities Spine Center health care provider report placed the employee at maximum medical improvement on December 21, 2006, with a combined permanent partial disability rating based on cervical radiculopathy plus a cervical fusion. The employee returned to his regular job duties with the employer and continued to work in full capacity as a lot attendant, without restrictions, until his work injury on January 12, 2010. The employee also had a history of pre-existing chemical abuse and depression before the January 12, 2010, injury.
On January 12, 2010, the employee was moving and hooking up trailers to charter buses when he developed the onset of increased numbness in the right upper extremity. He continued working. Later that day, the employee developed right upper extremity pain and weakness, neck pain and low back pain. He notified the employer and was treated at Nowcare, then was referred to a neurosurgeon for further evaluation.
On January 26, 2010, the employee underwent a cervical MRI. The scan showed the C5-6 fusion, narrowing of the cervical canal and mild multi-level degenerative changes. There was no significant disc herniation or nerve root compression noted on the radiologic studies; however, the employee continued to voice complaints of persistent and severe symptoms in his neck, low back and right arm. He was prescribed Percocet, Sulindac, and amitriptyline to reduce the pain and maintain some function. Steroid injections were recommended to further treat and manage the pain.
The employee underwent a cervical epidural steroid injection on March 1, 2010, and a C7 nerve root injection on April 9, 2010, with no relief. On April 30, 2010, the employee returned to Twin Cities Spine Center for examination. Dr. James Schwender noted that there was no clear evidence of pathology on the radiographic studies to explain the employee’s symptoms of pain, weakness, and numbness in the right upper extremity. The employee also tried acupuncture and pool therapy, and continued using Percocet. In treatment notes from August 10, 2010, Dr. Kevin Chatwin discussed the persistent pain in the employee’s neck area since 2005, “Despite a fusion at the [C]5-6 level for this injury[,] [h]is pain is constant, severe, and interferes with ‘everything’ he normally does.” Dr. Chatwin went on to discuss the subsequent work injury that intensified the pain and changed the distribution of the radiculopathy. “[The] MRI cervical spine does not support [a] cervical explanation for this . . . . His daily pain is almost intolerable . . . .” The right arm continued to decrease in function, limited by pain and paresthesias into the palm. The employee’s recovery was affected by his pain behavior. The working diagnosis was complex regional pain syndrome.
The employee continued to seek treatment for pain, weakness and numbness in the right upper extremity. The employee was seen by Dr. Miles Belgrade at the Fairview Pain Management Center on November 10, 2010, for a neurological consultation. The initial consultation was for right-sided neck pain and shoulder myofascial pain. The doctor’s review of radiologic studies and electrical studies performed were discussed in his treatment notes. The EMG findings were normal and the MRI scan revealed no significant disc herniation or nerve root compression. Dr. Belgrade noted that the prescribed medications were not providing relief. On examination, Dr. Belgrade noted marked pain behaviors and a normal neurological examination. Dr. Belgrade’s treatment notes also indicate the employee’s pain focus was significant and a successful recovery from the marked pain-related disability was by symptom control. In January 2011, Dr. Belgrade recommended aqua therapy and a TENS unit. By March of 2011, Dr. Belgrade was of the opinion that the employee’s recovery was affected by depression but that his condition was improving.
On March 23, 2011, the employee filed a medical request for approval of a TENS unit and aqua therapy to treat his work injury. The employer disputed the request in a medical response. An administrative conference was held on May 17, 2011, and the employee’s request was denied in a decision and order served and filed on May 20, 2011. On May 24, 2011, the employee filed a request for formal hearing.
In July 2011, Dr. Belgrade once again recommended aqua therapy and a TENS unit rather than prescribed narcotics to treat pain. The basis for his recommendation was as follows:
[The employee] is a patient we have been evaluating and treating in the Fairview Pain Management Center for about the last year. He has intractable pain in the neck and back and shoulders. He has had a work injury as an inciting event for this pain. We have diagnosed him with intractable myofascial pain (muscular pain). We have tried many different medications and treatments including interventional spine injections without much success. He has been working with our health psychologist and our physical therapist to try to increase his ability to tolerate pain and activate and improve mobility. He is at an impasse. When faced with this situation, we find that pool therapy has the best chance of allowing patients to increase their mobility who are extremely limited by pain and deconditioning . . . . In addition, the use of TENS is a benign symptom control measure with nominal cost that provides pain reduction temporarily in some patients who might otherwise be on higher doses of pain medicines and run the risk of side effects.
At the employer’s request, Dr. Joel Gedan completed a medical review and update of his January 21, 2011, evaluation of the employee in August 2011. Dr. Gedan found that the employee’s persistent subjective pain complaints were not based on any objective findings on examinations, radiologic studies, and electrical studies since January 12, 2010. He opined that the employee was at maximum medical improvement with no restrictions and had no need for further medical treatment.
On August 5, 2011, the employer filed a petition to discontinue temporary total disability benefits based on the following: (1) the employee’s work injury of January 12, 2010, was temporary in nature from which the employee fully recovered without permanency or need for additional medical treatment; (2) the employee had no physical limitations nor reduction in earning capacity caused by the work injury; and (3) the employee had reached maximum medical improvement and at least 90 days had passed since the service of MMI. On August 29, 2011, Dr. Belgrade issued a report stating, “In my opinion, [the employee] has intractable chronic pain that has incapacitated him functionally.”
The request for formal hearing and the petition to discontinue were consolidated and heard by Compensation Judge Kathleen Behounek on October 14, 2011. In Findings and Order dated November 30, 2011, the judge found the employee’s work injury was not temporary in nature and continued to be a substantial contributing factor in his ongoing disability, need for restrictions, and medical treatment. The judge also found the employee had not reached maximum medical improvement and that the recommended treatment was reasonable and necessary to relieve the pain behavior ascribed to the injury. The judge denied the petition to discontinue benefits and ordered the recommended treatment. The employer appeals.
The main issue in the case is whether substantial evidence supports the judge’s finding that the employee’s work injury was not temporary in nature and continues to be a substantial contributing factor in his ongoing disability, need for restrictions, and medical treatment. We review the judge’s decision under established legal principles in view of the entire record as submitted.
The self-insured employer contends the compensation judge’s findings of fact are insufficient and do not support the order to continue payment of temporary total disability benefits. The employer maintains that without sufficient findings on the nature and extent of the injury, the employee’s medical condition cannot be determined a substantial contributing cause to the ongoing disability and need for treatment. We disagree. The judge did discuss the employee’s symptoms, his medical treatment, and the medical opinions; and her decision as a whole provides an adequate basis for review of the disputed issues. Having reviewed the entire record, we conclude that the compensation judge's factual findings are sufficiently specific and detailed to allow this court to determine the basis of the decision for review.
The employer argues that the findings are without substantial evidence to the extent the decision fails to identify the nature of the work injury and fails to identify the work-related medical condition. The employer further asserts that the judge failed to address the evidence by failing to discuss the “competing facts” on the employee’s pain complaints, medical treatment, and wage loss benefits, and that without an analysis of the evidence, the work injury cannot be determined to be the result of the present chronic pain. To that end, the employer argues the findings do not support a denial on the petition to discontinue temporary total disability benefits or support an order to pay medical expenses associated with the TENS unit and aqua therapy. We are not persuaded.
The employer relies on the opinions contained in the medical report by the independent medical examiner, Dr. Gedan. As an expert neurologist, Dr. Gedan gave the employer his medical opinion that the employee was at maximum medical improvement with no restrictions and no need for further medical treatment. To a considerable degree, Dr. Gedan based his ultimate opinion on the following analysis contained in his report. “[The employee’s] persistent subjective pain complaints are not based on any objective findings on clinical examinations, radiologic studies, and electrical studies performed” since the date of injury. Having found no clear evidence of pathology on the radiographic studies to explain the employee’s pain behavior, Dr. Gedan drew a conclusion that the “diagnoses in addition to persistent, unsubstantiated and unexplainable pain complaints, is evidence of symptom magnification . . . .” In essence, Dr. Gedan’s report addressed the work injury to the employee’s right shoulder and neck from a neurological perspective, without a discussion of the chronic pain and need for pain management.
The chronology of events documented in medical reports and in the judge’s findings is consistent with the witnesses’ testimony regarding the changing pattern of the employee’s behavior after the work injury. The judge accepted the expert medical opinions of Dr. Belgrade, who is board-certified in pain medicine and neurology, and found the change in behavior was due, in part, to intractable debilitating pain post injury. The judge adopted the opinions of Dr. Belgrade and determined the complaints of persistent chronic pain are related to the work injury and have not resolved. The employer claims that there is no medical evidence that the employee has chronic pain or a pain syndrome. We note that in April 2010, Dr. Chatwin initially diagnosed the employee with complex regional pain syndrome, and in August 2011, Dr. Belgrade specifically opined that the employee had intractable chronic pain which had functionally incapacitated him. The compensation judge could reasonably conclude that chronic pain has played a significant role in the employee’s overall condition.
The compensation judge’s decision to accept the medical opinions of Dr. Belgrade over the medical opinions of Dr. Gedan was, in the final analysis, a matter of reconciling conflicts in expert medical testimony to accept or reject the existence of a chronic pain component related to the January 12, 2010 injury. There is substantial evidence in the record to support the compensation judge’s finding that the employee’s work injury continues to be a substantial contributing factor in the employee’s present disabling condition of chronic pain, and we affirm. The compensation judge did not err by denying the employer’s petition to discontinue temporary total disability benefits.
The compensation judge found the employee had not reached maximum medical improvement and would benefit from additional medical treatment. Specific changes in the employee’s behavior are documented and are consistent with the chronic pain component of the work injury that the judge accepted as disabling. The judge’s decision to accept testimony consistent with Dr. Belgrade’s medical opinions on that issue supports the judge’s determination that the employee is not at full recovery from all conditions related to the work injury. Dr. Belgrade plans to continue the employee’s treatment for chronic pain with a TENS unit and aqua therapy, which he believes to be more effective treatment towards pain reduction than the continued use of narcotics. Finally, the employee’s work injury continues to be a substantial contributing factor in what Dr. Belgrade describes as intractable debilitating pain restricted behavior, a condition which is not at maximum medical improvement. Substantial evidence supports the compensation judge’s finding that the requested medical treatment is reasonable and necessary. We therefore affirm.
 Respondent’s Ex. 1.
 Respondent’s Ex. 1.
 Respondent’s Ex. 1.
 Finding 15.
 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). Fact findings are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Northern States Power Co. v. Lyon Food 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. A compensation judge’s choice between expert opinions is generally upheld unless the facts assumed by the expert are not supported by the record. Nord v. City of Cook, 360 N.W. 2d 337, 37 W.C.D. 364 (Minn. 1985).
 Respondent’s Ex. 3.
 Respondent’s Ex. 3.
 See Nord v. City of Cook, 360 N.W. 2d 337, 37 W.C.D. 364 (Minn. 1985).