GERALD MEAD, Employee/Appellant, v. BRADLEY JOHNSON TILING CO. and FARM BUREAU MUT. INS. CO., Employer-Insurer.

 

WORKERS' COMPENSATION COURT OF APPEALS

FEBRUARY 23, 2000

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Substantial evidence, including lay testimony, medical records and expert medical testimony supported the compensation judge=s finding that the treatment rendered by Dr. Thomas on November 26, 1996 was not reasonable and necessary for the cure and relief of the effects of the employee=s work injury.

 

Affirmed.

 

Determined by Pederson, J., Rykken, J., and Wheeler, C.J.

Compensation Judge:  William R. Johnson

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The employee appeals from the compensation judge's determination that medical treatment by Dr. David Thomas on November 26, 1996 was not reasonable or necessary to treat the effects of the employee=s December 15, 1993 work injury.   We affirm.

 

BACKGROUND

 

The employee, Gerald Mead, sustained a work-related injury on December 15, 1993 when he was crushed between two pieces of heavy earthmoving equipment while working for the employer, the Bradley Johnson Tiling Company.

 

As a result of this accident, the employee sustained multiple personal injuries including bilateral clavicular fractures, several rib fractures, a fracture of the right scapula, a left forearm fracture, a fracture of the fifth lumbar transverse process, a right hemothorax, symphysis pubis disruption, and a possible pelvic fracture and separation of the right sacroiliac joint.  After the accident the employee was initially treated at a hospital in Marshall, Minnesota, and then transferred to the Sioux Valley Hospital in Sioux Falls, South Dakota.

 

The employer and insurer accepted liability for the employee=s injuries from his December 15, 1993 accident and paid the employee for various workers= compensation benefits, including permanent partial disability based on a combined functional disability rating of 37%.

 

On September 3, 1996, the employee filed a claim petition claiming entitlement to additional permanent partial disability compensation beyond that previously paid.  Among the further permanency claims raised by the employee was a claim that the work injury had resulted in a respiratory impairment ratable at 25% percent permanency to the whole body.  This claim was supported by a rating made by Dr. David A. Thomas for a right lung restrictive process. The employer and insurer answered by denying, among other things, that the respiratory impairment was causally related to the employee=s work injury, alleging overpayment of permanent partial disability benefits based on a mistake of fact and seeking a credit for overpayment of benefits.

 

On November 26, 1996 the employee returned to Dr. Thomas reporting increasing chest pain over the prior two months and pain with swallowing.  Dr. Thomas= impression was of chronic obstructive pulmonary disease (ACOPD@) of a mild nature, chronic pain syndrome, and an esophageal dysfunction.  The doctor recommended that the employee undergo a pain clinic evaluation and prescribed antibiotics for infection and elavil for pain relief.  (Exh. 4.)

 

On March 18, 1997 Dr. Thomas wrote to the employee=s attorney explaining the basis for his 25 percent rating for the employee=s respiratory impairment and recommending that the employee undergo a bicycle or treadmill test to ascertain his ability to exercise and to assist in determining whether the obstructive process in his lungs was in part secondary to the work injury.  (Exh. E.)

 

A hearing was held before a compensation judge of the Office of Administrative Hearings on April 23, 1997.  Following the hearing, the judge rated the employee=s overall combined permanent partial disability rating causally related to his work-related injuries at 14.71%, consisting of a combination of individual ratings for an L5 transverse fracture (4 %), a fracture of the right clavicle (3%), loss of two anterior teeth (2%), and loss of two other teeth (1%).^[1]  (6/9/97 F & O: Stipulation 5, Finding 5, Mem. at 4-5.)

 

The compensation judge specifically found that the employee had failed to prove by a preponderance of the evidence that he had sustained permanent damage to his respiratory function as a result of the work injury.   (6/9/97 F & O: Finding 2.)  In his memorandum, the compensation judge discussed in detail his findings with respect to the employee=s respiratory function, by stating:

 

The employee claimed a 25 percent PPD of the whole body as a result of decreased lung function.  He based his claim on the opinion of Dr. David A. Thomas, who treated the employee shortly after the date of injury.  It was Dr. Thomas= opinion that the employee=s broken ribs had resulted in scar tissue, chest pain, dyspnea and impairment of his right lung function.  He relied, to a large extent, upon the employee=s indication that he had not experienced shortness of breath prior to the accident.  Dr. Thomas felt that the mild obstructive process noted on testing did not explain the degree of dyspnea described by the employee . . .

 

Dr. Jack Shronts examined the employee on behalf of the employer and insurer. . . It was Dr. Shronts= opinion that the employee suffers from mild obstructive airways disease solely as a result of smoking.  He indicated that injuries like the employee=s, including broken ribs and reduced hemidiaphragm function, might result in a restrictive abnormality, but could not cause an obstructive condition.  He felt that the employee=s forced vital capacity and total lung capacity testing, would preclude a diagnosis of restrictive abnormality . . .

 

Dr. Thomas issued a second report on 3/18/97 in response to Dr. Shronts= first two reports.  He opined that the employee=s obstructive disease could be caused by either smoking or trauma.  He did not, however, state a causation opinion based upon a reasonable medical certainty.  He conceded that further testing would be necessary to address the causation issue. . . 

 

Based upon [Dr. Thomas=] report, the employee=s attorney requested that the employer and insurer approve bicycle or treadmill testing.  Counsel for the employer and insurer recommended that this request be denied . . .

 

Despite the above, the compensation judge notes that the employee did not specifically request approval of cardiopulmonary testing.  It was not entirely clear that the parties fully addressed the reasonableness and necessity of such testing, and therefore no finding was made.

 

In light of all the evidence submitted, the Compensation Judge finds that the employee has failed to prove that his 12/15/93 injuries were a substantial contributing cause in his development of obstructive airways disease.  He also failed to prove by a preponderance of the evidence that he suffers from a restrictive abnormality which is related to his injury.  This finding does not prevent the employee from pursuing the claim later if cardiopulmonary testing is obtained.

 

(6/9/97 F & O: Mem. at 9-10 [emphasis in original].)

 

The employee appealed the compensation judge=s findings on permanent partial disability to this court on July 7, 1997, and this court affirmed the findings of the compensation judge in an Opinion served and filed on December 23, 1997.  Mead v. Bradley Johnson Tiling Co., 58 W.C.D. 124 (W.C.C.A. 1997), summarily aff=d March 26, 1998.

 

The employee filed a medical request on July 6, 1998 and an amended medical request on August 7, 1998 seeking payment for a medical bill from Dr. Thomas for his services on November 26, 1996, and requesting authorization for additional cardiopulmonary testing.  The employer and insurer filed medical responses on July 6, 1998 and August 10, 1998 denying liability for the disputed treatment.  (Judgment Roll.)

 

Dr. Shronts= deposition testimony was taken on June 7, 1999.  During the deposition, Dr. Shronts reiterated his view that the employee suffers from an obstructive airway disease of the lung resulting from cigarette smoking and unrelated to the work injury, and that there was no evidence for a restrictive abnormality related to the injury.  Dr. Shronts was specifically asked to review the medical treatment rendered by Dr. Thomas on November 26, 1996 and to render an opinion as to whether the treatment was reasonable and necessary and causally related to the work injury.  Dr. Shronts discussed the symptoms reported by the employee on that date, the diagnosis rendered by Dr. Thomas, and the treatment provided in the light of the employee=s prior and subsequent medical history.  He offered the opinion that none of the treatment was causally related to the employee=s work injury and explained in detail the reasons for his opinion.  (Exh. 1 at 7-19.)

 

A hearing was held before a compensation judge of the Office of Administrative Hearings on the medical request on June 8, 1999.  Following the hearing, the judge expressly adopted the opinion of the employer and insurer=s medical examiner, Dr. Jack Shronts and found that the none of the complaints for which treatment was rendered by Dr. Thomas on November 26, 1996 were causally related to the employee=s work injury.  The compensation judge further found that the proposed cardiopulmonary stress testing was not reasonable and necessary for the treatment of the employee=s work injury.  The employee appeals from the denial of reimbursement for the treatment rendered by Dr. Thomas on November 26, 1996.

 

STANDARD OF REVIEW

 

On appeal, this court must determine whether the compensation judge's findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1(3) (1992).  Substantial evidence supports the findings if, in the context of the record as a whole, 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 the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must 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 Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Factfindings may not be disturbed, even though this 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.

 

DECISION

 

Expenses for Treatment by Dr. Thomas on November 26, 1996

 

The compensation judge found that the medical treatment rendered by Dr. Thomas on November 26, 1996 was not reasonable and necessary to cure and relieve the effects of the employee=s work injury, expressly adopting the opinion of Dr. Shronts.  (Finding 3.)  The employee appeals, arguing that the compensation judge=s finding was unsupported by substantial evidence.  The employee points to the medical evidence that he sustained a significant injury to his chest and right lung in the work injury, to evidence that he has since had ongoing chest pain and shortness of breath, and to the opinion of his treating physician, Dr. Thomas, who considered it possible that the  employee=s chest pain and shortness of breath might be related to the effects of the work injury, although he could not say this with certainty.  (Exh. G.) The employee also argues that Dr. Shronts= opinion regarding the treatment on November 26, 1996 lacked adequate foundation since Dr. Shronts had not personally examined the employee on that date.  Finally, the employee also suggests that Dr. Shronts= opinion should be disregarded because Dr. Shronts was uncertain whether the employee had been receiving ongoing treatment for a peptic ulcer prior to November 26, 1996. 

 

We affirm. Resolution of the issue appealed in this case hinged upon the compensation judge=s choice between the opinions of the two medical experts.  Generally, this court must affirm a decision based upon the compensation judge=s choice between conflicting expert medical opinions, unless the opinion relied upon was without adequate foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  We do not find the employee=s arguments against the adequacy of the foundation of Dr. Shronts= opinion to be convincing.  While Dr. Shronts did not personally examine the employee on November 26, 1996, he reviewed all of the pertinent medical records for, prior and subsequent to that date, and had previously examined the employee.  With respect to Dr. Shronts= uncertainty as to the extent of prior treatment for a peptic ulcer, we note that the doctor acknowledged in his deposition testimony that he did not know how many times the employee might have treated for this condition.  Thus this is not a case where a medical opinion was based on a mistaken view of the medical history.  Further, it is quite clear that the doctor=s opinion, that the swallowing difficulties reported by the employee on November 26, 1996 were not related to the work injury, was not based on the specifics of prior treatment for a peptic ulcer.  As we see no clear defect in the foundation for Dr. Shronts= opinions, we must affirm the compensation judge=s finding made in reliance on that opinion.

 

The employee also suggests in his brief that the compensation judge may have applied an improper standard to the employee=s burden to prove causation between the work injury and the treatment rendered on November 26, 1996.  Specifically, the employee points out that the compensation judge noted, in Finding 1, that a prior compensation judge had found that the employee had failed to prove that he had sustained any permanent damage to his respiratory function as a result of the work injury.  The employee argues that the current compensation judge may have given the prior finding a res judicata or collateral estoppel effect beyond the issue of permanent partial disability, and improperly applied it to the issue of medical treatment.  We, however, see no indication that the compensation judge determined the issue of the reasonableness and necessity of the medical treatment on November 26, 1996 through an application of either collateral estoppel or res judicata.  The compensation judge=s findings and memorandum quite clearly indicate that the judge determined this issue as a factual question  resolved by a consideration of the medical evidence and lay testimony offered at the June1999 hearing.^[2]