BRENDA L. MUNDY, Employee, v. AMERICAN RED CROSS and AMERICAN INT=L GROUP/WAUSAU INS. COS., Employer-Insurer/Appellants, and HEALTHPARTNERS, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 29, 2000
HEADNOTES
EVIDENCE - EXPERT MEDICAL OPINION. Although the employee=s treating and consulting physicians had not reviewed the employee=s pre-injury treatment records, their opinions did not lack adequate foundation, and the compensation judge did not improperly rely on the diagnoses and opinions of the employee=s physicians on the facts in this case.
MAXIMUM MEDICAL IMPROVEMENT. Because the compensation judge applied a clearly incorrect legal standard in determining MMI, and because the record may support differing inferences, the finding that the employer and insurer failed to prove the employee had reached MMI for her admitted work injury must be vacated, and the matter remanded for redetermination.
INTERVENORS; DISCONTINUANCE - MATTERS AT ISSUE. The compensation judge=s award of reimbursement to an intervenor in her findings and order on a petition to discontinue must be vacated where the parties did not agree to expansion of the issues and a claim petition is pending.
Vacated in part and remanded in part.
Determined by: Johnson, J., Wheeler, C.J. and Pederson, J.
Compensation Judge: Jeanne E. Knight
OPINION
THOMAS L. JOHNSON, Judge
The employer and insurer appeal the compensation judge=s finding the employer and insurer failed to prove the employee had reached maximum medical improvement (MMI) for her personal injury of March 20, 1998, and the judge=s denial of the employer and insurer=s petition to discontinue payment of workers= compensation benefits. The employer and insurer also appeal the compensation judge=s award of reimbursement to the intervenor, HealthPartners, for medical expenses paid on behalf of the employee. We vacate in part and remand in part.
BACKGROUND
Brenda L. Mundy, the employee, is a registered nurse, employed in the blood donor division of the American Red Cross, the employer, insured by Wausau Insurance Companies. On March 20, 1998, at the end of a blood drive, the employee was returning the room used in a church to its original condition. While pulling a stack of six or seven chairs, the chairs Asettled down@ catching the fingers of the employee=s left hand between the lower chairs. The employer and insurer admitted liability for the injury.
The employee was seen a few hours after the incident by her family physician, Dr. Michael Lano, complaining of pain, tenderness and swelling in the fingers of the left hand. X-rays showed no fracture or bony lesion. Dr. Lano placed a splint on the hand, and restricted use of the hand. The employee reported gradually increasing stiffness and pain in all four fingers, along with skin color and temperature changes in the hand, and was referred to Dr. Mark Friedland, an orthopedic surgeon, for evaluation. Dr. Friedland examined the employee on April 7, 1998. He diagnosed a left hand contusion with secondary reflex sympathetic dystrophy (RSD) as a result of the March 20, 1998 work injury. He recommended aggressive hand therapy, and continued to restrict use of the left hand.
The employee continued to experience pain and loss of mobility in the left hand, wrist and forearm, and was referred to Dr. Clare McCarthy, an orthopedic surgeon, for further treatment. The employee was first seen by Dr. McCarthy on April 28, 1998. On exam, the doctor noted mild swelling, extreme hypersensitivity to touch, swelling of the joints of the index and middle fingers, and some mild hair changes. Dr. McCarthy also diagnosed RSD secondary to the left hand injury, and recommended sympathetic blocks immediately followed by physical therapy to the hand.
On May 11, 1998, the employee was examined by Dr. Gary Sager, an orthopedic surgeon, at the request of the employer and insurer. Dr. Sager concluded the employee had suffered a crush-type injury to her left hand with subsequent atypical RSD resulting from the March 20, 1998 incident. He similarly recommended a sympathetic nerve block and continuing physical therapy.
The employee was then seen by Dr. Paul Savaryn, an anesthesiologist, who also diagnosed RSD of the left hand resulting from the March 20, 1998 incident. Dr. Savaryn performed a series of six stellate ganglion blocks between May 22 and June 5, 1998. The employee testified the blocks provided only temporary relief. Dr. Savaryn, however, believed there had been objective, significant improvement in wrist and finger mobility with the blocks. (T. 25-26; Pet. Ex. G: 6/17/98.) A series of Guanethidine IV (bier) blocks was then undertaken. Dr. Savaryn reported good progress with the blocks, with residual extensor tendon contraction in the left forearm and index and middle fingers. Dr. Lano and Dr. McCarthy reported similar progress and unresolved problems. During this time, Dr. Savaryn became concerned about the possibility of a psychogenic component inhibiting the employee=s ability to improve and possible chronic pain issues. Dr. Lano, accordingly, referred the employee to Ronald Wutchiett, a licensed psychologist, for evaluation.
Dr. Wutchiett examined and tested the employee on July 22, 1998. During the interview, the employee described two prior work injuries, but, other than some counseling during her Alate adolescence,@ denied any other history of psychological or chemical dependency treatment. Dr. Wutchiett concluded there likely were a number of psychological factors affecting the employee=s experience and expression of pain and her response to treatment, diagnosing a pain disorder with both a psychological component and a physical condition. (Resp. Ex. 8.)
The employee subsequently had two axillary motor blocks, performed by Dr. Savaryn at the request of Dr. McCarthy, to relieve extensor muscle spasms and tightness. On August 30, 1998, the employee was seen in urgent care at the Ridgeview Medical Center complaining of difficulty swallowing, which she related to the stellate ganglion blocks. Testing performed at Ridgeview and by Dr. John Meccia, ENT, was unremarkable. The employee continued to have swallowing and left hand problems, and was referred to Dr. Robert Jacoby, a neurologist, for further testing and evaluation. Dr. Jacoby examined the employee on October 2, 1998. He concluded the employee had RSD of the left upper extremity, with dysphagia (difficulty swallowing) of unknown etiology. Dr. Jacoby also believed there was some psychological overlay with regard to the employee=s RSD.
The employee was examined by Dr. Mark Stuckey at the Fairview University pain management center on October 19, 1998. Dr. Stuckey diagnosed a complex regional pain syndrome of the left upper extremity, concluding the employee=s condition was not consistent with RSD Asecondary to the fact that it never responded to sympathetic blocks, per the patient=s report.@ He encouraged the employee to take medications for pain control and continue the axillary blocks. (Resp. Ex. 6.) The employee had two additional axillary blocks at Methodist Hospital which she testified did not result in any lasting relief. (T. 27.)
Sometime in November 1998, the employee began experiencing pain in the left foot into the ankle. She was seen by Dr. Lano, Dr. McCarthy, and Dr. Friedland, reporting swelling, burning pain, discoloration and extreme sensitivity in the foot. No objective findings, other than mild swelling and hypersensitivity to touch, were observed on examination. A possible RSD of the left foot was diagnosed.
At the request of the employer and insurer, Dr. Sager performed a medical records review. In his report of December 14, 1998, Dr. Sager diagnosed a chronic pain syndrome of the left hand, stating he agreed with Dr. Stuckey Athat because Ms. Mundy has not responded to sympathetic blocks, a reflex sympathetic dystrophy-type of problem is less likely.@ Dr. Sager further opined the employee had reached maximum medical improvement (MMI) sometime in September 1998. (Resp. Ex. 18, Dep. Ex. 3.)
The employee continued to treat with Dr. Lano, Dr. McCarthy and Dr. Jacoby. She developed a foot drop on the left side, and in June 1999, reported new symptoms in the right hand and shoulder, including intermittent numbness and tingling, along with slight color changes. On July 15, 1999, the employee was seen by Dr. Debra Peven, a neurologist, at the request of Dr. Jacoby, to provide a second opinion regarding diagnosis and alternative treatments. Dr. Peven=s impression was RSD of the left upper and lower extremity, with few objective findings on examination. She suggested additional testing to rule out other etiologies and several alternative medication regimens which might prove beneficial in treating the employee=s RSD.
In August 1999, Dr. Steven Fisher, at the Hennepin County Medical Center (HCMC) Physical Medicine and Rehabilitation clinic, became involved in the employee=s case at the request of the employee=s therapist and Dr. McCarthy. After examining the employee, and reviewing her case and treatment records with Dr. Lano, Dr. Fisher assessed RSD, not sympathetically mediated. He concluded the necessary work-up and evaluations were complete, and recommended more aggressive therapy along with ongoing psychological counseling. He did not believe the employee was at MMI, and agreed the employee remained unable to work.
On August 12, 1999, Dr. Sager completed an updated medical records review. He again concluded the employee had a work-related pain syndrome of the left upper extremity, but did not believe her left foot and right upper extremity symptoms were related to the work injury. He noted the employee=s symptoms had waxed and waned, and again concluded the employee had reached MMI in September 1998. Subsequently, the employer and insurer obtained pre-injury medical records for the employee, showing a fairly extensive medical history including treatment for various workers= compensation injuries and psychological and chronic pain evaluation and treatment. They requested Dr. Sager to provide another opinion after review of these records. In a report dated September 16, 1999, Dr. Sager again diagnosed Asome type of pain syndrome.@ However, noting a history of multiple injuries and complaints to the back, neck and upper extremities, and a concomitant history of functional/psychological overlay, including treatment at the HCMC pain clinic, he concluded the employee=s current disability was not a work-related RSD, but rather a continuation of chronic pain problems that preexisted the May 20, 1998 incident. (Resp. Ex. 18, Dep. Ex. 5.)
Shortly thereafter, on October 6, 1999, the employee discussed her previous workers= compensation injuries and psychological/chemical dependency problems with Dr. Lano. At the request of the employee, Dr. Lano wrote a brief letter stating the employee remained unable to work due to her significant RSD involving the left hand. The employee was referred by Dr. Lano for further psychological evaluation and counseling.
On September 24, 1999, the employer and insurer served a notice of intent to discontinue benefits (NOID), on the grounds the employee had reached MMI and had no work restrictions causally related to the admitted work injury, attaching the September 16, 1999 report of Dr. Sager. Discontinuance was denied following an administrative conference, and on November 18, 1999, the employer and insurer filed a Petition to Discontinue, again asserting the employee was at MMI and the employee=s current condition was not related to the injury of March 20, 1998. The case was heard by a compensation judge at the Office of Administrative Hearings on January 21, 2000. A Findings and Order was served and filed on February 22, 2000, in which the compensation judge found the employer and insurer failed to prove the employee had no restrictions as a result of the March 20, 1998 personal injury, and failed to prove the employee had reached MMI for her work injury. She accordingly, denied the petition to discontinue benefits. The employer and insurer appeal.
STANDARD OF REVIEW
On appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984). Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
DECISION
Foundation/Causal Relationship
The compensation judge denied the employer and insurer=s petition to discontinue benefits, concluding the employee remained disabled by the admitted March 20, 1998, personal injury. The appellants assert the issue is not whether the employee is Adisabled.@ Rather, they maintain the question is whether there is a causal relationship between the employee=s current disability and her 1998 work injury. The employer and insurer rely on the opinion of the independent medical examiner (IME), Dr. Sager, who opined the employee had a Arelapse of a chronic pain problem related to preexisting injuries.@ (Resp. Ex. 18, Dep. Ex. 5.) The principle argument of the employer and insurer is that the employee=s treating and evaluating physicians never reviewed, and were not familiar with, the employee=s extensive pre-injury medical history. They argue, therefore, the employee=s treating and evaluating physicians had an incomplete and inadequate foundation for their diagnoses, treatment and medical opinions. The appellants maintain only Dr. Sager has seen and reviewed the employee=s pre-injury medical records, and the compensation judge erred in disregarding his causation opinion. We are not persuaded.
The competence of a medical expert to render an opinion depends both upon the degree of the witness=s scientific knowledge and the extent of the expert=s practical experience with the matter at issue. For a medical opinion to be afforded evidentiary value, the expert need not be aware of every relevant fact, so long as the omissions do not mislead the fact finder. In general, any such deficiencies go only to the persuasiveness or weight to be given the opinion. Drew=s v. Kohl=s, 55 W.C.D. 33, 39 (W.C.C.A. 1996)(and cases cited therein).
At the hearing, the employer and insurer vigorously argued the opinions of the employee=s treating and consulting physicians lack adequate foundation. The employee=s pre-injury medical records were submitted into evidence for review by the compensation judge. The appellants had an opportunity to cross-examine the employee who described her prior workers= compensation injuries, and admitted she had not been candid with the doctors about her prior psychological and chemical dependency treatment history.
The appellants do not challenge the expertise of the employee=s physicians. These physicians had the benefit of more than a year of Apractical experience@ with the matter at issue including observation, examination and treatment of the employee. Their experience lead each of them to diagnose and treat the employee for reflex sympathetic dystrophy following the March 20, 1998 work-related injury to her left hand. Despite their lack of specific awareness of the employee=s pre-injury medical treatment, including prior diagnoses of functional overlay and chronic pain syndrome, the employee=s physicians were, in fact, aware of psychological or functional components of her symptoms and complaints and recommended and encouraged psychological evaluation and counseling. Moreover, the employee did discuss her prior medical/psychological history with Dr. Lano in October 1999, who continued to diagnose RSD of the left upper extremity.
The ultimate determination of causal relationship falls within the province of the trier of fact. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). The compensation judge was aware of, and had available to her, the employee=s pre-injury medical records, but was not persuaded by the opinions of Dr. Sager. While differing conclusions could be drawn from the evidence, we cannot say the compensation judge improperly relied on the opinions and diagnoses of the employee=s treating and evaluating physicians on the facts peculiar to this case.
Maximum Medical Improvement (MMI)
A principle issue at hearing was whether the employee had reached MMI for her personal injury of March 20, 1998. The compensation judge found the employer and insurer failed to prove the employee had reached MMI from the admitted March 20, 1998 personal injury, and denied the employer and insurer=s petition to discontinue benefits. In her memorandum, the compensation judge commented:
The employer and insurer also made the closing argument that the employee appears to be getting worse, rather than better. They therefore reach the conclusion that she has reached maximum medical improvement. That is a specious argument. A quadriplegic is not at MMI on the date of his accident simply because he is never going to improve. The determination of MMI is a medical one, to be made by physicians. In this case, the employee=s physicians [have] continued to provide further treatment for the employee and have opined she is not yet at MMI.
The employer and insurer argue the compensation judge misapplied the law, and assert the employee=s condition has worsened or, at best, has not improved despite extensive evaluation and treatment. The appellants contend, therefore, the employee has reached MMI and temporary total disability benefits are no longer payable. The employee, in response, points out her treating and evaluating physicians have opined she has not reached MMI and continue to recommend treatment for her condition.
Maximum medical improvement is statutorily defined as Athe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability.@ Minn. Stat. ' 176.011, subd. 25 (emphasis added). Contrary to the judge=s comments, evidence the employee=s condition is worsening, or the employee continues to treat solely to maintain function, is consistent with a finding that MMI has been reached, that is, that no further significant recovery or lasting improvement is anticipated. See, e.g., Krutsch v. Federal Cartridge, 48 W.C.D. 156 (W.C.C.A. 1992); Heiderscheit v. Sanborn Mfg. Co., 42 W.C.D. 841 (W.C.C.A. 1989); Hilbrands v. Bor-Son Constr., slip op. (W.C.C.A. July 28, 2000); Link v. Bridgestone/Firestone, slip op. (W.C.C.A. Apr. 20, 1998); Saldana v. Salvation Army, slip op. (W.C.C.A. May 9, 1995).
Additionally, in Hammer v. Mark Hagen Plumbing and Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, (Minn. 1989), the supreme court specifically rejected the argument that deter-mination of MMI is a medical question, stating,
[A] finding of MMI is one of ultimate fact. . . . [I]t is the respon-sibility of the compensation judge to evaluate the employee=s condition as documented by medical records, medical opinions and other data and circumstances. >Medical probability= does not mean only the opinion of a physician. * * * MMI is not determined solely by a physician=s opinion. We believe that a finding of MMI, like a determination of the degree of permanency, rests with the compensation judge, not the medical profession.
Factors to be considered by the compensation judge include the history of improvement, current treatment, pre-existing conditions, and proposed future treatment. That the employee remains disabled is not a determinative factor. As noted by the supreme court in Hammer, the statute allows MMI to be reached (i.e., no further recovery or improvement can be anticipated), in a case where the employee is still totally disabled and unable to return to work. Id. at 530, 41 W.C.D. at 641.
With regard to MMI, the compensation judge found the employee had not been released to return to work by her treating physicians and continued to receive treatment for her left side. The judge further found the employee believes she will lose what mobility she has in her left arm and left leg and will end up in a wheelchair if she does not continue to exercise. (Finding 12.) While these findings may be supported by the evidence, they do not resolve the issue of whether MMI has been reached. Accordingly, because the compensation judge applied a clearly incorrect legal standard, because the record may well support different inferences, and because MMI is a finding of ultimate fact for the compensation judge, we vacate finding 13 and order 1, and remand the question of whether MMI has been reached for the employee=s March 20, 1998 injury to the compensation judge for redetermination.
Award of Reimbursement to Intervenor
This matter came before the compensation judge on a petition to discontinue filed by the employer and insurer on November 18, 1999. The sole issues were MMI and whether the employee=s current condition was causally related to the work injury. The parties did not agree to expansion of the issues.
On January 3, 2000, the employee filed a claim petition seeking, among other things, payment of medical expenses. On January 24, 2000, HealthPartners filed a petition to intervene. On February 22, 2000, following a hearing on the petition to discontinue, the compensation judge issued a Findings and Order, and a separate order allowing intervention by HealthPartners.
In the February 22, 2000 Findings and Order, the compensation judge found HealthPartners had paid $2,811.49 in medical expenses on the employee=s behalf, and ordered the employer and insurer to reimburse the intervenor. The parties agree the intervention claim of HealthPartners was not properly before the compensation judge, and the judge improperly ruled on the claim for reimbursement of medical expenses at this point. (Brief of Employee, p. 9.) We agree, and vacate finding 18 and order 2. The intervenor=s claim should be resolved in the context of the employee=s pending claim petition.