THOMAS SPIESS, Employee, v. NORDIC TRACK, SELF-INSURED/INSOLVENT, SELF-INSURER=S SECURITY FUND/SEDGWICK CLAIMS MGMT., Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 25, 2000

 

HEADNOTES

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  The record as a whole regarding proposed treatment was minimally adequate to support the compensation judge=s decision that the employee had not yet reached MMI from the effects of his work-related right knee condition.

 

Affirmed.

 

Determined by Wilson, J., Rykken, J., and Pederson, J.

Compensation Judge:  Jennifer Patterson

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer appeals from the compensation judge=s decision that the employee has not reached maximum medical improvement from the effects of his work-related right knee injury.  We affirm.

 

BACKGROUND

 

On April 20, 1998, the employee injured his right knee while working as a forklift operator for Nordic Track [the employer].^[1]  He first sought treatment for the injury on May 27, 1998.  Several months later, on August 11, 1998, after conservative care and an MRI scan, he underwent surgery, performed by Dr. Christopher Daley.  According to the surgical report, the employee=s post operative diagnosis was A[t]ricompartmental arthritis with bilateral degenerative meniscal tears of both medial and lateral menisci.@  The surgical report also indicated that the employee=s prognosis was considered Amoderate,@ in part because the employee was very heavyset, weighing close to 300 pounds.  Dr. Daley predicted that the employee would Acertainly@ experience further degeneration in his knee, requiring further treatment either with steroid injections, a high tibial osteotomy, ASynvisc,@ or repeat arthroscopic debridement.

 

The employee apparently reinjured his right knee in the fall of 1998 during physical therapy, leading to another MRI, which showed further meniscal tearing, and a second surgical procedure on January 12, 1999.  In the surgical report of that date, Dr. Daley indicated that the employee should try using a special knee brace but that he would Adefinitely require total knee replacement@ at some point and would Abe a candidate for Synvisc injections as well.@

 

Following his second surgery, the employee underwent additional physical therapy, received cortisone injections, and was fitted for the recommended knee brace.  However, his right knee pain continued, and in March of 1999, Dr. Daley again indicated that the employee was a candidate for Synvisc injections, repeating his advice to that effect in August of 1999 and February of 2000, as well as recommending weight loss.  The employer apparently refused to pay for any Synvisc injections, so the employee did not receive them.

 

Dr. Gary Wyard, the employer=s independent medical examiner, also issued reports concerning the employee=s right knee condition.  In the first report, completed following his examination of the employee on July 21, 1999, Dr. Wyard concluded, in part, that the employee had sustained a medial meniscus tear in the April 1998 work incident but that his need for restrictions was not related to that injury but rather to a preexisting degenerative condition and obesity.  Dr. Wyard also indicated that the employee=s medical care to date had been reasonable but that the employee required no further treatment, other than weight reduction.  Rating the employee=s work-related knee impairment at 3% of the whole body, the doctor further concluded that the employee had reached maximum medical improvement [MMI] Athree months after surgery.@  The employee was served with Dr. Wyard=s report to this effect on August 31, 1999.

 

Dr. Wyard issued his second report on February 10, 2000, after reviewing additional medical records.  In this second report, Dr. Wyard reiterated many of his previous conclusions, including his opinion as to MMI, and addressed several other issues, including Dr. Daley=s recommendation for Synvisc injections.  As to the latter issue, Dr. Wyard wrote as follows:

 

I think some Synvisc injections are a consideration.  Synvisc injections are relatively controversial and the results are unpredictable.  Nonetheless, there is essentially no downside and they may be beneficial for a period of time.  I do feel the Synvisc injections would be related to Mr. Spiess= preexisting arthritis in his knee, and unrelated to the work injury of April 29, 1998.

 

This report was served on the employee on February 28, 2000.

 

On March 15, 2000, the matter came on for hearing before a compensation judge for resolution of several issues, including the compensability of the proposed Synvisc injections and whether the employee had reached MMI effective with service of either of Dr. Wyard=s reports.  In a decision issued on April 12, 2000, the compensation judge concluded, in relevant part, that the proposed Synvisc injections were reasonably required to treat the employee=s work-related right knee injury and that the employee had not yet reached MMI.  The employer appeals.

 

STANDARD OF REVIEW

 

In reviewing cases 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).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[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).  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.@  Id.

 

DECISION

 

Pursuant to Minn. Stat. ' 176.011, subd. 25, MMI Ameans the 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 . . . .@  Factors relevant to the issue include Athe history of improvement, current treatment, pre-existing conditions, and proposed treatment.@  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 529, 41 W.C.D. 634, 639 (Minn. 1989).

 

In the present case, the compensation judge concluded that the employee had not reached MMI A[b]ecause there is still a form of treatment likely to increase the employee=s level of functioning in terms of decreasing his pain.@  On appeal, the employer argues that the judge erred in concluding that the employee had not reached MMI, because A[o]ne, there is inadequate evidence that the Synvisc injections will be effective or increase the Employee=s level of functioning, and two, there were no medical opinions rebutting Dr. Wyard=s reports that the employee had reached maximum medical improvement.@

 

Addressing the employer=s second argument first, we find no error in the judge=s failure to adopt Dr. Wyard=s opinion as to MMI.  MMI is a finding of ultimate fact and is Anot determined solely by a physician=s opinion.@  Hammer, 435 N.W.2d at 528-29, 41 W.C.D. at 639-40.^[2]  Contrary to the employer=s argument, the judge here did not disregard Dr. Wyard=s MMI opinion but rather rejected it based on the other evidence bearing on the issue, an action clearly within the judge=s authority.  Id.  We therefore find no justification for reversing the judge=s decision on expert opinion grounds.

 

The employer=s other argument has somewhat more merit.  There is no explanation in any of the medical records as to the specific purpose of the Synvisc injections or exactly what results may reasonably be expected.  However, the employee testified as to his understanding concerning the proposed treatment, gleaned from his conversations with Dr. Daley, as follows:

 

He said they work - - they can work anywhere from six to ten months, and if it helps - - what it does is it puts a cushion between the two bones that are rubbing in there, because they took my cartilage out.  And he says in some cases it can help people, and he says there - - you know, there=s no guarantee.

 

The employee has a serious knee condition.  Despite two surgeries, several rounds of physical therapy, cortisone injections, and use of a knee brace, he has continuing symptoms, for which his treating physician has repeatedly suggested Synvisc injections, and even Dr. Wyard has indicated that those injections Aare a consideration@ that may benefit the employee.  The record also indicates that the employee is in the process of losing weight, which was recommended by both Dr. Daley and Dr. Wyard, and that he had lost twenty-five pounds in the six-week period prior to hearing.  While the evidence as to expected significant improvement is not as substantial as we might like, we cannot say that the judge=s MMI decision is clearly erroneous and unsupported by substantial evidence in the record as a whole.  Accordingly, we affirm the judge=s decision in its entirety.