DONNA BERRY, Employee, vs. BANTA PUBLICATIONS and ZURICH INS. CO., Employer-Insurer/Appellants and INSTITUTE FOR LOW BACK & NECK CARE and LAKEWOOD HEALTH SYS., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 22, 2002

 

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s August 10, 1999, work-related injury was a substantial contributing cause of the employee=s cervical spine condition.

 

EVIDENCE - EXPERT MEDICAL OPINION.  Where a medical expert=s opinion was supported by witness testimony and evidence of record, and therefore was adequately founded, the compensation judge did not err when relying upon that opinion.

 

Affirmed.

 

Determined by: Rykken, J., Johnson, C.J., and Pederson, J.

Compensation Judge: James R. Otto

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s finding that the employee sustained an injury to her cervical spine on November 10, 1999.  We affirm.

 

BACKGROUND

 

Donna M. Berry, the employee, sustained an admitted injury to her right shoulder on November 10, 1999, while employed by Banta Publications, the employer.  On that date, the employer was insured for workers= compensation liability in Minnesota by Zurich U.S., insurer.  The employee was 46 years old at the time of her injury, and earned a weekly wage of $474.41. 

 

The employee began working for the employer on August 3, 1997, as a general production worker.  Banta Publications publishes magazines; the employee=s job duties included sorting, straightening, assembling, bundling and tying various portions of magazines on a conveyor belt.  The employee performed job duties on a rotating basis, rotating every hour.  She also lifted bundles and boxes of magazines and mail bags.  She estimated that bundles weighed approximately 15 to 20 pounds and that mail bags each weighed either approximately 35 or 70 pounds.  The employee characterized her job as Aheavy,@ (T. 37) and testified that she used her arms and upper body with each task, and that the various tasks required her to constantly look down.

 

The employee testified that after throwing mail bags on or about November 10, 1999, she began experiencing pain in both shoulders, primarily the right, and felt pain at the base of her neck, radiating into her shoulder blade areas.  According to the First Report of Injury, the employee reported to the employer that she had pulled a muscle in her right shoulder.  On November 12, 1999, while repalletizing a load of books, the employee experienced a sharp shooting pain in her right lower shoulder area.  (T. 45.)  The employee first consulted a physician on November 12, 1999, complaining of right shoulder pain.  According to the chart notes of Dr. Rene Eldidy, the employee=s cervical spine was Asupple@ with no tenderness, she had a good range of motion and had tenderness and spasm in her right upper trapezius.  Dr. Eldidy diagnosed a muscular strain of the right shoulder, and restricted the employee to light-duty work.  At a re-examination on November 22, 1999, the employee reported continued discomfort in her right shoulder.  Tom Hock, physician=s assistant, referred her to physical therapy and restricted her to work involving her left arm only.  (Ee. Ex. B.)  The employee continued working on a light-duty basis for the employer, and underwent physical therapy between November 30, 1999 and January 7, 2000. 

 

The employee continued to note pain and aching in the back part of her neck and right shoulder, extending into her mid-back.  According to physical therapy notes on December 10, 1999, the employee=s right shoulder felt Areally good@ and the therapist recommended that the employee could return to full duty within one to two weeks.  However, subsequent physical therapy notes reflect that the employee=s pain persisted.  According to Dr. Richard Simonson=s chart note from Lakewood Clinic dated December 16, 1999, the employee complained of right shoulder pain and some upper trapezius muscle pain.  He referred her to an orthopedic surgeon, Dr. Peter Schmitz, whom the employee first consulted on January 19, 2000.  On that date, x-rays revealed acromioclavicular (AC) joint arthrosis of the right shoulder; Dr. Schmitz administered an AC joint injection and prescribed anti-inflammatory medication.  On January 26, 2000, the employee reported to Dr. Schmitz that she had begun to notice symptoms in her left shoulder, as she had not been using her right arm due to her right shoulder pain.  An x-ray of the employee=s left shoulder also indicated acromioclavicular joint arthrosis, which Dr. Schmitz diagnosed as recurrent over-use syndrome of the left shoulder.  Dr. Schmitz administered a trigger point injection, and prescribed Lodine.  By February 16, 2000, the employee reported continued pain over the left AC joint.  Dr. Schmitz recommended surgery and on March 15, 2000, he performed arthroscopic surgery on the employee=s left shoulder, in the nature of an anterior acromioplasty and removal of anterior acromial spurs to decompress the shoulder joint.  By May 18, 2000, the employee returned to light-duty work for the employer, working in the bindery, labeling envelopes, boxing magazines and stamping envelopes and mail bags.

 

The first reference to any cervical spine symptoms in the employee=s medical records is found in Dr. Schmitz=s chart note of April 19, 2000, when the employee reported a history of neck pain, radiating into both shoulders.^[1]  X-rays taken on that date showed a decreased disc space at the C5-6 level; Dr. Schmitz recommended physical therapy and prescribed Vioxx. 

 

By June 28, the employee=s medical records reflect that her left shoulder symptoms subsided and that she had a full range of motion in her left shoulder without any discomfort.  She reported, however, that her right shoulder pain was Akilling@ her, and that she noted pulling, gnawing and aching sensations in the top of her shoulders as well as pain in the base of her neck.  On July 26, 2000, the employee underwent surgery to her right shoulder in the nature of a decompression procedure for anterior acromial impingement, similar to the procedure performed on her left shoulder four months earlier.  Dr. Schmitz=s operative report reflects that he detected a severe arthritic condition in the employee=s right shoulder at the time of her surgery.  The employee remained off work following this surgery through October 22, 2000.  According to the employee=s testimony, this surgery did not alleviate her pain in her right shoulder, but instead worsened the pain, and she has not recovered from the increased pain she experienced as a result of that second surgery.  She characterized that pain as being severe and constant.

 

The employee returned to work on October 23, 2000, and continued working through May 22, 2001.  She worked part-time on a light-duty basis, working in the payroll and pre-press departments, and was paid temporary partial disability benefits during this period of time. She testified that she continued to experience pain in both shoulders and at the base of her neck and that  she was unable to sit for any period of time. 

 

Post-surgery, the employee continued to receive medical treatment.  She requested a second opinion concerning her ongoing symptoms and was referred, apparently by her qualified rehabilitation consultant, to Dr. Daniel Buss, at the University of Minnesota.  On December 6, 2000, Dr. Buss and Dr. Scott Resig examined the employee; she complained of bilateral shoulder pain, but Dr. Buss concluded that the employee had no shoulder disability or problems, and diagnosed bilateral posterior thoracic pain; he continued the employee=s work restrictions of light duty four hours per day, and recommended a physical medicine and rehabilitation consult for pain control and further work up to determine Aany other possible etiologies of her pain.@  (Ee. Ex. F.)  On December 22, at Dr. Buss=s referral, the employee was examined by Dr. Thomas Balfanz, specialist in physical medicine and rehabilitation.  The employee reported neck, upper back and midback pain, right upper extremity paresthesias and headaches.  Dr. Balfanz recommended continued sedentary work, avoidance of overhead work, and lifting only between waist and shoulder level; he also referred the employee to a physical rehabilitation program.  The employee participated in that program between January 15-31, 2001, but Dr. Balfanz discontinued the treatment as the employee=s symptoms increased from the workouts.

 

Dr. Balfanz referred the employee for an MRI of her cervical spine to evaluate for intraspinal disc protrusion or other pathology.  An MRI taken on January 16, 2001, showed a broad-based disc protrusion at the C5-6 level causing mild spinal stenosis, and mild degenerative changes at C4-5 and C6-7 levels.

 

At Dr. Balfanz=s referral, the employee was evaluated by Dr. Bryan Lynn at the Institute for Low Back and Neck Care.  On February 6, 2001, she reported continued pain at the base of her neck and over the top of her shoulders.  Dr. Lynn diagnosed mild multi-level cervical spondylolsis, more advanced degenerative disc disease at C5-6 and long-standing posterior cervical and shoulder pain, status post bilateral anterior acromioplasties.  He recommended physical therapy and anti-inflammatory medication, and advised that the employee could continue working with her present work restrictions.  The record contains no follow-up records from the Institute. 

 

The employee returned to Dr. Simonson on February 15, 2001; his chart notes indicate that the employee reported ongoing and Aalmost unbearable neck and shoulder pain,@ inability to grip even light-weight objects, continued chronic pain, and that she had not taken pain medication for the past 2-3 months as she had been Achastised@ for taking pain medicine.  Dr. Simonson referred the employee to the Mayo Clinic for a more thorough investigation, and prescribed Vioxx and Lorcet for pain relief.  He restricted the employee to work as tolerated up to a maximum of four hours per day.  Dr. Simonson reexamined the employee on March 22, 2001, and diagnosed bilateral shoulder pain with differential diagnoses of regional myofascial syndrome and fibromyositis. 

 

On March 29, 30, April 3 and 13, 2001, the employee underwent an extensive evaluation at the Mayo Clinic, in the orthopedic, rheumatology and neurology departments.  According to the reports generated from each department, the employee=s EMG, x-rays and MRI of her cervical spine, and neurological studies were normal, as were her examinations.  Dr. John Sperling, orthopedic surgeon, first examined the employee.  He diagnosed bilateral soft tissue discomfort in the employee=s shoulders, recommended a gentle range of motion program for the employee=s shoulders, suggested that she be weaned off her narcotics by her local medical doctor, and referred her to the Mayo pain clinic for evaluation of her current narcotic use and help in weaning off her narcotics.  Dr. Sperling concluded that the employee did not need surgery at that point for her shoulders. 

 

Dr. J.E. Ahlskog, conducted a neurological evaluation to address the employee=s thoracic pain.  He diagnosed Aindeterminate myofascial intrascapular pain.@  He noted no autoimmune disorder, and explained that the employee=s cervical spine condition was of an unknown etiology.  Dr. Shreyasee Amin, rheumatology department, evaluated the employee and concluded that her pain seemed to be primarily located over her trapezius muscle bilaterally, and that there was no bony tenderness and no soft tissue swelling or other abnormalities in the area.  Dr. Amin stated that he did not have a Aclear explanation for the etiology of her symptoms apart from muscle spasm.@  He found no evidence of an underlying autoimmune connective tissue disease or vasculitis, diagnosed upper thoracic back pain, and thought the employee would benefit from evaluation at the Pain Rehabilitation Center at Mayo Clinic.

 

On April 13, 2001, the employee again consulted Dr. Ahlskog, who concluded that the employee=s condition was myofascial in origin.  Dr. Ahlskog stated that

 

The cause is yet to be determined.  How it relates to her work is unclear at present.  It did start at work when she had been throwing mail bags.  However, we simply do not have enough knowledge about the underpinnings of this myofascial pain to know exactly how it relates to that at this point in time.  She has such severe pain and tenderness that I do not think it is realistic for her to return to her prior work as it previously had been structured.

 

(Er. Ex. I.)  According to Dr. Ahlskog=s letter dated April 17, 2001, his final diagnosis was indeterminate myofascial intrascapular pain.  He recommended an MRI of the employee=s thoracic spine, and scheduled the employee for a pain clinic consultation.  However, the record contains no report from the Mayo Clinic pain clinic.

 

At the request of the employer and insurer, the employee underwent an examination with Dr. Larry Stern on April 2, 2001.  Dr. Stern diagnosed a cervical spondylosis condition, based upon the MRI documentation of degenerative changes in the discs and joints of the cervical spine.  Dr. Stern testified that the pain reported by the employee would be consistent with those degenerative changes.  He concluded that the employee=s cervical spine and upper back complaints/symptoms were not related to the employee=s November 10, 1999 injury.  He based that opinion on his conclusion that there was no connection between the onset of the employee=s neck symptoms and her specific work activity, and also on the lack of objective examination findings.  Dr. Stern concluded that the employee was not physically restricted from work activities, based upon her Aexcellent range of motion of her shoulders as well as full cervical range of motion,@ and her subjective complaints that he believed were out of proportion to objective findings.  Dr. Stern also testified that a functional capacities evaluation, which he believes is not an objective test, would be inappropriate because of the employee=s symptom magnification.

 

On April 9, 2001, the employer and insurer filed a Notice of Intention to Discontinue (NOID) workers= compensation benefits, on the grounds that the employee had been unemployed due to a personal medical condition and was not authorized off work for her work-related injury to her shoulders.  They filed an amended NOID on April 12, 2001, listing as further grounds for discontinuance that the employee is able to return to her regular work position with no restrictions, based upon the opinion of Dr. Larry Stern.  The employer and insurer also served the employee with notice of maximum medical improvement (MMI), along with service of that NOID, and advised that no further benefits would be payable beyond 90 days after service of MMI. 

 

An administrative conference was held on May 16, 2001.  By Order on Discontinuance pursuant to Minn. Stat. ' 176.239, served and filed on May 17, 2001, the compensation judge concluded that there were reasonable grounds to discontinue the employee=s temporary partial disability benefits.  On May 21, 2001, the employee filed a claim petition, alleging entitlement to temporary total, temporary partial and permanent partial disability benefits, as well as medical expenses relative to injuries to both her shoulders, thoracic spine, cervical spine and intrascapular pain.   On June 7, 2001, the employee also filed an objection to discontinuance. In their answer to the employee=s claim petition, the employer and insurer admitted primary liability for the employee=s bilateral shoulder injury of November 10, 1999, but denied notice of or injury to the employee=s thoracic spine, cervical spine or intrascapular areas of her body.

 

On August 1, 2001, at the referral of her attorney, the employee was examined by  Dr. D. M. Van Nostrand.  He diagnosed cervical pain syndrome with radiculopathy, and bilateral shoulder impingement syndrome, status post-op bilateral surgery, and concluded that the employee=s symptoms at the present time related almost exclusively to her cervical spine syndrome.  Dr. Van Nostrand expressed his opinion that the employee=s bilateral shoulder condition and cervical spine condition were related to her work incident in November 1999.  He concluded that the employee was not a candidate for cervical spine surgery, Ain spite of the fact that she does have definite degenerative disc disease of her spine.@  He recommended conservative treatment, including a physical conditioning and nutritional program, as the employee was deconditioned and had been unable to regain her weight.  Dr. Van Nostrand limited the employee to four hours of work per day and assigned physical work restrictions of no lifting, twisting, stooping, squatting or bending, no over arm work, and work that allows her to sit or stand intermittently for short periods of time.  He stated that by working within his recommended restrictions, and with ongoing strengthening exercises, the employee may eventually be able to increase to six and possibly eight hours of work per day.^[2] 

 

Dr. Van Nostrand concluded that the employee has sustained a 12 percent permanent partial disability of the whole body relative to her cervical spine, that she had reached maximum medical improvement and that he did Anot expect further significant recovery from her therapy as she has had several excellent physicians evaluate her.@  Dr. Van Nostrand also concluded that all the medical treatment the employee had received thus far had been reasonable and necessary and related to her work, and that A[a]ll of her difficulties stem back to her original shoulder injury.@  Dr. Van Nostrand further stated that A[i]t is important to point out that her physicians to a fault have all pointed out that she is a reliable type of person that does not seem prone to somataform-type illness.  In my opinion she gave no evidence of somataform-type behavior.@

 

The claim petition and objection to discontinuance were consolidated and were addressed at hearing before a compensation judge on August 15, 2001.  By Findings and Order, served and filed August 23, 2001, and by Findings and Order After Reconsideration, served and filed on September 10, 2001, the compensation judge found that the employee sustained injuries on November 10, 1999, to both shoulders and her cervical spine.^[3]  The compensation judge also found that the employee is entitled to receive benefits for temporary partial disability benefits on three days, May 17, 18 and 21, 2001.  Although the matters had been consolidated for hearing, the Findings and Order note that the parties agreed that the claim petition remain on the active trial calendar post-hearing.  The employer and insurer appeal.

 

 

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

 

The compensation judge concluded that the employee had sustained both a shoulder and cervical spine injury as the result of her November 10, 1999 injury, and that those injuries resulted in myofascial pain syndrome involving her neck, upper back and thoracic back.  The employer and insurer appeal, arguing that the compensation judge=s finding is not based upon competent and credible testimony or evidence.  They specifically argue that the opinions of Dr. Van Nostrand are not competent and credible medical opinions.  The issue before this court, therefore, is whether the compensation judge=s finding is supported by substantial evidence and is not clearly erroneous.

 

The question of whether there was a causal relationship between the employee=s August 10, 1999, work injury and her cervical and related symptoms is a question of fact.  Questions of medical causation fall within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).  A trier of fact=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).

 

The compensation judge found that

 

The nature of the injuries sustained by Ms. Berry on November 10, 1999 include, but are not limited to, permanent aggravation-type injuries involving her bilateral acromioclavicular joints; a probable broad based disc protrusion at her C5-6 level that probably was caused by, accelerated by, or permanently aggravated by her employment activities on November 10, 1999; and a resulting myofascial pain syndrome involving her neck, her upper back, and her thoracic back (also known as intrascapular pain) which appears to be primarily located over her muscles, particularly her trapezius muscles bilaterally.

 

(Finding No. 2.)  (Emphasis in the original.)  In his memorandum, the compensation judge referred to various medical opinions.  He stated that Dr. Stern was of the opinion that it was Apossible@ that the cause of the pain in the employee=s neck is the degenerative changes and disc protrusion at C5-6.  He referred to Dr. Buss=s opinion that Awhile it appears that Ms. Berry=s pain appears to be originating from her posterior thoracic region, that Ms. Berry needs further work up for other possible etiologies of her pain.@  He also referred to Dr. Ahlskog=s opinion that the cause of Ms. Berry=s pain was unknown and not determined by evaluators at the Mayo Clinic.  The compensation judge further concluded that the employee=s testimony concerning her level of pain was highly credible,  that the employee had not yet reached MMI and that the employee could benefit from further medical work up Awith more attention given to whether her broad based disc protrusion at her C5-6 level is a cause of her pain.@

 

Although the compensation judge did not specifically mention Dr. Van Nostrand=s opinion in his decision, he concluded that the nature of the employee=s injuries included both her shoulders and her cervical spine, which is consistent with Dr. Van Nostrand=s opinion.  The employer and insurer argue that Dr. Von Nostrand=s opinion, on which the compensation judge implicitly relied, is flawed as it is not based upon competent and credible testimony or evidence, in other words, that his opinion lacks foundation. They argue that none of the employee=s treating or consulting physicians, other than Dr. Von Nostrand, causally link the employee=s cervical spine condition to her work injury.  They argue that his report fails to give proper consideration to the history contained in the medical records and that he relied exclusively on the employee=s current recollection of the 1999 and 2000 symptoms, thereby failing to consider the absence of any objective examination or test results in her medical records.   

 

Adequate foundation is necessary for a medical opinion to be afforded evidentiary value.  Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991).  To be of evidentiary value, a medical opinion must rest on a factual basis.  Zappa v. Charles Mfg. Co., 260 Minn. 217, 224, 109 N.W.2d 420, 424, 21 W.C.D. 459, 467 (1961).  Furthermore, the facts upon which the expert relies for his or her opinions must be supported by the evidence.  McDonald v MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff'd (Minn. July 13, 1990).

 

Following his examination of the employee on August 1, 2001, Dr. Von Nostrand  prepared a report in which he expressed his opinion concerning the causation of the employee=s condition, outlining the history that he obtained from the employee concerning the location and severity of her pain and referring to the medical reports he had reviewed.  That history, as described by Dr. Van Nostrand, is relatively consistent with the testimony presented by the employee at the hearing, testimony that the compensation judge expressly found to be credible, and we defer to the judge=s unique discretion to credit that evidence.  As the information contained in Dr. Von Nostrand=s report is consistent with the employee=s hearing testimony and evidence of record, his opinion therefore is adequately founded.  As adequate foundation existed for Dr. Van Nostrand=s opinion, the compensation judge did not clearly err in accepting his opinion over that of Dr. Stern, the employer and insurer=s  medical expert, as a compensation judge has considerable discretion in choosing among conflicting expert opinions.  See Nord v. City of Cook, 360 N.W.2d 337, 342-343, 37 W.C.D. 364, 372-73 (Minn. 1985).^[4]  

 

Because the record as a whole reasonably supports the compensation judge=s finding that the employee=s disc protrusion at her C5-6 level was causally related to her employment activities on November 10, 1999, we affirm that finding.