Carpender v. Northern States Power

THOMAS C. CARPENDER, Employee/Appellant, v. NORTHERN STATES POWER, SELF-INSURED, Employer.

CAUSATION - MEDICAL EXPENSES; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Where over nine years had elapsed between the employee=s hip extensor work injury and the treatment at issue, where there was little evidence aside from the employee=s testimony that the employee=s hip-related symptoms persisted unresolved throughout that period, where the employee had a history of depression based in childhood and other trauma unrelated to the employee=s injury, and where the judge=s decision was supported by expert medical opinion, the compensation judge=s denial of certain medical expenses for treatment of chronic pain, depression, and low back problems was not clearly erroneous and unsupported by substantial evidence.

The employee appeals from the compensation judge's denial of his claim for certain medical benefits. We affirm.

On June 26, 1990, Thomas Carpender sustained a work-related partial tear of his left gluteus maximus muscle while employed as a heavy equipment vehicle mechanic with Northern States Power. Mr. Carpender [the employee] was thirty-six years old on that date and was earning a weekly wage not evident in the record. The employee first sought medical attention about two months later, on August 28, 1990, when he saw Dr. Paul Sandager at the Allina Forest Lake Clinic [Allina], to whom he complained of pain in his left buttock that had been present for at least a month. Dr. Sandager initially diagnosed a hamstring tear and prescribed medication and physical therapy. The employee returned to work after a few days off, but on September 11, 1990, having experienced renewed hamstring tenderness, he was taken back off work. Physical therapy records for September 14, 1990, indicate that the employee was experiencing symptoms that included pain down the back of his thigh and tenderness over the sciatic notch and across the piriformis muscle but that he denied any problems with his low back. Northern States Power [the employer], self-insured against workers= compensation liability, admitted liability for the injury and commenced payment of benefits.

On September 19, 1990, the employee saw orthopedist Dr. G. Peter Boyum, complaining of Asome vague aching pain with intermittent very sharp exacerbations in his left buttock and thigh.@ Pelvis x-rays proved unremarkable, and Dr. Boyum diagnosed a strain of the gluteus insertion, or Ahip extensor,@ prescribed physical therapy, and restricted the employee from working. On September 27, 1990, and again in October 1990, the employee saw Dr. R. Cohan for the employer, who found no evidence of radiculopathy and concurred in the hip extensor diagnosis. Dr. Boyum released the employee to return to work with restrictions on November 19, 1990, and on January 16, 1991, he concluded that the employee had reached Aessentially full recovery from the symptoms of his hip extensor strain,@ noting that he was Aback at normal activities and doing just about everything both at work and recreationally.@ With that, Dr. Boyum released the employee to treatment only as needed, indicating that A[h]e should have no permanent disability as the result of his work-related injury which is now resolved nicely.@

Upon returning to work, the employee began to experience a recurrence of his hip strain, and on February 6, 1991, Dr. Boyum took him back off work again. Dr. Cohan subsequently concurred in that action, and eventually Dr. Boyum ordered a bone scan of the employee=s pelvis and proximal femur and an MRI of his hips. The bone scan, taken on February 22, 1991, proved essentially negative, and the MRI, taken April 19, 1991, proved essentially normal except for some sacroiliitis and Aresidua of old partial osseous avulsion.@ The employee eventually returned to work first in a light duty position and eventually at his original job. On October 23, 1991, Dr. Boyum found the employee=s examination to be unremarkable and the employee to have Aessentially full motion and strength of the thigh and buttock musculature.@ On those findings, and noting that the employee was Aback doing his regular job essentially without restrictions and is working some overtime without any adverse effects,@ Dr. Boyum declared the employee=s Amuscular injury is now resolved after a prolonged healing.@ On that conclusion, the doctor found the employee to have reached maximum medical improvement without any permanent disability, and he released the employee from all but as-needed care.

The employee received no further hip or arguably related treatment for nearly three years, until July 18, 1994, when he returned to Allina with complaints of severe mid back pain that had developed over the past day or two. Office notes for that date report that the employee had Ahad a back injury about five years ago but no sequelae.@ X-rays on that date revealed Ascoliosis with rather bridging osteophytes on the lateral projection in the mid thoracic spine.@ Office notes of Dr. James Young at that clinic two days later indicate that the employee was reporting having had decreased flexibility in his back for several years. Dr. Young=s notes for July 25, 1994, reference Aone other episode six years ago,@ noting, however, that the employee Ahas not had radicular component but now states that he has had some numbness in his left great toe.@ Dr. Young suspected ankylosing spondylitis, an arthritic condition, and a bone scan on July 28, 1994, did identify increased activity in the thoracic and sacroiliac joints that was interpreted by the radiologist to Asuggest that there is an arthritic process of some type going on.@

On August 29, 1994, the employee saw Dr. Harvey Frank at the Allina clinic, who diagnosed ankylosing spondylitis and referred the employee to rheumatologist Dr. Erskine Caperton. Dr. Caperton agreed with the arthritis diagnosis in his report on November 4, 1994, and in a report on February 9, 1995, he reiterated that conclusion. Dr. Caperton did not relate the diagnosed condition to the employee=s June 1990 work injury. On March 1, 1995, the employee returned to see Dr. Frank with complaints primarily of depression. Dr. Frank reported that the depression was quite severe and had been Avery chronic for eight to ten years at least,@ and he recommended that the employee consult psychologist Dr. Jeffry Penwarden, Ph.D., whom the employee saw one time on March 6, 1995.

On October 16, 1996, the employee saw Dr. Sandager again, with complaints of Apain in his back and both legs[,] particularly the left,@ and Dr. Sandager referred him to neurologist Dr. Paul Schanfield. The employee saw Dr. Schanfield on October 31, 1996, regarding Asignificant radicular leg pain, primarily on the left side in the gluteal region, down the lateral aspect of the left leg to the heel for 5-6 years now.@ Suspecting chronic lumbar radiculopathy at L5, Dr. Schanfield requested review of the employee=s 1991 MRI scan and ordered an EMG. The EMG, conducted November 14, 1996, proved normal, and, finding that the 1991 MRI had not included the low back, Dr. Schanfield ordered a lumbar MRI scan. The scan, conducted December 13, 1996, was read to reveal mild dehydration of several intervertebral discs, most marked at L1-2 and L2-3, some narrowing of the L1-2 interspace, and minimal spondylosis, but no disc protrusion and no central canal stenosis.

In June of 1997, the employee was terminated from his job with the employer. He became depressed, and on June 25, 1997, he sought therapy again from Dr. Penwarden, who referred him in July 1997 to psychiatrist Dr. Scott Yarosh. Dr. Yarosh treated the employee for about five months, for what Stephanie Trapper, apparently an assistant in Dr. Yarosh=s office, described in a July 16, 1997, letter to the employer as APost Traumatic Stress Disorder associated with events in his formative years.@ In a letter ATo whom It May Concern@ dated August 4, 1997, Dr. Penwarden indicated that the employee had Aprovided a thorough history of his work-based injuries and consequent chronic pain,@ which Dr. Penwarden suggested had been complicated by the employee=s history of childhood abuse and severe family-of-origin dysfunction. In that letter, Dr. Penwarden indicated that it was his overall impression that the employee was Amaking substantial progress in finding constructive means of coping with h[i]s pai[n] and in reducing his depression@ and that he saw Ano reason to believe that [the employee=s] work capabilities are or have been impaired.@ Neither Ms. Trapper in her July 16, 1997, letter nor Dr. Yarosh, in his eventual summary letter dated December 4, 1997, makes any mention of any work injury.

On October 3, 1997, the employee sought a disability rating from Dr. Frank, who referred him back to Dr. Boyum. On October 7, 1997, the employee saw Dr. Boyum again for the first time after six years. Based in part on new x-rays that revealed further calcification on the posterolateral surface of the femur, Dr. Boyum diagnosed A[r]esidual pain following gluteus tear@ and A[h]eterotopic calcification secondary to [that tear].@ Dr. Boyum indicated at that time in part as follows:

My initial feeling was that there would be no permanent disability from this problem. However, I feel that because of the notice[a]ble loss of strength in the left lower extremity, this gentleman probably does have a disability in the amount of 3 percent of the body as a whole. This is the result of loss of strength of the musculature in the L4 distribution and the L5 distribution of the lumbar plexus estimated to be approximately 25 percent of loss of strength. There is no further treatment to offer this gentleman. Surgical intervention is not appropriate. He should be able to work at his normal position as a truck driver. Check back with me as needed only.

By December of 1997 the employee had obtained a new job, this as a small equipment mechanic

In June of 1999, the employee sustained a work-related injury to his right ankle, for which he received about three months of treatment without any reported concurrent complaint to his doctors of any hip symptoms. On December 7, 1999, the employee saw Dr. Sandager regarding Achronic hip pain and depression.@ A Abrief examination@ revealed tenderness over the left posterior hip and decreased flexion in external rotation, but gait was normal, and Dr. Sandager had a A[l]ong discussion with the [employee] regarding his chronic hip pain and depression.@ Indicating that the employee would be seeing Dr. Penwarden again also, Dr. Sandager referred the employee to the United Pain Center [United] for evaluation, noting that he had already been on several different depression medications in the past.

The employee saw Dr. Frank again on December 13, 1999, for Awhat sounds like an exacerbation of a long-standing low back situation with radicular pain down his legs.@ Medical student Amanda Engelking, reporting on her observation of Dr. Frank=s examination, diagnosed both chronic pain and depression, noting that the employee was complaining of radicular pain Adown into the left toes@ on the left side and Adown into the mid thigh@ on the right side. Examination revealed positive straight leg raising on one side, and Dr. Frank diagnosed lumbar radiculopathy, prescribed medication, and concurred in the referral to Dr. Penwarden.

On August 22, 2000, the employee was seen by Dr. Edrie Kioski at United, Afor evaluation of left leg pain,@ eight months after being referred by Dr. Sandager. Dr. Kioski diagnosed A[s]evere depression with component of post-traumatic stress disorder,@ together with A[l]eft lower extremity pain originally from a torn muscle.@ Dr. Kioski referenced the employee=s 1990 work injury but indicated that it was Aunclear how this would lead to an L5 radiculopathy@ and that it was Aunclear why [the employee] would be having severe pain 10 years later after his original injury.@ Dr. Kioski prescribed medication and indicated that he would Atry to get [the employee in to] see the pain psychologist if that is covered by his work comp.@

On January 5, 2001, the employee returned to see Dr. Frank at Allina, requesting a report linking his recent treatment to his 1990 work injury. Dr. Frank drafted such a letter on that date ATo Whom It May Concern,@ in which he stated in part that Ait seems to be fairly clear that [the employee=s] injury in 6/90 has had a profound effect on his physical and mental health status over the ensuing ten years.@ Dr. Frank indicated also that, Aother than for the brief period of time he saw Dr. Caperton for his ankylosing spondylitis, all doctor visits, physical therapy and psychotherapy are related to and substantially contributed to by the effects of the 6/26/90 leg injury at [the employer].@ Dr. Frank added that the employee would Acontinue to need chronic pain-type therapy and psychotherapy because of this injury for the foreseeable future.@

On January 15, 2001, the employee saw Dr. Penwarden again, for A[s]evere depression stemming from frustrations with work-related issues . . . and pain.@ Dr. Penwarden, while referencing Awork-related complications noted in previous notes,@ makes no express reference to the employee=s June 1990 work injury. On February 22, 2001, the employee returned to see Dr. Frank, bringing to his attention some literature about post-traumatic stress disorder and evidently requesting another report relating to his claim, the first having apparently not been responded to by the employer. Noting that the employee was very angry, and having inquired Apoint blank if [the employee] would consider suicide or perhaps harming someone else,@ Dr. Frank refilled the employee=s medication prescription and discussed with him the importance of refocusing himself and perhaps seeking retraining. On March 3, 2001, Dr. Frank wrote the requested second letter ATo Whom it May Concern,@ essentially reiterating what he had said in his letter of January 5, 2001.

On August 30, 2001, the employee filed a medical request, alleging entitlement to payment of several hundred dollars in treatment expenses incurred over the course of five visits to Allina and United between 1999 and 2001, consequent to his work injury on June 26, 1990. The employer denied the request on grounds that the expenses were unrelated to that work injury and that that work injury did not substantially contribute to the employee=s need for psychological/psychiatric review or treatment. An administrative conference was held on October 10, 2001, and, by a decision and order filed October 12, 2001, it was determined that the treatment in dispute was reasonable and necessary to cure or relieve the effects of the work injury, and the employer was ordered to pay the expenses at issue. On October 29, 2001, the employer filed a request for formal hearing.

On October 31, 2001, the employee was examined for the employer by orthopedist Dr. Mark Friedland, who diagnosed (1) A[s]tatus post partial avulsion of the gluteus maximum insertion on the left proximal femur@ and (2) A[s]pondyloarthropathy.@ Dr. Friedland concluded in part the following: that the employee had Ano objective evidence of deformity of the gluteus maximus, soft tissue swelling or any weakness of the gluteus maximus musculature@; that the employee had Afully recovered from the injury of June 26, 1990 from an objective standpoint@; that, pursuant to Dr. Boyum=s opinion of October 23, 1991, and contrary to that doctor=s 3% rating in 1997, the employee did not have any ratable permanent partial disability; that the employee revealed no objective evidence of weakness of the left lower extremity on examination or any evidence of peripheral neuropathy, radiculopathy, or myopathy that would explain his symptoms; that the employee had not required any restrictions on his physical activities as a result of his June 1990 work injury since at least October 23, 1991; and that any ongoing spinal pain was not documented until years after the work injury and was merely a result of the employee=s nontraumatically originated spondyloarthropathy.

The matter eventually came on for hearing before a compensation judge on March 7, 2002. The only issue at hearing was the employee=s entitlement to payment for his treatments at Allina on December 7 and 13, 1999, and January 5 and 15 and February 22, 2001, and for his treatment at United on August 22, 2000.^[1] At the hearing, the employee testified at some length to the effect that, as of his release by Dr. Boyum on October 23, 1991, to return to unrestricted work, he was much better but still had essentially continuous hip and buttock pain. By findings and order filed March 21, 2002, the compensation judge denied payment for all of the expenses claimed. The employee appeals.

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.

At Finding 16, the compensation judge concluded that two of the six medical expenses at issueBthose for consultations with Dr. Frank on January 5 and February 22, 2001Bwere not expenses of treatment for the work injury assessable against the employer, although they were claimable as costs associated with the employee=s claim in this proceeding. The employee has not appealed from that finding. At Finding 18, the judge found that the other four claimed expensesBthose for treatment with Drs. Sandager, Frank, Kioski, and Penwarden on December 7, 1999, December 13, 1999, August 22, 2000, and January 15, 2001, respectively--were all causally unrelated to the June 1990 work injury. The employee contends that this conclusion is unsupported by substantial evidence. We are not persuaded.

At Findings 13, 14, 15, and 17, the compensation judge indicated that the employee had treated with Dr. Sandager for chronic pain and depression on December 7, 1999, with Dr. Frank for low back and leg pain on December 13, 1999, at United (with Dr. Kioski) for chronic pain and depression on August 22, 2000, and with Dr. Penwarden for depression on January 15, 2001. The judge concluded at Finding 18 that the employee=s June 1990 work injury was not a substantial contributing factor in the need for this treatment, indicating that the treatment was Afor chronic pain, psychotherapy, and low back pain not shown to be causally related to the admitted work injury to the employee=s left hip and buttock.@ The judge went on in that finding to explain that, A[g]iven the gaps in medical treatment after the condition essentially resolved, the presence of unrelated degenerative ankylosing spondylitis, and multiple causes of depression other than the work injury, the opinion of Dr. Friedland is accepted concerning the cause of the need for any continuing medical treatment.@ We conclude that his conclusion of the judge was not unreasonable.

Over nine years elapsed between the employee=s work injury and the first of the four treatments here at issue. During this interim, there were extended, sometimes multi-year periods of time during which the employee continued to work full time at physically strenuous jobs without ever seeking any medical attention to even merely arguable consequences of his June 1990 hip extensor strain/partial tear. The employee has personally contended that he has never been without the pain of that injury, but there is little medical or other corroboration of that contention, and there is some express medical evidence to the contrary. As a finder of fact in direct observation of the employee=s testimony, the compensation judge was entitled to weigh that testimony and to credit other evidence over it. See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978). Moreover, the employee=s history of unrelated degenerative ankylosing spondylitis, ankle problems, and even some arguable discogenic problems in the employee=s lower extremities during that period might well have complicated even the employee=s own perception of the source of his perceived pain. It is true, at least with regard to the session with Dr. Sandager on December 7, 1999, that at least some of the pain addressed in the sessions here at issue is identified as being perceived specifically in the employee=s hip. But the general sense of the records at issue is that the employee=s post-injury pain is very nebulous in both its location and its cause, particularly as it is perceived by the employeeBsometimes above the waist, sometimes below, sometimes radicular to the toes, sometimes static, sometimes bilateral, sometimes only on the left. And this nebulousness is further complicated by the fact that the employee=s medical records are replete with expert medical reports of the employee=s history of and propensity for depression consequent to childhood and other nonwork-related trauma and of the impact of this history on the employee=s various physical pains.

In light of all of these factors, we conclude that it was not unreasonable for the compensation judge to credit the expert medical opinion of Dr. Friedland contrary to the position of the employee and the less definitive opinions of his treating physicians. Nor does the employee=s permanent partial disability rating and compensation related to his hip extensor injury affect this conclusion affirming denial of benefits for treatment deemed by the judge to be related instead to low back and psychological conditions that arguably preexisted that injury. Noting that it was based on expert medical opinion, and because it was not unreasonable, we affirm the compensation judge=s denial of the medical benefits here at issue. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (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); Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

^[1] Only five of these bills, one for slightly more money, had been at issue at the administrative conference on October 10, 2001.