JAMIE FUNK, Employee, v. VIRGINIA CONVALESCENT CTR., SELF-INSURED/BERKLEY RISK ADM'RS CO., Employer/Appellant, and IRON RANGE REHABILITATION CTR., THE DULUTH CLINIC - VIRGINIA, THE DULUTH CLINIC, LTD., BLUE CROSS/BLUE SHIELD OF MINN., and FIRST PLAN OF MINN., Intervenors.

 

WORKERS' COMPENSATION COURT OF APPEALS

JULY 29, 2002

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, lay testimony and medical records, supported the compensation judge=s finding that the employee's work for the employer substantially aggravated her underlying low back condition causing the low back and right extremity symptoms she experienced beginning in October 1999.

 

EVIDENCE - EXPERT MEDICAL OPINION.  A medical expert's opinion is not unopposed where contrary well-founded medical opinion is clearly expressed in other written or testimonial evidence. The opinions of the employee's treating physicians, as set forth in the medical records and reports, were expressed with sufficient certainty that the compensation judge was entitled to rely on those opinions in determining the causation issue in this case. 

 

PERMANENT PARTIAL DISABILITY.  The compensation judge did not err in adopting the treating physician=s seven percent PPD rating which was adequately supported by the medical examinations and radiological findings. 

 

MEDICAL TREATMENT - REASONABLE & NECESSARY.  Substantial evidence supported the finding that the physical therapy and work hardening treatments rendered by the Iron Range Rehabilitation Center was reasonable and necessary.

 

Affirmed.

 

Determined by Stofferahn, J., Pederson, J., and Johnson, C.J.

Compensation Judge:  Donald C. Erickson

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The self-insured employer appeals from the findings that the employee had sustained a low back injury causing radicular symptoms on October 11, 1999, that the employee was permanently partially disabled to the extent of seven percent of the whole body, and that medical treatment, with the exception of certain chiropractic treatment, had been reasonable and necessary.  We affirm.

 

BACKGROUND

 

The employee, Jamie Funk, was born in 1979.  She graduated from Mesabi East High School in 1997, and in the fall of that year worked as an uncertified nursing assistant for Chestnut Grove Nursing Home.  In February 1998 she moved to Arizona, where she first worked for Burger King, and then beginning in April or May 1998 started working for Ruger Investment Casting painting and polishing golf clubs for a  golf club manufacturer.  Her job at Ruger involved repetitive twisting and bending and occasional lifting of buckets of golf clubs weighing up to 40 pounds.  While working for Ruger she worked frequent overtime, sometimes working up to 70 hours per week.  In January 1999, while working for Ruger, the employee started treating with a chiropractor for shooting pain in her back which she attributed to too much activity.  She continued to treat off and on through April 5, 1999 for soreness in her back, neck and shoulders, for a total of 17 chiropractic treatments.

 

In the spring of 1999 the employee was laid off from her job at Ruger.  When she was laid off she found work with Fan Construction as a laborer on a road paving crew walking several miles a day behind a paving machine shoveling hot tar and rocks and sometimes lifting rocks weighing more than 40 pounds.  The employee left this job about the end of May 1999 to return to Minnesota for family reasons.  Once back in Minnesota, the employee worked briefly for the Biwabik Lodge doing laundry, and then took a four-week course at Hibbing Community College for certification as a nursing assistant.  Following the training, the employee was hired on September 7, 1999 by the employer, the Virginia Convalescent Center, as a nursing assistant on its night shift.  The employee=s primary duties were direct patient care. Every two hours on her shift she did rounds. She helped people use the bathroom or would change adult diapers. She would turn people lying in bed so they changed positions. She did transfers from wheelchair to toilet to bed. This direct care was done without the assistance of other staff. In addition to rounds, she responded to calls from patients who were requesting help. The employee stated that the only time she sat down on a shift was when she was on break.    

 

According to the employee=s testimony, she started to experience pain in her right ankle while walking at work early in the morning of October 12, 1999.  She saw Dr. Brian Pfeifer at the Duluth Clinic the next day, for a twisted ankle.  He  noted tenderness over the lateral ankle, which showed minimal ecchymosis and no particular edema.  X-rays were negative for fracture or dislocation, and the soft tissues appeared normal.  Dr. Pfeifer expected the problem to resolve in a few days. 

 

On October 15, 1999, the employee also began to treat chiropractically at Plesha Chiropractic for neck and low back pain. In the health history form completed by the employee, she was asked about aggravating activities and noted that on her job, AI lift and move people all day@.

 

On October 18, 1999 the employee returned to the Duluth Clinic and was seen by  Dr. Michael Husak.  She complained of right ankle pain which now Ashoots up into her tail bone@ and had caused her to miss three days of work.  Straight-leg raising was slightly positive on the right, and dorsiflexion on the right foot was slightly weaker than the left.  Dr. Husak assessed a possible sciatica, although the employee reported no history of trauma to the back and had no lumbosacral tenderness.  He recommended an MRI scan of the employee=s lumbar spine.  The MRI, done on October 19, 1999, showed a mild asymmetrical disc protrusion at L4-5 centrally and to the right mildly compressing on the right side of the subarachnoid space. 

 

Because of concerns about the employee=s right leg pain being related to this protrusion, Dr. Husak referred the employee to Dr. Mark C. Glazier, a neurosurgeon.  Dr. Glazier diagnosed L4-5 degenerative disc disease and recommended physical therapy.  His impression was that risk factors for the condition were the employee=s obesity, her smoking history and Aher employment activities which are clearly quite significantly detrimental because it involves lifting and bending in awkward positions@.  He did not consider the employee a surgical candidate.  In a letter to Dr. Husak on October 28, 1999, Dr. Glazier opined that the employee=s low back condition was Aaggravated probably by her job situation which involves lifting and bending when she cares for the elderly population in the nursing home.@

 

On October 29, 1999, the employee saw Dr. T. Scott Douglass, an occupational medicine specialist, on referral from Dr. Husak for evaluation of an injury to the employee=s back with associated right leg symptoms.  Dr. Douglass recorded by way of history that the employee began noticing pain in the right foot and ankle while working for the employer, in the morning when she was getting patients up for breakfast and doing a lot of bending, twisting, pulling and lifting of patients.  After initial treatment by Dr. Pfeifer on October 13, 1999 the employee continued to have pain in the right ankle aggravated by walking, and began to have more pain in the right leg higher up in the knee area, posteriorly and laterally.  Her symptoms when first seen by Dr. Douglass were leg pain and a mild aching discomfort in back, with the leg pain predominating over back pain 90/10.  The leg pain was aggravated by walking and sitting and being on her feet.  Dr. Douglass considered the employee=s right leg pains to be consistent with right leg radiculitis and sciatica related to her lumbar disc disease, with onset of the leg and ankle pain while doing patient transfers.  He prescribed physical therapy, pelvic traction and medications and recommended she continue off work.

 

On October 27, 1999 the employee was terminated by the employer for Afailure to meet probationary expectations.@  On November 12, 1999, the employer=s workers= compensation insurance administrator denied primary liability for an alleged work-related injury.

 

The employee subsequently continued to treat primarily with Dr. Douglass.  In December  1999 the employee reported to him that her right leg pain had resolved, although she continued to have back pain.  Dr. Douglass authorized the employee to perform sedentary light work four hours per day.  Additional physical therapy was recommended.

 

The employee found a part-time job for Fingerhut performing telemarketing in January, 2000.  On February 24, 2000 the employee saw Dr. Douglass and stated that she was tolerating the work at Fingerhut without difficulty and that her back was doing much better.  Physical therapy was discontinued. 

 

The employee filed a claim petition on May 17, 2000, alleging a work injury to the low back Awith neurological presentation down right leg@ in October 1999.  The self-insured employer filed its answer on June 14, 2000 denying primary liability. 

 

The employee did not return to Dr. Douglass until July 25, 2000 when she reported that her back pain had returned and that she had also been having intermittent right leg pain for the past month.  She had cut back her work at Fingerhut to three days per week.  The doctor prescribed a return to physical therapy for three weeks.

 

On July 28, 2000, the employee was examined by Dr. Jack A. Drogt, an orthopedic surgeon, on behalf of the self-insured employer.  Based on the history and records provided to him and on his examination of the employee, Dr. Drogt concluded that the employee had reached maximum medical improvement, had no permanent partial disability, and was no longer in need of further treatment or medical restrictions.  He offered the following opinion regarding causation for the employee=s symptoms:

 

It is difficult to determine whether the low back and right ankle are causally related and whether they were aggravated or accelerated by Ms. Funk=s work at the Virginia Regional Medical Center.  Assuming the history provided by Ms. Funk to be correct, her right ankle, leg and calf pain, might have represented radicular pain in that she indeed did sustain a mild disc bulge which might have caused an irritation of the right L5 exiting nerve rootlet, not principally by compression or pressure, but by a localized chemical irritation.  In the absence of other documented etiologic factors, I believe this to be the only plausible explanation.  Reference is made to a twisting injury to the ankle.  However, Ms. Funk denied that, and noted the onset of pain while walking during her rounds only.  If no specific incident occurred on October 11, 1999, as you indicated in her deposition, the onset of symptoms during work hours, by default, would suggest a causal relationship between her work activities and the onset of symptoms. 

 

(7/28/2000 report of Dr. Drogt at 5.)

 

Shortly afterwards, counsel for the self-insured employer sent Dr. Drogt copies of the employee=s October 19, 1999 MRI scan and records pertaining to her brief period of chiropractic treatment in Arizona in January 1999.   On September 5, 2000, Dr. Drogt wrote a letter revising his previous opinion.  From his own review of the MRI scan, he opined that the findings were insufficient to account for radicular symptoms.  Thus he further opined that while the employee may have sustained the onset of her foot and ankle pain in the course of her work activities, that fact alone did not indicate that she had sustained a back injury at work on that date.  At a subsequent deposition, however, Dr. Drogt was shown a medical journal article which concluded that radicular symptoms not infrequently resulted from conditions resembling that shown on the MRI scan.  Dr. Drogt testified that he had not read this journal article, but acknowledged that if the article's conclusions were supported by the research findings discussed in the article, he "might change [his] opinion" that the employee's MRI findings were sufficient to explain her radicular symptoms. (Drogt Dep. at 33.)

 

When the employee returned to Dr. Douglass on September 11, 2000 she reported that the physical therapy had not helped her back pain significantly, but she was no longer experiencing leg pains or dysthesias.  She had been working three to four days per week.  Dr. Douglass suggested the employee undergo epidural steroid injections but the employee was reluctant, so he instead administered xylocaine trigger point injections in the employee=s low back.  He continued her work restrictions for light duty work.  The employee gained brief relief from the trigger point injections and Dr. Douglass repeated the injections on September 20, 2000.  On October 11, 2000 the employee told Dr. Douglass that she no longer had pain radiating into her legs and had again been tolerating her telemarketing work fairly well.  She wanted to proceed with the epidural steroid injections.  These were performed by Dr. Molly Urban, M.D., on October 26, 2000. 

 

The employee returned to Dr. Douglass on November 2, 2000 with increased pain in the right leg and hip since the injection, and again on November 9 following an episode of increased back pain for which she had sought emergency room treatment.  Dr. Douglass arranged for a repeat MRI scan and referred her to Dr. Edward E. Martinson at the Department of Physical Medicine and Rehabilitation of the Duluth Clinic. 

 

The MRI scan, performed on November 14, 2000, showed chronic mild nuclear dessication with a small right paracentral disc protrusion at L4-5, without evidence of impingement on the traversing nerve roots.  There was also mild central annular bulging at L5-S1. 

 

Dr. Martinson saw the employee on December 26, 2000.  The employee=s symptoms at that time were constant low back pain, bilateral hip pain, and intermittent discomfort extending down the posterior aspects of her upper legs to her ankles and feet, more on the right than the left.  Dr. Martinson reviewed the employee=s history and MRI scan findings and diagnosed low back and bilateral lower extremity pain secondary to a work-related injury.  By history and findings, he found the employee=s condition consistent with a lumbar disc syndrome at L4-5 complicated by bilateral trochanteric bursitis.  Physical therapy was again instituted and the employee was also started on  a work hardening program. 

 

In April 2001 the employee reported to Dr. Douglass that her back was  feeling much better and her radicular symptoms had again resolved.  On April 2, 2001 Dr. Martinson gave the employee permanent work restrictions. In his report of May 9, 2001, Dr. Martinson stated that the employee=s work at Virginia Convalescent Center  Asubstantially aggravated an underlying condition leading to the significant difficulties which she has experienced in her low back and right lower extremities since August 1999.@

 

In a letter dated May 11, 2001, Dr. Douglass opined that the employee had Asigns and symptoms consistent with lumbar radiculopathy in her right leg consistent with her lumbar disc disease at L4-5.@  In his opinion, Aher work at the Virginia Convalescent Center caused or substantially aggravated an underlying back condition.@  He rated her permanent partial disability at seven percent for Apersistent objective clinical findings of involuntary muscle tightness in the paralumbar muscles[,] decreased range of motion of her lumbar spine and the persistent evidence of L4-5 disc disease.@ 

 

The employee=s claims came on for hearing before a compensation judge of the Office of Administrative Hearings on September 20, 2001 and the judge served and filed his findings and order on December 18, 2001.  Issues presented relevant to this appeal included whether the employee sustained a work injury on October 11, 1999, the nature and extent of such injury, whether the employee was entitled to permanent partial disability compensation, and whether certain medical and chiropractic expenses were reasonable and necessary.  The judge found that the employee had sustained a low back injury causing radicular symptoms on October 11, 1999, that the employee was permanently partially disabled to the extent of seven percent of the whole body, and that medical treatment, with the exception of certain chiropractic treatment, had been reasonable and necessary.  The self-insured employer appeals.

 

DECISION

 

I. Causation

 

The compensation judge accepted the opinions of Drs. Martinson and Douglass that the employee's work for the employer substantially aggravated her underlying low back condition causing the low back and right extremity symptoms she experienced beginning in October 1999.  These opinions were expressed by way of medical reports as well as statements of these physicians in the employee's medical records, as neither Dr. Martinson nor Dr. Douglass testified, whether at the hearing or by deposition. 

 

The self-insured employer argues on appeal that these medical records and the employee's testimony were insufficient to establish medical causation for the employee=s alleged work injury as a matter of law.  Specifically, the employer asserts that the opinions of the employee's treating physicians necessarily lacked the requisite degree of medical certainty in that the employee had been unable to adequately describe a specific causal mechanism or triggering event for her injury, and that her doctors= medical opinions thus were merely speculative.  Noting in addition that the employee failed to present medical testimony to support causation, the employer argues that, for these reasons, the opinions of its medical expert, Dr. Drogt, constituted unopposed medical evidence on the issue of causation.  The appellant employer argues that the compensation judge therefore committed an error of law in failing to adopt Dr. Drogt's viewpoint over the opinions of the employee's treating physicians. 

 

While it is a long-established principle that a compensation judge may not disregard unopposed medical opinion on issues which are peculiarly a matter of medical expertise, a medical expert's opinion is not unopposed where contrary well-founded medical opinion is clearly expressed in other written or testimonial evidence.^[1]  The question, presented here, then, is whether the medical opinions accepted by the compensation judge were sufficient to meet the employee's burden to show a causal link between the employee's work for the employer and her symptoms and disability. 

 

We conclude that the compensation judge was entitled to rely on the opinions of the employee's treating physicians, Dr. Martinson and Dr. Douglass, as set forth in the medical records and reports in determining the causation issue in this case.  Dr. Martinson reviewed the employee's history and MRI scan findings and in his report dated December 26, 2000, diagnosed low back and bilateral lower extremity pain secondary to a work-related injury.  On May 11, 2001, Dr. Douglass specifically opined that "her work at the Virginia Convalescent Center caused or substantially aggravated an underlying back condition," which he associated with a lumbar  radiculopathy producing symptoms in the employee's right lower extremity.  Further support for the compensation judge's finding on causation was provided by Dr. Glazier, a neurosurgeon who examined the employee in October 1999 on referral from Dr. Husak, and in a letter dated October 28, 1999 offered the opinion that the employee's low back condition was "aggravated probably by her job situation which involves lifting and bending when she cares for the elderly population in the nursing home."  

 

That the employee herself had some initial confusion as to the nature and source of her injury is not surprising given the unusual presentation of symptoms in the case, where the employee experienced first ankle pain, then pain radiating through the right leg and hip, prior to the development of low back pain.  We do not think that the employee's initial uncertainty about the nature of her injury renders the foundation for the opinions of her treating physicians inadequate.  Other than the employee's uncertainty over the source and nature of her injury, the appellant employer has not alleged any clear foundational defect in the opinions adopted by the compensation judge.  In the absence of any obvious foundational error, the employee's treating physicians, who were familiar with the employee's medical history and had examined her on multiple occasions, had sufficient foundation and competence to render an expert opinion.  See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988).

 

The employer nonetheless contends that substantial evidence failed to support the compensation judge's causation findings, alleging that the compensation judge should have given greater weight to the opinion of Dr. Drogt, to the employee's brief period of prior chiropractic treatment, to a possibility that the employee might have injured her back in a car accident in 1998, to alleged inconsistencies in the employee's testimony over the way in which her ankle pain developed, and to its assertion, unsupported by any evidence of record, that the employee's duties rarely required her to lift or bend to care for patients.  The question of the relative weight to be given to the evidence is one committed to the compensation judge.  The compensation judge gave greater weight to the opinions of the treating physicians, the employee's testimony, the absence of evidence of ongoing back or leg symptoms prior to the date of injury, the history of the employee's symptoms thereafter, and the other medical evidence, including MRI scans showing findings her treating physicians considered to be consistent with her radicular symptoms.  The judge also took particular note in his memorandum of the medical journal article offered into evidence by the employee and Dr. Drogt=s deposition testimony.

 

This case was one in which there was a clear divergence in medical opinion.  As our supreme court has repeatedly stated, A[u]ntil the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining injury or disease will have to remain in the province of the trier of fact.@  Felton v. Anton Chevrolet, 513 N.W.2d 457, 459, 50 W.C.D. 181, 184 (Minn. 1994) (quoting Ruether v. State, 455 N.W.2d 475,  478 (Minn. 1990), and Golob v. Buckingham Hotel, 244 Minn. 301, 304-05, 69 N.W.2d 636, 639 (1955)).  The compensation judge=s choice among the disparate opinions of medical experts must be affirmed, 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).  As we find no foundational defect, we affirm.

 

II. Permanent Partial Disability

 

The compensation judge accepted the opinion of Dr. Douglass and rated the employee's permanent partial disability at seven percent, reflecting decreased range of motion in the spine, lumbar disc disease at L4-5, and radicular symptoms in the employee's right leg and ankle, pursuant to Minn. R. 5223.0390, subp. 3.C (1).  This rule provides a seven percent rating for symptoms of pain or stiffness in the region of the lumbar spine, substantiated by persistent objective clinical findings such as involuntary muscle tightness in the paralumbar muscles or decreased lumbar range of motion, along with radiologic evidence of abnormality at a single level. 

 

The employer does not dispute that there is evidence to establish the elements of the rating in this case.  Rather, its appeal from the rating is primarily based upon its appeal from the finding of causation as well as the arguments offered in that context against the compensation judge's choice between Dr. Drogt's opinion and those of the other physicians.  Having concluded that the employer's arguments do not warrant reversal of the compensation judge's choice between the opinions of Dr. Drogt and Dr. Douglass in that context, we similarly fail to find grounds to reverse the compensation judge's choice of expert opinion on this issue of permanency.

 

III. Medical Treatment Expenses

 

The employer's appeal from the award of medical expenses is again based, first, on the arguments denying causation.  We have affirmed the compensation judge's causation findings above and thus find no basis for reversal of the award of medical expenses on that basis.

 

The employer further argues that some of the treatment rendered was unreasonable or unnecessary, specifically noting treatment provided by the Iron Range Rehabilitation Center, the Duluth Clinic, the Duluth Clinic - Virginia, and the Virginia Regional Medical Center.  The employer generally alleges that the records indicate that "the employee has treated extensively without relief of her symptoms."  By way of  specific example of treatment it deems ineffective and thus unreasonable, the employer points to the trigger point injections given to the employee.  (Employee's Brief at 14.) 

 

We note, however, that, at the beginning of the hearing before the compensation judge, employer=s counsel expressly stated that the employer was not challenging the reasonableness and necessity of medical treatment with the exception of treatment provided by Plesha Chiropractic [which was not awarded below] and by Iron Range Rehabilitation.  (T. at 10.)  As the employer did not dispute below the reasonableness and necessity of the treatment provided by the Duluth Clinic, the Duluth Clinic - Virginia, and the Virginia Regional Medical Center, we cannot consider the reasonableness and necessity of that treatment, including the trigger point injections, on appeal.  This leaves only the treatment at the Iron Range Rehabilitation Center. 

 

The medical treatment issues were not the primary focus of the parties= litigation efforts and they did not introduce medical opinion expressly appraising the reasonableness and necessity of the treatment actually rendered.  The employer=s expert, Dr. Drogt, had opined generally on July 28, 2000 that the employee was not in need of further treatment, an assessment obviously not shared by the employee=s treating physicians, whose views were adopted by the compensation judge over those of Dr. Drogt.  Thus the principal evidence on the reasonableness and necessity of the Iron Range Rehabilitation Center treatment was that provided by the medical records. 

 

There were three separate courses of physical therapy treatment at the Iron Range Rehabilitation Center.  The employee was first treated with eleven sessions of physical therapy there between December 2, 1999 and March 9, 2000 at the recommendation of Dr. Douglass.  This treatment had been prescribed much earlier but the employee was at first unwilling or unable to participate due to the employer=s denial of liability and her inability to pay for the treatment.  The discharge note states that the employee=s prognosis was slightly improved and that the goal of decreasing the employee=s pain had been partially met. 

 

Dr. Douglass referred the employee back to physical therapy at the Iron Range Center on July 25, 2000, after the employee presented to his office with a recurrence of her back pain and leg symptoms after a period of some ongoing improvement.  The employee was treated with ten sessions and discharged on October 19, 2000.  The employee had failed to return for part of the treatment.  According to the discharge note, prior to the employee=s missed treatment sessions, there had been a marked improvement to trunk flexibility, and periods of pain relief. 

 

On December 26, 2000, Dr. Martinson prescribed intensive physical therapy intended to progress into work conditioning for the employee at the Iron Range Center.  The discharge note indicates that the employee was seen for 23 sessions and that her work tolerances were improved during the course of the therapy, at the end of which permanent restrictions were established under which Dr. Martinson released her for full time work. 

 

The medical records thus provide sufficient support for the compensation judge=s findings of the reasonableness and necessity of the Iron Range Rehabilitation Center treatment.  We therefore affirm.