GENELL M. HANSEN, Employee/Appellant, v. WOODCRAFT INDUS., INC., and INDIANA LUMBERMEN=S MUT. INS. CO., Employer-Insurer/Cross-Appellants, and WOODCRAFT INDUS., INC., and FIREMAN=S FUND INS. CO., Employer-Insurer/Cross-Appellants, and WOODCRAFT INDUS. HEALTH PLAN, ABBOTT NORTHWESTERN HOSP., MEDICAL ADVANCED PAIN SPECIALISTS, and ST. CLOUD HOSP., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 29, 2002
HEADNOTES
CAUSATION - GILLETTE INJURY. The compensation judge did not use an erroneous standard in determining that the employee had not sustained a Gillette injury in 1998, but relied upon substantial evidence, including expert medical opinion, in making this determination.
CASUATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee had a reflex sympathetic dystrophy condition.
MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s findings that the employee=s piriformis surgery was reasonable and necessary medical treatment and his approval of a dorsal column stimulator. Substantial evidence also supports the compensation judge=s finding that it was premature to award a bed pad and an air mattress in view of the approval of the more aggressive treatment provided by the use of a dorsal column stimulator, and his finding that an automatic transmission automobile, warm clothing items, and an extended health club membership were not reasonable and necessary medical expenses.
Affirmed.
Determined by: Rykken, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Bradley J. Behr.
OPINION
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge=s finding that the employee did not sustain a Gillette injury in 1998 and the denial of certain medical and non-medical expenses; the employer and Indiana Lumbermen=s Mutual Insurance Company cross-appeal the Gillette injury issue and the compensability of certain medical expenses; and the employer and Fireman=s Fund Insurance Company cross-appeal regarding whether there was adequate notice of a Gillette injury. We affirm.
BACKGROUND
On October 14, 1996, Genell Hansen, the employee, sustained an admitted low back injury while working as a packager for Woodcraft Industries, the employer, which was insured for workers= compensation liability on that date by Indiana Lumbermen=s Mutual Insurance Company [Indiana Lumbermen=s]. The employee=s weekly wage at that time was $470.99. The employee=s job required heavy physical labor, including lifting, loading, packaging and moving wood pieces. The employee=s injury occurred when she was preparing to wrap a load of wood with shrink wrap and she experienced severe pain in her low back. The employee sought treatment for her injury two days later with Dr. Philip Bachman, who referred her to a chiropractor and placed her on a 15-pound lifting restriction with no bending. On October 21, 1996, Dr. Bachman referred her for physical therapy. By January 1997, Dr. Bachman referred the employee to an orthopedic surgeon, Dr. Garry Banks, who became her treating physician. Dr. Banks first examined the employee on January 14, 1997, and diagnosed an L5-S1 posterior annular tear. He recommended a TENS unit, stretching exercises, and continued light duty work within a 20-pound lifting restriction.
The employee continued to perform her regular job duties after the injury, often exceeding her restrictions. Sometimes she received help, but other times the employee would work outside of her restrictions in order to complete her tasks. The employee was treated with an epidural injection in June 1997 with some relief. In August 1997, she was restricted to four hours of work per day and a ten-pound lifting restriction. In October 1997, the employee was able to work longer days and her lifting restriction was decreased to 35 pounds. She did not receive any further medical treatment between November 1997 and June 1998. The employee was restricted from work for one week in June 1998 due to her work-related symptoms.
The employee testified that her pain in her low back and left leg worsened, and that her flare-ups became increasingly worse and more frequent and limited her activities. In July 1998, Dr. Banks performed a discography, which confirmed pain related to the annular tear at the L5-S1 level. He concluded that the employee=s lower extremity pain was related to nerve root irritation at the L5-S1 level, and recommended an L5-S1 fusion for pain relief. On September 15, 1998, the employee underwent fusion surgery at L5-S1, performed by Dr. Banks. At that time, the employee=s weekly wage was $595.98, and the employer was insured for workers= compensation liability by Fireman=s Fund Insurance Company [Fireman=s Fund].
The employee experienced some relief after her surgery, and was released to work by Dr. Banks on November 9, 1998, with restrictions of no lifting over 10 pounds, no bending, and no twisting. She returned to work in a management trainee position, was taken off work for a week in December 1998, and then returned to work part time. The employee reported improvement in her back symptoms but continued experiencing leg pain, and eventually was able to return to full time work. In October 1999, Dr. Banks diagnosed piriformis syndrome, with impingement of the sciatic nerve. The employee=s left buttock and leg pain persisted. Dr. Banks recommended left piriformis exploration and release, to alleviate the employee=s persistent pain. He performed a piriformis release surgery in April 2000, which was unsuccessful in that the employee=s pre-operative pain in her left buttock and lower extremity persisted. By May 2000, Dr. Banks recommended chronic pain clinic evaluation and management. Dr. Banks diagnosed reflex sympathetic dystrophy (RSD) and referred the employee to Medical Advanced Pain Specialists for evaluation and treatment of her RSD. Dr. David Nelson of this clinic concurred in the RSD diagnosis and recommended stimulator placement. The employee eventually was treated with a trial stimulator, which she testified provided significant relief.
The employee was evaluated by numerous doctors, including Dr. Robert Wengler who examined the employee at her attorney=s request, Dr. Larry Stern who examined her at the request of the employer and Fireman=s Fund, and Dr. David Boxall who examined her at the request of the employer and Indiana Lumbermen=s.
The employee has not returned to work since April 2000. On April 3, 2000, the employee filed a claim petition alleging two injuries, the admitted 1996 injury and a claimed Gillette injury culminating on September 15, 1998, the date of her lumbar fusion surgery. The employee and Indiana Lumbermen=s contended that the employee had sustained a Gillette injury as a result of her continued employment after the 1996 injury which culminated on the date of her fusion surgery. They based their contentions on the employee=s testimony that her condition worsened over this time and also on the opinion of Dr. Wengler.
A hearing was held on April 10, 2001. Issues addressed included whether the employee sustained a Gillette injury to her low back on or about September 15, 1998, whether the employee had given adequate notice of that alleged Gillette injury, whether the employee had reflex sympathetic dystrophy and whether this condition was causally related to her work injury or injuries, the compensability of treatment expenses, and whether the employee had reached maximum medical improvement (MMI). The compensation judge found that the employee had not proven that she had sustained a Gillette injury and attributed the employee=s condition and need for treatment to her 1996 injury. The compensation judge also found that the employee had RSD which was causally related to her 1996 injury, that most of the disputed medical treatment was reasonable and necessary, and that she had not reached MMI. The compensation judge did not address the notice issue.
The employee appeals the compensation judge=s finding that the employee had not sustained a Gillette injury in 1998 and the denial of certain medical and non-medical expenses; the employer and Indiana Lumbermen=s cross-appeal the Gillette injury finding, the RSD finding, and the compensability of certain medical expenses; and the employer and Fireman=s Fund cross-appeal regarding whether the employee provided the employer with adequate notice of a 1998 Gillette injury.
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 (2000). 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. A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers' Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).
DECISION
Gillette Injury
The employee, the employer and Indiana Lumbermen=s argue that by requiring objective changes in the employee=s condition the compensation judge applied an erroneous standard in finding that the employee had not proven that she had sustained a Gillette injury in 1998. A Gillette injury is a result of repeated trauma or aggravation of a preexisting condition which results in a compensable injury when the cumulative effect is sufficiently serious to disable an employee from further work. Gillette v. Harold, Inc., 257 Minn. 313, 321‑22, 101 N.W.2d 200, 205‑06, 21 W.C.D. 105 (1960); see also Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981). In order to establish a Gillette injury, an employee must Aprove a causal connection between [his] ordinary work and ensuing disability.@ Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). The question of whether an employee has sustained a Gillette injury is one of fact for the compensation judge, and its determination Aprimarily depends on medical evidence.@ Id.
Before the Steffen case was decided, the standard for proving a Gillette injury was stated in Reese v. Northstar Concrete, 38 W.C.D. 63 (W.C.C.A. 1985), where this court held that to prove a Gillette injury, an employee must prove that specific work activities resulted in specific symptoms leading cumulatively to disability. In Steffen, the supreme court rejected that test and held there was no requirement an employee prove a gradual onset of pain associated with specific work activities. Rather, to establish a Gillette injury, an employee must Aprove a causal connection between [his] ordinary work and ensuing disability.@ While evidence of specific work activities causing specific symptoms leading to disability Amay be helpful as a practical matter,@ determination of a Gillette injury Aprimarily depends on medical evidence.@ Id.
The employee argues that her increased pain is sufficient evidence of a change to justify a Gillette finding without additional objective evidence of a worsened condition, citing Lang v. United Building Centers, 44 W.C.D. 417, 422-23 (W.C.C.A. 1991), summarily aff=d (Minn. Apr. 29, 1991), and Martin v. American Spirits Graphics Corp., slip op. (W.C.C.A. June 13, 2000). However, both of these cases are affirmances by this court of a compensation judge=s finding of a Gillette injury. Given this court=s standard of review, cases affirmed on substantial evidence grounds have little or no precedential value. See, e.g., Carlson v. Nabisco Brands, slip op. (W.C.C.A. May 2, 1994). The employee=s increase in her pain symptoms is a factor for the compensation judge to consider, but is not necessarily a determinative factor. The compensation judge was not required to find a Gillette injury on the basis of the employee=s testimony. While the compensation judge noted the lack of contemporaneous complaints regarding the job duties, he did not indicate that this was a determinative factor, but relied upon the medical evidence. The compensation judge determined that the employee had not proven a Gillette injury under Steffen after Acarefully reviewing all of the medical records, the expert opinions and the employee=s testimony.@ The compensation judge did not apply an erroneous legal standard in determining whether the employee had sustained a Gillette injury in 1998.
The employee, employer and Indiana Lumbermen=s also argue that substantial evidence does not support the compensation judge=s finding that the employee did not sustain a Gillette injury in 1998. Dr. Wengler diagnosed Achronic lumbar disc syndrome at L5-S1, status post anterior/posterior lumbar fusion, persistent left lower extremity sciatica with left lower extremity reflex sympathetic dystrophy.@ Dr. Wengler apportioned liability for the employee=s injury as 75% to the 1996 injury and 25% to a September 1998 Gillette injury, stating that it was more likely that her condition progressed due to her work than it would have had she not been working. Dr. Stern attributed the employee=s condition entirely to her 1996 injury, noting that her diagnosis did not change between 1996 and 1998, and that her symptoms persisted since her 1996 injury. Dr. Boxall apportioned liability as 75% to the 1996 injury and 25% to a 1998 Gillette injury.
The compensation judge rejected Dr. Wengler=s opinion, stating:
Dr. Wengler has not identified any objective evidence that the employee=s annular tear Aprogressed@ or changed between October 1996 and September 1998. Rather, it would appear that he refers to a progression of the employee=s subjective symptoms. Although the employee testified credibly that her symptoms became worse during this two year period, and while it is reasonable to assume that her pain was aggravated by certain physical activities, the critical questions are whether her physical condition actually changed and, if so, whether this change was merely a natural progression from the 1996 injury or one which was the substantial result of her work activities.
The compensation judge relied upon Dr. Stern=s opinion that the employee had not sustained a Gillette injury. Dr. Stern noted that the employee=s diagnosis had not changed; that MRI scans in January 1997 and June 1997 had not changed; and that fusion surgery had been contemplated as early as 1997. The employee argues that Dr. Stern was not adequately informed of the employee=s job activities and that she had continued to perform these activities. However, Dr. Stern=s deposition indicates that he was informed of the heavy nature of the employee=s work activities and that she continued to perform these activities after her 1996 injury. The compensation could reasonably rely upon Dr. Stern=s opinion. See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). Substantial evidence supports the compensation judge=s finding that the employee had not sustained a Gillette injury in 1998, and we affirm.
Since we have affirmed the compensation judge=s finding that the employee did not sustain a Gillette injury in 1998, we need not address the employer and Fireman Fund=s cross-appeal regarding lack of notice for such an injury.
Reflex Sympathetic Dystrophy
The employer and Indiana Lumbermen=s appeal the compensation judge=s finding that the employee has developed reflex sympathetic dystrophy (RSD) as a result of her October 14, 1996, injury, arguing that the employee does not meet all the requirements of Minn. R. 5223.0420, subp. 6, of the permanent partial disability schedules for this condition. This rule states:
For the purposes of rating under this part, reflex sympathetic dystrophy, causalgia and cognate conditions are deemed to occur in a member if at least five of the following conditions persist concurrently in that member: edema, local skin color change of red or purple, osteoporosis in the underlying bony structures demonstrated by radiograph, local dyshidrosis, local abnormality of skin temperature regulation, reduced passive range of motion in contiguous or contained joints, local alteration of skin texture of smooth or shiny or typical findings of reflex sympathetic dystrophy on bone scan.
As acknowledged by the employer and Indiana Lumbermen=s, permanent partial disability for the RSD condition was not at issue at the hearing, but they argue that the factors in the permanency schedule provide guidance on the factors involved in a diagnosis of RSD and that the employee does not have all the requisite conditions necessary for a diagnosis of RSD. The compensation acknowledged, in his memorandum, that the employee has not exhibited some of the objective findings which may be associated with RSD, such as skin changes or loss of bone density. However, the compensation judge relied upon the diagnoses of Dr. David Nelson of Medical Advanced Pain Specialists, as well as Dr. Wengler, Dr. Stern, and Dr. Walter Hall, a neurosurgeon for the University of Minnesota, based upon the employee=s symptoms of burning pain, intolerance to touch, and a cooler temperature in her left leg. The compensation judge found Dr. Boxall=s opinion, that the employee does not have RSD, to be unpersuasive, and noted that Dr. Boxall Aappears to be the only recent examiner who did not find that the employee=s left leg was cooler than her right leg.@ The compensation judge also referred to the temporary relief of left leg pain provided by sympathetic nerve blocks, relief that Dr. Stern considered to be very strong evidence that the employee suffers from RSD.
As further explanation, the compensation judge cited to Dr. Sterns= opinion concerning the diagnosis of RSD, stating that A[w]ith respect to the absence of other objective findings often associated with RSD, Dr. Stern was candid:
[W]e used to think it was like an all or nothing problem, either you had it or you didn=t. I think most of us now recognize that like a lot of things it=s a gradual process, and you can be various places along this spectrum. I believe that=s probably what=s going on in this case.@ (Fireman=s Fund Ex. 1, Depo. of Dr. Stern, p. 44.)
(Memo. p. 10.) As it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony, Nord, 360 N.W.2d at 342, 37 W.C.D. at 372, it was within the compensation judge=s discretion to reject the opinion of Dr. Boxall and accept the opinions of Drs. Nelson, Wengler, Stern, and Hall. Substantial evidence supports the compensation judge=s finding that the employee has developed RSD as a result of her 1996 work-related injury, and therefore we affirm that finding.
The employer and Indiana Lumbermen=s also argue that substantial evidence does not support a finding that a dorsal column stimulator was reasonable and necessary medical treatment of the employee=s RSD condition, citing opinions of Dr. Wengler and Dr. Boxall. Dr. Nelson, Dr. Stern, and Dr. Hall, however, expressed their opinions that the stimulator would be appropriate for the employee, and the compensation judge relied on those medical opinions. In addition, the employee testified that a trial period with the stimulator had provided her with substantial pain relief. Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld, and therefore we will not disturb that finding. See Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). Substantial evidence supports the compensation judge=s finding that a dorsal column stimulator was reasonable and necessary medical treatment for the employee=s RSD condition and, accordingly, we affirm.
Expenses
A variety of expenses were at issue at the hearing. Minn. Stat. ' 176.135, subd. 1, provides in relevant part as follows:
Subdivision 1. Medical, psychological, chiropractic, podiatric, surgical, hospital. (a) The employer shall furnish any medical, psychological, chiropractic, podiatric, surgical and hospital treatment, including nursing, medicines, medical, chiropractic, podiatric, and surgical supplies, crutches and apparatus, including artificial members, or, at the option of the employee, if the employer has not filed notice as hereinafter provided, Christian Science treatment in lieu of medical treatment, chiropractic medicine and medical supplies, as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury. This treatment shall include treatments necessary to physical rehabilitation.
The reasonableness and necessity of medical treatment under Minn. Stat. ' 176.135 is a question of fact for the compensation judge. See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993).
The employer and Indiana Lumbermen=s argue that substantial evidence does not support the compensation judge=s finding that the employee=s piriformis surgery was reasonable and necessary medical treatment. They argue that Dr. Banks did not conduct a proper diagnostic procedure, specifically a muscle block injection advocated by Dr. Boxall, Dr. Nelson, and Dr. Richard Salib at the Institute for Low Back and Neck Care, to confirm the diagnosis of piriformis syndrome. Dr. Banks diagnosed the syndrome after the employee=s fusion surgery did not relieve her symptoms, although he did not conduct a muscle block injection in order to diagnose the syndrome. During the surgery for piriformis syndrome, Dr. Banks=s findings were consistent with his initial diagnosis: AThere was a definite fibrous band that was impinging on the sciatic nerve. The sciatic nerve directly in this area had an impression on it, with a depressed area and a reddened area in the sciatic nerve.@ Unfortunately, the surgery did not relieve the employee=s leg pain, and Dr. Boxall, Dr. Stern, and Dr. Wengler concluded that the employee did not have piriformis syndrome, primarily because the surgery was not successful. The compensation judge noted that an unsuccessful surgery does not compel a finding that the surgery was unreasonable or unnecessary, particularly in light of Dr. Banks=s operative findings. Substantial evidence of record supports the compensation judge=s finding that the piriformis surgery was reasonable and necessary medical treatment, and we affirm.
The employee argues that the compensation judge erred by denying reimbursement or pre-approval for a variety of medical and non-medical expenses. First, the employee claimed that she had could no longer drive her standard transmission vehicle because of her left leg condition, and therefore was required to purchase an automatic transmission vehicle to drive to her medical appointments. The employee requested reimbursement for the vehicle, citing Wong v. Won Ton Foods, 50 W.C.D. 289 (W.C.C.A. 1993), summarily aff=d (Minn. Apr. 12, 1994), where this court approved purchase of a handicapped equipped van. This court has noted, however, that Wong is best understood as a rehabilitation expense case since the vehicle would assist the employee in seeking employment. Smith v. Fairview Hosp., slip op. (W.C.C.A. June 5, 2000). In this case, the employee is not working, and in addition, the employee was awarded medical mileage. The compensation judge could reasonably conclude that the vehicle was not a compensable medical expense, and we affirm.
The employee also requested approval of an Aqua-K pad, which was prescribed by Dr. Matthew Monsein, Abbott Northwestern Hospital, an air bed mattress, prescribed by Dr. Nelson, special shoes and warm clothing. The employee cites to Olsen v. Wickes/Red Owl, slip op. (W.C.C.A. Dec. 24, 1991), a case in which this court approved certain athletic shoes, an air ride seat for the employee=s use while driving bus at work, an orthopedic mattress and portable massager, all for symptom relief and to assist the employee in maintaining his ability to work. As to the special shoes and warm clothing claimed by the employee in this case, including ankle wraps, thermal socks, tights, and flannel pants, the compensation judge explained that Dr. Nelson indicated that the employee had inquired about having a special shoe made to keep her left foot warm and that many of his patients wear a winter boot to keep their affected foot warm. However, Dr. Nelson did not prescribe a specific shoe and his testimony was not specific in regard to a particular type of footwear. In view of this testimony, the compensation judge could reasonably conclude that the special shoes and other requested clothing items do not represent reasonable and necessary medical expenses in this case. Accordingly, we affirm the denial of that portion of the employee=s claim.
Concerning the air bed mattress and pad claimed by the employee, the compensation judge declined to address those claims. In his memorandum, he explained that, in light of the approval of the more aggressive dorsal column implant, he declined to address those items at the present time, but stated that the employee may renew her claims, depending upon the results of the stimulator use. In view of the compensation judge=s approval of a stimulator, he could reasonably conclude that it was premature at this point to also award the bed pad and air bed mattress, and we affirm that finding.
The compensation judge also denied reimbursement for the cost of a health club membership for the period of July 1997 through October 1998. In March 1997, Dr. Bachman initially recommended a three-month health club membership for the employee; Indiana Lumbermen=s paid those fees. The employee claimed reimbursement for additional expenses totaling $710.39, incurred between July 1997 and October 1998. She testified that Dr. Banks recommended the use of a warm pool, and that a therapist had set up an exercise program for her at the club, but that she was unable to participate very often. The compensation judge explained that it was not clear from the record whether the employee had utilized the health club facilities during the claimed period. In view of the limited information in the record concerning this claim, we conclude that the record substantially supports the compensation judge=s finding that this additional time was not reasonable and necessary medical treatment. Accordingly, we affirm.