KONNIE K. HARSTAD, Employee/Appellant, v. PARK MFG. and MINNESOTA ARP/EMPLOYER=S INS. OF WAUSAU, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 28, 2002

                                                                             

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s bulging or herniated cervical discs were not causally related to the employee=s December 2, 1993, work injury.

 

Affirmed as modified.

 

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

Compensation Judge:  William R. Johnson.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s denial of permanent partial disability benefits related to the employee=s cervical disc condition and from certain findings concerning the date of the employee=s work injury, the nature of the injury, and the applicable law.  We affirm as modified.

 

BACKGROUND

 

On December 2, 1993, the employee sustained a work-related injury while employed as an assembler/machine operator for Park Manufacturing [the employer].  Her job at the time involved repetitive and sometimes forceful use of her hands and arms; the injury occurred while she was tearing apart wire harnesses.  She testified that she experienced a popping or snapping sensation in her right wrist and that a large lump developed immediately in that same area.

 

Shortly after the injury, the employee sought treatment for right wrist, forearm, and thumb pain.  When conservative care did not alleviate her symptoms, she underwent surgery, for a ganglion cyst with flexor carpi radialis tendonitis, performed by J. Donald Opgrande, on April 1, 1994.  The employer and its insurer admitted liability for a hand and wrist injury and paid various benefits.

 

The employee did not recover well from surgery and eventually developed symptoms that some physicians diagnosed as reflex sympathetic dystrophy [RSD] and fibromyalgia.  Treatment for these conditions included chiropractic care, massage therapy, and medication.  The employee also underwent numerous diagnostic tests.  She attempted on several occasions to return to employment but quit after a short period when her symptoms worsened.

 

On June 2, 1995, the employee underwent a cervical MRI scan, at the direction of Dr. Steven Noran.  According to the radiologist, that scan disclosed minimal posterior central disc bulging at C5-6 and C6-7, and Dr. Noran ultimately diagnosed cervical sprain/strain syndrome with underlying cervical disc bulges.  In an October 13, 1995, follow-up, Dr. Noran noted the presence of neck pain but focused on the employee=s continued right upper extremity complaints.  Noting also that a July 1995 EMG had been Aabsolutely normal,@ he recommended stellate ganglion blocks for diagnostic purposes and indicated that the employee should follow up with Dr. Fernando Proano, her usual treating physician, unless new neurological symptoms arose.  The stellate ganglion blocks were ultimately performed in December of 1995, and the administering physician reported that the employee did appear to have an element of sympathetically mediated pain.  The employee did not feel that the blocks were helpful in the long term.

 

In the fall of 1997, the parties stipulated that, while the precise nature of the work injury remained in dispute, the employee had been permanently and totally disabled, as a result of her work injury, since May 22, 1995.  The employer and insurer agreed to pay the employee permanent total disability benefits, subject to the social security offset, on an ongoing basis.  An award on stipulation was issued on November 18, 1997.

 

In April of 1999, the employee filed a claim petition seeking payment of treatment expenses for massage therapy and benefits for a 27% whole body impairment related to the December 2, 1993, injury to her Aarm.@  Attached to the claim petition was a report from Dr. Proano outlining his permanent partial disability opinion relative to the employee=s alleged RSD.  The employer and insurer denied liability for the claimed benefits, beyond benefits for a 10.7% impairment already paid, and the matter proceeded to hearing before Judge Bernard Dinner on April 11, 2000.

 

As listed in Judge Dinner=s eventual findings and order, the issues at that hearing were whether the employee had a Apersonal injury in the nature of fibromyalgia and/or reflex sympathetic dystrophy@ and the extent of permanent partial disability related to reflex sympathetic dystrophy.  The judge found as follows with regard to the first issue:

 

2.    That as a further result of the effects of the personal injury, employee has sustained consequential injuries in the nature of reflex sympathetic dystrophy and fibromyalgia, which conditions affect the right and left arm, neck and shoulders and some left hand symptoms as a consequential effect of these conditions.

 

In his memorandum, the judge expressly accepted the opinion of the employee=s treating physician  over the opinions of the employer and insurer=s independent examiner as to whether or not the employee had developed RSD as a result of her work injury.  He awarded the employee benefits for a 20% impairment related to that condition, as well as medical expenses for massage therapy.  In an amended order issued on June 16, 2000, the judge corrected a clerical error in his original decision and specified that the employee was entitled to benefits for a 27% whole body impairment related to her RSD.  No appeal was taken from the judge=s decision.

 

The employee underwent another cervical MRI scan in August of 2000, which again disclosed disc bulging at C5-6 and C6-7.  According to the radiologist, the findings Awere present in 1995 and appear quite similar.@  A month later, in September of 2000, Dr. Proano reported, contrary to an assessment by him in 1998, that the employee=s work activities had aggravated a preexisting cervical disc pathology and that that pathology merited a 10% whole body rating.  In a subsequent report, Dr. Proano increased the permanent partial disability rating to 21%.  The employee sought permanent partial disability benefits based on Dr. Proano=s reports, and the matter came on for hearing again on December 4, 2001, this time before Compensation Judge William Johnson.

 

At the hearing before Judge Johnson, the employer and insurer maintained that the employee=s cervical disc condition was not related to the employee=s December 2, 1993, work injury.  In support of this position, the employer and insurer relied on the reports of their independent examiners, Drs. Bruce Van Dyne and Peter Daly, as well as records indicating that the employee had preexisting neck symptoms and treatment.  The employee, on the other hand, contended that Judge Dinner=s June 2000 decision was res judicata as to whether the employee=s neck condition was work-related, and she relied, primarily, on Dr. Proano=s reports to support her permanent partial disability claim on the merits.

 

In his decision, issued January 31, 2002, Judge Johnson denied the employee=s claim for a 21% whole body impairment related to her cervical disc condition, finding both that the condition was not related to the employee=s work injury and that the condition did not qualify for the claimed rating under the applicable schedules.  The employee appeals.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

1.  Permanent Partial Disability

 

The employee claimed entitlement to benefits for a 21% whole body impairment, for herniated cervical discs at C5-6 and C6-7, in accordance with the opinion of Dr. Proano.^[1]  The compensation judge rejected the claim on causation grounds, finding no Apersuasive medical opinion that makes such a connection.@  In explaining his decision, the judge noted that Dr. Proano had changed his mind on the issue without explanation, and the judge expressly accepted the opinion of Dr. Van Dyne, the employer and insurer=s independent examiner.

 

The employee argues initially that Judge Johnson erred in failing to give res judicata effect to Judge Dinner=s decision, in that Judge Dinner had expressly determined the Aissue of cervical spine symptom causation.@  However, Judge Dinner determined only that the employee had developed RSD and fibromyalgia which affected her neck, among other body parts; the issue of whether the employee was entitled to permanent partial disability benefits for herniated cervical discs is an entirely different question that was not presented to or decided by Judge Dinner.  The fact that Judge Dinner awarded massage therapy expenses, related to treatment of neck symptoms, does not change the analysis.  As such, Judge Johnson correctly concluded that Judge Dinner=s decision did not preclude the employer from disputing causation with respect to the employee=s most recent permanency claim for cervical herniations.  See Fisher v. Saga Corp., 498 N.W.2d 449, 48 W.C.D. 368 (Minn. 1993), citing 3 Larson, The Law of Workmen=s Compensation' 79.72(f) at 15-426, 272 (100) (1992) (Ares judicata does not apply if the issue at stake was not specifically decided in the prior proceedings . . .@).

 

We also cannot conclude that Judge Johnson erred in rejecting Dr. Proano=s causation opinions based on unexplained inconsistencies.  In a September 22, 1998, report, Dr. Proano wrote as follows with regard to the employee=s neck symptoms:

 

References to neck pain would be included in the myofascial pain category.  The abnormality on the cervical MRI of June 1995 (minimal bulging of C5-6 and C6-7) would not yield any additional impairment.  The Neurology consultant, Dr. Noran, requested this examination to determine if there were other causes of persistent right upper extremity pain, weakness and paresthesias.  The contribution of this cervical pathology to Mrs. Harstad=s symptoms would be considered negligible.  Given the mechanism of injury, her work injury or work related factors existing at the time of her employment with Park Manufacturing would not be likely to cause cervical disc pathology.

 

(Emphasis added.)  This is in fact the report that the employee submitted with the claim petition that gave rise to the hearing before Judge Dinner.  Then, in a September 27, 2000, report, Dr. Proano wrote,

 

The patient=s work activity involving wire harnessing assembly in which she was applying force with her upper extremities separating wire harnesses that were defective in that they were excessively difficult to separate manually.  The previous rating performed by this examiner did not include the cervical spine as separate from myofascial pain.  However, the patient has had persistent neck pain and upper extremity pain, and over the years more left upper extremity pain.  Previous evaluation by neurologist, Dr. Noran, indicated that she had cervical disk disease.  This was documented by a cervical MRI which showed mild disk bulging at C5-6 and C6-7.  At the time of a prior evaluation by this examiner, it was determined that the cervical pathology evident in 1995 would not provide significant contribution to her pathology and hence her impairment.  The patient=s myofascial pain includes body parts of both shoulders and upper back as is typical for the diagnosis of fibromyalgia for myofascial pain syndrome.  Upon review of her prior work activity, the wire whipping activity, and the degree of force required on the repetitive basis would more likely than not have caused some repetitive forcible flexion, extension of the cervical spine.  It is therefore more probable than not that a preexisting cervical disk disease would likely be aggravated by such work activity.  Upon review of the above, it is determined that it be at least a consideration of work-related impairment should apply to cervical disk pathology, hence the purpose of this examination.

 

(Emphasis added.)  As Judge Johnson noted, Dr. Proano never explained why he found the employee=s cervical disc condition unrelated to the employee=s work in his 1998 report but related to the employee=s work in his 2000 report.  We also note that even Dr. Proano=s latest opinion does not necessarily connect the employee=s cervical disc condition to any event occurring on December 2, 1993, the claimed date of injury; rather, he appears to relate it to repetitive work activities, and we see no evidence of any Gillette injury claim here.^[2]  Judge Johnson=s rejection of Dr. Proano=s causation opinion was clearly reasonable under the circumstances.

 

Finally, we cannot conclude that Judge Johnson erred in accepting Dr. Van Dyne=s opinion that the employee=s cervical disc condition is not work-related.  In his March 22, 2001, report, Dr. Van Dyne wrote as follows:

 

Ms. Harstad also has an extensive past history of chronic musculoskeletal pain complaints of many years duration that have at various times included neck pain and she continues to report posterior neck pain symptoms that are not associated with any radicular involvement.  It is my opinion to a reasonable degree of medical certainty that Ms. Harstad=s chronic neck symptoms are not related to her work related activities at Park Manufacturing on or about 12/2/93 but rather her chronic intermittent neck symptoms are a manifestation of her longstanding and pre-existent musculoskeletal pain symptoms in conjunction with what is likely a chronic tension myalgia syndrome and very mild degenerative disc disease.

 

The basis for that opinion is that it is clear from review of her records prior to 12/2/93 that Ms. Harstad had previously reported similar neck pain symptoms.^[3] It is also clear that her symptoms at the time of the 12/2/93 work incident were confined to her right wrist and thumb with no mention of associated neck symptoms having developed in association with her hand symptoms.  Ms. Harstad was also not involved in any work activities that would be reasonably expected to have caused either a musculoligamentous cervical strain or a cervical disc injury.  It also appears that her neck symptoms became more prominent after she had left employment at Park Manufacturing with reported progression of her neck pain symptoms in the last couple of years when she has been unemployed.

 

Although it is possible that the demonstrated relatively mild cervical degenerative disc disease may be contributing to some of her intermittent neck discomfort, the extent of her age-related degenerative disc disease is not at all unusual for an individual of her age with the findings as described on her cervical MRI scan are degenerative in origin and don=t result in any significant neural compression.  It is also my opinion to a reasonable degree of medical certainty that Ms. Harstad doesn=t have any specific objective abnormal findings on examination or any specific symptoms that would substantiate any radicular involvement or any continuing musculoskeletal irritability.

 

As Dr. Van Dyne also noted, chiropractic records from December 3, 1993, the day after the employee=s work injury, contain no notations concerning neck symptoms, and the employee=s treating physicians generally attributed the neck complaints that did develop to fibromyalgia and/or myofascial pain, not to any cervical disc problems, for years after the injury.^[4]  We would also note  that Dr. Van Dyne reported having reviewed virtually all of the employee=s fairly voluminous treatment records.  Because the compensation judge was entitled to accept Dr. Van Dyne=s opinion, we affirm the judge=s denial of permanent partial disability benefits related to the employee=s cervical disc condition.^[5]  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

2.  Miscellaneous Issues

 

The employee also argues that the compensation judge committed certain other errors in his findings and order, finding, for example, in Finding 1, a date of injury of December 2, 2001, and then, as the employee puts it, devoting Atwo typewritten, single spaced pages . . . to the analysis of the post-October 1, 1995 changes in the workers= compensation law,@ even though the parties agreed that the date of the employee=s injury was December 2, 1993.  Judge Johnson also indicated in his findings that the employee had received payment for a 20% whole body impairment for her RSD, under Judge Dinner=s decision, when the correct impairment rating was 27%.  We concede that Judge Johnson made certain errors, as alleged above.  However, Judge Johnson did use the correct injury date elsewhere in his decision, and none of the other alleged errors has any practical effect on the employee=s benefits or the issues on appeal, so we see no need to address them further.

 

One of Judge Johnson=s findings does, however, warrant clarification.  In Finding 1, Judge Johnson determined that the employee had Afailed to prove by a preponderance of the credible evidence that her present cervical complaints are causally related to her work injury of December of 1993.@  As the employee points out, Judge Dinner previously determined that the employee had developed RSD and fibromyalgia, affecting her neck, as a result of her work injury.  Moreover, the issue before Judge Johnson was whether the employee was entitled to permanency benefits for her two herniated or bulging cervical discs, an issue which did not necessitate any decision as to whether the employee=s Acervical complaints,@ in general, continued to be work-related.  Because Judge Johnson=s finding, quoted above, could conceivably affect potential claims for other benefits^[6] in a way not contemplated by the parties in the context of the litigation on permanent partial disability, we modify his decision to clarify that his findings regarding causation should be limited to the claimed cervical disc bulges or herniations.  The judge=s decision is otherwise affirmed.