Perrin v. Willows Convalescence Ctr.

LESLIE A. (BJORK) PERRIN, Employee/Appellant, v. WILLOWS CONVALESCENCE CTR. and LUMBERMEN=S UNDERWRITING ALLIANCE, Employer-Insurer, and CENTER FOR DIAGNOSTIC IMAGING, Intervenor.

WORKERS= COMPENSATION COURT OF APPEALS

JULY 29, 2002

HEADNOTES

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s determination that the employee=s September 8, 1985, work-related injury did not substantially contribute to her need for medical care and treatment between 1998 and 2000.

Affirmed.

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

Compensation Judge: Rolf G. Hagen.

OPINION

MIRIAM P. RYKKEN, Judge

The employee appeals from the compensation judge=s determination that her September 8, 1985, work-related injury did not substantially contribute to her need for medical care and treatment between 1998 and 2000. We affirm.

BACKGROUND

This case is before the court following issuance of the compensation judge=s Findings and Order on Remand. Following a hearing held on this matter on October 19, 2000, the compensation judge issued his original Findings and Order on December 7, 2000, in which he determined that the employee=s September 8, 1985, injury was a musculoligamentous strain/sprain of the low back and was nondiscogenic in nature. He also found that the employee=s medical treatment since 1998 was for a discogenic condition that was not causally related to her 1985 injury. He concluded that the employee had failed to prove, by a preponderance of the evidence, that her work-related injury was a substantial contributing factor in her need for medical care and treatment, as provided by Dr. Mark Engasser and the Center for Diagnostic Imaging between 1998 and 2000, and in her need for prescription medications between 1998 and 2000.

In our previous decision, Perrin v. Willows Convalescence Ctr., slip op. (W.C.C.A. Aug. 6, 2001), this court vacated the compensation judge=s initial Findings and Order, and remanded this matter to the compensation judge for further findings of fact and for an explanation of the basis for his conclusions as to whether the effects of the employee=s 1985 work injury have resolved and as to whether that injury represents a substantial contributing factor to the employee=s need for medical treatment between 1998 and 2000.

No additional testimony was taken on remand. In Findings and Order on Remand, served and filed November 19, 2001, the compensation judge again denied the employee=s claim, finding that the employee=s 1985 work injury was not a substantial contributing factor in the employee=s need for medical care and treatment provided by Dr. Engasser and by CDI between 1998 and 2000.

Additional background information in this case is included in this court=s original decision. In summary, the employee sustained an admitted work-related injury to her low back on September 8, 1985, while working as a nursing assistant for Willows Convalescence Center, the employer. Following her injury, the employee initially consulted her family physician, Dr. David Grube, who diagnosed a lumbosacral strain and restricted the employee from work. X-rays taken at Dr. Grube=s referral were negative. He later referred the employee to an orthopedic surgeon, Dr. Gordon Aamoth, who first examined the employee on October 8, 1995, and diagnosed the employee with Aacute back strain with myofascitis, possibly disc injury.@ At a subsequent examination with Dr. Aamoth, the employee=s straight leg test and motor and sensory examinations were all normal.

Dr. Aamoth referred the employee to Dr. Marlen Strefling, with whom the employee treated between December 1985 and 1991. Dr. Strefling initially diagnosed the employee as having a ligamentous strain at both sacroiliac joints, a mild central bulge at L5-S1, and greater trochanter bursitis bilaterally. At Dr. Strefling=s referral, the employee underwent physical therapy, utilized a TENS unit, and also underwent a three-month program at the Minnesota Center for Health and Rehabilitation that included physical conditioning exercises, physical therapy, occupational therapy, and relaxation techniques. The employee was hospitalized for low back complaints from August 7 to 15, 1986. While hospitalized, she underwent a CT scan which was interpreted to show no evidence of pathologic disc bulge or herniation. Dr. Strefling issued a final discharge diagnosis of Anondiscogenic lumbar back pain.@

At the request of the employer and insurer, the employee was examined by Dr. Mark Dahl on September 16, 1986. He found no permanent musculoskeletal impairment and recommended discontinuance of narcotic medication, and concluded that Ajudicious use of nonsteroidal anti-inflammatories combined with pain management and evaluation and physiotherapy is appropriate.@ The employee received follow-up medical treatment from Dr. Strefling, and his chart notes reflect periodic orthopedic examination and neurologic testing, with negative or normal results. The employee continued to report symptoms in her low back, and, according to Dr. Strefling=s chart note of November 3, 1986, she reported a major flare-up in her back and lower extremity symptoms. Dr. Strefling wrote in his chart notes that A[c]learly she was showing signs of improvement and with negative studies that were done in the hospital, I cannot feel that her back complaints are anything other than nondiscogenic in nature.@ Dr. Strefling later determined that the employee reached maximum medical improvement (MMI) as of September 15, 1987, and assigned a permanency rating of 3.5 percent permanent partial disability of the body as a whole.^[1]

On August 4, 1988, the employee underwent a CT scan of her sacrum, pelvis and hips, and low back at the L4-5 and L5-S1 levels. The results of that CT scan were normal, and showed no pathologic disc protrusion or bony stenosis at the L4-5 or L5-S1 levels.

At the request of the employer and insurer, the employee was examined by Dr. Gary Wyard on October 19, 1988. Dr. Wyard diagnosed back pain without objective clinical or radiographic findings. He found that the employee was neurologically intact, with no evidence of physical impairment or loss of physical function, and concluded that she was capable of sustained gainful employment, with no specific work restrictions or limitations, due to the absence of objective findings. Dr. Wyard did not recommend any specific future care or treatment related to her low back, other than conditioning, exercise, supervision and reassurance. Dr. Wyard determined that the employee had reached maximum medical improvement, and that she had sustained no permanent partial disability as a result of her September 8, 1985 work-related injury.

The employee received continued intermittent treatment from Dr. Strefling until November 1991, when he moved out of state. Throughout his treatment of the employee, Dr. Strefling maintained the same opinion concerning the employee=s diagnosis, that she had sustained a soft tissue injury in the nature of a low back strain/sprain. On September 25, 1990, Dr. Strefling stated that, AI think there is really very little different to do. She should remain at restricted activities. Light duties were encouraged. She will be seen in general follow-up sometime later in the fall, sooner if any problems occur.@ By April 1991, Dr. Strefling recommended a continued nonsurgical conservative program.

The record contains no medical records between November 1991 and October 1998. According to the employee=s testimony, she periodically consulted her family physician for low back and lower extremity symptoms. Apparently at Dr. Strefling=s referral, the employee consulted Dr. Engasser in October 1998, who diagnosed a lumbar disc syndrome.

The employer and insurer consulted Dr. Lawrence Blumberg, an orthopedic surgeon, for a Aphysician advisor review@ in order to obtain an opinion regarding the causation of the employee=s condition commencing in 1998, and her need for medical treatment and prescriptions since 1998. In his report dated March 12, 1999, he provided his opinion that her symptoms and treatment commencing in October 1998 were not causally related to her 1985 work injury.

The employee treated periodically with Dr. Engasser until at least July 2000. Dr. Engasser=s records reflect that the employee continued to note pain in her lumbar area throughout that period of time. The employee underwent an MRI scan on March 31, 2000, which was interpreted to indicate mild degenerative disc and degenerative facet disease at L5-S1, mild bilateral L5-S1 foraminal stenosis, but no evidence of disc herniation or nerve root compression. Dr. Engasser later diagnosed the employee as having lumbar disc degeneration at the L5-S1 level, referred the employee for epidural blocks, and suggested that she might need to undergo a pain management program and that she stay off narcotic medication in the future. By report dated October 13, 2000, Dr. Engasser stated that he had reviewed Dr. Strefling=s medical records, and concluded that the employee had discogenic pain which had caused radicular symptoms, that there was a discogenic component to her problem, and that her ongoing symptoms were related to her 1985 work injury.

The employee initially filed a medical request on March 27, 2000, requesting payment of expenses related to treatment with Dr. Engasser and reimbursement of her out-of-pocket expenses for prescription medication. Following an administrative conference, a compensation judge determined that the claimed expenses were not causally related to the employee=s 1985 work injury. Following a hearing de novo on October 19, 2000, the compensation judge concluded that the employee=s September 8, 1985 injury was a musculoligamentous strain/sprain of the low back and was non-discogenic in nature. He also found that the employee=s medical treatment between 1998 and 2000 was for a discogenic condition that was not causally related to her 1985 injury, and concluded that the employee had failed to prove, by a preponderance of the evidence, that her work-related injury was a substantial contributing factor in her need for that medical care and treatment, provided by Dr. Mark Engasser and CDI since 1998, and in her need for prescription medication since 1998. In a second Findings and Order issued on remand on November 19, 2001, the compensation judge again denied the employee=s claim. The employee appeals from the second Findings and Order.

STANDARD OF REVIEW

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

DECISION

The compensation judge found that the employee=s September 8, 1985, work-injury was not a substantial contributing factor in her need for medical care and treatment received between 1998 and 2000 from Dr. Engasser and CDI. The employee appeals, arguing that the findings are not in accord with the evidence and law in the case, and that the compensation judge committed errors of law in denying payment of the claimed medical expenses.

When the effects of an employee=s personal injury totally resolve without residual disability, restrictions, or need for medical care, the employer and insurer have no further liability for benefits. Kautz v. Setterlin, 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1986). A determination regarding the extent of the injury must be made in order to decide whether that injury remains a substantial contributing factor in the employee=s need for medical treatment. The hearing record reviewed by the compensation judge, regarding the extent of the employee=s injury, includes medical records and reports issued by Drs. Strefling, Wyard, Dahl, Engasser and Blumberg. As he noted in the initial Findings and Order, the compensation judge relied upon the medical opinion of Dr. Strefling, that the nature of the employee=s September 8, 1985 injury was a musculoligamentous strain/sprain of the low back. In an additional finding issued in the second Findings and Order, currently on appeal, the compensation judge stated that he also relied upon the opinion of Dr. Gary Wyard, who found as follows:

that by October 19, 1988 [date of independent medical examination], the employee had no objective clinical or radiographic findings to support her subjective complaints of pain; that by October 19, 1988, the employee had resolved from the effects of the admitted September 8, 1985 work injury and was capable of sustained gainful employment without work restrictions.

(Finding No. 2.) Based on these findings, the compensation judge concluded that the employee=s 1985 work injury did not represent a substantial contributing factor to the employee=s need for later medical treatment, rendered between 1998 and 2000.

This court remanded the matter to the compensation judge, to determine Awhether the effects of the employee=s 1985 work injury have resolved and whether that injury represents a substantial contributing factor to the employee=s need for medical treatment between 1998 and 2000.@ In the initial Findings and Order, it was not clear whether the compensation judge relied has upon or rejected the opinions of Dr. Wyard and Dr. Blumberg. On remand, the compensation judge has explained the basis for his conclusions and has specifically adopted the opinion of Dr. Wyard, relating to the extent of the employee=s work injury, and the opinion of Dr. Strefling, relating to the nature of the employee=s September 8, 1985 injury. The compensation judge further noted that his review of the medical records makes it clear that the employee=s subjective complaints of pain have not been supported by objective/clinical findings.

AThe compensation judge is free to select all or any portion of any expert opinion, so long as that opinion has adequate foundation.@ Klasen v. American Linen, 52 W.C.D. 284, 292 (W.C.C.A. 1994). AA compensation judge generally is free to accept a portion of an expert=s opinion while rejecting other portions.@ Johnson v. L.S. Black Constr., Inc., slip op. (W.C.C.A. Aug. 18, 1994) (citing City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980) (a factfinder generally Amay accept all or only part of any witness= testimony.@)). In this case, the compensation judge accepted Dr. Strefling=s opinion concerning the nature of the employee=s injury, that of a musculoligamentous strain/sprain of the low back, while apparently rejecting Dr. Strefling=s opinion concerning the employee=s ongoing restrictions and the permanent nature of her injury. The judge also accepted Dr. Wyard=s opinion concerning the extent of the work injury, that it had resolved by the date of his examination on October 19, 1988. Although Dr. Strefling=s and Dr. Wyard=s opinions diverged as to the level of the employee=s permanency, we cannot say that other portions of their opinions are inconsistent with each other such that the compensation judge could not rely on both.

We note that it is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony. AWhere more than one inference may reasonably be drawn from the evidence, the compensation judge=s findings shall be upheld.@ Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985); Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). In this case, the compensation judge was faced with conflicting medical evidence of record, including that of Dr. Engasser, who determined that the employee=s injury was discogenic in nature and that her discogenic pain caused her radicular symptoms. Based upon his additional review of the medical records, the compensation judge again concluded that the employee=s 1985 work injury had resolved by the time the employee sought medical treatment in 1998 from Dr. Engasser. Although differing inferences could be made from a review of the employee=s medical records, the compensation judge reviewed those records and could reasonably conclude that the employee=s 1985 work injury had resolved by 1998 and that the injury no longer substantially contributed to the employee=s need for medical treatment thereafter. Where there is a conflict among the opinions of medical experts, resolution of the conflict is the function of the compensation judge and will not be reversed by this court so long as there is sufficient foundation for the expert=s opinion. Nord, 360 N.W.2d at 342, 37 W.C.D. at 371. There is sufficient evidence to support the compensation judge=s choice of experts and his denial of medical expenses in this case. Accordingly, we affirm.