MARY MOLDENHAUER, Employee/Appellant, v. GREY STAR ELECTRONICS, INC.  and EMPLOYERS INS. OF WAUSAU, Employer-Insurer, and GEORGE W. LUKOVSKY, D.C., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 10, 2003

 

HEADNOTES

 

INTERVENORS.  The petition of Dr. Lukovsky to intervene in the proceeding before this court is granted where his interests were clearly at stake and there appeared to be no material preju­dice to any party by permitting intervention.  The medical expense claim was fully litigated below, thus there is no need to reopen the record or remand for further proceedings.

 

EVIDENCE.  The compensation judge did not abuse his discretion in refusing to admit  employee=s exhibit 1, a photocopied medical journal article on whiplash injuries, in the circum­stances of this case.

 

MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE.  Substantial evidence, including multiple medical reports and opinions, supports the compensation judge=s de­termination that chiropractic care provided to the employee following a work-related automobile accident was excessive and unreasonable, and the judge=s denial of payment of additional medical expenses.

 

Affirmed

 

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

Compensation Judge:  Donald C. Erickson

 

Attorneys: Randee Held, Mahoney, Dougherty & Mahoney, P.A., Minneapolis, MN, for Respondents.  Mary Moldenhauer and George W. Lukovsky, D.C., appeared pro se.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The pro se employee appeals from the compensation judge=s determination that the em­ployee is not entitled to additional payments to George W. Lukovsky, D.C., for chiropractic treat­ment provided between September 29, 1999 and June 26, 2002.  We affirm.

 

BACKGROUND

 

Mary Moldenhauer, the employee, is the President and CEO of Grey Star Electronics, Inc., the employer, insured for workers= compensation purposes by Employers Insurance of Wausau.  On September 24, 1999, the employee sustained an admitted work-related injury to her cervical spine when the vehicle in which she was a passenger was rear-ended in a traffic accident.  The police were called, but did not respond because of the number of accidents that day.  Repair of the vehicle  involved replacement of the rear bumper and another small item, at a cost of about $1,500.00.

 

The employee had been involved in automobile accidents on three prior occasions.  In July 1973, the employee=s car was hit from behind in a multi-vehicle accident on the Duluth-Superior High Bridge, injuring her neck and back.  A myelogram revealed a ruptured disc and spur at C5-6, and in February 1974, an anterior cervical discectomy and fusion was performed by Dr. William S. Pollard.

 

In May 1996, the employee=s car was struck on the passenger side by a pick-up truck whose driver failed to look while backing out of a parking space.  The employee experienced aggravation of her neck condition and received extensive treatment from Dr. Lukovsky following this accident.  On July 19, 1999,  a truck struck the rear back passenger side of the employee=s car while she was backing out of a parking spot.  The employee continued to treat with Dr. Lukovsky following this accident.

 

The employee began treating with Dr. Lukovsky in December 1981.  She initially treated irregularly, but after June 1989, received chiropractic treatment on an ongoing basis. The treatment records reflect complaints of pain and tightness in the neck, upper back and shoulders, and into the arms.  In 1990, Dr. Lukovsky diagnosed subluxation, cervical and thoracic disc syndrome, radiculi­tis, facet syndrome, and cervical and thoracic scoliosis.  He opined the employee needed continuing care as the result of residuals and reduced mobility from the automobile accident and the neck surgery.  Dr. Lukovsky stated the treatment helped the employee continue activities of daily living, including working with her neck in a flexed position.

 

Dr. Lukovsky=s records and reports following the May 1996 automobile accident reflect complaints of headaches, neck, shoulder and upper back pain, and right arm pain.  He diag­nosed an acute flexion/extension injury with subluxation complex of the spine associated with radiculitis/ myofascitis, with neuropathy upper and lower extremities, spasm in the paravertebral musculature, C-7 disc injury, T-12 disc injury, curvature to the left in the cer­vical spine and to the right in the lumbar spine, and asymmetrical obturators.  The treatment plan was to adjust and balance the objec­tive findings utilizing mobilization, manipulation, muscle stimulation, 2 unit, traction, Applied Kine­siology (A.K.), nutritional counseling, Van Rumpt, trigger point, accupressure, and Golgi tendon spindle cell technique.  The employee initially received treat­ment every two to three days.  She con­tinued to receive chiropractic care from Dr. Lukovsky, averaging three to four treatments a month in 1999.  The last treatment prior to the accident at issue occurred on September 23, 1999.

 

Following the September 24, 1999 work-related accident, the employee was seen by Dr. Lukovsky on September 29, 1999.  There is no mention in the treatment records of the auto­mobile accident.  The doctor recorded complaints of Aneck, shoulders, back,@ referred to the Awork­ing diagnosis,@ and listed the same treatment plan previously described.  The frequency of treatment increased, however, to approximately three times a week.  Treatment continued at this level through February 2001.  Thereafter, the employee received chiropractic treatment from Dr. Lukovsky about two times a week through December 2001; she continued to receive treatment an average of four or five times a month from January through June 2002. 

 

By report dated March 8, 2000,  Karla A. Joyce, D.C., completed a medical records re­view at the request of the insurer.  Dr. Joyce opined a diagnosis of radiculitis and neuropathy were not supported by Dr. Lukovsky=s records and findings, and that the employee appeared to have suffered a mild strain/sprain of the cervical, thoracic and lumbar areas in September 1999.  Dr. Joyce concluded the objective findings did not show any significant improvement in the employee=s condition, and additional chiropractic care was not warranted.

 

Dr. Stefan Konasiewicz, a neurosurgeon, examined the employee on September 18, 2000, at the request of Dr. Lukovsky.  The employee gave a history of neck pain and occasional right arm symptoms since a car accident and surgery in the 1970s.  She reported that chiropractic treatment helped, but was not longstanding, and her pain recurred after leaving the chiropractor.  On exami­nation, Dr. Konasiewicz noted no deformity in the cervical spine posteriorly, no paravertebral muscle pain or spasm, no significant limitation of range of motion in the neck, normal muscle bulk and tone in the upper extremities, normal reflexes and normal sensation.  Dr. Konasiewicz concluded the employee=s symptoms were myofascial in nature and there were no neurological problems requiring further investigation.

 

On February 1, 2001, Richard Printon, D.C., conducted a chiropractic examination of the employee at the request of the insurer.  Dr. Printon concluded the employee sustained a mild muscular strain as a result of the September 24, 1999 accident that would have resolved within eight weeks.  He diagnosed the employee=s current condition as post cervical fusion with re­stricted cer­vical spine movement and myofascial tension and tightness in the posterior cervical, anterior cervical and upper trapezius areas.  Dr. Printon opined this condition was not the result of the 1999 accident, but was pre-existing in nature.  The doctor further concluded the intensity and frequency of chiro­practic care was excessive, and that any treatment more than eight weeks after the 1999 motor vehicle accident was not causally related to the accident.

 

The employee was examined by Dr. Carlos Guanche, an orthopedic surgeon, at the request of the insurer on June 17, 2002.   The employee described her current symptoms as tenseness and discomfort in the neck, primarily at the base of the neck, occasional tingling in the right upper extremity and achiness in the right forearm.  On examination, Dr. Guanche noted restricted cervical range of motion on rotation, flexion and extension with pain into the sternocleidomastoid and trapezial areas, no palpable paravertebral muscle spasm, normal deep tendon reflexes, normal sensation, and  normal strength in the cervico-thoracic spine.  The doctor diagnosed status post cervi­cal fusion with significant neck stiffness.  Dr. Guanche concluded the 1999 accident resulted in a temporary aggravation of the employee=s very significant preexisting condition, and that the effects of the 1999 injury ceased within approximately eight weeks after the accident.  The doctor opined the employee did not require continued chiropractic treatment more than six to eight weeks after the accident, and that any treatment beyond that time frame was merely enabling and did not provide any curative benefit. 

 

In a report dated July 3, 2002, Dr. Lukovsky related a long list of complaints reported by the employee, including the entire spine and upper and lower extremities and various non-skeletal and non-muscular conditions.  Objective examination findings included decreased range of mo­tion in the cervical, thoracic and lumbar spines, greater than 50 percent, degeneration in the upper and lower extremities and degeneration of muscles in the right arm and right leg, unequal and ab­normal deep-tendon reflexes, discomfort in the upper trapezius bilaterally when getting up on her heels, pulling sensations and pain in the neck and/or upper back with the shoulder depression test, Soto Hall test, cervical compression test and cervical traction test, slight to moderate tenderness over the spinous process in the cervical, thoracic and lumbar spines, and slight to moderate consistent pain becoming moderate on heavy lifting, bending and stooping.  Dr. Lukovsky provided a working diag­nosis of acute extension/flexion injury with subluxation complex of the spine asso­ciated with radicu­litis, myofascitis with neuropathy, upper and lower extremities, spasm paraver­tebral muscu­lature, C-7 disc injury, T-12 disc injury, curvature of the cervical and lumbar spines, complications of arthrodesis C5-6, and asymmetrical obturators.  Treatment consisted of specific correction of osseous disrelationships by spinal mobilization, muscle stimulation, 2 unit, traction, Applied Kinesiology, nutritional counseling, Van Rumpt, trigger point, accupressure, and Golgi tendon spindle cell tech­nique.  Dr. Lukovsky opined the employee sustained permanent and Astationary@ disability as a result of the September 29, 1999 accident, and needed ongoing supportive and as needed chiropractic treatment and management to Amaintain pre-injury status of September 24, 1999 collision.@  The doctor explained the employee had shown decisive relief in her symptomatic and clinical picture, but because of the employee=s previous injuries, the extent of trauma and length of post-traumatic recovery was increased and immediate relief could not be expected.  (Ee Ex. 2.) 

 

   Finally, by report dated July 5, 2002, Dr. David McKee related the results of an EMG and nerve conduction study of the right arm.  On examination, the employee had symmetric and normoactive reflexes in the upper extremities, normal strength bilaterally, and no appreciable muscle wasting.  Dr. McKee interpreted the studies as normal, and concluded there was no electrodiagnostic evidence for cervical radiculopathy, brachial plexopathy or focal injury to the median, ulnar or radial nerves.

 

The employee filed a Medical Request, seeking payment of bills incurred for treatment by Dr. Lukovsky following the September 24, 1999 accident.  Following an Ad­mini­strative Conference, a decision and order was issued denying the request.   The employee filed a Request for Formal Hearing seeking review of this decision.  In a Findings and Order, served and filed December 20, 2002, a compensation judge found the chiropractic treatment was excessive and unreasonable, and denied the employee=s request for payment of additional medical expenses to Dr. Lukovsky.   The employee appeals.

 

1.  Intervention by Dr. Lukovsky

 

On January 17, 2003, after issuance of the Findings and Order, Dr. Lukovsky petitioned to intervene in this case.  He asserted he intended to intervene previously but inadvertently sub­mitted the wrong form, and further argued he did not get timely notice of the October 31, 2002 hearing.   The insurer objected, stating Dr. Lukovsky  was properly notified by the employee=s attor­ney of his right to intervene, and had failed to do so in a timely fashion.

 

Dr. Lukovsky was served with a copy of the employee=s Medical Request and a notice of his right to intervene on April 11, 2002.  Shortly thereafter, Dr. Lukovsky filed  a Medical Request seeking payment of the same medical bills.  The requests were considered to­gether, and Dr. Lukovsky=s request for payment of his treatment charges was denied.[1]  The employee filed a timely Request for Formal Hearing seeking review of the judge=s decision; Dr. Lukovsky did not.  The employee=s request was served on Dr. Lukovsky.  ­It does not appear Dr. Lukovsky was served with notice of the expedited hearing on October 31, 2002.   The December 20, 2002 Findings and Order was, however, served on the doctor.

 

Pursuant to Minn. Stat. ' 176.361, subd. 1, any person who has an interest in a matter be­fore the Workers= Compensation Court of Appeals, such that he may gain or lose by a deci­sion, may intervene in the proceeding.  Dr. Lukovsky=s interests are clearly at stake in this matter and we see no material prejudice to any party by permitting his intervention in this appeal.  We, there­fore, grant the petition to intervene.

 

In this case, the employee directly asserted a claim for payment of the same medical ex­penses for which payment was sought by Dr. Lukovsky.  The employee was represented by an attorn­ey through the close of the hearing before the compensation judge, and Dr. Lukovsky=s extensive treatment records were submitted into evidence.  As a general rule, the testimony of a medical provider is submitted by written report.  See Minn. Stat. ' 176.155, subd. 5.  Here, the record in­cludes six reports prepared by Dr. Lukovsky over time, including the report of July 3, 2002, ex­plaining his diagnosis, findings, treatment and opinions regarding the nature of the employee=s injuries and her need for chiropractic treatment.  Issues raised by the medical expense claim were fully litigated.  We, therefore, see no need to reopen the record or remand for further proceedings.

 

 2.  Exhibits

 

The employee contends the compensation judge improperly refused to admit Em­ployee=s Exhibit 1, a photocopied medical journal article on whiplash injuries.  It is a well established prin­cipal that evidentiary rulings are within the sound discretion of the com­pensation judge.  See Minn. Stat. ' 176.411, subd. 1.  Here, the judge had no information regarding the source, reliability or general acceptance of the information propounded in the article and properly denied admission for lack of foundation.  Additionally, observations similar to those made in the article were made by Dr. Lukovsky in his July 3, 2002 report in the context of the employee=s injury.  We, accordingly, find no basis for reversal in the judge=s decision.

Both the employee and Dr. Lukovsky included with their briefs and arguments a number of exhibits not introduced at the hearing.  This court=s review on appeal from a findings and order of a compensation judge is limited to evidence submitted to the compensation judge. See Gollop v. Gollop, D.D.S, 389 N.W. 2d 202, 38 W.C.D.757 (Minn. 1986).  We have not, therefore, considered these exhibits in deciding this appeal.

 

3.  Reasonableness and Necessity of Chiropractic Care

 

There is no dispute the employee sustained an injury to her cervical spine in the Sep­tember 24, 1999 automobile accident.  The worker=s compensation insurer accepted liability and paid $2,227.71 for chiropractic care provided by Dr. Lukovsky following the accident.[2]  At issue, before the compensation judge and on appeal, are the nature and extent of the employee=s injuries as a result of the acci­dent and, ultimately, the reasonableness and necessity of the chiropractic care provided by Dr. Lukovsky which the employee asserts is a result of the accident.  These are factual issues.  In such cases, if the evidence conflicts or more than one inference may reasonably be drawn from the evidence, this court must affirm the compensation judge=s findings.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235, 239 (Minn. 1984).

 

Dr. Lukovsky concluded the employee sustained injuries in the September 24, 1999 acci­dent that permanently aggravated her preexisting neck and back condition.  In his July 3, 2002 report, Dr. Lukovsky related the employee=s history of the accident, described the extent of the damage to the vehicle and its relevance to the employee=s injuries, and provided a description and explanation of the nature and extent of the employee=s complaints and injuries.  In his opinion, the chiro­practic care received by the employee after the 1999 accident was necessary to relieve chronic pain and tightness caused by the employee=s work and activities of daily living and, he maintained, the employee will continue to need supportive and palliative care into the future.

 

On the other hand, Dr. Joyce, in March 2000, concluded the employee suffered a mild sprain/strain as a result of the 1999 accident, that there had been no significant improvement in the em­ployee=s condition, and that additional chiropractic care was not warranted.  Dr. Printon also concluded the employee sustained a mild strain as a result of the accident, opining the injury would have resolved within eight weeks.  The doctor concluded the intensity and frequency of the chiro­practic treatments provided to the employee were excessive, and that any treatment more than eight weeks after the accident was not causally related but a result of her pre-existing neck and back condition.   Dr. Guanche likewise opined the 1999 accident resulted in a temporary aggravation of a significant preexisting condition, which would have resolved within eight weeks after the accident.  The compensation judge found the opinions of Dr. Joyce, Dr. Printon and Dr. Guanche more per­suasive and accepted their conclusions regarding the injury and the employee=s need for ongoing treatment.

 

It is the compensation judge=s task to decide the weight and credibility to be given to expert testimony.  Where there are conflicting medical opinions, the compensation judge=s resolution of that conflict will not be reversed by this court so long as there is sufficient foundation for the expert=s opinion.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  It is not the role of this court to assess the substantiality of the evidence that might have supported a contrary opinion, but to assess the substantiality of the evidence supporting the judge=s decision.  Broughten v. Focus Homes, Inc., slip op. (W.C.C.A. Aug. 19, 2002).  Having thoroughly reviewed the records and reports of Dr. Lukovsky, the testimony of the employee, and the medical reports and records submitted by the insurer, this court concludes there is substantial evidence in the record as a whole to support the compensation judge=s determination that the treatment at issue was excessive and unreasonable, and the judge=s denial of payment for the medical expenses claimed.  We must, accordingly, affirm.