DENNIS L. SUMERFELT, Employee, v. TRAVERSE CO. and MINN. COUNTIES INS. TRUST/RSKCo., Employer-Insurer/Appellants, and BLUE CROSS & BLUE SHIELD/BLUE PLUS OF MINN., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 18, 2003

 

HEADNOTES

 

CAUSATION - AGGRAVATION.  Substantial evidence, including the well-founded opinion of the employee=s treating physician, support the compensation judge=s finding that the employee=s work injury resulted in permanent disability and restrictions.

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE; RULES CONSTRUED - MINN. R. 5221.0410, SUBP. 3.B.  Substantial evidence, including the employee=s ongoing participation in a chronic pain aftercare program, supports compensation judge=s deter­mination that the employee has not yet reached MMI.  The compensation judge properly applied Minn. Stat. ' 176.011, subd. 25, in determining MMI, where strict application of Minn. R. 5221.0410, subp. 3.B., would conflict with the statute.   

 

Affirmed

 

Determined by Johnson, C.J., Rykken, J., and Wilson, J.

Compensation Judge:  Jane Gordon Ertl

 

Attorneys:  Jeffrey G. Carlson, Brown & Carlson, Minneapolis, MN, for Appellants.  DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for Respondent.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s finding that the effects of the employee=s personal injury were not temporary and the finding that the employee had not reached maximum medical improvement.  We affirm.

 

BACKGROUND

 

Dennis L. Sumerfelt, the employee, sustained a personal injury on January 18, 2000, arising out of and in the course of his employment with Traverse County, the employer, then insured by Minnesota Counties Insurance Trust/RSKCo.  The employer and insurer admitted liability and paid medical expenses and wage loss benefits.

 

On January 18, 2000, the employee sought treatment with Dr. James Cook at Cook Chiropractic.  The employee gave a history of his work injury that day and complained of low back pain with radiation into his left leg.  The doctor diagnosed a strain/sprain, took the employee off work and commenced a regimen of chiropractic treatment.  By March 29, 2000, the employee reported he was feeling much better.  The doctor released the employee to return to work with restrictions remaining in effect for two weeks. 

 

On April 6, 2000, the employee saw Dr. W. M. Mayo at the MeritCare Clinic complaining of persistent low back pain since his January 2000 work injury.  The employee reported the chiropractic treatment with Dr. Cook did not help and stated his condition had worsened over the last two weeks.  Dr. Mayo diagnosed persistent and longstanding lumbar pain.  A CT scan showed a small sized left lateral bulging disc at L3-4.  On May 18, 2000, Dr. Ryan Harrington, a neurologist, examined the employee.  The doctor reviewed the CT scan which he concluded showed multi-level degenerative disc disease without evidence of a surgical lesion.  The doctor=s neurological examination was negative and he prescribed physical therapy.  An MRI scan of the lumbar spine ordered by Dr. Harrington showed degenerative changes at L3-4 through L5-S1.  Dr. Harrington stated the MRI scan showed no nerve damage and concluded the employee=s symptoms were due to injury to the muscles and ligaments of the spine.  On September 27, 2000, Dr. Harrington concluded the employee=s condition was stable, recommended no further treatment and continued the employee on a light duty work status.

 

The employee saw Dr. David P. Kraker at Advanced Spine Associates on April 19, 2001 for a second opinion regarding his chronic back pain.  The doctor diagnosed chronic low back pain and degenerative disc disease at L3 through S1.  Dr. Kraker opined the employee was symptomatic from annular tearing of one or more of the lower lumbar discs and recommended a lumbar epidural injection at L5-S1.  The employee reported no improvement in his low back symptoms following the epidural injection.  Thereafter, the employee began a second session of physical therapy at the Wheaton Community Hospital.

 

The employee next saw Scott Corbett, D.O., for osteopathic treatment in December 2001.  The employee presented a history of his work injury on January 18, 2000 and reported a  prior low back injury in May 1980.  Dr. Corbett diagnosed lumbosacral strain causing compression and irritation of the lumbosacral nerves and commenced a trial of osteopathic manipulative treatment.  In April 2002, the employee saw Dr. Jeffrey Gerdes, a neurosurgeon.  The doctor reviewed the MRI study, which he stated showed disc dehydration and degeneration from L3-4 through L5-S1 with no clear-cut nerve root impingement and diagnosed discogenic low back pain.  The doctor ordered a discography which showed 5/10 concordant pain at L5-S1, 9/10 non-concordant pain at L4-5 and 3/10 concordant pain at L3-4.  Dr. Gerdes concluded this was a mixed result and  recommended further conservative treatment, including participation in a low back rehabilitation program.  On July 29, 2002, Dr. Gerdes stated physical therapy did not improve the employee=s condition and opined the employee might be exhibiting some functional overlay.  Dr. Gerdes referred the employee to a physiatrist for possible further treatment.

 

The employee was examined by Dr. James Johanson on September 19, 2002 at the request of the appellants.  Dr. Johanson obtained a history from the employee, reviewed a significant amount of medical records and performed a physical examination.  The doctor diagnosed degenerative disc disease of the lumbar spine that pre-existed the employee=s personal injury.  Dr. Johanson opined the employee sustained a temporary aggravation of his pre-existing degenerative disc disease on January 18, 2000.  The doctor opined the employee had reached maximum medical improvement and needed no further treatment for his January 18, 2000 personal injury.  The doctor rated no permanent partial disability and assigned no restrictions due to the work injury.  Dr. Johanson=s report was served on the employee on October 9, 2002.

 

In October 2002, the employee saw Dr. Thomas Balfanz, a physiatrist, on referral from Dr. Gerdes.  The doctor obtained a history from the employee, reviewed the MRI scan and discography and performed a physical examination.  Dr. Balfanz diagnosed chronic pain syndrome and deconditioning and recommended an inpatient chronic pain program.  In January 2003, the employee was evaluated by Dr. Matthew Monsein at the Sister Kenny Institute.  Following an examination and review of the medical records, Dr. Monsein diagnosed mechanical low back pain, multi-level degenerative lumbar disc disease, chronic pain syndrome and mild situational depression.  The doctor stated the employee had not improved much since his low back injury of January 2000 and recommended participation in their pain rehabilitation program.  The employee was discharged from the program on March 7, 2003 and Dr. Monsein prepared a functional capacities evaluation which placed significant restrictions on the employee=s ability to work.

 

A hearing was held before Compensation Judge Jane Gordon Ertl on April 23, 2003, consolidating a medical request and objection to discontinuance filed by the employee, a rehabilitation request filed by the employer and insurer and a rehabilitation request filed by the employee=s qualified rehabilitation consultant.  In Findings and Order filed June 5, 2003, the compensation judge found the employee=s January 18, 2000 personal injury resulted in permanent restrictions, disability, and need for medical care.  The compensation judge further found the employee had not reached maximum medical improvement.  The employer and insurer appeal these findings.

 

DECISION

 

1.  Permanent Aggravation

 

The compensation judge found the January 18, 2000 personal injury, superimposed on the employee=s degenerative disc disease, resulted in permanent restrictions.  The appellants appeal this finding and contend there is no adequately founded medical opinion that the employee=s personal injury resulted in permanent restrictions and disability.  None of the treating physicians, the appellants argue, stated whether or not they reviewed the employee=s complete medical history or fully considered the effect of the employee=s pre-existing condition.  Rather, the appellants argue, the treating doctors relied on the employee=s own subjective complaints.  The appellants contend only Dr. Johanson offered an adequately founded opinion on the issue of causation and contend the compensation judge erred in failing to adopt his opinion.  Accordingly, the appellants argue the judge=s conclusion that the employee sustained a permanent injury is clearly erroneous and unsupported by substantial evidence.  We disagree.

 

It is well settled that this court must affirm a compensation judge=s choice between conflicting medical opinions so long as the opinions relied upon have adequate foundation.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The competency of a witness to provide expert medical testimony depends upon both the degree of the witness=s scientific knowledge and the extent of the witness=s practical experience with the matter which is the subject of the offered testimony.  Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).  To establish an adequate foundation, the facts upon which an expert relies for his or her opinions must be supported by the evidence.  McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff=d (Minn. July 13, 1990).  Dr. Monsein obtained a history from the employee, reviewed certain medical records and conducted a physical examination.  As a general rule, this level of knowledge establishes a doctor=s 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).  Dr. Monsein concluded the employee=s injury permanently aggravated his condition and placed restrictions on the employee=s work activity.  The doctor=s opinion was adequately founded and the compensation judge could reasonably rely upon it.

 

In addition to the medical opinions, other evidence of record supports the compensation judge=s decision.  Dr. Johanson concluded the employee suffered from degenerative disc disease which pre-existed his January 18, 2000 injury.  Prior to that injury, however, the employee worked as a heavy equipment mechanic and there is no evidence that his work was restricted in any manner because of his degenerative disc disease.  Nor is there any evidence that the employee required any significant medical care prior to January 2000 because of his degenerative disc disease.  Following his injury, the employee received significant medical care and was unable to work due to low back pain.  These factors support the decision of the compensation judge.  See Wold v. Olinger, slip op. (W.C.C.A. Aug. 29, 1994).  The judge=s decision is, therefore, affirmed.

 

2.  Maximum Medical Improvement

 

The compensation judge found the employee had not yet reached maximum medical improvement (MMI) and denied the appellants= request to discontinue temporary total disability benefits.  The appellants contend the judge=s decision is clearly erroneous and asserts the employee reached MMI with service of the report of Dr. Johanson on October 9, 2002.  Further, they argue that under Minn. R. 5221.0410, subp. 3.B., the employee is presumed to have reached MMI and the employee failed to rebut that presumption.[1]

Maximum medical improvement is statutorily defined as Athe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability, irrespective and regardless of subjective complaints of pain.@  Minn. Stat. ' 176.011, subd. 25.  Factors to be considered in determining whether MMI has been reached include a history of improvement, current treatment, pre-existing conditions, and proposed treatment.  Hammer v. Mark Hagen Plumbing & Heating Co., 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989).  Minn. R. 5221.0410, subp. 3.B., limits the factors which a compensation judge may consider in determining whether an employee has reached MMI.  Under this rule, the sole factors a compensation judge may consider are whether a decrease is anticipated in the employee=s estimated permanent partial disability or whether a significant improvement is anticipated in the employee=s ability to work. 

 

We see no apparent relationship between the extent of an employee=s permanent partial disability and MMI.  Permanent partial disability is payable for functional loss of use or impairment of function permanent in nature.  Minn. Stat. ' 176.021, subd. 3.  MMI deals with an employee=s medical condition and treatment, concepts which are not necessarily related to impairment of function.  Further, if an employee=s loss of use or impairment of function is permanent in nature, it will not likely decrease within three months as required under the rule.  Neither do we see any apparent relationship between ability to work and MMI.  The supreme court in Hammer rejected the addition of a return-to-work requirement to the definition of MMI.  Neither of the two factors in the rule are contained within the statutory definition of MMI nor are they enumerated by the supreme court in Hammer.  Finally, the rule creates a presumption of MMI which the employee must rebut to prevail.[2]  Minn. Stat. ' 176.011, subd. 25, provides no authority for such a presumption.  For these reasons, we conclude that Minn. R. 5221.0410, subp. 3.B., conflicts with Minn. Stat. ' 176.011, subd. 25.  Where a rule conflicts with the statute, the statute must prevail.  See Green v. Whirlpool Corp., 389 N.W.2d 504, 507 (Minn. 1986); Scalf v. LaSalle Convalescent Home, 481 N.W.2d 364, 46 W.C.D. 283 (Minn. 1992).

 

By report dated September 19, 2002, Dr. Johanson opined the employee had reached MMI.  Thereafter, however, the employee participated in a chronic pain program.  As of the date of the hearing, April 23, 2003, the employee was continuing to participate in an aftercare program through the Sister Kenny Institute.  That a chronic pain program has been recommended or is being provided is a factor a compensation judge may consider in determining whether the employee has reached MMI.  Scheiterlein v. Lantz Lenses, 50 W.C.D. 447 (W.C.C.A. 1994), summarily aff=d (Minn. June 17, 1994); Ettedgui v. Mastercraft Cabinets, slip op. (W.C.C.A. Jan. 13, 1999).  The compensation judge could reasonably conclude that significant improvement could be anticipated as a result of the employee=s participation in the aftercare program.  Substantial evidence supports the compensation judge=s decision that the employee has not reached MMI, and that decision is affirmed.