PAMELA A. BUCZAK, Employee/Appellant, v. LEE=S CONSTR. and MEADOWBROOK INS. GROUP, Employer-Insurer, and CORNERSTONE CHIROPRACTIC, CENTRAL MINN. SPINE CTR., PREFERRED ONE COMMUNITY HEALTH PLAN and NW INDUS. REHAB. SERVS., Intervenors.

WORKERS= COMPENSATION COURT OF APPEALS

JULY 29, 2004

HEADNOTES

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.   Where, at the time that he asserted his MMI opinion, the employee=s former treating doctor had not examined the employee for nearly six months, where he was apparently not aware of the employee=s current treating doctor=s most recent radiographic findings regarding the work-injured level of the employee=s spine or of that doctor=s diagnosis and recommendation of a discogram pursuant thereto, and where the former treating doctor, while venturing an opinion as to the date of the employee=s MMI, had expressly deferred to the employee=s current treating doctor with regard to that issue, the compensation judge=s finding as to the date of the employee=s MMI in reliance on the former treating doctor=s opinion as to that issue was clearly erroneous and unsupported by substantial evidence.

Reversed.

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

Compensation Judge: Ronald E. Erickson

Attorneys:  Robert T. Brabbit, Brabbit & Sality, Minneapolis, MN, for the Appellant.  Wendy E. Metchnek and Howard Y. Held, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Respondents.

OPINION

WILLIAM R. PEDERSON, Judge

The employee appeals from the compensation judge's finding as to the date of maximum medical improvement.  We reverse.

BACKGROUND

Pamela Buczak has a long history of chiropractic and medical treatment to all levels of her back, dating back to 1987.  Following an injury in May of 2001, Ms. Buczak underwent an MRI scan of her lumbar spine that was read to reveal degenerative changes at L4-5 and L3-4, without indication of a herniated disc, and a mild disc bulge at L5-S1, without significant nerve root impingement.  On November 7, 2002, Ms. Buczak experienced renewed pain in her low back while employed as a truck driver with Lee=s Construction, when she was jostled in the cab of her truck when the box of her truck was struck by the bucket of a backhoe driven by another employee.  Ms. Buczak [the employee] was thirty-five years old on that date and was earning a weekly wage of $720.51.  X-rays taken on the date of the event were read to be negative, and on November 20, 2002, Lee=s Construction [the employer] and its insurer filed a Notice of Primary Liability Determination, denying liability.  Subsequent to her injury, the employee treated with physician Dr. James Bear, who diagnosed thoracic and lumbosacral strain, and with chiropractor Dr. Brian Bymers, who diagnosed low back sprain/strain with possible disc involvement and referred the employee for physical therapy.

The employee=s symptoms continued, and on January 7, 2003, she filed a claim petition, alleging entitlement to temporary total disability and rehabilitation benefits consequent to a work injury on November 7, 2002.  Subsequently, on January 10, 2003, she sought treatment with orthopedic spine surgeon Dr. Sunny Kim, who recommended an MRI scan.  The scan was conducted on January 14, 2003, and was read to reveal in part a slightly increased disc bulge at L5-S1, resulting in a suggestion of S1 nerve root contact, though still without frank compression.  Dr. Kim concluded that surgery was not recommended, and on January 28, 2003, in keeping with restrictions issued earlier by Dr. Kim, Dr. Bymers released the employee to work restricted from lifting over twenty pounds and from doing any bending.  On February 7, 2003, on referral from Dr. Kim, the employee was seen in consultation by Dr. Sam Elghor, who diagnosed a herniated disc at L5-S1 and performed an epidural steroid injection at that level and at L4-5.  The employee also underwent additional physical therapy, which provided only temporary relief.  On March 14, 2003, in preparation for hearing, the employee=s attorney requested a narrative report from Dr. Kim, but Dr. Kim did not comply with that request for nearly seven months.

On March 19, 2003, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Richard Strand, who diagnosed a healed cervical, thoracic, and lumbar strain and degenerative disc disease without radiculopathy in the lumbar spine.  Dr. Strand concluded that the employee had sustained a temporary aggravation of a preexisting condition on November 7, 2002, but that that aggravation had now fully resolved and that the employee had reached maximum medical improvement [MMI] with regard to it, with no need for further treatment or restrictions.  Dr. Strand=s report was served on the employee on April 4, 2003. 

The employee saw Dr. Kim for the last time on April 16, 2003, when Dr. Kim released her to return to work within restrictions including limitation to a four-hour work day, which the employer was unable to accommodate.  On about May 5, 2003, the employee attempted to return to work with the employer, but her attempt was evidently unsuccessful, and on May 16, 2003, she sought treatment with back specialist Dr. Bryan Lynn.  Dr. Lynn diagnosed low back and lower extremity pain subsequent to a November 2002 work accident, but he indicated that he would not recommend any aggressive diagnostic or surgical procedures for the time being, suggesting that any fusion or disc surgery not be considered Auntil one year after the accident and then only if the pain is felt at a very intense level even with mild daily activities.@  For the time being, he prescribed a program of physical therapy and recommended that the employee continue with chiropractic care and medications.  On about July 2, 2003, the employee again attempted to return to work with the employer, but at the end of the day she was very stiff and sore and was again unable to continue.  On July 8, 2003, Dr. Bymers restricted the employee from all work for a week.  On July 9, 2003, the parties filed a stipulation for full settlement of all of the employee=s potential claims for indemnity through May 5, 2003, pursuant to which the employer and insurer admitted liability for a November 7, 2002, temporary aggravation of a preexisting low back condition.  On July 14, 2003, Dr. Bymers released the employee again to work within restrictions.  An award on the parties= stipulation for settlement was filed on July 24, 2003.  On July 29, 2003, Dr. Bymers again restricted the employee from all work.

On September 19, 2003, in continuing pain and with her unemployment compensation about to run out, the employee returned to see Dr. Lynn, who diagnosed chronic and progressively worsening low back pain and lower extremity symptoms, prescribed medication, restricted the employee from working for two weeks, and ordered a CT scan.    Upon follow-up with the employee on September 30, 2003, Dr. Lynn indicated that the scan had revealed partial lumbarization of the employee=s first sacral vertebra, together with a central disc protrusion at L4-5 that was producing some lateral recess stenosis.^[1]  Dr. Lynn noted also that A[f]lexion, extension lateral radiographs today demonstrate substantial >fish-mouthing= of the anterior aspect of the L5-S1 (lowest mobile segment) with extension which normalizes with flexion.@  Upon those findings, Dr. Lynn diagnosed A[t]ransitional S1 vertebra@ and A[i]nstability and degeneration, L5-S1" and ordered a discogram of L3-4, L4-5, and L5-S1, to Abe obtained in the near future,@Ato verify as best as possible the production of pain from this lowest disc.@

By a letter dated October 6, 2003, served and filed on October 8, 2003, the employee amended her claim petition to include a claim for the recommended discogram.  Finally, by letter to the employee=s attorney dated October 9, 2003, Dr. Kim issued the narrative report that had been requested of him nearly seven months earlier.  In that report, Dr. Kim acknowledged that he had last examined the employee on April 16, 2003, about six months earlier, at which time, he indicated, the employee had

reported that the low back rehabilitation program was quite helpful.  Physical examination showed full flexion of 70 [degrees].  As of April 16, 2003 she was released to a 4-hour day work scheduled with a moderate work restriction with work that involves body position changes every 1-2 hours with lifting on an occasional basis up to 30-50 pounds.

Dr. Kim states also in his report that A[i]t appears [the employee] also saw Dr. Br[y]an L[y]nn who ordered CT scan and CT scan dated September 23, 2003 showed central disc herniation at L4-5 and bulging disc at L3-4.@  Although his conclusions also expressly include the assertion that, on November 7, 2002, A[the employee] sustained work related specific back injury with resulting of central disc herniation at the L5-S1,@ Dr. Kim makes no reference at all to Dr. Lynn=s records for September 30, 2003, which include the diagnosis of Ainstability and degeneration, L5-S1@ and the recommendation of discography at that level, Ato verify as best as possible the production of pain from this lowest disc.@   Further, also in the absence of that record from Dr. Lynn, Dr. Kim states, AI do feel the [employee] has reached maximum medical improve[ment] from her November 7, 2002 work related injury,@ expressly opining, however, that, A[s]ince it appears that [the employee] is seeing Dr. Br[y]an L[y]nn, he should decide on the date of maximum medical improvement.@

One week later, on October 16, 2003, Dr. Lynn informed the employee that her discogram, conducted the previous day, while revealing no concordant pain response at all at L3-4 and L4-5, had revealed a maximum 10/10 concordant pain response at L5-S1.  On that information, Dr. Lynn discussed with the employee the treatment options available to her, which he indicated included either her accepting a degree of discomfort in her low back, Awhich she reports she would not be able to tolerate,@ or anterior lumbar interbody fusion.  Dr. Lynn indicated that he had given the employee information regarding the surgical procedure and would be seeing her again in a few weeks to discuss the option, after she had had opportunity to review the information.

The matter came on for hearing on October 28, 2003.  Issues at hearing included generally the employee=s entitlement to temporary total disability benefits continuing from May 6, 2003, together with payment of various medical expenses.^[2]  By findings and order filed December 4, 2003, the compensation judge concluded in part that the employee had sustained a compensable injury to her low back on November 7, 2002, and he ordered payment of temporary total disability benefits continuing from May 6, 2003.  The judge ordered payment also to the Center for Diagnostic Imaging in the amount of $5,476.49 for expenses in connection with the employee=s October 15, 2003, discogram, although he had concluded also, in reliance on the October 9, 2003, opinion of Dr. Kim, that the employee had reached MMI on October 9, 2003, six days prior to the date of the discogram and any treatment that might be recommended pursuant to it.  The employee appeals from the judge=s finding as to the date of MMI.

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

The compensation judge found that the employee had reached MMI on October 9, 2003, Aas opined by Dr. Kim in his Report of October 9, 2003.@  The employee contends that she is not yet at MMI and that the judge erred by relying on the opinion of Dr. Kim in finding that she is.  We agree.

Maximum medical improvement is defined by statute as "the 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.  AA finding of MMI is one of ultimate fact,@Aand, therefore, it is the responsibility of the compensation judge to evaluate the employee=s condition as documented by medical records, medical opinions and other data and circumstances.  >Medical probability= does not mean only the opinion of a physician.@  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989).  Factors to be considered by the judge Ainclude the history of improvement, current treatment, pre-existing conditions, and proposed treatment.  Information suggested for review includes opinions from health care providers, independent examinations, other medical or vocational reports and statements of the various parties.@  Id., 435 N.W.2d at 529, 41 W.C.D. at 639 (citation omitted).  Moreover, the following factors are to be considered an indication that MMI has not been reached: (a) Athe employee=s condition is significantly improving or likely to significantly improve, with or without additional treatment@; (b) Athere are diagnostic evaluations that could be performed that have a reasonable probability of changing or adding to the treatment plan leading to significant improvement@; or (c) Athere are treatment options that have not been applied that may reasonably be expected to significantly improve the employee=s condition.@

In this case, at the time he issued his MMI opinion, Dr. Kim had not examined the employee for nearly six months, nor is there any evidence that he was aware of the most recent radiological findings and diagnostic recommendations of the doctor, Dr. Lynn, who had been treating the employee over the course of those same months.  It appears that Dr. Kim was at least aware of some of the results of the employee=s most recent CT scan, but there is no indication that he was aware of the A[f]lexion, extension lateral radiographs today@ that were, on September 30, 2003, demonstrating to Dr. Lynn Asubstantial >fish-mouthing= of the anterior aspect of the L5-S1,@ the location of the employee=s November 2002 work injury.  It was clearly this new information that was compelling Dr. Lynn=s recommendation of the discogram that he ordered on that date and that is not mentioned by Dr. Kim.  Moreover, it strikes us as inconsistent for the judge to have found that diagnostic exam reasonable and necessary for the cure and relief of the employee=s work injury while not also remaining open to at least the possibility that that same diagnostic exam might also reveal reasonable treatment for the cure and relief of that same work injury.  Finally, we note with some emphasis that Dr. Kim=s MMI opinion appears to us to be voiced with far less than a reasonable degree of medical certainty, deferential as he was to any opinion that Dr. Lynn might voice on that issue in stating, ASince it appears that [the employee] is seeing Dr. Br[y]an L[y]nn, he should decide on the date of maximum medical improvement.@

At the time that he asserted his opinion, Dr. Kim had not examined the employee for nearly six months and was apparently not aware either of Dr. Lynn=s most recent radiographic findings regarding the work-injured L5-S1 level of the employee=s spine or of that doctor=s diagnosis and recommendation of a discogram pursuant thereto.  On those facts, we conclude that the compensation judge=s determination that the employee had achieved MMI is unsupported by substantial evidence in view of the entire record as submitted.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.