Carlino v. Peterson Constr.

JEFFREY J. CARLINO, Employee, v. PETERSON CONSTR. and AON CORP./APPLIED UNDERWRITERS, Employer-Insurer/Appellants, and CENTER FOR DIAGNOSTIC IMAGING, EAST METRO FAMILY PRACTICE, BROOK WEST CHIROPRACTIC CLINIC, MN DEP=T OF HUMAN SERVS., and BLUE CROSS/BLUE SHIELD OF MINN., Intervenors.

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee=s testimony, found credible by the compensation judge, and the adequately founded opinion of the employee=s treating surgeon, supports the compensation judge=s finding the employee suffered a personal injury in the nature of a C6-7 herniated disc in a work accident on July 21, 2003.

TEMPORARY TOTAL DISABILITY. There is no requirement an injured employee be formally taken off work by a medical provider to be totally disabled. Where the employee testified he took several days off work following the injury due to his pain and symptoms, the compensation judge could conclude the employee was incapacitated from working due to the injury and did not err in awarding temporary total disability benefits for that period.

INTERVENTION; STATUTES CONSTRUED - MINN. STAT. ' 176.361(2002). The intervenors attached to their motions to intervene documentation sufficient to establish their reimbursement interest. No objection was made to the reasonableness or necessity of the charges or contrary proof submitted. By failing to attend the hearing, the intervenors waived only the right to submit additional evidence, examine witnesses and make statements or arguments. There was no failure to Aappear@ in this case requiring denial of payment of reasonable, necessary and causally related medical treatment provided by or paid for by the intervenors.

Attorneys: David M. Bialke, Attorney at Law, Minneapolis, MN, for the Respondent. Michael D. Miller, McCollum, Crowley, Moschet & Miller, Minneapolis, MN for the Appellants. Michael L. Schoff, DHS/Benefit Recovery Section, St. Paul, MN, for Intervenor, DHS.

The employer and insurer appeal the compensation judge=s finding that the employee sustained a personal injury in the nature of a C6-7 disc herniation as a result of an incident at work on July 21, 2003, and the judge=s award of medical expenses to the intervenors. We affirm.

On July 21, 2003, Jeffrey J. Carlino was employed by Peterson Construction as a carpenter/framer constructing houses. On that date, a co-employee was moving roof joists stacked on a forklift. The joists started to fall, the forklift driver stopped, and the employee stepped forward and pushed the joists back onto the forklift tines. When the employee signaled the driver to go ahead, instead of raising the tines, the driver lowered them. One of the tines came down on the employee=s right shoulder line close to his neck, jarring him and pushing the right shoulder down. He reported the injury to the site foreman and finished work. The employee stated he experienced immediate pain that gradually worsened through the day. The next day, the employee testified, he felt pain in the mid-section of the neck progressing toward his left shoulder. The employee took several days off work due to the pain. When he returned to work on Friday morning, he was handed his check and told he was no longer needed. The employee then found employment as a welder at Krech Iron Works, beginning August 1, 2003, assembling wrought iron railings for residential use.

Over the next week, the employee testified the pain gradually progressed from the neck, down the left shoulder and arm, with numbness in his forearm and hand. In the early morning of August 5, 2003, at about 3:30 a.m., the employee described waking with excruciating pain from the neck extending down his arm to his hand. He sought medical care at Regions Hospital emergency room where he was examined by James Morrison, PA-C. Mr. Morrison took a history of a work-related injury about three weeks previously in which a forklift blade came down and hit the employee on the top of the right shoulder, with gradually progressing pain in the left shoulder and neck. Mr. Morrison diagnosed a trapezius muscle strain, provided pain medication, and imposed restrictions of no lifting over five pounds with the left arm.

The employee did not dispute he had previous injuries to and treatment for the neck and for the left shoulder. On March 30, 1990, the employee was treated for left shoulder pain after grabbing an overhead bar to break a fall off his semi-truck. He was given pain medication and taken off work for a week. A Physician=s Report completed by Judith Adkins, D.C., on November 23, 1996, gave a diagnosis of cervical/thoracic sprain/strain and lumbar sprain/strain. The employee was taken off work from November 23-27, 1996. The employee was seen at Waseca Medical Center on February 5, 15 and 24, 1999, for treatment of pain in the left shoulder, back and groin. The treatment records reflect a history of slipping on ice while stepping down from a semi-truck, landing on the back and left shoulder. By February 15, the doctor noted the shoulder injury was nearly completely resolved. On February 24, there is no indication of any shoulder complaints or treatment. The employee was released to return to work with no restrictions. On January 31, 2002, the employee was seen by Dr. Michelle Oman complaining of mid-thoracic and low back pain. The employee reported occasional numbness and tingling in his fingers and arm, usually when leaning his arms on the counter for any length of time. The upper extremity examination was normal. Between October 28 and November 25, 2002, the employee received four treatments for neck and left shoulder pain at Syvrud Chiropractic Clinic. The records relate a history of slipping off the top step of a semi-truck on October 20, 2002. The employee grabbed the handrail with his left hand, the door handle with his right hand, and landed on his feet on the ground. By November 25th, the chiropractor noted no pain. The employee testified he was feeling fine and did not need further treatment.

On August 11, 2003, following the Regions Hospital emergency room visit, the employee sought treatment from Thomas Trainer, D.C., at Brook West Chiropractic Clinic. The employee complained of left-sided neck and upper back pain and left arm/hand pain and numbness. The chart notes relate a work accident on July 21, 2003, in which the employee was pushing rafters back up onto a forklift, the operator dropped the fork, and he was struck in the right upper trapezius area. Dr. Trainer diagnosed an acute traumatic cervical strain and a possible C5-6 radiculopathy, most likely representing a disc herniation. He recommended a referral to a neurologist, and imposed restrictions of no lifting over 10-15 pounds. The following day, the employee again saw Dr. Trainer stating he had wakened in the early morning with significant upper back pain. The doctor diagnosed a probable left cervical disc herniation and took the employee off work.

On August 12, 2003, the employee was seen by Dr. Sonya Redetske at East Metro Family Practice complaining of extreme pain from the left side of his neck down the left arm with numbness and tingling into the first three fingers of the left hand. The employee again described the forklift incident to Dr. Redetske. The doctor assessed probable left cervical radiculopathy, prescribed pain medications and referred the employee for an MRI scan. The August 25, 2003 MRI study showed a large, extruded left posterolateral and left intraforaminal disc herniation at C6-7 causing moderate left-sided compression of the spinal cord and severe left C7 nerve root compression. The employee continued to treat with Dr. Trainer, and with Dr. Redetske and Dr. Anthony Ferrara at East Metro Family Practice, through the end of August with little lasting improvement. On September 5, 2003, Dr. Redetske referred the employee to a neurosurgeon.

The employee was examined by Dr. Paul Hartleben at Summit Orthopedics on September 15, 2003. The doctor diagnosed an acute C6-7 disc herniation causing intractable left arm radiculopathy, recommended a C6-C7 diskectomy and fusion, and continued the employee off work. Dr. Hartleben concluded the employee=s disc herniation was causally related to the forklift event. The employee elected to proceed with the surgery, which was performed on October 13, 2003, by Dr. Hartleben. The employee reported good improvement of his arm pain, with some lingering numbness in the forearm and fingers, following the surgery.

On December 2, 2003, the employee was examined by Dr. Mark Engasser at the request of the employer and insurer. Dr. Engasser diagnosed a history of a right shoulder contusion on July 21, 2003, as a result of the forklift incident, and a cervical disc herniation at left C6-7, status-post diskectomy and fusion. In Dr. Engasser=s opinion, the mechanism of the employee=s right shoulder injury did not fit any injury to the neck causing left shoulder pain, especially in light of the employee=s history of prior problems in that area. Dr. Engasser agreed the employee did have a cervical disc herniation at C6-7, but concluded the disc herniation was not related to the work injury on July 21, 2003.

A First Report of Injury was filed on August 22, 2003. The employer and insurer, on August 26, 2003, denied primary liability for any cervical injury, asserting only a right shoulder injury had been reported. On September 5, 2003, the employee filed a claim petition seeking payment of temporary total disability benefits and medical expenses. The employee=s claim was heard by a compensation judge at the Office of Administrative Hearings on January 16, 2004. At the hearing, the employer and insurer argued that Minn. Stat. ' 176.361 required dismissal of the medical expense claims of both the intervening and non-intervening medical providers based on failure to intervene or failure to attend the hearing. The compensation judge found the employee sustained a personal injury in the nature of a C6-7 disc herniation on July 21, 2003, and awarded temporary total disability benefits to the employee. The judge further found the non-intervening medical providers and intervening parties were entitled to payment and/or reimbursement of medical expenses incurred by the employee. The employer and insurer appeal.

The compensation judge accepted the opinion of Dr. Hartleben concluding the employee=s cervical condition was causally related to the work incident on July 21, 2003. The employer and insurer contend Dr. Hartleben=s opinion rests on an inadequate factual foundation, and their expert, Dr. Engasser, offered the only adequately founded opinion. They assert there is nothing in Dr. Hartleben=s records to indicate an awareness of the employee=s past history of neck and left shoulder injuries and treatment, and the history of the injury in Dr. Hartleben=s records is not consistent with the employee=s testimony and other medical records.

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 that is the subject of the offered evidence. Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983). To establish an adequate foundation, the facts upon which an expert relies must be supported by the evidence. However, relatively minor inconsistencies between an employee=s history and the medical records, or a doctor=s failure to comment upon all details in the medical history may go to the persuasiveness or weight accorded a medical opinion, but do not render the opinion without foundation. Drews v. Kohl=s, 55 W.C.D. 33 (W.C.C.A. 1996).

In this case, the medical records reflect four instances of brief treatment for left shoulder or cervical pain between 1990 and 2002. In the first three instances, the employee returned to work with no restrictions within one week and there is no evidence of any ongoing symptoms or treatment thereafter. Dr. Hartleben was aware of the employee=s most recent injury in 2002. The employee testified treatment at Syvrud Chiropractic Clinic was discontinued because his symptoms resolved. This is consistent with the Syvrud clinic chart notes and with Dr. Hartleben=s report, and the compensation judge found the employee=s testimony credible. It is the compensation judge=s responsibility to assess the credibility of a witness, and this court will not disturb a finding based on credibility of a witness unless there is clear evidence to the contrary. See Tolzmann v. McCombs-Knutson Assocs., 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989).

The appellants also contend the history of the July 21, 2003 injury in Dr. Hartleben=s report is inconsistent with the employee=s testimony and other medical records, and that Dr. Hartleben may have mistakenly assumed it was the left shoulder that was struck in the forklift incident. The compensation judge was clearly aware of the discrepancy, but found the employee=s testimony regarding the history of the accident and the onset of left shoulder and arm pain credible. The employee testified he told Dr. Hartleben the forklift tines dropped on his right shoulder followed by the onset of pain and numbness extending from his neck down the left shoulder and arm. It is the province of the compensation judge to determine the weight and credibility to be given to witnesses= testimony. Id.; Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Here, the compensation judge found the employee=s testimony regarding the July 21, 2003 incident and the onset of left neck and arm symptoms credible, and found Dr. Hartleben=s causation opinion more persuasive than that of Dr. Engasser. Upon careful review of the evidence, we cannot conclude that Dr. Hartleben=s opinion lacks foundation, or that the compensation judge=s finding of a work-related injury to the neck is unsupported by substantial evidence in the record as a whole. We, accordingly, affirm.

The employer and insurer additionally contend that because the employee was not taken off work by a medical provider until August 12, 2001, the compensation judge erred in awarding temporary total disability benefits from July 22 through July 31, 2003. The employee testified he took several days off work as a result of his pain and symptoms following the work injury. There is no requirement that an injured employee be formally taken off work by a medical provider to be eligible for temporary total disability benefits. The compensation judge reasonably concluded the employee was incapacitated from working during this period of time and appropriately awarded benefits.

The employee=s claim petition sought payment of bills due to medical providers, including Regions Hospital, Brook West Chiropractic Clinic, East Metro Family Practice and Center for Diagnostic Imaging (CDI). An intervention notice was sent to these providers by letter dated September 4, 2003. All but Regions Hospital filed motions to intervene and were granted intervention status. An intervention notice was sent by letter dated November 5, 2003, to the Minnesota Department of Human Services (DHS), Summit Orthopedics and St. Joseph=s Hospital (HealthEast). Only DHS filed a motion to intervene.^[1]

Intervention is governed by Minn. Stat. ' 176.361. This statute was amended in 2002. Subdivision 4 of the statute now reads,

Unless a stipulation has been signed and filed or the intervenor=s right to reimbursement has otherwise been established, the intervenor shall attend all settlement or pretrial conferences, administrative conferences, and the hearing. Failure to appear shall result in the denial of the claim for reimbursement.

The employer and insurer argue that as none of the intervenors attended the hearing, the amended language compels dismissal of their claims. We disagree.^[2]

Presentation of evidence by intervenor. Unless a stipulation has been signed and filed or the intervenor=s right to reimbursement has otherwise been established, the intervenor shall present evidence in support of the claim at the hearing . . .

When an employer and insurer deny payment of medical expenses incurred by the employee for reasonable and necessary treatment of a work-related injury, the employee has a right to make a claim directly for medical benefits either through a claim petition (Minn. Stat. ' 176.291) or by way of a medical request (Minn. Stat. ' 176.106), regardless of the intervention status of any providers.^[3] Adams v. DSR Sales, Inc., slip op. (W.C.C.A. Mar. 12, 2004). By filing a motion to intervene, a provider makes an appearance in the case separate from that of the employee. As a party, the intervenor has a right to present evidence and argument in support of its claim at the hearing. In this case, all of the intervenors attached to their motions to intervene documentation sufficient to establish their intervention interest and right to reimbursement. This documentation is part of the record before the compensation judge. No objection was made to the reasonableness or necessity of the charges or contrary proof submitted. By failing to attend the hearing, the intervenors waived only the right to submit additional evidence, examine witnesses and make statements or arguments, relying instead on the employee=s presentation of the medical claims. There is no failure to Aappear@ in this case that requires denial of payment of reasonable, necessary and causally related medical treatment provided by or paid for by the intervenors.

Additionally, under Minn. Stat. ' 176.361, subd. 2(8), an intervenor may include a proposed stipulation with the motion to intervene. If a proposed stipulation is included, all parties must either execute the stipulation or file objections within 30 days of service of the motion. If there is no response to the proposed stipulation, Athe intervenor=s right to reimbursement for the amount sought is deemed established provided that the petitioner=s claim is determined to be compensable.@ Minn. Stat. ' 176.361, subd. 3 (emphasis added). East Metro Family Practice, Brook West Chiropractic Clinic and DHS included proposed stipulations with their motions to intervene. No objections were filed. As the right of these intervenors to reimbursement must be deemed established, the language of subdivision 4 clearly excused them from attendance at the hearing. We affirm.

^[1] A third intervention notice was mailed to Blue Cross/Blue Shield of Minnesota (Blue Plus) on November 8, 2003. BCBSM filed a motion to intervene after the hearing but prior to issuance of the Findings and Order on March 26, 2004. The compensation judge granted intervention status to BCBSM and found BCBSM was entitled to reimbursement of its intervention interest. The employer and insurer did not appeal the judge=s finding.

^[2] In Adams v. DSR Sales, Inc., slip op. (W.C.C.A. Mar. 12, 2004), this court held the amended language does not affect the employee=s right to assert directly any claim for medical expenses under Minn. Stat. ' 176.291, including, in particular, the claims of non-intervening medical providers. By way of Exhibit 7, the employee submitted outstanding bills for HealthEast (St. Joseph=s Hospital), Summit Orthopedics, Regions Hospital and HealthSouth. The employer and insurer concede, if this court affirms a causal relationship, the compensation judge properly ordered payment to the non-intervening providers based on the employee=s submission and proof of these claims.

^[3] By way of his claim petition, the employee made a direct claim for medical benefits payable to Brook West Chiropractic Clinic, East Metro Family Practice and CDI. Through Exhibit 7, the employee separately submitted proof of outstanding bills from Brook West Chiropractic Clinic and East Metro Family Practice.