LISA CUEVAS, Employee/Appellant, v. RAINBOW FOODS #51, SELF-INSURED/ACE USA, Employer/Cross-Appellant, and BROOKDALE INTEGRATIVE HEALTH, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 25, 2004

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY.  The compensation judge could rely upon the employee=s testimony to support a finding that the employee sustained a temporary work-related injury.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee=s employment was terminated for reasons unrelated to her work injury, where the employee had no work restrictions, and where the employee did not perform a diligent job search, substantial evidence supports the compensation judge=s finding that the employee=s work injury did not substantially contribute to her loss of earnings.

 

MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE.  Where the compensation judge considered medical opinions finding that chiropractic treatment for three months was reasonable, necessary, and causally related to the employee=s work injury, but specifically rejected those opinions based upon other evidence, the compensation judge did not err by finding that the employee=s chiropractic treatment was not reasonable and necessary medical treatment.

 

Affirmed.

 

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

Compensation Judge: Carol A. Eckersen

 

Attorneys:  David M. Bialke, Cuellar Law Offices, Minneapolis, MN, for the Appellant.  Thomas F. Coleman and Angela B. Poth, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Cross-Appellant.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s determination that she sustained only a temporary strain of her low back on February 26, 2002, and from the compensation judge=s denial of claimed temporary total disability benefits and payment of chiropractic expenses.  The self-insured employer cross-appeals from the compensation judge=s determination that the employee sustained a temporary injury on February 26, 2002.  We affirm.

 

BACKGROUND

 

Ms. Lisa Cuevas, the employee, has an extensive history of injuries to and medical treatment for her neck and low back.  In October 1986, at age 12, the employee sustained an injury to her neck as a result of a rear-end automobile accident, and in April 1990 sustained a neck and back strain from another automobile accident.  In December 1992, the employee received medical care for facial abrasions and a cervical spine strain.  In October 1994, an x-ray taken to evaluate abdominal pain showed left lateral scoliosis of the lumbar spine.  In May 1995, the employee reported low back and leg pain.  In July 1995, the employee reported momentary left-sided numbness in her face, chest, abdomen and leg.  In 1996, after the birth of one of her children, the employee noted low back and right leg pain and numbness after picking up her baby.

 

In December 1998, the employee sustained a work injury in the nature of a slip and fall, resulting in low back and leg pain.  Her low back symptoms persisted following that incident; an MRI scan of the lumbar spine showed bulging at the L4-5 and L5-S1 levels.  By April 2001, the employee underwent another MRI scan which showed mild degenerative disc disease at the L4-5 and L5-S1 levels, mild to moderate protrusion at L4-5 with effacement of the thecal sac and a mild disc protrusion at L5-S1 without significant effacement of the thecal sac.  In October 2001, the employee reported to the emergency room with severe low back pain, and pain radiating into her right leg, which she noted upon waking early that morning.  She provided a history of her earlier work injury to the emergency room physicians, and was hospitalized overnight for evaluation.  Upon discharge the employee was prescribed physical therapy and pain medication.  On December 4, 2001, the employee consulted a nurse practitioner, reporting back pain, especially on her left side, which occurred after the employee had picked up and carried her son.  The nurse diagnosed a lumbar strain and referred the employee for physical therapy and pain medication.

 

On February 26, 2002, the employee was employed by Rainbow Foods #51, the self-insured employer.  On that day, as she worked as a cashier, the employee lifted a 15-pound bag of dog food from a grocery cart and felt pain in her left shoulder, low back, left leg, and left side.  She continued working the remaining 20 minutes of her shift, and purportedly reported this incident to a supervisor that same day.  The employee continued to work as regularly scheduled, and two or three days after the incident reported her injury to another supervisor.  On March 1, 2002, the employee was suspended from work for three days without pay for failing to report to work, and was apparently advised that any additional absences would result in termination of her employment.  On March 16, 2002, the employee resigned from her position after being informed by the store manager, Mr. Paiton Purrier, that her position would be terminated for poor attendance; Mr. Purrier evidently suggested to the employee that it would be in her interest to voluntarily resign so she would have no report of a termination in her work records.  The employee claims that she advised Mr. Purrier that she had sustained a work injury and that she had earlier reported the injury to two supervisors.  Although Mr. Purrier=s assistant completed a first report of injury on March 26, 2002, the employer apparently did not investigate the incident any further at that point. 

 

The employee first sought medical treatment for her February 26, 2002, injury on April 18, 2002.^[1]  She consulted Dr. David Lutz at Brookdale Integrative Health, reporting sharp low back pain, mid-back pain, numbness and tingling in her left leg and foot and slight tingling in her right foot.  She also reported pain in her neck extending to her upper back and left shoulder, as well as headaches which resulted in fatigue and difficulty sleeping, and tingling in her hands.  Dr. Lutz recommended thrice-weekly chiropractic adjustments for four weeks, and also referred the employee for physical therapy evaluation and treatment.  Five weeks later, the employee was examined by Dr. Sara Reiser, and reported significant improvement from the treatment although some physical activities still increased her discomfort.  Overall, the employee advised Dr. Reiser that she had been able to start working at a new job as she was feeling less pain, had better range of motion and noticed decreased discomfort with activities.  Dr. Reiser ordered another four weeks of twice-weekly chiropractic care with re-evaluation at the end of that treatment.

 

The employee treated until July 15, at which time she traveled to visit family out-of-state.  Between April 18 and July 15, 2002, the employee received 27 chiropractic treatments and 27 physical therapy treatments, at Brookdale Integrative Health.

 

On July 23, 2002, while in California, the employee sustained injuries to her neck and low back as a result of an automobile accident.  She again sought chiropractic treatment at  Brookdale Integrative Health, complaining of stiffness in her neck, midback, low back, shoulder, arms and wrists, along with fatigue, anxiety, forgetfulness, ringing in her ears and blurry vision.  The employee was injured in another automobile accident on November 16, 2002.  As a result of the November accident, the employee reported bilateral neck pain, low back pain, dizziness and headaches.  She consulted Dr. Lutz, and was later referred to Dr. Robert Jacoby at the Noran Neurological Clinic.  Dr. Jacoby examined the employee in February 2003, and referred the employee for a lumbar and cervical spine MRI.  Those scans, taken in March 2003, showed a minimal disc bulge at C4-5 level with no evidence of a herniation or stenosis, and the lumbar MRI scan showed a mild disc bulge with a slight effacement of the thecal sac at L4-5 and no evidence of nerve root impingement or stenosis.  In addition, the employee=s lumbar MRI scan showed a minimal disc bulge at L5-S1 and findings consistent with degenerative disc disease at the L4-5 and L5-S1 levels. 

 

On April 25, 2002, the employee filed a claim petition, alleging entitlement to temporary total disability benefits from March 16, 2002, to the present and continuing, payment of chiropractic expenses, and payment of Roraff fees.  The employee later limited her claim for disability benefits, as she began working on a full-time basis on May 2, 2002.  The employer denied primary liability for the claimed injury, alleging that the employee had not sustained an injury arising out of and in the course and scope of her employment with Rainbow Foods on February 26, 2002.  The employer contended that the employee had not been temporarily and totally disabled between March 16 and May 2, 2002, because she had no documented physical work restrictions and did not diligently search for work.  The employer also argued that the employee=s chiropractic treatment and physical therapy were not causally related to the employee=s alleged work injury and were not reasonable and necessary.  In addition, the employer claimed a credit in the amount of $1,140.00 for two missed IME appointments.^[2]

 

On March 19, 2003, the employee was examined by orthopedist Dr. Gary Wyard at the request of the employer.  Dr. Wyard diagnosed the employee with neck pain without specific clinical or radiographic findings, and diagnosed pre-existing degenerative disc disease of the lumbosacral spine.  Dr. Wyard concluded that the employee=s February 26, 2002, injury did not substantially contribute to any need the employee had for restrictions or limitations.  He determined that three months of treatment following the employee=s injury had been reasonable and necessary, and was causally related to that injury, and that the employee would have reached maximum medical improvement by three months post-injury.  Dr. Wyard found the employee to be neurologically intact, concluded that the employee had gross functional overlay with significant Waddell signs, and stated that he did not recommend any further treatment.

 

This matter was set for hearing on July 23, 2003.  In Findings and Order, served and filed August 1, 2003, the compensation judge found that the employee sustained a temporary strain of her low back on February 26, 2002.  The judge found the employee=s testimony to be credible that she sustained that injury and that she had reported the injury to her employer in a timely fashion.  The compensation judge relied on the medical opinion of Dr. Gary Wyard, that the employee sustained a myofacial strain/sprain that resolved in three months and that the employee would have reached maximum medical improvement by three months after the injury.  However, the compensation judge concluded that the employee did not present sufficient evidence that she was temporarily totally disabled following her injury, concluding instead that the medical records did not show that her injury caused her unemployment and wage loss during that period, that she had no restrictions on her ability to work, and that the employee=s termination from her job, and her related wage loss, resulted from factors unrelated to her work injury.  In addition, the compensation judge concluded that the chiropractic treatment the employee received following her injury in February 2002 was not reasonable and necessary to cure or relieve the effects of that injury, and denied the employee=s claim for payment of those expenses.

 

The employee appeals from the compensation judge=s determination that she sustained merely a temporary strain of her low back on February 26, 2002, and from the denial of payment for chiropractic and physical therapy expenses.  The self-insured employer appeals from the finding that the employee sustained any injury on February 26, 2002.

 

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

 

Although the compensation judge found that the employee sustained an injury on February 26, 2002, in the nature of a temporary strain to her low back, the compensation judge denied the employee=s claim for any wage loss following that injury and for any chiropractic or physical therapy treatment post-injury.  The employee appeals, arguing that the compensation judge=s denial of all claims for temporary total disability and chiropractic treatment expenses was inconsistent with her determination that the employee sustained an injury and  that the employee=s testimony about her injury was credible.  The employee also argues that the compensation judge erred as a matter of law in denying the employee=s medical treatment, as she ignored unopposed medical opinions that at least a period of treatment was reasonable and necessary to cure or relieve the effects of the employee=s work injury. 

 

1. Claimed Injury on February 26, 2002

 

The compensation judge found that the employee sustained a low back strain on February 26, 2002, specifically relying on the employee=s testimony which she found to be credible.  The employer appeals, arguing that the compensation judge=s finding lacks substantial evidentiary  support.  The employer specifically contends that the employee did not provide notice of her alleged injury until her job termination in March 2002, that the employee continued to perform her normal job functions without any restrictions following the injury, that the employee did not seek medical treatment until April 18, 2002, that the employee had a long history of chronic back, neck and leg pain, and that the employee=s testimony lacked credibility.

 

While it is true that the employee continued to work between her claimed injury on February 26, 2002, and March 16, 2002, and that she sought no medical or chiropractic treatment during this period of time, these factors did not seem to be dispositive to the compensation judge.  In her memorandum, the compensation judge addressed the employee=s testimony concerning to whom and when she reported her injury.  Although the employee testified that she advised two supervisors about her injury, those supervisors did not testify at trial to refute the employee=s testimony.  And although the store manager, Mr. Purier, testified that he was not advised of the injury and did not receive a report of the injury until approximately one month post injury, the compensation judge found that the Aemployee=s statements about when and to whom she reported the injury have been consistent and are credible.@ 

 

The compensation judge=s determination that the employee sustained a work-related injury was largely based upon her assessment of the employee=s credibility.  Assessment of the credibility of a witness is the unique function of the trier of fact.  Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988).  A finding based on credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary.  See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989).  We find no evidence in the record to contradict the judge=s assessment of the employee=s credibility.  The compensation judge=s finding that the employee sustained a work-related injury on February 26, 2002, is substantially supported by the record, and we therefore affirm that finding.

 

2. Temporary Total Disability Claim

 

The compensation judge denied the employee=s claim for temporary total disability benefits between March 26 and May 2, 2002.^[3]  The compensation judge found that the employee=s work injury did not substantially contribute to the employee=s loss of earnings during that time period, as she was unemployed due to a termination for reasons unrelated to her work injury, the employee had no restrictions on her work abilities as a result of the injury, and the employee did not diligently search for work during that time period.  The employee appeals, arguing that the employee looked for numerous jobs during that period of time, including those identified in her testimony.  The employee also argues that the employee received no job search assistance from a QRC because the employer had denied primary liability for her injury.  The employee, therefore, argues that it was unreasonable for the judge to determine that she did not conduct a reasonable and diligent job search, and advocates for a reversal of the denial of temporary total disability benefits. 

 

A basic principle of the Workers' Compensation Act is that an employee's loss of earning capacity must be causally related to the disability before benefits are due.  Arouni v. Kelleher Constr., 426 N.W.2d 860, 41 W.C.D. 42 (Minn. 1988).  Whether the inability to obtain full-time employment resulted from the personal injury is generally a question of fact for the compensation judge, and any relevant evidence may be considered, including the nature and extent of the employee's job search.  Stauty v. Luigino's Inc., slip op. (W.C.C.A. December 19, 1994).  In her memorandum, the compensation judge points to factors she evaluated in reaching her determination that the employee was not temporarily totally disabled as a result of her work injury.  The employee continued to perform her regular job duties following her injury, until March 16, 2002, when her job was terminated as a result of her attendance problem; the employee did not claim that her attendance problems at work were caused by her injury, and evidently there were instances of tardiness and attendance problems that pre-dated her injury.  The employee did not seek chiropractic treatment until April 18, 2002, and the chiropractic records do not reflect any physical work restrictions placed on the employee by her treating chiropractors or physical therapist.  Although the employee testified that she searched for work, she provided no written record of her job search, and the compensation judge concluded that the employee did not present sufficient evidence that she had conducted a job search post-injury.

 

Whether an injured employee makes a reasonably diligent search for suitable employment, for purposes of determining eligibility for disability compensation, is a question of fact which must be upheld unless manifestly contrary to the evidence.  Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 39 W.C.D. 758 (Minn. 1987).  As substantial evidence supports the compensation judge=s conclusion that the employee did not meet her burden of proving entitlement to temporary total disability benefits, we must affirm.

 

3. Chiropractic Treatment and Expense

 

The employee appeals from the compensation judge=s conclusion that the employee=s chiropractic treatment, received at Brookdale Integrative Health, was not reasonable and necessary to cure or relieve the effects of her work injury, and the resulting denial of the employee=s claim for payment of those chiropractic expenses.  The employee argues that there is no evidentiary support for the compensation judge=s conclusions that the employee had only temporary relief from her chiropractic treatment.  Specifically, the employee asserts that the compensation judge=s conclusions contradict the opinion provided by Dr. Gary Wyard, that Athe medical and chiropractic treatment rendered to Ms. Cuevas was reasonable and necessary for three months after the accident of February 26, 2002.@  The employee argues that medical providers whose opinions are in the record agree that the treatment the employee received during at least the first three months post-injury, which in this case would have extended from the first treatment on April 18 to approximately May 26, 2002,  injury, were reasonable, necessary and causally related to her work injury.

 

The compensation judge concluded that the employee did not meet the requisite factors that must be proven to show that chiropractic treatment was reasonable and necessary, citing to factors set forth in Horst v. Perkins Restaurant, 45 W.C.D. 9 (1991) and Fuller v. Naegele/Shivers Trading, slip op. (W.C.C.A. April 14, 1993).  Specifically, the compensation judge concluded that the employee had only temporary relief from the chiropractic and physical therapy, although she received frequent treatments, and further stated that

 

The records of Brookdale Integrative Health do not show that these factors have been met.  The employee had temporary relief though she was treating frequently with the chiropractic and physical therapy departments both.  The employee continued to work so there was no effect or relationship between the treatment and her ability to work.  There is little evidence of a treatment plan or that the plan was followed.  The documentation of the details of treatment are difficult to read.  The duration of the treatment in issue was brief due to the intervening accident.  However, the cost was not reasonable or necessary for the relief provided.  Dr. Wyard opined that three months of care would be reasonable and necessary.  However, he did not elaborate on the frequency of care, the cost or the relief that should be attained by that three months of treatment.  The employee still has to show that the factors stated above have been met for the care to be found compensable.  The employee and intervenor have not shown by a preponderance of the evidence that the care was reasonable or necessary.

 

Minn. Stat. ' 176.135, subd. 1 requires the employer to furnish any medical treatment as may reasonably be required to cure and relieve the employee from the effects of his or her personal injury.  It is well settled that a causal relationship between the work injury and the medical expenses at issue must be proven; the reasonableness and necessity of medical treatment is not to be assumed merely because it has been rendered.  Wright v. Kimro, 34 W.C.D. 702 (1982); Williams v. Gresen Mfg., slip op. (W.C.C.A. Aug. 20, 1992).  An employee has the burden of proving her claim that  medical expenses were reasonable, necessary, and causally related to her work injury.  See Adkins v. University Health Care Center, 405 N.W.2d 231, 39 W.C.D. 898 (Minn. 1987).  In this case, the record contains chiropractic records generated between the employee=s work injury in February 2002 and a superseding, intervening injury that the employee sustained on July 23, 2002.  The chiropractic records contain no causation opinion per se; they simply include the history provided by the employee of her work injury in February 2002, with reference to the employee=s back treatment prior to that injury, and include chart notes outlining the treatments rendered to the employee.  In addition, the record contains the report issued by Dr. Gary Wyard, following his independent medical examination of the employee.  Dr. Wyard=s report includes his opinion on causation and reasonableness and necessity of the chiropractic treatment.  In his report, he stated that A[i]n my opinion, the treatment and care subsequent to the accident of February 26, 2002, would have been a reasonable approach for three months only.  Any ongoing treatment or care would be as the result of the subsequent, intervening injuries.@  (Respondent Exhibit 2, Page 10.)

 

The employee argues that the compensation judge is not free to disregard unopposed medical opinion, and can not substitute her opinions in place of the opinions of all experts and medical personnel involved in this matter.  The employee also argues that the compensation judge erred in concluding that the opinion of one of the employee=s treating chiropractors lacked foundation.  In her memorandum, the compensation judge concluded that the opinions of the employee=s chiropractor, Dr. Erickson, lacked foundation, as the chiropractic records did not reflect whether he had all the information about the employee= prior injuries and treatments.^[4]  However, the chiropractic records reflect that the employee reported her earlier work injury, and the treatment she received thereafter, to her treating chiropractors.  Foundation existed for the chiropractors= statements and opinions, and therefore those could be considered by the compensation judge.

 

That being said, none of the employee=s treating chiropractors rendered any opinion concerning the causal relationship between the employee=s February 26, 2002, work injury and her treatment received between April 18, and July 15, 2002, other than to refer to the employee=s reported symptoms resulting from that injury.  And, even though the compensation judge accepted Dr. Wyard=s opinion that the employee had sustained a temporary injury, the judge rejected that portion of Dr. Wyard=s opinion that referred to the reasonableness, necessity and causal relationship of chiropractic treatment.  "[T]here is a difference between disregarding unopposed medical opinion and rejecting it on the basis of other evidence."  Clark v. Archer Daniels Midland, slip op. at 6 (W.C.C.A. Feb. 14, 1994).  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).  In addition, a Acompensation judge generally is free to accept a portion of an expert=s opinion while rejecting other portions.@  Johnson v. L.S. Black Constr., Inc., No. 397-40-0697 (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 specifically mentioned Dr. Wyard=s opinion regarding the reasonableness and necessity of the chiropractic treatment, but rejected it based on other evidence.  The compensation judge=s conclusion that the employee=s chiropractic treatment received after her work injury on February 226, 2002, was not reasonable and necessary is adequately supported by evidence in the record, and we therefore affirm.