Hanson v. Independent Sch. Dist. #280

LORRAINE L. HANSON, Employee/Appellant, v. INDEPENDENT SCH. DIST. #280, and MINNESOTA SCH. BOARDS' INS. TRUST adm=d by BERKLEY RISK ADM'RS CO., Employer-Insurer.

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the expert opinion of Dr. Dowdle, supports the compensation judge=s determination that the employee=s long-term use of Prednisone to treat work-related asthma did not cause or aggravate the employee=s degenerative disc disease.

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including the expert opinion of Dr. Dowdle, supports the compensation judge=s denial of permanent partial disability benefits for the employee=s Prednisone-related osteopenia and/or osteoporosis, pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990), on the basis the employee=s degenerative disc disease, and not the osteopenia/osteoporosis, was the cause of any functional impairment.

Attorneys: Howard S. Carp, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN for the Appellant. Mark A. Fredrickson and Kronsky E. Kennon, Rider Bennett, Minneapolis, MN for the Respondents.

The employee appeals from the compensation judge=s finding the employee=s use of Prednisone to treat work-related asthma did not aggravate or accelerate her degenerative disc disease, and the judge=s denial of permanent partial disability benefits for the employee=s osteoarthritis and/or osteopenia. We conclude there is substantial evidence to support the compensation judge=s decision, and we affirm.

On July 11, 1991, Lorraine L. Hanson, the employee, sustained a personal injury in the nature of asthma as a result of exposure to chemicals arising out of her work for Independent School District #280, the employer, insured by Minnesota School Boards= Insurance Trust with claims administered by Berkley Risk Administrators Company. The employer and insurer accepted liability for the employee=s personal injury, and paid medical benefits for the care and treatment of the employee=s injury together with wage loss and permanent partial disability benefits.

The employee is a 62 year old woman who began working for the employer as a bus driver and custodian in 1981. On July 11, 1991, the employee was cleaning a swimming pool at work with a substance identified as muriatic acid, which caused the employee to develop asthma. The employee sought treatment with Dr. Michael Bowen, who diagnosed chronic obstructive pulmonary disease. The doctor prescribed a nebulizer, inhalers and steroids, including Prednisone. The employee has taken Prednisone for the past 13 years for her condition. Recently, the employee was prescribed Advair twice a day to treat her asthma.

At the hearing, the employee testified that approximately two years previously, she noted a gradual onset of low back pain, and by the date of the hearing, complained of constant low back pain. As a result, the employee testified she has difficulty sleeping and needs to sleep in a chair occasionally. The employee testified she is unable to sit or stand for long periods, experiences occasional pain radiating to her right leg, and experiences a dull ache in her neck for which she uses a horseshoe pillow when sleeping. The employee testified her family physician, Dr. Oslund, advised her that Prednisone would cause osteoporosis, and the doctor prescribed Fosamax because she was shrinking and her bones were becoming thin. She testified her doctors have told her she has lost approximately 1.5 inches in height as a result of bone loss.

Dr. David Parker, a specialist in work, health and safety, public health and epidemiology, first examined the employee in June 2002, and on two occasions thereafter. Dr. Parker diagnosed osteoporosis and/or osteopenia^[1] as a result of the employee=s Prednisone use. The doctor further opined there existed a causal relationship between the employee=s osteopenia and her spinal condition, and concluded the employee=s long-term use of steroids significantly aggravated or accelerated the employee=s degenerative disc disease in her lumbar, thoracic, and cervical spine. The doctor opined the employee sustained a 10.5 percent whole body disability for degenerative changes in the lumbar spine,^[2] a 3.5 percent whole body disability for degenerative changes in the thoracic spine,^[3] and a 10.5 percent whole body disability for degenerative disc disease of the cervical spine.^[4]

Dr. Parker was deposed on December 3, 2003. He testified that when he first saw the employee in June 2002, he diagnosed chronic neck pain secondary to osteoporosis. The doctor concluded the long-term use of Prednisone had permanently aggravated or accelerated the employee=s degenerative disc disease. Although the precise mechanism was not clear, Dr. Parker testified:

Well, you know, the osteopenia was a result of the use of steroids. Her bone thins and increases the rate of regeneration and absorption of the bone. And as that happens, it=s going to substantially contribute to her - what might or might not have been an underlying condition, you know. The subsequent rapid change in her bone growth and deterioration was substantially exacerbated or caused by the osteo B degenerative changes of the back as well; that these conditions are not to be seen as separate but, rather, sort of a, to some degree, a continuum, but also in some ways as synergistic or at least compounding one another, at least in her instance.

(Pet. Ex. B at 14-15). The doctor conceded he was unaware of any specific study or medical authority that posited a causal connection between osteoporosis and degenerative disc disease. He opined, however, that long-term use of Prednisone may well accelerate the process of disc degeneration.

Dr. John Dowdle, an orthopedic surgeon, examined the employee at the request of the self-insured employer. Dr. Dowdle agreed the employee=s development of osteoporosis was substantially caused by her use of Prednisone. However, the doctor opined the employee=s long-term Prednisone usage did not contribute to, or accelerate, the employee=s degenerative disc disease, and stated osteoporosis is not in and of itself a painful condition. Dr. Dowdle stated, based upon his review of the medical literature, there was no support for an increased incidence of degenerative disc disease associated with long-term Prednisone use. Rather, the doctor stated, the employee=s degenerative disc disease was a part of a natural aging process by which the intervertebral discs gradually dry out and become thinner. Dr. Dowdle concluded the employee=s level of disc degeneration was normal for a 62-year old woman and was unrelated to the employee=s Prednisone use.

The compensation judge found the employee suffers from degenerative disc disease that affects multiple intervertebral discs in both her cervical and lumbar spine, together with chronic pain in the cervical, thoracic and lumbar spine. The judge further found the employee has sustained permanent disability affecting her cervical and lumbar spine ratable at 10.5 percent of the whole body related to the cervical spine and 10.5 percent of the whole body related to the cervical spine. The compensation judge, however, found the employee=s degenerative disc disease was not causally related to her osteoporosis or use of Prednisone, and denied the employee=s claim for permanent partial disability benefits. The employee appeals.

The employee, on appeal, contends the compensation judge=s decision that the employee=s use of Prednisone did not aggravate or accelerate her degenerative disc disease is unsupported by substantial evidence. She argues it is undisputed that long-term use of Prednisone causes or contributes to osteoporosis, a condition which decreases the bone mass. Whether or not age is a factor, the employee contends her Prednisone use substantially contributed to the disc degeneration. Accordingly, the employee contends the compensation judge=s denial of permanent partial disability benefits is legally erroneous. We are not persuaded.

It is the function of the compensation judge, as the trier of fact, to resolve conflicting expert testimony. See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). Where there is conflicting medical testimony, a compensation judge=s selection of one medical expert over another will not be disturbed upon appeal, unless the facts relied upon by the selected medical expert are unsupported by the evidence. Klapperich v Agape Halfway House, 281 N.W.2d 676, 31 W.C.D. 641 (Minn. 1979). Dr. Dowdle opined the employee=s long-term use of Prednisone did not cause, contribute to or accelerate the employee=s degenerative disc disease of the spine. Rather, the doctor stated the employee=s degenerative disc disease was part of the natural aging process in which the intervertebral discs gradually dry out and become thinner. Dr. Dowdle concluded the employee=s level of disc degeneration was normal for a 62 year old woman. His opinion was based upon his examination of the employee, his experience as an orthopedic surgeon and his review of the medical literature which, the doctor concluded, did not support Dr. Parker=s causation theory. The compensation judge found Dr. Dowdle=s causation opinion to be more persuasive than that of Dr. Parker. We cannot conclude Dr. Dowdle=s opinion lacked foundation. The compensation judge=s choice between expert medical opinion is, therefore, affirmed.

The employee=s use of Prednisone to treat her asthma resulted in the employee=s development of osteoporosis and/or osteopenia. These are conditions which are not rated by the permanent partial disability schedules. The osteoporosis, the employee contends, resulted in chronic neck and back pain together with stiffness and reduced range of motion. Accordingly, the employee contends, she is entitled to an award of permanent partial disability benefits under Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990). Again, we are not persuaded.

Osteoporosis and osteopenia are conditions that are not rated by the Workers= Compensation Permanent Partial Disability Schedules. The purpose of permanent partial disability compensation is to compensate for functional impairment. Id. at 922, 43 W.C.D. at 478. The Workers= Compensation Act provides:

If an injury for which there is objective medical evidence is not rated by the permanent partial disability schedule, the unrated injury must be assigned and compensated for at the rating for the most similar condition that is rated.

The purpose of a Weber rating is to approximate the functional loss suffered by the employee by comparing the disability to similar losses included in the schedule.

Dr. Dowdle agreed the employee=s development of osteoporosis and osteopenia was substantially caused by her use of Prednisone. The doctor, however, found the employee exhibited no fractures or compressions and stated osteoporosis is not, in and of itself, a painful condition. Dr. Dowdle stated the employee=s pain and lack of range of motion were caused by the employee=s degenerative disc disease not the osteoporosis. Although the employee has sustained permanent partial disability due to her degenerative disc disease, Dr. Dowdle rated no permanent disability secondary to the osteoporosis. Based upon Dr. Dowdle=s testimony, the compensation judge could reasonably conclude the employee, at this time, has no impairment of function due to the osteoporosis. The compensation judge=s decision is affirmed.

^[1] Osteopenia is defined as Aany decrease in bone mass below normal.@ Dorland=s Illustrated Medical Dictionary (29th ed. 2000).

^[2] See Minn. R. 5223.0070, subp. 1.A.(3)(b).

^[3] See Minn R. 5223.0020, subp. 3.A.(2).

^[4] See Minn. R. 5223.0070, subp. 2.A.(3)(b).