LOIS McNEAL, Employee/Appellant, v. MINNESOTA ONCOLOGY, and CNA COMMERCIAL INS., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 30, 2004
HEADNOTES
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence exists to support the decision of the compensation judge that the employee had reached maximum medical improvement.
Affirmed.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Patricia J. Milun
Attorneys: Charles M. Cochrane, Cochrane Law Office, Roseville, MN, for the Appellant. Philip C. Warner, Law Offices of Joseph M. Stocco, Edina, MN, for the Respondents.
OPINION
DAVID A. STOFFERAHN, Judge
The employee appeals from the decision of the compensation judge that her work injury was a temporary injury which resolved by June 24, 2003. We affirm.
BACKGROUND
Lois McNeal began her employment with Minnesota Oncology and Hematology in March 2002, working for a week or so as a receptionist before becoming a scheduler. As a scheduler she used a telephone and computer while standing at a counter. The employee began to experience pain in her neck while performing her job in the summer of 2002 and her symptoms progressed to the point that she sought chiropractic care from Dr. Robert Roloff. The employer and its insurer, CNA Insurance Companies, accepted primary liability for an October 10, 2002 injury.
The employee has a history of treatment for cervical problems before her employment with Minnesota Oncology and Hematology. In 1973 or 1974 she sustained a work injury which had required chiropractic care for her cervical spine. The employee was unable to recall any other details concerning this injury. She began treating with Dr. Roloff in April 2000 with complaints of neck and right arm pain. She saw Dr. Roloff for those symptoms on a number of occasions through November 2000 and then noted increased symptoms in her shoulder in December 2000 after shoveling snow. Dr. Roloff=s records show continued treatment of the employee for various complaints, generally including her cervical spine, through 2001 and into 2002. Her first visit with Dr. Roloff for her work injury was on October 18, 2002 and she had seen Dr. Roloff before that on June 17, 2002.
In his case summary of October 18, 2002, Dr. Roloff=s diagnosis was of cervical strain/sprain, thoracic strain, cervical and thoracic subluxations, cervical radicular symptoms, and muscle spasms and headaches. Dr. Roloff took the employee off work and provided manipulation treatment. Dr. Roloff recommended an MRI scan which was done on December 12, 2002. The MRI scan was read as showing disc bulging at C5-6 without cord compression and minimal bulging at C3-4.
In February 2003, Dr. Roloff referred the employee to Dr. Stacy Thornhill at Northwestern Health Sciences University. At the time the employee first saw Dr. Thornhill on February 20, 2003, the employee was complaining of multiple symptoms including pain wrapping around her ribs at multiple levels, bilateral arm pain with reaching, and bilateral numbness and tingling in her arms, hands and feet. Additional diagnostic tests were done and on March 18, 2003 a provisional diagnosis was made by Dr. Thornhill of post-traumatic fibromyalgia and AC5-6 IVF encroachment.@ The chart note for that date also noted inconsistent findings on examinations conducted on the same day and also inconsistent findings from visit to visit. After three weeks of treatment, Dr. Thornhill discharged the employee from further care because there had been no improvement.
The employee was evaluated by Dr. Jack Drogt on behalf of the employer and insurer on March 20, 2003. When she saw Dr. Drogt, the employee=s symptoms were of neck pain and stiffness, upper back pain with pain radiating into the shoulders, and painful arms with tingling hands. Dr. Drogt noted no objective findings on examination. He concluded that the employee sustained no substantive work injury and that her symptoms were the result of her pre-existing condition. His opinion was that her increasing pain in October 2002 may have been a temporary aggravation of her pre-existing condition and that she had reached maximum medical improvement from any work injury with no further need for treatment or restrictions.
Dr. Roloff referred the employee to Sister Kenny Rehabilitation Institute where she saw Dr. Kristine Spiewak. In her office notes of June 24, 2003, Dr. Spiewak reported that the employee had symptoms of numbness in her hands, pain in her left arm going to her thumb, pain in her right ankle and a burning sensation in her medial right ankle and the bottoms of her feet. Dr. Spiewak noted the employee had been diagnosed with fibromyalgia and was being treated for that diagnosis. Dr. Spiewak=s assessment was of Amyofascial pain likely as a result of cervical musculature strain in the past. I see no evidence of neurological compromise and radiologic studies do not support a neurologic etiology.@ Dr. Spiewak made no treatment recommendations other than that the employee continue to attend the fibromyalgia clinic. The employee was also continuing to receive chiropractic care from Dr. Robert Roloff during this time.
The employer and insurer filed a notice of intention to discontinue compensation on April 15, 2003, contending that the employee had reached maximum medical improvement and had no restrictions due to the work injury. The discontinuance was the subject of an administrative conference on May 7, 2003. The insurer=s request to discontinue was granted and the employee filed an objection to the discontinuance. The employee=s objection to discontinuance was heard on July 1, 2003 by Compensation Judge Patricia J. Milun. The parties agreed at the hearing that the issue for the compensation judge was whether the employee had reached maximum medical improvement from the October 10, 2002 injury. In the Findings and Order, served and filed on July 28, 2003, the compensation judge determined that the employee reached maximum medical improvement on June 24, 2003 and accepted the opinion of Dr. Drogt that the employee had sustained a temporary aggravation of her neck and upper back on October 10, 2002. The employee appeals.
DECISION
The question of whether an employee has reached maximum medical improvement is one of ultimate fact for the compensation judge. Hammer v. Mark Hagen Plumbing and Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989). In this case, the compensation judge accepted the opinion of Dr. Drogt that the employee had sustained a temporary aggravation of her neck and upper back at her employment. The compensation judge also concluded that the employee had returned to her base line condition as of June 24, 2003 and reached maximum medical improvement on that date. The question for this court is whether substantial evidence supports the determination of the compensation judge.
The employee argues that the compensation judge=s acceptance of Dr. Drogt=s opinion is inappropriate because Dr. Drogt=s opinion lacked foundation. The employee points to Dr. Drogt=s failure to diagnose fibromyalgia. Foundation for a medical opinion is established by the doctor=s knowledge of the employee=s case through treatment, review of records, or a hypothetical question. Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978). Dr. Drogt cited the records he reviewed in his report and the employee does not identify information which Dr. Drogt lacked. His decision not to diagnose fibromyalgia does not constitute a lack of foundation but rather represents a disagreement with the employee=s doctors as to the correct diagnosis of the employee=s condition. The employee also argues that there was no evidence that she had a pre-existing cervical Acondition@ as found by Dr. Drogt. The employee had symptoms of neck, shoulder and arm pain in 2000 and 2001 which required chiropractic care. Dr. Drogt=s use of the word condition to describe this situation does not render his opinion to be without foundation. Since the opinion of Dr. Drogt had adequate foundation, the compensation judge was entitled to rely on that opinion in making her decision. Nord v. City of Cook. 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The employee also argues that the decision by the compensation judge that the employee had returned to her pre-injury medical status must mean that the compensation judge thought the employee had fibromyalgia prior to her work injury and there is no such evidence. The compensation judge did not make a finding that the employee had pre-existing fibromyalgia. The compensation judge made no finding as to whether or not the employee had fibromyalgia at any time. She specifically adopted the diagnosis of Dr. Spiewak that the employee experienced myofacial pain as a result of cervical musculature strains. The compensation judge concluded that this diagnosis encompassed the symptoms which were the basis of the fibromyalgia diagnosis by other doctors. To put it simply, it is clear that the compensation judge did not accept the claim of the employee that she had post-traumatic fibromyalgia.
We find substantial evidence in the record to support the determination of the compensation judge that the employee sustained a temporary work injury on October 10, 2002 and reached maximum medical improvement from that injury on June 24, 2003. The decision of the compensation judge is affirmed.