PATRICIA M. MONNIE, Employee, v. ISD #625, SELF-INSURED/RISK MGM'T SERVS., Employer/Appellant, and HEALTHPARTNERS, INC., and COMPLETE CHIROPRACTIC, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 30, 2004

 

No. WC04-147

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  The medical opinions of two physicians in the case provided substantial evidentiary support for the finding that the employee had sustained a seven percent permanent partial disability to the back and a seven percent permanent partial disability to the neck.

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  The medical treatment parameters were inapplicable to the employee=s claim for chiropractic expense where the employer was contending that the work injury was merely temporary and had ended well before the treatment at issue.

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Substantial evidence supported the compensation judge=s determination that the chiropractic treatment rendered in the case was reasonable and necessary where, as a result of the treatment, the employee was able to remain employed.

 

Affirmed.         

 

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

Compensation Judge: Rolf G. Hagen

 

Attorneys:  Mark A. Fonken and Damien A. Riehl, Jardine, Logan & O=Brien, Lake Elmo, MN,  for the Appellants.  Charles M. Cochrane, Roseville, MN, for the Respondent.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The self-insured employer appeals from the compensation judge=s awards of permanent partial disability compensation and of reimbursement for chiropractic treatment.^[1]  We affirm.

 

BACKGROUND

 

The employee worked as a facility service worker for the St. Paul school district performing cleaning duties at Central High School.  On August 2, 2002, the employee was injured when she slipped on a wet floor and fell on her left side while operating a floor scrubbing machine.  She experienced immediate pain in her left side, neck, shoulder, lower back and left knee and began treating with a chiropractor, Dr. Diane Jerome Barry, on August 2.

 

Dr. Barry diagnosed a cervical/lumbar strain/subluxation, muscle spasm, hip strain, and knee strain.  The initial treatment plan contemplated three treatments per week, to diminish over time as the employee improved.  The employee at first returned to her job on a light duty basis.  Over the next several weeks, the employee showed some gradual improvement.  However, Dr. Barry=s treatment records indicate that as the employee began doing more lifting, bending and vacuuming at work she had exacerbations of her symptoms.

 

In October 2002, Dr. Barry recommended that the employee see her family physician at Health Partners to be considered for anti-inflammatory medications.  At that time, the employee was working four hours per day with a ten pound lifting restriction, but it was noted that even at this level of work there was worsening of symptoms with bending or vacuuming.  The employee=s family physician diagnosed a cervical strain and acute low back pain, prescribed anti-inflammatory medications, and advised the employee to follow the work restrictions prescribed by her chiropractor. 

The employee=s neck and back pain remained persistent and Dr. Barry referred her to the Noran Clinic for neurological evaluation.  The employee was seen there on November 12, 2002, by Dr. Soren Ryberg.  The employee reported that she had continued to have pain throughout the left side, neck, shoulder, low back, hip and knee since the fall at work in August.  Dr. Ryberg noted that the employee=s exam and history were consistent with at least a musculoligamentous injury of the neck, back, left hip, and knee.  Because of the persistence and severity of the employee=s neck and back pain and the nature of the employee=s knee pain there was concern of a possible disc herniation in the employee=s back and of a possible torn ligament or meniscus in the knee.  The employee was scheduled for MRI studies of the cervical and lumbar spine and of the left knee and was prescribed anti-inflammatories. 

 

In a letter to the workers= compensation insurer dated November 8, 2002, Dr. Barry noted that the employee=s treatment had now departed from treatment parameters.  She explained that the employee continued to have acute exacerbations of neck and lower back pain related to routine daily work activity, and that departure from the treatment plan would be on an as-needed basis, with treatments currently at two to three times per week to stabilize her symptoms to assist her in her return to work.  Short-term goals were to return the employee to full-time work and to evaluate the employee=s condition to determine future treatment plans.

 

The employee=s MRI studies were performed on November 20, 2002.  At the left knee, the employee had degenerative changes in the posterior horn of the medial meniscus without meniscal tears and degenerative arthritis with arthroscopic grade IV chondromalacia patella.  Her lumbar spine exhibited minimal degenerative spondylolisthesis of the L4 level on L5 and mild bulging at L5-S1 and L2-3, as well as degenerative disc disease at L2-3, L4-5 and L5-S1.  Her cervical spine showed mild posterior disc bulging at C6-7. 

 

The employee returned to the Noran Clinic on November 26, 2002.  She was still having centralized lumbosacral pain, left buttock pain and intermittent left knee pain as well as left-sided neck pain.  Dr. Ryberg thought there was probably some sciatic nerve irritation, possibly coming from a disc bulge.  He suggested the employee consider an epidural injection, but the employee declined this in favor of medication.  Dr. Ryberg noted that the employee=s chiropractic treatments were beneficial and that Dr. Barry was managing her work restrictions.  On December 10, 2002, the employee was again seen at the Noran Clinic and Dr. Ryberg noted that her symptoms had steadily improved since her work injury.  He referred the employee for work hardening at the Physician=s Neck and Back Clinic and recommended she return to sedentary work four hours per day and three days per week for two weeks, to increase to five days a week, and then be reevaluated.  The employee was off work and receiving temporary total disability at this time, having gone off work on November 16, 2002.

 

The employee was seen for an evaluation of her knee problems by Dr. Jack Drogt at Summit Orthopedics on December 20, 2002.  He diagnosed a contusion to the hip and knee together with greater trochanteric bursitis.  He recommended that the employee have a functional capacities evaluation and undergo a work hardening program.  Dr. Drogt found the employee to be capable of working, although with restrictions which precluded climbing, twisting, and squatting and which limited lifting, standing and walking.  The employee returned to work as of January 10, 2003.

 

The employee started work hardening and on January 21, 2003, she returned to Dr. Drogt, who found her knee and hip range of motion markedly improved.  There was minimal tenderness at the greater trochanteric area and Dr. Drogt opined that, from the standpoint of the knee and hip, the employee could now return to work at full duties.

 

On March 11, 2003, Dr. Ryberg saw the employee and noted that her neck and back pain had improved to the point where she was only intermittently symptomatic.  Her symptoms of left hip and knee pain, however, continued to persist.  Her knee tended to catch and there was crepitus on extension and pain on flexion and full extension.  The employee wanted to return to work, but Dr. Ryberg recommended that she complete her work conditioning program before determination of restrictions.

 

The employee completed the work conditioning and on March 25, 2003, Dr. Ryberg released her to work effective March 31, 2003, for four hours per day five days per week with a 30 pound lifting restriction.  He noted that she continued to treat chiropractically and that this was beneficial.  As she was still symptomatic overall, he recommended that she continue her medication and the chiropractic treatment and also suggested an exercise program.  He thought, however, that the employee=s knee symptoms needed reevaluation and referred her to an orthopedist.

 

On April 7, 2003, the employee was discharged from her cervical and lumbar back rehabilitation program at the Physicians Neck & Back Clinic.  She had attended 20 sessions and made good progress.  Her physician there, Dr. Gloria Peterson, offered the opinion that the employee had reached maximum medical improvement in the back and neck and would be able to resume her regular work duties without restriction in one week, though she might experience further exacerbations.  Dr. Peterson subsequently prepared a report in which she determined the employee was at MMI and had sustained a seven percent disability under 5223.0370, subp. 3.C.1 for the cervical spine and seven percent under 5223.0390, subp. 3.D.1 for the lumbar spine.

 

On April 9, 2003, Dr. Barry set the employee=s work restrictions at four hours per day, with lifting not to exceed 15 pounds, then advancing to eight hours per day after April 11, but with lifting still restricted to 15 pounds. The employee attempted to return to work at full duties but testified that she almost immediately experienced an exacerbation of her symptoms. 

 

On April 10, 2003, the self-insured employer served notice of its intent to discontinue temporary partial disability compensation effective April 11, 2003, based on the employee=s unrestricted release to return to work by Dr. Peterson.

 

The employee was seen for a reevaluation of her left knee pain by Dr. Bruce Levy at Capitol Orthopedics on April 17, 2003.  She reported that the fall at work in August 2002 had caused a burning sensation over the lateral aspect of the knee and since that time she had experienced some occasional catching and buckling.  Dr. Levy=s examination showed significant patellofemoral crepitation.  The patella tendon had a patellofemoral grind with a catch laterally, which reproduced the employee=s pain.  He diagnosed a patellofemoral syndrome and recommended nonoperative management to include patella stabilizing brace therapy and anti-inflammatory medications.  The employee also complained of left hip pain, predominantly over the trochanteric region, and x-rays showed trochanteric bursitis of the left hip.  Dr. Levy recommended physical therapy and reevaluation in eight weeks.  As a result of her knee condition, he restricted her to mild work, with standing and walking limited to five hours per day, climbing to one to three hours per day, and no bending, kneeling or squatting.  Lifting was limited to 10-25 pounds and the employee was to work with a knee brace.

 

On April 19, 2003, the employee returned to work and continued to work at a wage loss through July 25, 2003, due to lost time associated with an alleged inability to perform her full duties.

 

An administrative conference on the employer=s NOID was held on May 7, 2003.  Benefits were allowed to be discontinued and the employee filed an objection to discontinuance on May 21, 2003.

 

On May 8, 2003, Dr. Levy prepared a workability form in which he released the employee to work without restrictions as of that date.  The employee apparently did not see Dr. Levy at that time.

 

On May 21, 2003, the employee reported to her chiropractor that she had experienced a sharp increase in lower back pain after beginning to work eight-hour days with no restrictions during the past two days.  She had been doing a lot of bending and lifting which aggravated her lower back.  She contrasted this to the previous week, noting that when she had been working four hour days it had not aggravated her back and neck symptoms.  At her chiropractic appointment on May 27, the employee again reported increased lower back pain which she associated with working eight-hour shifts.  She stated that the increased pain usually started about six hours into her shift.  This pattern continued, and on June 4, 2003, Dr. Barry restricted the employee to work five-hour days.

 

During the summer months of June, July and August 2003 the employee=s work duties were somewhat more rigorous as the work also included Arestoration cleaning@ which involved removal of furniture from classrooms and more intensive cleaning of floors, walls, ceilings and light fixtures than usual during the school year.

 

The employee was seen  by Dr. Levy at Capitol Orthopedics for her left knee on June 19, 2003.  His diagnosis was advanced patellofemoral chondromalacia and patellofemoral syndrome.  The doctor noted that therapy had helped her substantially so that she had experienced about a 50 to 60 percent improvement.  She was instructed to continue nonoperative management and return in three months.  Dr. Levy noted that a cortisone injection would be recommended in the event of a flare-up. 

 

Thereafter the employee continued treating as needed with her chiropractor, Dr. Barry.  On July 2 and again on July 7, she was taken off work for the day due to exacerbations of her back symptoms.  Dr. Barry also continued a restriction limiting the employee to five hours work per day.  The employee was taken off work entirely from July 26 through August 22, 2003, by Dr. Barry for a further exacerbation, then returned again briefly to partial duties, again at a wage loss.  The employee was then advised that she would no longer be permitted to work until she could return without restrictions.  The employee asked Dr. Barry to release her to unrestricted work as she needed to go back to work for financial reasons.   Dr. Barry then authorized her to return to work eight hours per day without restrictions.  

 

The employee returned to work in her regular job at the beginning of the school year, September 2, 2003.  On September 5, the employee saw Dr. Barry and reported that she had increased neck and left shoulder pain after working eight hours per day that week.  She had been able to do the job but had increasing pain throughout the work day and needed frequent breaks. 

 

The employee was evaluated by Dr. Paul Wicklund on behalf of the employer on September 9, 2003.  Dr. Wicklund noted that the employee had been working without restrictions as of September 2, 2003.  She still reported left-sided shoulder pain with headaches, stabbing low back pain and left buttock pain, and was occasionally troubled with her left knee Aacting up.@  Dr. Wicklund diagnosed patello-femoral arthritis of the left knee, subjective low back pain, and subjective left shoulder and neck pain.  In his opinion, the employee had sustained a temporary injury on August 2, 2002, consisting of contusions to the left shoulder, left hip and left knee.  He stated  that she would have recovered from this within three months and then reached maximum medical improvement.  In his opinion, the employee could work without restrictions, required no further care or treatment and had sustained no permanent disability.

 

In a report dated October 2, 2003, Dr. Barry gave her opinion that the work injury on August 2, 2002, had involved a sudden impact which had caused significant strain to the ligaments, discs, muscles, bones and tendons of the employee=s spine and left knee from which she had not fully recovered, as she continued to have ongoing objective orthopedic findings.  She agreed with the permanency rating of a seven percent cervical disability and a seven percent lumbar disability provided by Dr. Peterson.  Dr. Barry explained that she had treated the employee with manual spinal manipulation, multiple adjunctive physical therapy modalities and massage therapy, tapering treatment as her condition improved.  She stated that her treatment of the employee was currently on an as needed basis for acute exacerbations, and opined that the employee would continue to require periodic chiropractic and medical care on an as-needed basis to minimize acute exacerbations and to maintain her ability to continue working eight-hour days despite significant neck and back pain related to her work activities. 

 

The employee=s objection to discontinuance was heard by Compensation Judge Rolf Hagen on October 31, 2003.  At the hearing, the parties agreed that the issues for determination were the employee=s entitlement to temporary total disability and temporary partial disability compensation after April 11, 2003, the employee=s claim for permanent partial disability, and reimbursement of unpaid medical and chiropractic expenses.

 

The employee testified that she experienced increased pain when vacuuming classrooms or mopping bathrooms after her return to work in April 2003.  The employee stated that she would also Atrade off@ with other co-workers, asking them to do her heavier tasks such as emptying large trash containers while she would do some of their lighter jobs.  Her supervisor testified that the employee came to him at times with requests for help in doing heavy work.  He also testified to observing pain behavior such as limping on the part of the employee.

 

In Findings and Order issued on March 2, 2004, the compensation judge found that the employee was entitled to the benefits claimed.  The self-insured employer appeals from the awards of permanent partial disability compensation and  reimbursement for chiropractic treatment.

 

DECISION

 

1.  Permanent Partial Disability.

 

On appeal, the employer argues that the compensation judge erred in awarding permanent partial disability.  The employer contends that the award was based on the opinion of Dr. Barry and that Dr. Barry=s opinion should not have been accepted because it was inconsistent with the opinions of the other doctors in the case who had released the employee to work without restrictions and because it was inconsistent with her actions in releasing the employee to unrestricted employment in September 2003.  We disagree.

 

We note initially that Dr. Barry was not the only doctor to conclude that the employee=s work injury had resulted in permanent partial disability; Dr. Peterson, who had treated the employee at Physician=s Neck and Back Clinic, had also provided the same rating of permanent partial disability.  Further, neither Dr. Ryberg, Dr. Drogt, nor Dr. Levy, the other treating doctors, expressed any opinion with regard to permanent partial disability.  Only Dr. Wicklund, the IME, specifically concluded that, in his opinion, the employee had no permanent partial disability.  Finally, we have previously held that the number of doctors on each side of an issue is not the determinative factor in resolution of a medical issue.  Wiggin v. Marigold Foods, slip op. (W.C.C.A. July 29, 2004).

 

We find no inconsistency in Dr. Barry=s actions in releasing the employee to unrestricted work while also determining the employee had sustained permanent partial disability as the result of her injury.  Dr. Barry=s release of the employee to work was done at the specific request of the employee, who feared for her job when the employer threatened to terminate her if she continued to have work restrictions.  Dr. Barry=s records clearly indicate that she continued to find exacerbations of symptoms from the employee=s work and that she continued to find muscle spasm on examination.

 

The core of the employer=s argument is that the compensation judge should not have accepted the opinion of Dr. Barry, who is usually identified in the employer=s brief as chiropractor Barry, because, as the employee=s chiropractor, she was too willing to Aaccede to employee=s requests.@  Such an argument goes to the weight to be given by the compensation judge to Dr. Barry=s opinion and the employer made this argument to the compensation judge at hearing.  Clearly, the compensation judge considered all of the evidence in this case and he found the testimony of the employee and the conclusions of Dr. Barry to be persuasive.  Dr. Barry=s opinion was well founded and we have repeatedly held that it is within the province of the compensation judge to choose between competing medical opinions.  A decision based on that choice will not be reversed unless the facts assumed by the expert in rendering the opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Anderson v. Proforce, slip op. (W.C.C.A. April 8, 2004).

 

2. Chiropractic Treatment.

 

The compensation judge determined that the treatment rendered by Dr. Barry was reasonable and necessary and that, although the treatment was not consistent with the applicable permanent treatment parameter, this was a Arare case,@ pursuant to Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998), in which departure from the parameters was necessary.  We affirm, but conclude that determining whether this is a Arare case@ is not necessary in the present instance.

 

The employer=s position at hearing, based upon the opinion of their IME, Dr. Wicklund, was that the employee had sustained only a temporary injury on August 2, 2002, and that the injury would have resolved no more than three months after that date or approximately November 2, 2002.  The chiropractic treatment in dispute was provided after that date.  The employer loses the right to use the treatment parameters as a defense when it has denied liability for the employee=s injury.  Minn. R. 5221.6020, subp. 2; Winquist v. Hansen Gravel, Inc., slip op. (W.C.C.A. December 6, 1999); Oldenburg v. Phillips & Temro Corp., 60 W.C.D. 8 (W.C.C.A. 1999); Schultz v. Twin City Die Castings Co., slip op. (W.C.C.A. November 7, 2002).

 

If the treatment parameters do not apply, the compensation judge is to consider whether the treatment in dispute is reasonable and necessary under the previous case law.  The compensation judge did so in the present case and the issue before us is whether his findings on this point are supported by substantial evidence.  The compensation judge expressly noted in his memorandum that he had accepted the opinion of Dr. Barry, and the employee=s testimony, to the effect that the chiropractic treatment rendered had Aallowed the employee to remain functional enough to remain at work . . . and relieve the employee from her acute exacerbations.@  As the compensation judge=s findings to this effect are supported by substantial evidence, we affirm.

 

The self-insured employer contends on appeal that substantial evidence does not support the compensation judge=s decision.  Specifically, the employer argues in its brief that A[t]he sole opinion of one chiropractor in light of extensive evidence to the contrary clearly fails to overcome the >substantial evidence= standard,@ and points out that several doctors involved in the case opined that the employee was able to work without restrictions and that no further treatment was necessary.  We have already considered this argument with respect to the other issues of the case and once again are not thereby persuaded to disturb the compensation judge=s findings.