Stenseth v. Nordstrom's

LINDA STENSETH, Employee/Appellant, v. NORDSTROM'S and NORDSTROM, INC., SELF_INSURED, Employer/Cross-Appellant, and MEDICARE/NORIDIAN ADMIN. SERVS., MINNEAPOLIS CLINIC OF NEUROLOGY, CHIROCENTER, PENNEBAKER CLINIC OF CHIROPRACTIC, and FAIRVIEW HEALTH SERVS., Intervenors.

CAUSATION - TEMPORARY AGGRAVATION. Substantial evidence, including expert medical opinion, supported the compensation judge=s decision that the employee=s work injury was merely a temporary aggravation of the preexisting low back condition, and, given the conflicting accounts given by the employee, the judge was justified in concluding that the injury occurred on May 15, 2001.

INTERVENORS. Where the employee listed chiropractic treatment expenses from ChiroCenter on her claim petition, and the employer=s independent examiner indicated that treatment for 12 weeks was reasonable, necessary, and causally related to the employee=s work injury, the compensation judge erred in denying reimbursement to ChiroCenter based on untimely intervention.

Attorneys: D.G. Fernstrom, Fernstrom & Associates, Maple Grove, MN, for the Appellant. Leslie M. Altman and David M. Bateson, Rider Bennett, Minneapolis, MN, for the Cross-Appellants.

The employee appeals from the compensation judge=s finding that the employee did not sustain a permanent aggravation to a low back condition or a right hip or leg injury on or about May 15, 2001, and from the judge=s denial of intervenors= and potential intervenors= claims. We affirm in part and reverse in part.^[1]

The employee began work as a part-time salesperson in the shoe department of Nordstrom=s [the employer] in October of 2000. Sometime during the spring of 2001, the employee slipped on a plastic piece at work and then twisted and hit the right side of her lower back on a steel rack. She did not fall to the floor.

The employee had a history of low back complaints prior to the 2001 work incident. On December 16, 1994, the employee had treated with Dr. John A. Wilson, who took a history indicating that the employee had had low back Asymptoms off and on for the last 2 years and in the last 6 months has gotten steadily worse with pain in her right leg with numbness in the lateral thigh radiating down the leg into the space between first and second toes.@ A CT scan performed on December 20, 1994, was interpreted as showing Adegenerative changes in the posterior facet joints most advanced at L4-5 and L5-S1 on the right and to a moderate degree on the left at both levels and mild at L3-4 bilaterally.@ An epidural injection on January 11, 1995, reportedly provided the employee with complete pain relief. However, an office note from Southdale Family Practice on November 11, 1999, recorded Asome chronic right low back pain in the S1 joint area with some right lateral thigh lower extremity numbness and tingling.@ On November 13, 2000, when seen for her annual exam, the employee complained of right knee pain.

The employee treated at Southdale Family Practice on April 25, 2001, complaining that her right leg Ahurts now from hip to knee,@ and the employee described the pain as Aexcruciating hip pain.@ Hand-written office notes reflect that the pain had gotten worse over the Apast couple months,@ while typed office notes indicate that the pain had gotten worse over the Apast couple weeks.@

The employee began treatment at ChiroCenter with Dr. Neal J. Rich on May 17, 2001. At that time, the employee=s symptoms were described as radiating right leg pain, with a date of onset listed as A2 yrs@ and Aprogressive.@ The employee also identified a Abad fall off porch 11 yrs ago@ and Ahurt low back 35 yrs ago.@ There was no mention of a recent work injury. The employee treated regularly with Dr. Rich thereafter, and daily notes from August, September, and October of 2001 reflect that treatment was rendered for giving way of the right leg and right lower back pain.

The employee completed a First Report of Injury on July 17, 2001. The injury date was listed as May 15, 2001, and the report indicated that the employee had no time lost from work.

The employee was seen by independent medical examiner Dr. Larry Stern on October 26, 2001. The employee gave Dr. Stern a history of having sustained a work injury with the employer in May of 2001. Dr. Stern opined that the employee was suffering from severe degenerative joint disease of the right hip. It was his opinion that the employee had sustained a lumbar strain on May 15, 2001, which had improved over time and needed no further treatment. Dr. Stern also indicated that the employee should be evaluated by an orthopedic surgeon for her right hip condition, which was not related to the 2001 work injury.

On November 2, 2001, the employee stopped working for the employer. About two weeks later, on November 15, 2001, Dr. Rich indicated that he was treating the employee for Aa low back injury@ and that he had taken the employee off work Athe past 2 weeks.@ On December 6, 2001, Dr. Rich indicated for the first time that he was treating the employee for a Awork related injury.@ And, on May 20, 2002, Dr. Rich opined that the employee=s low back and hip pain Aresulted from her work injury.@

On March 7, 2002, the employee was seen by Dr. David C. Holte at Orthopaedic Consultants. The patient intake form from that visit contains a history of two left knee surgeries, a broken left ankle, and a broken left wrist. The employee also indicated on that form that her current pain was 65% in the right leg and 35% in the back and that the symptoms had begun when she slipped on a plastic piece at the employer in May of 2001. Dr. Holte diagnosed degenerative joint disease of the right hip and degenerative disc disease of the lumbar spine with some spinal stenosis. Noting that the employee=s hip pathology Aseems more problematic than her back,@ Dr. Holte ordered an interarticular hip injection to determine how much of her pain was related to the hip. An injection was performed, and on April 2, 2002, the employee reported that she had experienced 50% or less relief from her right leg pain and weakness for one day. A subsequent epidural injection at L5-S1 gave her 80% relief of her symptoms for seven days. A second right interarticular hip injection done on June 14, 2002, provided the employee with 55% relief, which was still ongoing as of June 28, 2002.

The employee also received chiropractic treatments with Pennebaker Clinic of Chiropractic [Pennebaker] from May 13, 2002, through March 11, 2003.^[2]

The employee filed a claim petition on July 24, 2002, alleging a work injury on May 15, 2001, to the lumbar spine and right lower extremity and seeking temporary partial disability benefits from May 15, 2001, to November 2, 2001; temporary total disability benefits continuing from November 3, 2001; permanent partial disability benefits; medical expenses; and rehabilitation services. Fairview Health Services, Medicare/Noridian Administrative Services, and the Minneapolis Clinic of Neurology were joined as intervenors in the action.

By August 22, 2002, Dr. Holte had concluded that the employee=s hip was the problem and that she should consider a hip replacement. On September 4, 2002, Dr. Thomas E. Nelson examined the employee at the request of Dr. Holte. The history taken by Dr. Nelson reflects the occurrence of a work injury at the employer, with symptoms of right buttock and lower back pain thereafter. Dr. Nelson opined that the work injury had caused Aa permanent aggravation of likely pre-existing degenerative change, however, it is my opinion that the fall has led to permanent disability in the right hip,@ and he recommended a total hip replacement. In a letter to employee=s counsel on November 15, 2003, Dr. Nelson stated that the employee Afell at Nordstrom=s on approximately May 15, 2001, onto her right hip.@ In his office note of November 14, 2002, Dr. Holte indicated that he Aagreed with Dr. Nelson that the employee=s fall was an aggravation to a preexisting condition.@

The employee underwent a right total hip arthroplasty on April 21, 2003. At her six-month check up, the employee was noted to have no groin, buttock, or thigh pain. Dr. Nelson rated the employee as having an 8% whole body impairment for the hip replacement and restricted her from lifting more than 50 pounds.

The claim petition proceeded to hearing on December 4, 2003. The deposition of Dr. Stern was taken post-hearing and filed on December 17, 2003. In a decision issued on February 17, 2004, the compensation judge found that the employee had sustained a temporary lumbar strain on May 15, 2001, from which she had recovered by October 26, 2001; that the employee did not sustain a right hip or right leg injury at that time; and that the claimed temporary total, temporary partial, and permanent partial disability were not causally related to the work injury at the employer. The judge also found that certain potential intervenors were barred from receiving payments from the employer due to their failure to intervene in a timely manner and that other intervenors= claims were not causally related to the work injury.

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 (2004). 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).

The employee contends that substantial evidence does not support the judge=s finding that the employee sustained a temporary low back strain on May 15, 2001, and argues that the judge should have found a permanent low back injury occurring Asometime in April 2001.@ We are not persuaded.

In her memorandum, the judge explained that the employee testified that the work injury must have occurred prior to April 25, 2001, but that the judge did not find that testimony credible. Assessment of a witness=s credibility is the unique function of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).

In addition, we find that substantial evidence supports the judge=s finding of an injury date of May 15, 2001. The employee testified alternately at hearing that her work injury would have occurred prior to her April 25, 2001, doctor=s appointment; that she completed the First Report of Injury and specified May 15, 2001, as the date of injury; and that the date of injury could have been on April 25, 2001, or earlier, or later. There were no contemporaneous medical records to support either an April 25, 2001, date of injury or a May 15, 2001, injury. However, given that the employee used the date of May 15, 2001, when she completed the First Report of Injury, and given that the employee gave a history of an injury in May of 2001 to the independent medical examiner and her treating doctors, substantial evidence supports the judge=s decision as to the date.^[3]

In support of her position that she sustained a permanent low back injury with the employer, the employee apparently relies on the records of Dr. Rich, who noted on July 1, 2002, that he was still treating the employee for her low back injury and that she should remain off work. However, no subsequent medical records definitively state that the employee continued to treat for a low back injury sustained with the employer, and there is no medical opinion to support the employee=s contention that she sustained a permanent aggravation to her low back on the date of injury.

Dr. Stern opined that the employee had sustained a temporary lumbar strain at the time of her work injury but that the injury had resolved by the time he saw her on October 26, 2001. While Dr. Stern subsequently noted ongoing low back complaints at the time of his re-examination of the employee on September 24, 2003, he attributed those complaints to pre-existing degenerative changes in the employee=s back, which were substantiated by a CT scan in 1994. Medical records establish a pre-existing low back condition.

The compensation judge adopted the opinion of Dr. Stern that the employee sustained a temporary lumbar strain that had resolved by October 26, 2001. A trier of fact=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). As the employee has offered no challenge to Dr. Stern=s opinion as to a temporary low back injury, we affirm the judge=s finding to that effect.

The employee contends that, A[i]f the injury at Nordstrom occurred in April, prior to her treatment at Southdale Family Physicians on 4/25/01, the evidence is overwhelming that she sustained a life altering injury which led directly to her right hip replacement surgery.@ (Emphasis added). As this court has affirmed the compensation judge=s finding that the injury occurred on May 15, 2001, we need not address this issue.^[4]

The employee contends that the compensation judge erred in denying ChiroCenter and Pennebaker reimbursement based on untimely filing of petitions to intervene.^[5] We are persuaded that the intervention interest of ChiroCenter should have been granted, in part, and reverse the judge=s findings as to that intervenor.

The employee=s claim petition filed on July 24, 2002, included a claim for benefits in the amount of $1843.28 for treatment by Dr. Rich of ChiroCenter. The intervention papers filed by ChiroCenter on December 2, 2003, listed the same outstanding balance. Dr. Stern, in his report of September 24, 2003, stated that he had reviewed Dr. Rich=s records and that chiropractic treatments to the employee=s low back for a period of twelve weeks following her work injury were causally related to her injury and reasonable and necessary.

ChiroCenter was late in intervening. This court has held, however, that a provider need not intervene where an employee=s attorney has made a claim for medical expenses. Adams v. DSR Sales, Inc., slip op. (W.C.C.A., Mar. 12, 2004). Given that the employee listed the Chiro Center bill on her claim petition, and given the opinion of Dr. Stern - - the employer=s examiner - - as to reasonableness and necessity, ChiroCenter is entitled to payment for chiropractic treatments rendered for the twelve-week period following the employee=s work injury.

The itemized bill from ChiroCenter reflects that some payments were made by the employee and others by AInsurance Payment.@ We find no information which would indicate who made those insurance payments. However, the self-insured employer is responsible for the twelve weeks of chiropractic treatments pursuant to the medical fee schedule. To the extent those treatments have been paid for by the employee, the employer should reimburse the employee; to the extent those treatments have been paid for by an insurer, the employer should determine the identity of and reimburse that insurer.^[6]

^[1] The employer cross-appealed from certain findings, but, in a letter brief filed on April 20, 2004, employer=s counsel explained that the cross-appeal concerned only the opinions expressed in the medical reports to which those findings referred. It was the employer=s position on appeal that the judge=s decision was supported by substantial evidence.

^[2] The Pennebaker records offered into evidence at hearing contain numerous entries on which the date of treatment was cut off or illegible. It is impossible to tell from those records what treatment was rendered, but the records record the employee=s complaints as neck pain, mid back pain, low back pain, headaches, and right hip/leg pain.

^[3] The employer does not deny that the employee sustained a work-related injury during the spring of 2001.

^[4] We note that the compensation judge accepted the opinion of Dr. Stern over those of the treating doctors, in part because the treating doctors all relied on information from the employee that her symptoms began with her work injury with the employer. We have affirmed the judge=s finding of a date of injury of May 15, 2001, and the medical records clearly reflect complaints of Aexcruciating right hip pain@ prior to the date of injury. Also, as noted above, a judge=s choice between expert opinions is generally upheld, and the employee has not challenged Dr. Stern=s opinion regarding causation of her right hip condition.

^[5] The employee also contends that, if the court reverses the compensation judge=s decision that the employee did not sustain a right hip or leg injury, then the interests of Fairview Health Services, Medicare, and the Minneapolis Clinic of Neurology must be addressed. We have, however, affirmed the judge=s finding that the employee did not sustain a work-related right hip or leg injury.

^[6] Pennebaker seeks payment for treatments rendered beyond the twelve-week period addressed by Dr. Stern and beyond the date that the temporary aggravation ended. Its intervention interests were therefore appropriately denied.