Tillemans v. Pierce Co. of Minneapolis, Inc.

ANITA S. TILLEMANS, Employee/Appellant, v. PIERCE CO. OF MINNEAPOLIS, INC., and MUTUAL INS. CORP. k/n/a APCAPITOL, Employer-Insurer, and PARK NICOLLET HOSP., Intervenor.

CAUSATION - TEMPORARY AGGRAVATION; CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence of record supports the compensation judge=s finding that the employee=s work-related injury to her head and cervical spine represented a temporary aggravation of her pre-existing condition, and his finding that the employee did not sustain an injury to her left shoulder and thoracic spine as a result of her work-related injury.

Attorneys: Anita S. Tillemans, pro se Appellant. Brian P. Thompson, Koll, Morrison, Charpentier & Hagstrom, St. Paul, MN, for the Respondents.

The employee appeals from the compensation judge=s finding that her injury to her head and cervical spine on March 2, 2000, was limited to a temporary aggravation of her pre-existing condition, from his finding that she sustained no work-related injury to her left shoulder and thoracic spine on March 2, 2000, and from his related denial of the employee=s claims for payment of benefits. Concluding that substantial evidence of record supports the compensation judge=s finding, we affirm.

Ms. Anita S. Tillemans, the employee, sustained an admitted work-related injury to her neck and head on March 2, 2000. On that date, the employee was 51 years old, and was employed as a painter by Pierce Company of Minneapolis, Inc., the employer, earning a weekly wage of $290.60. The employer was insured for workers= compensation liability in the state of Minnesota by Mutual Insurance Corporation, now known as APCapitol.

As a painter, the employee worked as a background artist manufacturing large mural-sized backdrops for photography studios, which involved painting large muslin canvases. On March 2, 2000, a 12-foot-wide backdrop which was rolled and folded over, and which consisted of heavy cotton canvas similar to tent material, dislodged from a work area and hit the employee on the top of her head from behind. She noticed immediate headache, dizziness, pain at the base and back of her neck, and felt a Acrack or snap.@ The employee continued working. On March 10, 2000, because she still was experiencing a headache, neck pain and some dizziness, the employee reported to the Park Nicollet Clinic Urgent Care clinic, and received conservative care. Although her symptoms persisted, she continued to perform her painting duties.

The employee had earlier sustained injuries to her head, neck, back and shoulders, and bruised other areas of her body, as a result of an automobile accident on July 27, 1993. Following that accident, the employee received medical and chiropractic treatment at various times until December 19, 1999. She also consulted her naturopath for conservative treatment following that accident, reporting some intermittent pain in her left shoulder blade and occasional minor neck pain.

In August 1996, the employee consulted a chiropractor, reporting pain in her right thumb and some weakness in her hands. During chiropractic treatment in 1997, the employee underwent x-rays of her cervical spine, which were interpreted as being consistent with traumatic sprain/strain of the cervical spine. An MRI scan in 1997 noted a small, central, contained C6-7 disc herniation and minimal posterior annular tear and bulging at the C5-6 level without cord or lateralizing nerve root impingement. Upon a referral from her chiropractor, the employee consulted Dr. George Adam at the Noran Neurological Clinic in July 1997. Dr. Adam diagnosed a cervical and lumbar musculoligamentous strain, and advised that the employee may have developed carpal tunnel syndrome which was worsened by the data entry work activities she was performing at work at that time. He recommended exercises and conservative care, but no prescription medication.

In August 1997, at the request of her no-fault insurance carrier, the employee underwent an examination by Dr. Mark Fischer. He determined that the employee had reached maximum medical improvement (MMI) from her automobile accident, and anticipated that the employee had sustained no permanent disability as a result of that accident. He concluded that the employee was capable of continuing to work on a full-time basis, with no work restrictions.

Between October 1997 and late 1999, the employee periodically consulted Dr. Zhouling Ren for general health reasons and also for treatment of her occasional neck and head pain, and underwent acupuncture treatments and Chinese herbal medicine treatment. During this period of time, the employee also exercised, including lifting weights, running and swimming. According to Dr. Ren=s chart notes, by late 1999 the employee=s condition had stabilized.

Following her work-related injury on March 2, 2000, the employee received periodic medical and chiropractic treatment, including physical therapy. Between November 2000 and March 2003, Dr. Daniel Kurtti, in the department of physical medicine rehabilitation at Park Nicollet Clinic, examined and treated the employee. The employee=s symptoms persisted; however, she continued to work until approximately October 2001, when she was laid off due to a decrease in the amount of work available from the employer.

On August 27, 2001, the employee was examined by Dr. Fischer, who had conducted an independent medical examination (IME) in 1997 on behalf of the employee=s no-fault insurance carrier. He diagnosed degenerative disc disease in the midcervical spine consistent with age and exacerbated by her automobile accident and her work injury. He recommended a stretching exercise program, and also provided the employee with a corticosteroid injection.

On September 7, 2001, the employee underwent an IME with Dr. Robert Barnett, Jr. Dr. Barnett concluded that the employee=s motor vehicle accident in 1993 caused the employee=s current cervical spine condition, and that her work-related injury on March 2, 2000, caused a temporary aggravation of her pre-existing condition. He based this in part on the recent imaging studies that did not demonstrate any new findings when compared to the imaging studies done in July 1997. Dr. Barnett concluded that the employee was capable of working full-time, within work restrictions, but that those restrictions pre-dated her March 2000 work-related injury. Dr. Barnett concluded that the employee had reached MMI from her work injury, and that she had sustained no permanent partial disability as a result of that injury. He also determined that the medical care and treatment the employee received through August 1, 2000, was reasonable, necessary and causally related to her work injury, but that any treatment beyond that date related back to the employee=s pre-existing condition.

The employee obtained employment as a proof operator with Wells Fargo in March 2002, and continued to work there on a part-time basis. She has worked at other part-time positions as well after leaving her position with the employer. On February 13, 2003, the employee consulted Dr. Gary Johnson, occupational health specialist. He found pronounced deconditioning, and recommended a comprehensive conditioning program. He referred to the employee=s work injury, and stated that without an exhaustive review of the employee=s records, he was not in a position to advise whether the employee=s cervical strain had developed into subacute and then chronic neck pain, as asserted by the employee.

Dr. Barnett re-examined the employee on March 7, 2003, at which time the employee complained of continued and constant chronic cervical and paracervical pain, in addition to left arm and shoulder symptoms aggravated by lifting activities. She also complained of symptoms in her shoulder area, associated with headaches. At that time, the employee advised Dr. Barnett that she used aspirin and topical analgesics for her symptoms, and that she was not seeking any ongoing traditional medical treatment, as that had provided her with no relief, but instead preferred alternative treatment. In his report dated March 7, 2003, Dr. Barnett stated that his conclusions had not changed since his initial examination in 2001, and that he recommended no ongoing treatment for the employee=s cervical spine.

The employee also consulted Dr. Frank Wei on March 11, 2003, reporting primarily right index finger pain, which he concluded was not Aneurologic or nerve injury problem but more of a dysfunctional motor pattern most likely related to her 10-key job and other musculoskeletal complaints.@

Dr. Kurtti issued a report on March 31, 2003, providing his opinion on the employee=s status. He diagnosed Acervical strain injury from the work related injury of March 2, 2000 superimposed on previous issues with cervical spondylosis, that is, degeneration of the cervical spine.@ He assigned a 10% permanent partial disability of the whole body due to her cervical spine condition, and apportioned 7% of that rating to the employee=s work injury. He concluded that the employee had reached MMI, and recommended a strengthening program. He also recommended against a return to a physically demanding job such as the one the employee held at the time of her work injury in 2000.

On May 2, 2003, the employee was examined by Dr. Souhel Najjar, neurologist, at the request of the employer and insurer. Dr. Najjar concluded that the employee suffered from chronic neck pain syndrome with chronic myofascial pain superimposed on chronic pre-existing cervical spondylosis and degenerative disc disease involving the cervical spine. He concluded that the employee sustained a soft tissue injury of myoligamentous sprain and strain in the cervical, paracervical region as well as at the neck base, interscapular region, upper thoracic region, and both trapezius muscles. In his opinion, the examination findings in the employee=s cervical spine were chronic and pre-dated the employee=s work injury in March 2000, based on his comparison of the MRI studies taken in July 1997 and February 2001. Dr. Najjar concluded that the employee had attained MMI within six to nine months after her March 2000 injury, and that medical treatment beyond that time period was not related to that injury.

The employee initially filed a claim petition for an underpayment of temporary total disability benefits. She later amended her claim to include a claim for temporary total and temporary partial disability benefits, permanent partial disability benefits and payment of medical and chiropractic expenses. The employee=s claim was heard before a compensation judge on June 11 and 13, 2003. In a findings and order served and filed on August 5, 2003, the compensation judge concluded that

The employee has failed to prove, by a preponderance of the evidence, that on or about March 2, 2000 she sustained a personal injury to her left shoulder and thoracic spine arising out of and in the course and scope of employment for the employer. (Finding No. 3.)

The preponderance of the evidence supports a finding that as a result of the March 2, 2000 work injury, employee sustained injury to her head and cervical/paracervical spine and being in the nature of a temporary aggravation of employee=s pre-existing condition which injuries did resolve no later than August 1, 2000, returning employee to her pre-injury baseline level. (Finding No. 5.)

The compensation judge also concluded that the employee=s work-related injury substantially contributed to her overall disability and need for medical care and treatment from March 2, 2000, to August 1, 2000, but not thereafter, and denied the employee=s claims for payment of benefits and medical expenses incurred after August 1, 2000. The compensation judge also denied the claims for the intervenor for any benefits paid for services incurred after August 1, 2000. The employee appeals.

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).

At the hearing held on June 11 and 13, 2003, the employer and insurer offered into evidence the medical reports issued by Dr. Barnett and Dr. Najjar. The employee did not object to the admission of those reports, and the compensation judge therefore admitted them into evidence.

The employee now objects to the acceptance to Drs. Barnett=s and Najjar=s medical reports into evidence, on the basis that those reports were not filed on a timely basis as required by Minn. Stat. ' 176.155, subd. 1.^[1] In this case, the employee filed her original claim petition on March 8, 2001.^[2] The employer and insurer scheduled the employee for an independent medical examination to be performed by Dr. Barnett on September 7, 2001. Prior to the examination, the employee=s former attorney submitted a letter to the Office of Administrative Hearings, objecting to the filing of a report from that examination, as the examination was scheduled to be held beyond the 120-day limit required by the statute. The employer and insurer filed a motion for extension of time within which to file the report, and the employee objected to that motion. The employee attended the examination with Dr. Barnett as scheduled on September 7, 2001.

According to notices issued by the Settlement Division of the Office of Administrative Hearings, the employer and insurer=s motion for an extension was scheduled to be addressed at a settlement conference. However, the record does not reflect whether the motion was heard either at a settlement conference or pre-trial conference. The employee=s claim petition was

originally scheduled for an evidentiary hearing on October 3, 2002, and the parties reached a tentative settlement that day. Evidently the settlement was not completed, and by letter dated November 21, 2002, the employee requested that the claim be reinstated on the trial calendar. The matter was rescheduled for a hearing on April 4, 2003. In the interim, the employer and insurer scheduled the employee for a re-examination with Dr. Barnett to obtain an updated orthopedic opinion; the employee attended that exam on March 7, 2003. Because new medical evidence was presented by the employee shortly before the April hearing, the hearing was postponed for two months, until June 13, 2003, to allow for additional investigation. As part of that investigation, the employer and insurer requested that the employee attend a neurological examination with Dr. Najjar; she attended that examination on May 2, 2003.

At the hearing held on June 11 and 13, 2003, the employer and insurer offered the reports of both Dr. Barnett and Dr. Najjar into evidence, and the employee did not object to the receipt of those exhibits into evidence. The employee had not raised the timeliness of the IME reports in her pretrial statement, and the hearing transcript does not reflect that the employee raised the timeliness of the IME reports as an issue during the hearing. The compensation judge discussed the issues to be addressed with the parties at the hearing, and confirmed the issues on the record. The list of issues outlined by the compensation judge on the record does not include the issue of the admissibility of the IME reports. Since the record does not clearly reflect that the employee maintained any objection to the receipt of the IME opinions into the hearing record, we conclude that the employee waived her objection to admission of those reports. See Bey v. Oxford Properties, Inc., 481 N.W.2d 40, 46 W.C.D. 198 (Minn. 1992). Dr. Barnett=s reports and Dr. Najjar=s report remain as part of the record on appeal. Those reports comprise a portion of the records that the compensation judge reviewed in conjunction with his analysis of this case, and are properly before this court.

Nature and Extent of Injury

The compensation judge concluded that the employee did not sustain a personal injury to her left shoulder and thoracic spine arising out of and in the course and scope of her employment on March 2, 2000. He also concluded that the employee=s injury to her head and cervical spine on March 2, 2000, represented a temporary aggravation of her pre-existing condition, and that this temporary aggravation resolved by August 1, 2000. The employee appeals from those findings, arguing that she injured her left shoulder and thoracic spine on that date, and that her injuries are permanent in nature, thereby entitling her to temporary disability benefits after August 1, 2000, and entitling her to payment of permanent partial disability benefits and additional medical expenses. The employee bases her arguments, in part, on her assertion that the medical reports of Drs. Barnett and Najjar, on which the compensation judge relied, lack foundation.

Adequate foundation is necessary for a medical opinion to be afforded evidentiary value. Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991). To be of evidentiary value, a medical opinion must rest on a factual basis. Zappa v. Charles Mfg. Co., 260 Minn. 217, 224, 109 N.W.2d 420, 424, 21 W.C.D. 459, 467 (1961). Furthermore, the facts upon which the expert relies for his or her opinions must be supported by the evidence. McDonald v MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff'd (Minn. July 13, 1990).

The record contains extensive medical records documenting treatment the employee received following an unrelated motor vehicle accident in 1993, and following her work-related injury on March 2, 2000. Dr. Barnett, who examined the employee on two occasions in 2001 and 2003, reviewed the employee=s medical records in conjunction with his examinations. He also conducted a physical examination of the employee on both occasions, and took a history directly from the employee at the time of both examinations. This is the type of information that a medical expert generally relies on to render opinions. See Pelzer v. Molin Concrete Products, slip op. (W.C.C.A. July 21, 1995). The compensation judge concluded that Dr. Barnett=s medical opinions were based upon adequate medical foundation and were supported by the facts and evidence in the record. Based upon our review of the record, we concur with that determination.

Any concerns raised by the employee, such as her allegation that Dr. Barnett erred by not mentioning details of the employee=s condition and by concluding that the employee=s symptoms at her 2001 examination were similar to symptoms pre-dating her work injury, do not render Dr. Barnett=s report as lacking foundation. Instead, those aspects go to the weight the compensation judge chose to attach to Dr. Barnett=s opinions. The compensation judge outlined, in his findings and his memorandum, the medical evidence in the record that was consistent with the findings Dr. Barnett outlined in his reports. The compensation judge accepted Dr. Barnett=s report as credible and as being supported by the medical evidence in the record.

As the employee argues, the record contains some medical evidence to support her claim that her work injury remains a substantial contributing cause of her current condition and need for additional medical treatment, for example, in the reports issued by Dr. Kurtti. However, our role as a reviewing court is not to determine whether there is evidentiary support for both parties= positions. Instead, we are required by the standard of review outlined in the Minnesota workers= compensation statute to 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).

We also reiterate that it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). In this case, the compensation judge relied on Dr. Barnett=s medical opinions, stating in his memorandum that he believed those opinions Aare based upon adequate medical foundation and are supported by the facts and medicals in this case.@ The compensation judge also explained that

In making these findings, this Compensation Judge has relied not only upon the medical reports of Dr. Barnett, but also of Dr. Najjar. Dr. Najjar went through an extensive medical history/review and based upon his review, and his findings on examination, opined that the employee had sustained at best an exacerbation of a pre-existing condition (not even a new injury). Taken together, this Compensation Judge believes that there is more than adequate foundation to support a finding that the employee=s injuries were temporary in nature.

It is not the role of this court to disturb, on appeal, a compensation judge=s choice between conflicting expert medical opinions. Under this court=s standard of review, we must affirm if the judge=s findings are supported by the medical evidence of record, unless those findings Aare 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., 304 Minn. at 201, 229 N.W.2d at 524. As the compensation judge=s findings are not Aclearly erroneous@ and because they are supported by the evidence as a whole, we therefore affirm the compensation judge=s findings that the employee did not sustain an injury to her left shoulder and thoracic spine as a result of her work injury on March 2, 2000, and that her neck and head injuries that occurred on that date were temporary in nature, and resolved by August 1, 2000.

Based upon our affirmance of those findings, we also affirm the compensation judge=s denial of the employee=s claims for additional temporary total and temporary partial disability benefits, of payment for medical expenses and the employee=s out of pocket expenses incurred after August 1, 2000, and of the intervenor=s claims for payment of expenses incurred after August 1, 2000.

^[1] Minn. Stat. ' 176.155, subd. 1, states, in part, as follows:

Employer=s physician. The injured employee must submit to examination by the employer=s physician, if requested by the employer, and at reasonable times thereafter upon the employer=s request. . . . The examination shall be completed and the report of the examination shall be served on the employee and filed with the commissioner within 120 days of service of the claim petition.

No evidence relating to the examination or report shall be received or considered by the commissioner, a compensation judge, or the court of appeals in determining any issues unless the report has been served and filed as required by this section, unless a written extension has been granted by the commissioner or compensation judge. The commissioner or a compensation judge shall extend the time for completing the adverse examination and filing the report upon good cause shown. . . .

^[2] The employee later filed an amended claim petition on June 6, 2003, shortly before the hearing dates of June 11 and 13, 2003.