Wiggin v. Marigold Foods

JODY M. WIGGIN, Employee/Appellant, v. MARIGOLD FOODS and GALLAGHER BASSETT SERVS., Employer-Insurer, and NORAN NEUROLOGICAL CLINIC, Intervenor.

TEMPORARY BENEFITS - FULLY RECOVERED. A medical opinion with adequate foundation is substantial evidence which supports the compensation judge=s determination that the employee had no restrictions from her work injury and the compensation judge=s decision to discontinue weekly compensation benefits and to terminate rehabilitation services.

Attorneys: Harvey Friedenson, Michael Milo & Assocs., Edina, MN, for the Appellant. Robin Simpson and Susan M. Stepaniak, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for the Respondents.

The employee appeals from the compensation judge=s determination that she has no restrictions from her work injury and from the compensation judge=s decision which allowed discontinuance of benefits and termination of rehabilitation services. We affirm.

Jody Wiggin, the employee, went to work for Marigold Foods, the employer, in July 2002 at its plant in Farmington, Minnesota. On November 12, 2002, the employee was employed as a blender operator and was cleaning production equipment with a sanitizing solution. Somehow, some of the solution landed on the top of the employee=s right foot and burned through the rubber boot and sock the employee was wearing. When the employee felt a burning sensation on her foot, she removed these items and rinsed her foot with water for about 15 minutes.

Later that same day, the employee went to the urgent care facility at Apple Valley Medical Center. The physician there found two areas of second degree burns on examination: one was a one centimeter circle and the other was an oval of one centimeter by three centimeters. No infection was noted. The employee was treated with a topical cream. No work restrictions were provided. The employee saw Dr. Peter Frederixon for a recheck on November 15 and complained of continued pain in her foot. Dr. Frederixon continued the use of the topical cream, provided Tylenol 3, took the employee off work, and advised her to return on November 18. On that visit, Dr. Frederixon diagnosed second and third degree burns to the right foot and continued the previous treatment.

When the employee returned to Dr. Frederixon on November 15, 2002, she complained of swelling in her foot and tenderness with drainage from the burn sites. Dr. Frederixon changed the burn dressings and prescribed additional pain medication. He continued to keep the employee off work. The employee saw Dr. Frederixon again on November 27 and December 2, 2002. On December 2, Dr. Frederixon released the employee to return to work for four hours a day. No other restrictions were noted. The employee last saw Dr. Frederixon on January 13, 2003, and at that visit she complained of swelling and discomfort in her foot. Dr. Frederixon referred the employee to a podiatrist and continued to restrict the employee to part-time work.

The employee saw the podiatrist, Dr. K. D. Fjelstad, on December 21, 2003. She had complaints of right foot pain, particularly in the ball of her foot when going down stairs. On exam, a positive Mulder=s sign was produced but no other positive findings were noted. Dr. Fjelstad diagnosed a neuroma on the basis of the exam and injected cortisone into the affected area. There was no discussion in his chart notes as to whether this condition was due to the employee=s work injury. The employee was advised to return as needed, but she did not treat with Dr. Fjelstad again.

The employee was also referred by Dr. Frederixon to the burn center at Regions Hospital where she saw Dr. William Mohr on February 13, 2003. The employee=s primary complaint at that time was of pain and paresthesia in the right foot. She also described a burning sensation and occasional feelings of coldness in her entire foot which had been getting worse. She also noted pain in the bottom of her foot which was worse with standing. On exam, Dr. Mohr found two areas of chemical injury which had healed with some mild hypertrophic scar tissue. Otherwise, the exam was normal except for hypersensitivity over the entire foot. Dr. Mohr diagnosed burns which were healing appropriately, neuropathic pain, and post traumatic stress disorder. He prescribed Neurontin and Prozac, referred the employee to a psychologist, and recommended compression garments to help minimize the scarring.

The employee returned to Regions on March 6, 2003, and saw Dr. David Ahrenholz. On exam, Dr. Ahrenholz noted coldness in the right foot to touch and also purplish discoloration. Dr. Ahrenholz diagnosed pain syndrome and post traumatic stress disorder. He recommended a psychological evaluation and advised that the employee take Prozac in addition to the Neurontin she was using. He continued to restrict her to six hours a day at work Auntil her emotional response and her pain symptoms are improving.@ There is no indication in the record that the employee ever consulted a psychologist.

On March 27, 2003, the employee consulted Dr. Lynn Solem at the burn center. The employee was apparently concerned that she had sustained a tendon injury to her right foot. Dr. Solem advised the employee there was no evidence of a tendon injury and flexion of her toes was due to anxiety. Dr. Solem referred the employee to a podiatrist for different foot wear. Dr. Solem also indicated that the employee might have a vasospastic component to her pain which should be evaluated by a pain physician. After receiving the shoe prescription in April 2003, the employee did not return to Regions for treatment.

The employee then came under the care of Dr. Samuel Yue at the Minnesota Pain Center. The initial assessment on May 14, 2003, was of a circulation problem in the right lower extremity. Dr. Yue restricted the employee to lifting no more than 20 pounds and standing no more than two hours at a time. Dr. Yue treated the employee with a vitamin, L Ardinine, and a Catapres patch on her thigh to increase circulation.

The employee was evaluated on behalf of the employer and insurer by Dr. Sheldon Segal on August 11, 2003. The employee advised Dr. Segal that her foot was cold every day and that this condition was unchanged since her injury. She also complained of pain when walking and stated she had occasional numbness and tingling in her foot. Dr. Segal=s examination showed no positive findings. Dr. Segal=s opinion was that the employee had sustained a chemical burn to the right foot which had healed. He found no organic physiological basis for her continued symptoms and concluded that her pain complaints were not related to the burn injury. It was Dr. Segal=s opinion that the employee was capable of returning to her usual job without restrictions and that she needed no further treatment.

The employee was referred by a friend to Dr. Masood Ghazali, whom she saw on August 19, 2003, for Aright foot numbness and cold feeling with an abnormal growth of toenails.@ Dr. Ghazali=s neurological examination was normal and he did not recommend any further neurophysiological testing. The employee requested a definite diagnosis with regard to autonomic dysfunction but Dr. Ghazali advised her that the Mayo Clinic would be better for diagnosing that condition. He recommended continued treatment for pain management.

The employee also consulted with Dr. George Adam at Noran Neurological Clinic on October 20, 2003, with complaints of persistent pain in her right lower extremity. Dr. Adam=s examination was normal. He believed that the employee=s complaints pointed to an S1 nerve root problem and recommended an MRI. He noted in his chart notes that if Athe test is unrevealing, I will refer her to an anesthesiologist for a sympathetic nerve block.@ The MRI was read as being consistent with very mild diffuse thoracic and lumbar spondylosis. On December 17, 2003, Dr. Adam prepared a letter in which he concluded that the employee had diagnoses of leg pain, right foot pain and reflex sympathetic dystrophy.

On September 16, 2003, the employer and insurer filed a notice of intention to discontinue benefits seeking to discontinue temporary partial disability benefits and also filed a rehabilitation request seeking to discontinue rehabilitation services. Both pleadings were based on the report of Dr. Segal that the employee had no restrictions from her work injury. An administrative conference on the NOID resulted in a denial of the request for discontinuance. The employer and insurer then filed a petition to discontinue. An administrative conference on the rehabilitation request resulted in an order allowing the termination of rehabilitation services. The employee then filed a request for formal hearing. An order for consolidation was issued on December 10, 2003, and the employer and insurer=s petition for discontinuance and the employee=s request for formal hearing was set for hearing before Compensation Judge Carol Eckersen on December 18, 2003.

At the hearing, the issues for consideration were identified as whether the employer and insurer were entitled to discontinue benefits as of September 25, 2003, either because the employee was released to return to work without any restrictions from the work injury, or because the employee refused a job offer, and whether the employer and insurer were entitled to terminate rehabilitation services. In her Findings and Order, served and filed January 20, 2004, the compensation judge specifically adopted the opinion of Dr. Segal and determined that the employee was released to work without restrictions. The employer and insurer=s request to discontinue benefits and request to terminate rehabilitation services were granted. The employee appeals.

The compensation judge determined that the employee had no restrictions from her work injury and allowed the discontinuance of weekly benefits and the termination of rehabilitation services. In doing so, she specifically adopted and relied upon the opinion of the IME, Dr. Segal. On appeal, the employee contends that the compensation judge erred in accepting Dr. Segal=s opinion because his opinion lacked adequate foundation.

Dr. Segal took a history from the employee, performed an examination, and reviewed previous medical records. Typically, this information provides sufficient foundation for a medical opinion. Scott v. Southview Chevrolet, 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978). The employee argues however, that Dr. Segal did not have the records from Dr. Ghazali or Dr. Adam and that without those records, his opinion lacked adequate foundation.

Both Dr. Ghazali and Dr. Adam saw the employee after her appointment with Dr. Segal. The employee saw Dr. Ghazali on August 19, 2003. His neurological examination was normal and his assessment was of pain syndrome and paresthesia. Dr. Ghazali=s assessment did not represent a new diagnosis in the employee=s case. The employee had complained of foot pain since the date of injury and the doctors at Regions Hospital had diagnosed pain syndrome and complaints of paresthesia. Dr. Segal had available the records from Apple Valley Medical Center and Regions Hospital and would have been aware of these assessments. Contrary to the employee=s argument, Dr. Ghazali did not refer the employee to the Mayo Clinic but, instead, in response to the employee=s concern about a possible diagnosis of autonomic dysfunction, advised the employee that testing for that condition would best be done at Mayo. Dr. Ghazali did not diagnose autonomic dysfunction. His treatment recommendation was for pain management, the same treatment which had been provided to the employee since the date of her injury.

Dr. Adam saw the employee on October 20, 2003. His neurological examination of the employee was normal except for a reflex difference between the right and left ankles and a complaint of decreased sensation in the right posterior calf and right foot in a stocking distribution. He made no diagnosis in his October 20 chart notes and referred the employee for an MRI. He noted that if the MRI were normal he would refer the employee for a sympathetic nerve block. After the MRI was performed, his diagnosis, as reflected in his December 17, 2003, letter, was of reflex sympathetic dystrophy. This was not a new diagnosis in the employee=s case. Dr. Yue had previously raised the possibility of a diagnosis of reflex sympathetic dystrophy in May 2003. Dr. Segal considered that diagnosis in his report and stated, AThere is some speculation about reflex sympathetic dystrophy, but I can find no evidence of that and would have no explanation for that related to the type of injury she suffered.@

We do not find the information from Dr. Ghazali or Dr. Adam to be either new or of such magnitude such that Dr. Segal=s opinion lacked foundation because he did not have their reports. Since Dr. Segal=s opinion had adequate foundation, the compensation judge was entitled to rely upon the opinion of Dr. Segal in reaching her decision. It is the function of the compensation judge to consider competing medical opinions and the compensation judge=s decision in that regard will not be reversed so long as the accepted opinion has adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003). While the employee obviously considers the opinions of her doctors to be more persuasive than the opinion of Dr. Segal, it is not our function as a reviewing court to determine which opinion should be accepted. We note further that the number of doctors on each side of an issue is not determinative of an issue. Murphey v. Dakota Electric Assoc., (W.C.C.A. Feb. 23, 2004).

The compensation judge=s determination that the employee has no restrictions from her work injury is affirmed and her decision allowing the discontinuance of benefits and termination of rehabilitation is affirmed. An employee is not entitled to continuing benefits for wage loss if he or she is able to work with no restrictions from the work injury. Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987). An employee is not eligible for rehabilitation services if he or she is able to return to the job duties held at the time of injury. Minn. R. 5220.0100, subp. 22.