JEFFREY J. CHURCHILL, Employee/Appellant, v. JAPS OLSON CO., and LIBERTY MUT. INS. COS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 25, 2005

 

No. WC04-343

 

HEADNOTES

 

EVIDENCE - EXPERT MEDICAL OPINION.   Where the compensation judge=s stated basis for rejecting unopposed medical opinion on causation is directly contrary to the record, and where the compensation judge, in her memorandum, indicates that the absence of a well-founded medical opinion supporting causation was the sole basis for the denial of the employee=s claim, the denial of causation is reversed.

 

Reversed.

 

Determined by: Stofferahn, J., Wilson, J., and Johnson, C.J.

Compensation Judge: Janice M. Culnane

 

Attorneys: Donald G. Clapp, Clapp & Erickson, St. Paul, MN, for the Appellant.  Sarah E. Groskreutz, Conley Law Office, St. Paul, MN for the Respondents.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s determination that he failed to meet his burden of proof in establishing a causal relationship between his need for medical treatment and his work injury.  We reverse.

 

BACKGROUND

 

Jeffrey Churchill sustained a work injury to his low back on August 29, 1992.  The sole issue in this matter is whether the work injury is a substantial contributing factor in his need for treatment in October 2003.

 

Following the work injury, the employee had a lumbar MRI on September 30, 1992.  It was interpreted as showing a left-sided lateral disc bulge at L3-4 which could be causing nerve root impingement, and also showing degenerative changes in the facet joints at L5-S1 with possible adjacent spondylolysis.  A second MRI in November of 1992 was read as demonstrating juvenile discogenic disease in the thoracic and lumbar spine.

 

The employee saw Dr. Charles Kelly at Physicians Neck and Back Clinic for the first time on December 11, 1992.  Dr. Kelly took a history that the employee=s low back pain had begun when he slipped on a catwalk at work and twisted his back when he fell.  The employee denied that he had any previous significant problems with his spine.  Dr. Kelly=s report refers to previous treatment for the employee=s condition by other providers, including Dr. John Dowdle.  None of those records are in evidence.^[1]  Dr. Kelly=s assessment was of mechanical low back pain and deconditioning.  A physical therapy program was recommended.

 

In his Discharge Report of January 15, 1993, Dr. Kelly found only slight progress on an objective basis, and he concluded there had been a poor response to rehabilitation.  Dr. Kelly=s assessment was the same as his assessment from the initial examination except that he added a diagnosis of degenerative disc disease.  Work restrictions and MMI were deferred to Dr. Dowdle, the referring physician.  Dr. Kelly, in his recommendations, stated Aregardless of Jeffrey=s present condition, he may experience exacerbations.@

 

The employee testified that in January 1993, Dr. Dowdle provided him with work restrictions of no lifting over 40 pounds.  The employee also stated that his low back pain never went away.  The records show the employee had lumbar discography and a CT scan in December of 1994, which were interpreted as showing interannular fissuring at L4-5 and a full-thickness, left-sided lateral annular tear at L3-4.

 

The employee testified he had epidural injections from Dr. Lutz as treatment for his low back condition.  The dates of those injections were not indicated at hearing and Dr. Lutz=s records are not in evidence.  There was testimony from the employee that he had entered into a settlement in 1995 with the employer and insurer and had received payment for 10.5% permanent partial disability for his low back condition.

 

The employee denied any subsequent injuries to his low back and there are no medical records in evidence of any treatment for his low back until October 2003.  At the hearing,  the employer and insurer introduced medical records showing that the employee had treated for a left knee problem in 1998, but those records contain no mention of the employee=s low back.

 

The employee testified that when he woke up on a Sunday morning in October 2003, his back pain was much worse than usual.  The next day he contacted Dr. Dowdle=s office and was told that he would not be able to get in for an appointment for three or four weeks.  Dr. Dowdle=s office recommended that the employee go to an emergency room for treatment and the employee did  so on the same day.

 

The records from the ER department at Mercy Hospital indicate that the employee treated there on October 13, 2003, with complaints of low back pain.  He reported he had symptoms of left low back pain with paresthesia down his left anterior thigh.  He said he had similar pain in the early 1990's and had been treated with epidural injections.  The employee advised the ER doctor that he  had been pain free for most of the past eight years and did not recall any event which had precipitated his current symptoms.  The diagnosis by the ER physician was of lumbar strain with radiculopathy and the employee was given medication and advised to follow up with primary care.

 

On October 17, the employee consulted with Dr. Olaniyi Kuku at Allina Clinic.  The history he provided to Dr. Kuku was essentially the same as the history given at Mercy Hospital.  Dr. Kuku found tenderness over the left paraspinal area and discomfort with back extension and left lateral bending.  Dr. Kuku diagnosed Aacute exacerbation of a chronic low back pain with radiculopathy.@  Dr. Kuku recommended an MRI, provided work restrictions, and gave the employee a prescription for Robaxin.  Dr. Kuku had the employee sign an authorization to release his records from Summit Orthopedics.  Dr. Kuku stated, AI think from the history given, this will be a work-related injury from his previous employer.@

 

The MRI was done on October 18, 2003.  In the chart notes from the employee=s visit on October 21, Dr. Kuku stated that the new MRI Adoes not reveal any significant changes from his last MRI in 1994.@  Dr. Kuku referred the employee to Physicians Neck and Back Clinic.

 

The employee did not follow up with that referral.  The employer and insurer denied responsibility for the employee=s treatment on the grounds that the treatment was not related to the 1992 work injury. The employee testified that he had neither insurance or the money to comply with Dr. Kuku=s treatment recommendations. On August 3, 2004, Dr. Kuku wrote a letter to the employee=s attorney in which he stated AI believe Mr. Churchill=s problems with his back was [sic] substantially caused by his previous back injury of August 29, 1992.@

 

The employee filed a request seeking payment of medical bills incurred as a result of his treatment in October of 2003. The employee=s request was heard by Compensation Judge Janice Culnane on October 13, 2004.  The employee testified at the hearing.  The employer and insurer had no witnesses and did not obtain a medical opinion on the question of causation.

 

In her Findings and Order, filed December 2, 2004, the compensation judge denied the employee=s claim.  She found the employee had failed to sustain his burden of proving that the treatment at issue was related to the work injury.  The employee appeals.

 

DECISION

 

The only issue in this matter is the causal relationship between the employee=s 1992 work injury and his treatment in 2003.  The only expert medical opinion on that issue is that of Dr. Kuku, who concluded that the work injury substantially caused the need for medical treatment.

 

Dr. Kuku first offered an opinion on causation in his chart note dated October 17, 2003 (Exh. 8), in which he stated that, based on the employee=s history of symptoms, AI think . . . this will be a work-related injury from his previous employer.@  Dr. Kuku also recommended a new MRI scan to compare with the prior study from 1994, and noted that he had obtained a medical release of information authorization from the employee Aso that we can get his medical records from Summit Orthopedics.@

 

The compensation judge concluded that the causation opinion rendered by Dr. Kuku in this chart note did not have an adequate foundation^[2].  Noting that the doctor had stated that he needed to get the employee=s earlier medical records and a new MRI, she reasoned that until this had been done this opinion, based only on the employee=s stated history, was not Abased on satisfactory medical or factual foundation.@ Mem. at 4.

 

On October 18, 2003, the employee had the repeat MRI requested by Dr. Kuku.  As Dr. Kuku noted on October 21, 2003, when he next saw the employee, the new MRI did not reveal any significant changes when compared with the 1994 MRI.  The compensation judge correctly noted in her memorandum that Dr. Kuku did not comment on causation in his records for that date. 

 

The compensation judge=s memorandum reveals that the sole reason she rejected the employee=s claim was that she believed that Dr. Kuku, after comparing the new MRI with the prior record on October 21, 2003, subsequently never offered a final conclusion reiterating his opinion that the employee=s recent symptoms and treatment were causally linked to the employee=s 1992 work injury.

 

The employee argues on appeal that the compensation judge clearly erred in this conclusion, as she based her reasoning on facts clearly contrary to the record.  We agree.  In an opinion dated August 3, 2004, long after he reviewed the new MRI and compared it with the 1994 records, Dr. Kuku wrote that the employee=s back problems were Asubstantially caused by his previous back injury of August 29, 1992.@  (Exh. F.)

 

It is clear that the compensation judge inadvertently overlooked this opinion.  Although the other chart notes of Dr. Kuku are each specifically described in the findings and discussed in the compensation judge=s memorandum, there is no mention whatever of this report in either.  She mentions the exhibit, Exhibit F, but incorrectly cites it as comprising the October 17, 2003 report.^[3]  We conclude that the basis for the compensation judge=s rejection of the foundation for Dr. Kuku=s opinion is directly contrary to the record.  As the compensation judge, in her memorandum, indicates that the absence of a well-founded medical opinion supporting causation was the sole basis for the denial of the employee=s claim, and as no medical opinion was offered below in opposition to causation, we reverse, rather than remand.  The employer and insurer are ordered to pay the disputed medical expenses.