CHAUNTELL M. CLEMMER, Employee, v. NATIONAL STEEL PELLET CO., and MINNESOTA SELF-INSURED SEC. FUND, Employer-Insurer/Appellants, and UNIVERSITY OF MINN. PHYSICIANS, FAMILY CHIROPRACTIC CTR., and RANGE MENTAL HEALTH CTR., Intervenors.

 

WORKERS=COMPENSATION COURT OF APPEALS

NOVEMBER 28, 2005

 

NO. WC05-216

 

MEDICAL TREATMENT & EXPENSE - CHIROPRACTIC TREATMENT.  Substantial evidence supports the compensation judge=s decision that the chiropractic services provided to the employee were reasonable and necessary.

 

CAUSATION - PSYCHOLOGICAL CONDITION.  Substantial evidence supports the compensation judge=s determination that the employee=s work injury was a substantial contributing factor in the employee=s need for psychological care.

 

Affirmed.

 

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

Compensation Judge: Harold W. Schultz II

 

Attorneys: Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Respondent.  T. Michael Kilbury, Peterson, Logren & Kilbury, St. Paul, MN., for the Appellants.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer appeals from the compensation judge=s award of chiropractic care for the employee=s lumbar spine and the award of treatment for the employee=s psychological conditions.^[1]  We affirm.

 

BACKGROUND

 

Chauntell Clemmer, the employee, was employed as a welder for National Steel Pellet Company at its plant in Keewatin, Minnesota, on March 8, 2002, when she sustained a work injury to her left foot.  The employee=s foot slipped while she was walking on a one-inch bar and the toes of her left foot were pushed upward toward her shin.

 

The employee was initially diagnosed as having sustained an ankle sprain and her treatment consisted of physical therapy and the use of a CAM boot, a cast which allows ambulation and which can be removed by the patient.  When the employee=s symptoms persisted, she was ultimately seen by an orthopedic surgeon, Dr. J. Chris Coetzee, for treatment of what was by then diagnosed as Achilles tendinitis.  Dr. Coetzee performed surgery on June 13, 2003, a synovectomy with debridement of nodules in the tendon.  Dr. Coetzee noted in his chart notes for September 25, 2003, that the employee had not made a lot of progress.

 

Dr. Coetzee referred the employee to Dr. Timothy Seidelmann, a physical medicine and rehabilitation specialist at the Duluth Clinic who saw the employee in Virginia, Minnesota.  Dr. Seidelmann first saw the employee on October 16, 2003.  He noted AAdepressive symptoms@ which required treatment in addition to the employee=s left foot symptoms.

 

When the employee returned to Dr. Coetzee in January 2004, he expressed concern about the employee=s continued symptoms and noted that one possible treatment would be a surgical lengthening of the Achilles tendon.  He recommended a consultation with Dr. Fernando Pena.  That consultation took place on January 21, 2004, and Dr. Pena advised proceeding with tendon lengthening surgery.

 

A dispute arose between the parties as to the appropriateness of the recommended surgery and a hearing was held on May 27, 2004, before Compensation Judge Patricia Milun.  In her Findings and Order of June 14, 2004, the compensation judge determined the proposed tendon lengthening surgery to be reasonable, necessary and causally related to the employee=s March 2002 work injury.  The employer appealed and this court affirmed the compensation judge=s decision.^[2]

 

While the litigation was proceeding, the employee was referred by Dr. Seidelmann to the Range Mental Health Center where she came under the care of a psychologist, Dr. Ericka LaMar.  In her initial assessment on June 15, 2004, Dr. LaMar stated AChauntell is going through a grief reaction to her loss of independence and normal functioning.  Her leg has chronic pain and her back is in pain mostly at the end of the day.  Many times she cannot walk but has to crawl or drag herself across the floor.@  The employee was also seen at Range Mental Health Center by a psychiatrist, Dr. Boris Kholomyansky.  In his office note of January 19, 2005, Dr. Kholomyansky assessed Amajor depressive disorder, recurrent@ and placed the employee on medication.

 

The surgery in dispute at the time of  the 2004 hearing, lengthening of the left Achilles tendon, was performed by Dr. Pena on October 24, 2004.  Following the surgery, the employee=s left foot was casted, she was given crutches, and she received physical therapy at Hibbing Hospital.

 

The employee also continued to treat with Dr. Seidelmann in 2004.  Before the surgery in August, Dr. Seidelmann was noting increased pain with walking as well as paresthesias into the left leg and foot and left hand.  Dr. Seidelmann recommended the use of a special shoe and physical therapy for the employee=s symptoms.  In May 2004 the employee also began receiving chiropractic treatment for her low back pain  from Dr. Gregory Skalko at Family Chiropractic Center in Chisholm.

 

Dr. Seidelmann saw the employee in November 2004, after the surgery.  He noted contracture formation in the left ankle and believed she had significant scar tissue build up.  In his January 26, 2005, office note, Dr. Seidelmann approved continuing chiropractic treatment.

 

A request for formal hearing and a number of medical requests filed by the parties were consolidated and heard by Compensation Judge Harold W. Schultz II on March 24, 2005.  Issues at the hearing were the employee=s claim for a period of temporary partial disability compensation, designation of a treating physician, payment of the bill for treatment of the employee=s low back at the Family Chiropractic Center, and payment of the bill at Range Mental Health Center.

 

The parties presented a number of exhibits and medical depositions to the compensation judge in which opinions were expressed on the issues under consideration.  The employee introduced the December 7, 2004, report from Dr. Jack Greene, the employee=s family physician, in which he expressed his opinion that the employee=s Aongoing back problems are within a reasonable degree of medical certainty secondary to her left Achilles tendon injury and the prolonged period between injury and surgery.@

 

Dr. Skalko prepared a report dated March 18, 2005, in which he stated, AMs. Clemmer did not injure her back at the time of her Achilles tendon rupture but her low back and leg complaints arise out of the alteration of gait caused by the Achilles tendon injury . . . Ms. Clemmer=s treatments are beneficial and do provide relief.@

 

Dr. Seidelmann=s deposition was taken on April 15, 2005.  Dr. Seidelmann set forth a basis for his conclusion that the chiropractic care was beneficial for the employee.  After considering a hypothetical from the employee=s attorney, Dr. Seidelmann stated his opinion that Athe back complaints are directly related to her ankle dysfunction and that the chiropractic care was reasonable and necessary.@

 

The employee also presented the deposition of Dr. LaMar.  After presentation of a hypothetical, Dr. LaMar diagnosed the employee=s condition as Amajor depressive disorder, single episode, moderate to severe, and chronic pain syndrome.@  Dr. LaMar also stated that the employee=s work injury was a substantial contributing factor in the development of her psychological condition.

 

The employer introduced the deposition of Dr. Thomas Jetzer who had evaluated the employee on behalf of the employer in November 2003 and February 2005.  Based upon his examination, review of medical records, and viewing of a surveillance video tape, Dr. Jetzer concluded that the employee was overstating her functional impairment from the ankle injury.  He also concluded that the employee had no objective evidence of any spinal dysfunction.  He did not believe that the employee was in need of any further treatment for her low back or ankle and was of the opinion that the employee did not need any work restrictions.  Dr. Jetzer deferred an opinion on the employee=s claimed psychological condition.

 

The depositions of Drs. Pena and Coetzee were also taken and introduced by the employer.  Both doctors were asked to discuss the employee=s compliance with treatment and asked to comment on treatment recommendations made by Dr. Seidelmann and other providers.  Dr. Coetzee=s deposition was taken before the 2004 hearing and a significant portion of his testimony dealt with the question of treatment options which could be utilized in lieu of tendon lengthening surgery.

 

The employer also introduced certain records from the employee=s family physician.  The records from a physical examination for the employer on February 12, 2001, contain a diagnosis of chronic depression and an indication that an antidepressant medication would be started.  The records from a physical examination in February 2002, identified a number of medical conditions including a diagnosis of depression and an indication that the medication was being continued.

 

In his Findings and Order, served and filed June 21, 2005, the compensation judge denied the employee=s claim for temporary partial disability compensation, designated Dr. Seidelmann as the treating physician, denied the chiropractic bill for services in 2004, but he ordered payment for services in 2005, and ordered payment of the bill at Range Mental Health Center.  The employer has appealed the awards of the chiropractic bill and the bill at Range Mental Health Center.

 

DECISION

 

Chiropractic Bill

 

The compensation judge determined that Athe preponderance of the evidence is that the treatment of the Family Chiropractic Center during the year 2005 was reasonable and necessary in the attempt to cure and relieve the employee from the effects of the March 8, 2002 injury.@  On appeal, the employer challenges this finding and argues that the evidence does not support a finding of reasonableness.

 

The employer argues that the length of chiropractic treatment provided in this case was outside of limits set out in the treatment parameters, citing Minn. R. 5221.6050 and 5221.6200.  The application of the parameters was not raised in the hearing.  Where the applicability of the treatment parameters to a particular case has not been raised before the compensation judge, this court will not consider the issue for the first time on appeal.  Darvell v. Wherley Motors, slip op. (W.C.C.A. May  17, 2005).  If the employer felt that the chiropractic care in this case was barred by the treatment parameters, that argument should have been given to the compensation judge for his consideration.

 

The employer also argues that the chiropractic treatment should have been denied under the guidelines set forth in Buda v. Pillsbury Company, 38 W.C.D. 516 (W.C.C.A. 1986).  In Buda, the court affirmed a decision of the medical services review board which denied an employee=s claim for chiropractic care.  We have held that affirmance of a factual determination is of limited precedential value.  Hahn v. Perham Memorial Hosp. & Home, slip op. (W.C.C.A. Dec. 31, 2002).

 

The determination of whether chiropractic care is reasonable and necessary is one of fact for the compensation judge to determine.  The question for this court is whether that determination is supported by substantial evidence.  We find substantial evidence in Dr. Seidelmann=s deposition.  While Dr. Seidelmann does not discuss reasonableness in extensive detail, we note that, other than citing Buda, the employer at no time raised reasonableness of chiropractic care and did not discuss this issue in its deposition of Dr. Jetzer, the cross-examination of Dr. Seidelmann, the cross-examination of the employee at hearing, or in any argument to the compensation judge.

 

The decision of the compensation judge on this issue is affirmed.

 

Psychological Care

 

The compensation judge ordered the employer to pay the bill for services at the Range Mental Health Center, finding that the work injury was Aa substantial contributing factor to the depression/chronic pain syndrome.@ In making that determination, the compensation judge accepted the opinions of Drs. LaMar and Kholomyansky.  The employer presented no evidence to the contrary but argues on appeal that the opinions relied upon by the compensation judge lacked requisite foundation.  Specifically, the employer argues that Dr. LaMar was not aware of the scope of the employee=s treatment for depression before the work injury.

 

The evidence of the employee=s pre-existing depression is found in two office notes prepared by the employee=s family doctor in which depression was identified as one of a number of issues and as a condition for which treatment in the form of medication was provided.  The extent of Dr. LaMar=s knowledge of this treatment is not clear from the record.  It is not mentioned in her records and was not discussed in her deposition, either on direct or cross-examination.  The question then is whether her presumed lack of knowledge of this previous condition renders her opinion to be without foundation.

 

While adequate foundation is required in order for a compensation judge to rely on a medical opinion, a doctor need not be aware of every relevant fact for foundation to exist.  Bosey v. Parker Hennepin, slip op. (W.C.C.A. Mar. 14, 1994); McDonel v. Andersen Windows, slip op. (W.C.C.A. Mar. 21, 2003).  Instead, the question becomes the persuasiveness of the medical opinion.  Drews v. Kohl=s, 55 W.C.D. 33 (W.C.C.A. 1996).

 

The mere existence of a pre-existing condition does not mean that the work injury may not be a substantial contributing factor of the development of the current condition.  Given the difference in treatment for the employee=s depression before and after her work injury, the addition of a second diagnosis of chronic pain syndrome, and the absence of any opinion that the pre-existing depression is relevant in the present case, we conclude that Dr. LaMar=s opinion had sufficient foundation for the compensation judge to rely upon it.  We also find sufficient evidence to support the compensation judge=s decision in the opinion of Dr. Kholomyansky and we note in this regard that Dr. Kholomyansky=s diagnosis was that of recurrent depression, indicating his awareness of the employee=s previous condition.

 

The decision of the compensation judge on this issue is affirmed.