PATSY J. COSGROVE, Employee/Appellant, v. HEALTHEAST CORP. SERVS.,  SELF-INSURED/BERKLEY RISK ADM=RS CO., Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 9, 2005

 

No. WC04-317

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence in the form of well founded medical opinions supports the compensation judge=s determination that the employee=s admitted work injury was not a substantial contributing factor in the employee=s condition.

 

Affirmed.

 

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

Compensation Judge: Jane Gordon Ertl

 

Attorneys: Patrick W. Kelly, Patrick W. Kelly & Associates, Woodbury, MN, for the Appellant.  Timothy J. Pramas and Edward Q. Cassidy, Felhaber, Larson, Fenlon & Vogt, St. Paul, MN, for the Respondent.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s determination that the employee=s cervical work injury was not a substantial contributing factor in the employee=s disability and from the compensation judge=s denial of the employee=s claims. We affirm.

 

BACKGROUND

 

Patsy Cosgrove sustained an admitted injury to her cervical spine on September 21, 2001, while working as a SWAT nurse for HealthEast at St. Joseph=s Hospital.^[1]  The employee was moving a bed occupied by a 150 to 160 pound man over new carpeting when she had the onset of pain in her neck and left shoulder.

 

The employee first sought care for her condition on September 27, 2001, when she saw her family doctor, Dr. Jeffrey Nelson. She reported shooting pains down her arm from her shoulder to her elbow along with numbness and tingling in the fingers of her left hand.  Dr. Nelson assessed a left trapezius strain, restricted her work activity, and provided her with medications.  When her symptoms had worsened by the time of the next visit on October 1, Dr. Nelson scheduled an MRI and physical therapy and took the employee off work.

 

The MRI was done on October 2, 2001, and was read as showing a large disc protrusion at C6-7 and spondylosis with mild stenosis at C4-5 and C5-6.  There was also mild left foraminal narrowing at C3-4.  Dr. Nelson changed the employee=s medication to Medrol, scheduled an epidural injection in case the medication did not help and set up a referral to a neurosurgeon.  When the employee returned to Dr. Nelson on October 8, she reported that she had some initial improvement in her symptoms after beginning the Medrol but her symptoms had worsened subsequently  with increased numbness and decrease in grip strength.  The steroid injection was not felt to be of assistance.

 

Dr. Phudiphorn Thienprasit, neurosurgeon, saw the employee on October 11 and he concluded surgery would be necessary because of the large size of the herniated disc.  Dr. Thienprasit  performed an anterior decompression and fusion at C6-7 with removal of the herniated disc on October 24, 2001.  The employee noted improvement following her surgery, advising Dr. Thienprasit in follow-up on November 19 that the numbness had resolved and that the weakness in her left arm was improving.  When the employee returned to see Dr. Thienprasit on February 11, 2002, she reported that she experienced pain in her right shoulder with numbness and tingling in her right arm and fingers.  Dr. Thienprasit recommended physical therapy and a second cervical MRI, which was done on March 4, 2002.  It was interpreted as showing the fusion at the C6-7 level and as demonstrating no significant changes in the degenerative condition at C4-5 and C5-6 when compared with the previous MRI.

 

The employee returned to see Dr. Thienprasit on March 7, 2002.  After reviewing the status of the C6-7 surgery, Dr. Thienprasit stated Aeventually the degenerative changes found at the C5-6 and C4-5 levels will require surgical attention and very likely will end up requiring anterior cervical fusion at both levels.@  Dr. Thienprasit subsequently prepared a health care provider report in which he indicated that the employee had reached MMI from her work injury on April 24, 2002, and that she had 11.5 percent permanent partial disability.^[2]  The employer and insurer paid the rated permanency.

 

The employee consulted an orthopedist, Dr. Michael Smith, on May 7, 2002, at the recommendation of her QRC.  She told Dr. Smith that she had right shoulder pain and right hand numbness.  The employee stated that she developed increased pain in her right arm if she used it more than 15 minutes.  Dr. Smith=s impression was of Aregional cervical pain of uncertain etiology.@  Dr. Smith recommended a helical CT scan to Afurther define the problem.@  Dr. Smith saw the employee on May 28, after the CT scan.  He concluded that the C6-7 fusion was not an issue and stated that a diagnosis of regional cervical pain was warranted.  He recommended a Agood physiatry approach.@  The employee did not see Dr. Smith after that visit.

 

The employee consulted with Dr. Richard Timming, a physical medicine and rehabilitation practitioner at Regions Hospital, on July 24, 2002.  According to his chart note of that date, the employee=s chief complaint was of Achronic neck pain and bilateral upper extremity pain, numbness and stiffness with headaches.@  Dr. Timming noted that the employee was on work restrictions of 50 pound maximum lifting and was doing her usual job.  Dr. Timming recommended physical therapy and a home program which would include walking and stretching exercises.  Dr. Timming also referred the employee for a psychological consultation because he felt the employee was depressed.

 

A psychologist, Dr. Janene Hawkins, saw the employee on July 31.  Dr. Hawkins diagnosed depression but noted the employee=s history of depression in 1993, which had required treatment.  The employee also had a past history of anxiety attacks which were noted as well.  Finally, Dr. Hawkins diagnosed chronic pain syndrome and recommended treatment by individual psychotherapy.

 

Dr. Timming saw the employee in August and September 2002.  On September 4, the employee reported to Dr. Timming that she had been placed by her supervisor on a unit at the hospital that required her to do a lot of paperwork.  She said this work aggravated her neck.  On September 12, she called Dr. Timming because of increased pain.  Dr. Timming took her off work and saw her the next day.

 

The employee told Dr. Timming that she thought she had been doing well as a light duty SWAT nurse, wanted to go back to that assignment, and was unhappy with her employer for putting her in a job which required a lot of paperwork.  Dr. Timming discussed the return to work options with the employee and her supervisor.  The employer=s position was that the employee could not continue to work as a SWAT nurse on light duty but that a temporary light duty job would be found for her.

 

The employee went to the emergency room at St. Joseph=s Hospital on September 21, 2002.  She advised the doctor there that she had been sitting when she developed increasing pain in her head, neck and right shoulder.  She was admitted into the hospital for treatment of her increased pain.  While hospitalized, she saw Dr. Gregory Harrison for a surgical consultation.  An MRI done on September 21, was read by Dr. Harrison as showing Amoderate@ disc herniation at C4-5, C5-6, and C6-7.  Dr. Harrison=s assessment was of exacerbation of chronic neck and back pain.  Dr. Harrison concluded that there was a significant psychological component in her condition and he recommended conservative management for the employee=s pain syndrome.  The employee was discharged to continue her care with Dr. Timming. The employee continued to report stress from not being allowed to work as a light duty SWAT nurse and also reported continued pain in her neck and right extremity from the paperwork and having to keep her head in a forward flexed position.  Treatment continued to be medication and  physical therapy from Dr. Timming and counseling from Dr. Hawkins.

 

The employee was evaluated on behalf of the employer by Dr. Daniel Randa on October 1, 2002.  Dr. Randa examined the employee, reviewed her records, and in a seventeen page report, provided his conclusions.  Dr. Randa agreed that the employee had sustained a C6-7 disc herniation as the result of her work injury on September 21, 2001, and that surgery for that condition was appropriate.  Dr. Randa determined, however, that her current complaints were exaggerated and that there was no Apathophysiologic@ basis for her neck and arm pain.  It was his opinion that the employee=s continued care by Dr. Timming was not related to the work injury.  Dr. Randa stated that the findings at C4-5 and C5-6 were evidence of pre-existing cervical arthritis which was not related to the employee=s work injury.

 

Dr. Timming continued to treat the employee and, in December 2002, referred her to a work hardening program.  In February 2003, the employee advised that she was doing better with a lessening of her headaches and an increase in her ability to lift.  On March 18, 2003, the employee reported to Dr. Timming that she injured her right neck and right arm while assisting in a transfer of a patient at work on February 26.  Dr. Timming believed her complaints were consistent with a cervical disc irritation and he increased the employee=s work restrictions.

 

At a later appointment, the employee reported to Dr. Timming that she fell during the work hardening program and injured her right shoulder on April 22.  Dr. Timming took her off work and placed long-term restrictions of no occasional lifting more than 20 to 30 pounds.  These restrictions did not allow the employee to return to work as a SWAT nurse.  On May 14, Dr. Timming concluded that the employee had plateaued in her work hardening program and, on July 9, he concluded she was at maximum medical improvement from her work injury. Dr. Timming evaluated her permanent partial disability as 9% for cervical radicular syndrome under Minn. R. 5223.0370, subp. 4.D, 3% for persistent pain despite treatment under 5223.0370, subp. 4.D(1), and 2.5% for the fusion surgery under 5223.0370, subp. 5.A.

 

Dr. Randa saw the employee again on May 21, 2003.  He had received additional records and examined the employee once more.  In his subsequent report, Dr. Randa stated that the incidents of February 26 and April 22 did not result in any residual injury.  He continued to be of the opinion that the work injury was not a factor in the employee=s continued symptoms.

 

The employee was also evaluated by an orthopedist, Dr. William Simonet, who saw her on November 5, 2003, on behalf of the employer.  He prepared a report of November 12, 2003, in which his diagnosis was of neck pain without radiculopathy.  Dr. Simonet concluded that the work injury was not a factor in the employee=s physical symptoms and that her degenerative disc disease was age-appropriate. He agreed with Dr. Thienprasit=s assessment of permanent partial disability.

 

Dr. Thomas Gratzer, a psychiatrist, evaluated the employee on November 14, 2003.  In addition to reviewing her records, Dr. Gratzer also examined the employee and administered psychological testing.  Dr. Gratzer diagnosed a number of psychiatric conditions and concluded that the 2001 injury was not related to these conditions.  While Dr. Gratzer found the employee had pain disorder associated with psychological factors, it was his opinion that this condition arose from Afactors and dynamics@ separate from any work injury.

 

The employee also saw Dr. Robert Wengler at the direction of her attorney.  In his report of July 19, 2004, Dr. Wengler concluded that there had been a progression of the pathology at C4-5 and C5-6 as a result of the 2001 work injury.  He was of the opinion that the employee=s symptoms were due to that injury and that the restrictions which precluded her from returning to her regular job were related to that injury as well.  Finally, he provided a rating of permanent partial disability of 32.5 percent of the whole body pursuant to Minn. R. 5223.0370, subp. 4.D, D(4), D(1), and subp. 5.A. Dr. Wengler recommended a weight lifting limit of 10 pounds based on his conclusion of multilevel disc herniation.

 

The employee returned to Dr. Timming on July 29, 2004, about a year since her last visit with him. On examination, the employee complained of tenderness in her neck and pain which started in her neck and went into her head. Her neurological examination was normal with no objective findings. Dr. Timming=s assessment was of chronic neck pain. Because the employee reported that she had an increase of pain and numbness in both hands, Dr. Timming recommended an additional MRI and an EMG. He also referred the employee for additional physical therapy, including craniosacral therapy.

 

Dr. Simonet=s deposition was taken on August 9, 2004. He was provided Dr. Wengler=s report and Dr. Timming=s most recent chart note. Dr. Simonet=s primary diagnosis was of neck pain without evidence of radiculopathy. Dr. Simonet based his conclusions on the MRI, which showed no evidence of nerve root impingement; on the physical examinations of other physicians, which had no objective findings; and on the employee=s reported symptoms, which Dr. Simonet said were not consistent with radiculopathy. It was Dr. Simonet=s opinion that the employee had a solid fusion at C6-7 which had resolved her left arm symptoms and that the employee did not need medical care or physical restrictions as the result of her work injury.

 

The employee=s claim petition, filed on August 25, 2003, was heard by Compensation Judge Jane Gordon Ertl on August 10, 2004.  In her Findings and Order of October 21, 2004, the compensation judge determined that the employee had no ongoing disability related to the September 2001 injury, that the wage loss claimed was not due to the work injury, that the employee was not entitled to additional permanent partial disability, that the employee was not entitled to requested medical expenses, and that the employee did not sustain a mental injury as a consequence of the work injury.  The employee appeals.

 

DECISION

 

Extent of Injury

 

The parties agree that the employee sustained a disc herniation to level C6-7 at the time of her work injury.  It is the employee=s position that the discs at levels C4-5 and C5-6 were in some manner aggravated by the work injury and that she now suffers from a multilevel cervical disc injury which has resulted in wage loss, additional permanent partial disability, and a need for additional medical care.  In addition, the employee alleges that her work injury resulted in an aggravation of pre-existing psychological conditions which now require treatment.  The employee=s claims were supported by the opinion of Dr. Wengler and by the records of various treating doctors who, although they did not provide opinions on these questions, relate the onset of symptoms to the work injury in the history section of the chart notes.

 

It is the position of the employer and insurer that the employee=s injury is limited to the disc herniation at C6-7 and that the injury has been successfully treated by Dr. Thienprasit.  Appropriate permanent partial disability has been paid and there are no physical restrictions from her work injury.  The employee=s degenerative disc disease was not affected by the work injury and the employee=s present complaints are not the result of cervical radiculitis but in fact do not have a physical basis.  The employee=s psychological diagnoses are not the result of the work injury but are due to other stresses, including the employee=s relationship with her employer.  The employer and insurer=s position is supported by the opinions of Dr. Randa, Dr. Simonet, Dr. Gratzer, and by the employee=s medical records.

 

In considering the claims and issues in this matter, the compensation judge accepted the opinion of the doctors relied upon by the employer and insurer and rejected the conclusions of the employee=s doctors.  We have consistently held that the choice between competing medical opinion is within the province of the compensation judge and a decision based on that choice will not be reversed by this court.  Nord v. City of Cook, 360 N.W.2d. 337, 37 W.C.D. 364 (Minn. 1985); Nini v. Gold=n Plump, slip op. (W.C.C.A. March 15, 2004).

 

The employee recognizes this general rule but argues that in the present case, the opinions of Drs. Randa and Simonet did not have adequate foundation in that they failed to consider the MRI done in September 2002.  Dr. Randa=s report of May 21, 2003, indicates that he reviewed the MRI.  In his deposition, Dr. Simonet discussed at some length the MRI and Dr. Timming=s last chart note from July 29, 2004.  We conclude that adequate foundation exists for consideration of the opinions of Drs. Randa and Simonet.  Kuisle v. Sunrise Assisted Living, 63 W.C.D. 72 (W.C.C.A. 2002).  The employee=s argument is that the IME doctors did not provide enough weight to the MRI.  These concerns go to the persuasiveness of the opinions and not the foundation.  McDonel v. Anderson Windows, slip op. (W.C.C.A. March 21, 2003).  The compensation judge found the opinions of Drs. Randa and Simonet to be persuasive despite the arguments of employee=s counsel and we affirm her findings.

 

Temporary Partial Disability

 

At the hearing, the employee claimed entitlement to temporary partial disability from April 13, 2003, and continuing, based on the wage loss from her reduced work hours with the employer.  The compensation judge denied the claim, finding that any wage loss sustained by the employee was not related to the employee=s work injury.  On appeal, the employee argues that the compensation judge erred in her denial and, in support of her position, the employee points to chart notes from Dr. Timming which restrict the employee=s work activity.

 

In order to be entitled to temporary partial disability, the employee must establish a diminution in earning capacity due to the work injury.  Arouni v. Kelleher Constr. Inc., 426 N.W.2d. 860, 41 W.C.D. 42 (Minn. 1988); Tomlin v. Rocco Altobelli, slip op. (W.C.C.A. March 24, 2003).  The compensation judge specifically adopted the opinion of Dr. Simonet that the employee had no restrictions from the 2001 work injury.  While Dr. Simonet accepted that the employee had sustained a herniated disc at C6-7 and had surgery as a result of that injury, it was his conclusion that a single level cervical anterior fusion did not require physical restrictions other than avoiding some collision sports such as football.  Dr. Simonet also concluded that the employee=s complaints were not radicular in nature and that her symptoms were not related to the work injury in any way.

 

We have previously concluded that Dr. Simonet=s opinion had adequate foundation.  We conclude that his opinion provides substantial support for the compensation judge=s denial of temporary partial disability compensation.

 

Permanent Partial Disability

 

Dr. Thienprasit rated the employee in April 2002, as having an 11.5 percent permanent partial disability as the  result of her work injury and this rating was paid by the employer and insurer.  At the hearing, the employee claimed additional permanent partial disability as rated by Dr. Wengler in his report of July 19, 2004.  The compensation judge determined that the employee was not entitled to any additional permanent partial disability, relying primarily on the opinion of Dr. Randa.  On appeal, the employee contends that she should have at least been awarded the additional 3 percent permanent partial disability rated by Dr. Timming in his July 2003 chart note.

 

Dr. Wengler based his rating of permanent partial disability on his assessment that the employee had disc herniations at three levels.  However, the compensation judge adopted the opinion of Dr. Simonet that, to the extent the September 2002 MRI showed actual herniations at the C4-5 and C5-6 levels, those degenerative changes were not due to the work injury but were findings which Dr. Simonet described as Aage appropriate@ for the employee=s disc disease.

 

In his determination of the extent of the employee=s permanent partial disability, Dr. Timming began with the 11.5 percent rated by Dr. Thienprasit and then added an additional three percent under Minn. R. 5223.0370, subp. 4.D(1), for a situation where Achronic radicular pain or paresthesia persists despite treatment.@  Although Dr. Timming made no specific statement on this point, his rating seems to assume that the employee=s complaints of neck and arm pain are related to the disc herniation at C6-7.  Dr. Thienprasit did not evaluate the employee on that basis, even though the employee was experiencing right arm symptoms at the time he provided his rating  in April 2002.  Drs. Randa and Simonet both concluded that the employee=s arm complaints were not radicular and not related to the employee=s work injury.  We conclude, therefore, that substantial evidence exists to support the compensation judge=s refusal to accept Dr. Timming=s rating and her decision not to award additional permanent partial disability.

 

Psychological Injury

 

The employee claims that her work injury resulted in an aggravation of pre-existing emotional disorders, including depression and anxiety.  At the hearing, the employee sought payment for psychological treatment and authorization for chronic pain treatment.  The compensation judge denied the claim based on her adoption of the opinion of the IME, Dr. Gratzer.

 

The employee does not indicate how the compensation judge erred in relying on Dr. Gratzer=s opinion.  As we said earlier in this decision, the choice of medical opinion is for the compensation judge to make and there is no claim that Dr. Gratzer=s opinion is without foundation.  Instead, the employee argues that the compensation judge should have found Dr. Coffin (the employee=s family practitioner in 2002) and Dr. Hawkins to be more persuasive.

 

We note however, that Dr. Coffin=s records do not show whether Dr. Coffin was aware of the employee=s previous psychological problems and treatment.  Further, Dr. Coffin=s understanding of Dr. Thienprasit=s surgery recommendations and the possible effect of those recommendations on the employee=s mental state is not consistent with the records.  Dr. Hawkins, while referring to chronic pain, does not specifically connect this condition to the employee=s work injury but instead documents the employee=s unhappiness over her return to work as being a significant source of the employee=s depression and anxiety.  We conclude substantial evidence supports the compensation judge=s decision on this point.

 

Medical Treatment

 

At the hearing, the employee sought payment for an EMG and for craniosacral therapy, both of which were recommended by Dr. Timming at the time of his July 29, 2004,  evaluation of the employee.  The compensation judge denied the claim, finding that the proposed treatment was not related to the 2001 work injury.

 

On appeal, the employee refers to Dr. Timming=s chart note as establishing the need for the medical treatment.  However, the issue before the compensation judge was not whether the treatment was reasonable but, rather, whether the treatment was related to the work injury.  Dr. Timming did not connect the need for treatment to the work injury.  Both Dr. Simonet and Dr. Randa stated that the employee=s C6-7 disc herniation was resolved by her surgery and that the employee was not in need of further treatment due to the work injury.  These opinions furnish substantial support for the compensation judge=s determination on this point.

 

Maximum Medical Improvement

 

The employee argues on appeal that even if her injury is limited to the C6-7 herniation, it is not appropriate to find that she has reached maximum medical improvement from the work injury.  She points to Dr. Timming=s recommendations in July 2004, for an additional MRI and for chronic pain treatment.

 

In determining if MMI has been reached, the question is whether substantial improvement can be expected in the employee=s condition.  Minn. Stat. ' 176.011, subd. 25.  Dr. Timming did not discuss that point and, in fact, Dr. Timming concluded in July 2003 that the employee was at maximum medical improvement at that time.  Dr. Randa concluded that the employee reached MMI in May 2003 and Dr. Thienprasit found the employee was at MMI from her injury by April 24, 2002.  There is no medical opinion that the employee is not at MMI.  We find substantial evidence to support the compensation judge=s decision on this issue.