ERIC A. FLEMING, Employee/Appellant, v. PIKE COS., and WESTPORT INS./GALLAGHER BASSET SERVS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 15, 2005

 

No. WC04-308

 

HEADNOTES

 

TEMPORARY BENEFITS - FULLY RECOVERED; EVIDENCE - EXPERT MEDICAL OPINION. Substantial evidence in the form of a well-founded medical opinion supports the compensation judge=s determination that the employee had fully recovered from his work injury.

 

Affirmed.

 

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

Compensation Judge: Catherine A. Dallner

 

Attorneys: Mark M. Walbran, Walbran, Furness & Leuning, Owatonna, MN, for the Appellant.  Kristin M. Cajacob, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s determination that the employee has fully recovered from his work injury.  We affirm.

 

BACKGROUND

 

A hearing was held on August 31, 2004, before Compensation Judge Catherine A. Dallner to address the medical request filed by the employee and the petition to discontinue benefits filed by the employer and insurer.  It was the employee=s position at the hearing that he had sustained a work injury to his right shoulder on August 13, 2003, which required arthroscopic surgery as proposed by his doctor, Dr. Erik Severud.  The employer and insurer contended at the hearing that the employee=s work injury had resolved and that any ongoing wage loss or need for surgery was not related to the work injury.

 

The parties agree that the employee, Eric Fleming, sustained a work injury on August 13, 2003, while he was employed by Pike Companies at a plant in Medford, Minnesota.  The employer uses recycled carpeting to manufacture plastic sheets used in construction.  Initially, the carpet is cut in strips and placed in bales measuring five feet by three feet by three feet.  The bales are then taken to a shredder by forklift.  Estimates of the weight of a bale varied from the employee=s estimate of 900 to 1,200 pounds to the plant manager=s estimate of 650 to 750 pounds.  While waiting to be moved to the shredder, the bales are stacked three to six bales high.

 

The employee was operating a forklift to move a bale when he noticed that another bale was caught in the forklift.  The employee dismounted to cut the other bale loose and was bent forward to do so when he was struck on the back of his right shoulder and right arm by one or more bales.  The employee testified that the bales were stacked six high and that he was struck by three of them and pushed back against the forklift.  The plant manager testified that the bales were only three high and that when he saw the accident site right after the incident, only one bale was slightly out of place.  The employee had scraping on the back of his arm that he described as Aroad rash.@

 

The employee experienced right arm pain and was taken to the emergency room at Owatonna Hospital where he saw Dr. Patrick Greenwood.  Dr. Greenwood noted that the right arm was uncomfortable, primarily in the right shoulder.  Dr. Greenwood assessed right arm abrasions, contusions to the right shoulder and elbow, and a right temporal mandibular joint strain.  The employee was given a prescription for pain medication but no work restrictions since Ahe feels he can continue to work.@

 

On August 21, 2003, the employee saw Dr. David Ivance, an orthopedist, at the referral of Dr. Greenwood.  The employee=s primary complaint to Dr. Ivance was of right elbow pain although he also noted pain in the anterior right shoulder.  Dr. Ivance=s history was that the employee  had been struck by a 3,000 pound roll of carpeting which hit him on the right side from his shoulder to his elbow.  Dr. Ivance assessed a likely deep bone bruise over the right epicondyle with some possible soft tissue injury.  Dr. Ivance did not assess the employee=s right shoulder complaints.  Dr. Ivance provided no treatment recommendations as he expected the employee=s condition to improve over time.  He gave the employee work restrictions until he saw him again.  The employee continued to work for the employer at light-duty work within his restrictions.

 

When the employee returned to Dr. Ivance on September 25, he still had right shoulder and elbow pain.  Dr. Ivance was of the opinion that the employee was aggravating his condition with repetitive light-duty work.  He increased the employee=s work restrictions and recommended elbow and shoulder MRI=s.

 

The employee had a history of right shoulder problems.  In his testimony, the employee related this condition to a work injury he sustained in Kansas in 1996, although liability was apparently disputed.  On November 2, 2000, the employee had surgery on his right shoulder performed by Dr. Christopher Miller in Kansas.  The pre-surgical diagnosis included a labral tear. The procedure was arthroscopic surgery on the right shoulder with subacromial decompression.  Dr. Miller noted the presence of a subacromial spur and diagnosed impingement syndrome.  The employee received physical therapy and at his last appointment on March 7, 2001, it was noted that the employee was limited in his ability to raise his arm overhead or reach behind his back and that he was unable to carry 10 pounds with his right arm at his side.  The employee testified at the hearing that he had no problems with his right shoulder after that until the injury on August 13, 2003.

 

The MRI=s recommended by Dr. Ivance were done on November 12, 2003.  The elbow MRI was essentially normal.  The shoulder MRI was read as showing tendinitis of the supraspinatus and infraspinatus tendons with no rotator cuff tear, mild acromioclavicular joint arthrosis, and degenerative changes of labrum with Apoorly defined tearing of the posteriorlateral aspect of the glenoid labrum.@  When the employee returned to Dr. Ivance, the assessment was of instability in the right shoulder.  Dr. Ivance injected the shoulder and prescribed physical therapy.  Dr. Ivance also allowed the employee to work with restrictions of no lifting over 10 pounds.

 

The employee had 15 physical therapy visits between December 8, 2003, and February 23, 2004.  The employee testified that the therapy was of minimal value.  At the last appointment, the employee still complained of pain at a level of 5 on a 0 to 10 scale, mostly in his posterior shoulder.  The employee also stated to the physical therapist that for about a month he had been dropping things he was holding in his right hand.  At the hearing, the employer and insurer introduced a surveillance video taken of the employee in November 2003.  It showed the employee driving his pickup, putting air in a tire, and going in and out of various stores with items in both hands.

 

The employee worked on light duty for the employer within his restrictions until the beginning of January 2004.  The employer=s plant closed at that time and the employee was laid off.  The employee has not returned to work since that time.  The employee was provided the services of a QRC.  The rehabilitation plan called for the employee to return to work for the employer once the plant reopened.

 

The employee was evaluated on behalf of the employer and insurer by Dr. Joseph Tambornino on January 28, 2004.  Physical examination of the right shoulder showed a full range of motion, and there was tenderness to palpation in the anterior subacromial region.  Dr. Tambornino concluded that the employee had returned to pre-injury status and was able to work without restrictions.

 

After his physical therapy was completed, the employee returned to Dr. Ivance who recommended an EMG.  The EMG done on March 8, 2004, was read as not being diagnostic.  Dr. Ivance last saw the employee on March 25, 2004.  The employee continued to report shoulder pain and Dr. Ivance recommended that the employee see a shoulder specialist.

 

The employee relocated to Hutchinson, Kansas, in April 2004 to live with his father and stepmother.  On April 12, 2004, the employee consulted with Dr. Erik Severud at Pinnacle Sports Medicine and Orthopaedics in Hutchinson.  The history in the chart notes was of three bales of carpet falling on the employee=s shoulder and elbow.  Dr. Severud=s assessment was traumatic right SLAP-type lesion, right shoulder strain, and contusion of the right elbow.  Dr. Severud=s chart notes contained a recommendation of diagnostic arthroscopy and also stated that no treatment was anticipated.

 

The employee was accompanied on his visit to Dr. Severud by a rehabilitation nurse.  She reported back to the QRC that the employee brought previous records and that the records from the 1996 injury and 2000 surgery were there as well.  She also reported that Dr. Severud said that the exam was consistent with a labral tear and that the doctor wanted to do an arthroscopic exploration and repair.  That procedure was initially scheduled for April 23 but was cancelled because of the liability dispute with the employer and insurer.  In response to an inquiry from the employee=s attorney, Dr. Severud=s response, in a May 18, 2004, letter was that AMr. Fleming had a significant injury on 8/13/03 that could cause a labral tear.  The labral tear is a new injury unrelated to the patient=s previous problem and surgery on the right shoulder.@

 

Dr. Tambornino prepared an additional report of August 10, 2004, after reviewing additional medical records and the surveillance video tape.  Dr. Tambornino restated his previous opinion that there was no injury to the employee on August 13, 2003, other than abrasions and bruising to the right shoulder, arm, and elbow.  Dr. Tambornino stated Ait is further my opinion that the mechanics of the injury with the bales falling on Mr. Fleming and bruising the skin on the right arm would be unlikely to cause a serious rotator cuff problem or labral tear.@

 

In response to further written interrogatories from the employee=s attorney, Dr. Severud provided a handwritten response that Abased upon the facts as I know them, the injury has resulted in internal derangement of the shoulder and it should be addressed surgically.@

 

In her Findings and Order of October 13, 2004, the compensation judge determined that Athe employee has fully recovered from any injury sustained on August 13, 2003."  She granted the petition to discontinue and denied the medical request.  The employee appeals.

 

DECISION

 

The question for this court is whether substantial evidence supports the compensation judge=s determination that the employee has fully recovered from his work injury.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).  Making that determination required the compensation judge to assess and choose between two competing medical opinions, a task which we have said is uniquely within the province of a compensation judge.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Rauen v. Park Nicollet Med. Ctr., 63 W.C.D. 198 (W.C.C.A. 2002).  Here, the compensation judge adopted the opinion of the IME, Dr. Tambornino and set out in her memorandum her reasons for doing so.  On appeal, the employee argues that the compensation judge erred because she was incorrect in her assessment of Dr. Severud=s opinion.  We disagree.

 

In her memorandum, the compensation judge identified a number of reasons why she found Dr. Severud=s opinion less persuasive than that of Dr. Tambornino.  First, there is a question as to the information about the employee=s past medical history that was available to Dr. Severud.  Although the employee in his brief quotes parts of the record which suggests that Dr. Severud had the employee=s past medical records, the fact remains that it is not known exactly what records were reviewed.  For example, it is not known if Dr. Severud was aware of the inconsistencies in range of motion testing noted in physical therapy after the injury.  In contrast, Dr. Tambornino identified in detail the records he reviewed in rendering his opinion.

 

Second, Dr. Severud did not have available the surveillance video tape.  The employee states the video tape was not significant but the compensation judge noted that the employee=s actions on the tape involved using his right arm and shoulder without any indication of restricting his activities or favoring his arm.  As the compensation judge noted, Dr. Tambornino reviewed the surveillance tape as a part of his evaluation of the case.

 

Third, Dr. Severud=s understanding of the work injury is not clear from the record. The employee=s description of three carpeting bales falling on him from a height of 16 to 18 feet is radically different from the plant manager=s testimony that only one bale was out of position and that the bales were stacked three high.  Dr. Severud referred only to the Afacts as I know them@ without indicating what those facts were.  Dr. Tambornino, in his report, clearly accepted the second version when he concluded that this injury would not have caused a labral tear.

 

The employee argues that because of the MRI, a diagnosis of a labral tear must be accepted and that because there were no similar findings before the work injury, the labral tear must be related to the work injury.  The diagnosis is not so definitive as the employee suggests.  The MRI refers to a Apoorly defined@ tear and, if the diagnosis was obvious, there would not be a reason for the diagnostic arthroscopic surgery referred to by Dr. Severud in his chart notes.  While the compensation judge could have accepted the employee=s argument at the hearing, given the other evidence in this matter, we cannot conclude that she erred in refusing to do so.

 

We have held on numerous occasions that a compensation judge=s decision which relies on a medical opinion will not be reversed if the opinion is well founded.  Nystrom v. Kanabec Hosp., slip op. (W.C.C.A. Jan. 6, 2003); Smith v. Quebecor Printing Inc., 63 W.C.D. 566 (W.C.C.A. 2003).  Here, the compensation judge accepted the opinion of Dr. Tambornino and her reasons for doing so are based on substantial evidence in the record. The decision of the compensation judge is affirmed.