LAREE E. HUFF, Employee, v. NORTHWEST AIRLINES CORP., and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 24, 2005

 

No. WC04-235

 

HEADNOTES

 

CAUSATION - PERMANENT AGGRAVATION; CAUSATION - PRE-EXISTING CONDITION.  Substantial evidence of record, including medical evidence and testimony and witness testimony, supports the compensation judge=s finding that the employee=s work injury permanently aggravated her pre-existing condition and represents a substantial contributing cause to her ongoing disability.

 

PRACTICE & PROCEDURE - MATTERS AT ISSUE.  The compensation judge=s decision is vacated to the extent the findings address issues not raised at the hearing.

 

Affirmed in part and vacated in part.

 

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

Compensation Judge:  Nancy Olson

 

Attorneys:  James A. Batchelor, Batchelor Law Firm, Edina, MN, for the Respondent.  Robin Simpson and Susan M. Stepaniak, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s finding that the employee=s work-related injury of September 19, 2003, represents a substantial contributing cause to the employee=s disability since January 21, 2004, and from the compensation judge=s corresponding denial of the employer and insurer=s petition to discontinue disability benefits after January 21, 2004.  We affirm in part and vacate in part.

 

BACKGROUND

 

Ms. Laree E. Huff, the employee, has worked as a flight attendant for Northwest Airlines Corporation, the employer, since May 11, 1970.  As an attendant, the employee performed various physical tasks, including lifting bags, pushing meal and beverage carts, and assisting passengers with their carry-on luggage.  This claim relates to an admitted work-related injury in the nature of a cervical strain on September 19, 2003.  Although the employer and insurer admitted primary liability for that injury, they contend that the injury represented a temporary aggravation of the employee=s pre-existing condition, and therefore have petitioned to discontinue payment of ongoing  temporary total disability benefits after January 21, 2004.

 

The employee has undergone extensive medical treatment in the past, prior to her injury.  In 1995, the employee noted right arm pain and was diagnosed with lateral epicondylitis.  Between January 1997 and July 1998, the employee treated for various symptoms including intense pressure around her eyes and nose, left ear pain, low energy, lightheadedness, fatigue and multiple joint aches.  She was diagnosed with otalgia, fatigue, rash, arthralgia and viral syndrome.  The employee also treated for a rash on her chest, thighs and back as well as for right hip pain.  The employee was eventually diagnosed as having lupus, and her various symptoms were considered to be related to that diagnosis.

 

On March 1, 1999, the employee was involved in a motor vehicle accident in which she sustained a neck injury.  She sought medical treatment at the emergency room at North Memorial Hospital following that accident, reporting a sudden onset of neck and cervical pain.  The employee lost some time from work as a result of the injuries she sustained in that motor vehicle accident, but eventually returned to her regular job as a flight attendant for Northwest Airlines.  An MRI of the employee=s cervical spine, taken on November 23, 1999, revealed minimal midline bulging at the C5-6 intervertebral disk.

 

Prior to her work injury on September 19, 2003, the employee continued to receive medical treatment from her treating family physician, Dr. Joseph Sicora, in addition to various specialists.  Her medical records reflect the extensive symptoms she noted during this period of time, including symptoms related to her lupus and to her cervical spine condition.  The employee missed approximately three months from work at the end of 1999 for problems associated with lupus, including chronic and significant pain in her neck and shoulders, a rash, and joint pain.  She was able to return to work, however, and continued working as a flight attendant.

 

In February 2000, the employee reported to Dr. Archibald Skemp at Arthritis and Rheumatology Consultants, reporting severe chronic neck discomfort.  Dr. Skemp diagnosed disc space degeneration and active synovitis in the employee=s joints, elbows and wrists, and confirmed the diagnosis of lupus.  On February 7, 2000, the employee consulted Dr. Franciso Gomez at the Noran Neurological Clinic, reporting head discomfort, pain in her neck and shoulders, an unusual sensation in the back of her head, arm numbness, rash, fatigue, malaise, fever and difficulties with sleep.  The employee consulted Dr. Sicora, with whom she had treated since at least 1997, complaining of posterior neck pain which she related to her 1999 motor vehicle accident.  On May 31, 2000, the employee again consulted Dr. Skemp, reporting skin problems, fatigue and musculoskeletal pain.  Dr. Skemp stated that the employee was trying to work, but Aclearly may not be able to continue in her capacity as a flight attendant.@

 

The employee testified that she missed several periods of work between 2000 and September 19, 2003, after falling at work and at home.  In August 2001, the employee fell and was restricted by Dr. Sicora from working for several weeks.  In January 2002, the employee fell again and returned to work at a reduced wage for approximately one week.  She fell while at home in July 2002 and thereafter treated with Dr. Sicora, reporting continued problems with headaches and sensations in her neck and back.  The employee testified that by October 2002, she stopped flying international flights due to discomfort, including persistent neck pain.

 

On October 25, 2002, Dr. Erik Ensrud, Noran Neurological Clinic, examined the employee at the referral of the employee=s rheumatologist, Dr. Skemp.  At his referral, the employee underwent an MRI of her cervical and upper thoracic spine which indicated degenerated disc disease at multiple levels with uncinate process spurring at one level and very small central disc bulges at two levels, without central stenosis.  Dr. Ensrud summarized the employee=s symptoms as follows:

 

Significant for difficulty concentrating, falling, clumsiness, weakness, numbness/tingling, back pain, joint pain, pedal edema, shortness of breath, cough, blood in stool, loss of bowel control, frequent urination, loss of bladder control, heat intolerance, cold intolerance, rash, hair loss, sores, unexplained fevers, severe fatigue, difficulty with sleep.  She has previously been depressed but denies current depression.

 

(Employer Exh. 4).

 

Based on those results, Dr. Ensrud recommended bilateral occipital nerve blocks and referred the employee to the Physicians Neck and Back Clinic for a directed cervical strengthening program and exercises.  Dr. Ensrud stated that the exercises might break up some of the muscular tightness and help the employee perform her job duties without developing the pain and fatigue to such a degree. 

 

In December 2002, the employee was examined by an orthopedist, Dr. Charles Kelly, at the Physicians Neck and Back Clinic, and at his recommendation attended a rehabilitation program.  She later reported that the physical therapy had made her neck and shoulder problems worse.  In April of 2003, the employee consulted Dr. Jonathan Asp, at Dr. Sicora=s referral, for pain in her right shoulder.  Dr. Asp noted that the employee had an extensive medical history, including lupus, fibromyalgia, rheumatoid arthritis and osteoporosis.  He diagnosed right shoulder pain of unclear etiology, and indicated that the source of her pain could be rotator cuff pain or her lupus.  Dr. Asp treated the employee with a subacromial injection, which reduced her pain.

 

On September 19, 2003, the employee worked as a lead-flight attendant on a domestic flight, and injured her neck while assisting a passenger.  According to the employee, she sustained her injury while helping an overweight passenger seated in a wheelchair.  As she leaned over to help that passenger out of her seat, the passenger grabbed the back of her head, took a fist full of hair and yanked on it.  The employee testified that she immediately felt the pain shoot down the right side of her body from her Aneck down and up.@  She noted a headache following this incident, and testified that the pain she experienced following this incident was different then the pain she had experienced following her 1999 motor vehicle accident, and that it was of a shooting nature and more intense.

 

The employee continued to work her shift, but in the following days developed a complete weakness  in her body that she attributed to the work incident.  The employee received follow-up medical treatment, and on October 29, 2003, was examined by Dr. Natalie Retamoza, a colleague of Dr. Sicora at Brooklyn Park Family Physicians.  Dr. Retamoza diagnosed the employee with chronic neck and back pain with underlying lupus and depression, and restricted the employee from work through December 15, 2003.  At Dr. Retamoza=s referral, the employee underwent a functional capacity evaluation (FCE).  She presented with various complaints including difficulty walking, unsteady gait, cognitive impairment including memory and concentration problems, suboccipital and posterior neck pain, numbness in her hands, arms and feet, right-sided low back and hip pain, and incontinence.  The therapist conducting the FCE recommended that the employee make no attempt to return to work until after consulting a neurologist.  The FCE imposed restrictions on the employee, including sitting, standing and overhead reaching limitations.

 

On November 20, 2003, the employee underwent an MRI of her cervical spine, which revealed increased degenerative disc disease in comparison to the July 2002 MRI.  At Dr. Retamoza=s referral, the employee was seen again by Dr. Ensrud, reporting numerous symptoms which she attributed to her September 2003 work injury.  Dr. Ensrud noted that the employee=s overall health was worse and that she had been unable to work or drive.  The employee consulted further with Drs. Retamoza, Ensrud and Sicora.  Dr. Ensrud conducted an EMG on December 11, 2003, which he interpreted as showing no evidence of peripheral nerve or muscular  abnormalities.  He opined that the employee=s tremor, which had developed since her injury in September 2003, likely represented some sort of somatization or conversion reaction, and recommended that the employee be evaluated by a psychiatrist.

 

On January 8, 2004, the employee underwent an independent medical examination with Dr. Winifred Raabe, neurologist.  Dr. Raabe concluded that the employee had fully recovered from her 2003 injury and had reached maximum medical improvement from her work-related cervical strain/sprain injury and that the tremors that had developed since that injury were not related to that work incident.  Dr. Raabe concluded that the employee=s disability did not relate to her September 2003, work injury and that her current medical problems were due either to Ahysteria, conversion reaction or malingering,@ and recommended that the employee be evaluated by a psychiatrist.  Dr. Raabe found no neurological deficits, and concluded that the employee=s tremors were related to the employee=s medication for her lupus or may be Afictitious@ in nature.

 

On January 21, 2004, the employer and insurer served and filed a notice of intention to discontinue benefits, alleging that the employee=s current medical condition did not relate to her work injury but instead related to her underlying lupus condition.  Following an administrative conference, a compensation judge denied the discontinuance, and the employer and insurer filed a petition to discontinue.

 

On April 13, 2004, Dr. Irfan Altafullah conducted a neurological examination of the employee.  He concluded that there were a number of possible etiologies for the employee=s symptoms, including her lupus and her neck sprain or strain resulting from her work injury.  Dr. Altafullah also commented that there were Aa number of findings on examination that are nonphysiological that do raise the possibility of some affective or functional overlay as well.@  He made suggestions for follow-up treatment and diagnostic studies.  On May 25, 2004, Dr. Sicora issued a report in which he concluded that the employee remained disabled from her job as a flight attendant.  He referred to the treatment the employee had received since her September 19, 2003, injury and stated that

 

I have known the patient for many years and certainly she was significantly more debilitated than she had been prior to this work injury.  In reviewing our office notes it is apparent to me that at no point following her work injury did she recover to her previous level of functioning, and I do believe that her current symptoms are at least significantly related to her work injury of September 19, 2003. . . .at no point in time did her neck and upper back pain resolve with treatment with medications and/or physical therapy.

 

 On June 2, 2004, a hearing was held to address the employer and insurer=s petition to discontinue.^[1]  At hearing the employee testified that since her injury of September 19, 2003, she has been limited in her ability to work and perform chores at home.  She also testified that her symptoms have changed dramatically, that she is unable to walk for any distance and therefore uses a scooter, and that she has never returned to her pre-injury level.  In a findings and order issued on July 2, 2004, the compensation judge denied the employer and insurer=s petition to discontinue, determining that although the employee had significant pre-existing health problems, she had worked prior to her injury and her physical condition had declined drastically since that injury.  The compensation judge found that the Aemployee testified credibly that she continues to suffer from the effect of the injury and that she is not capable of working in her pre-injury position.@  Relying on Dr. Sicora=s opinion, the compensation judge concluded that the employee=s current symptoms were significantly related to her work injury and ordered payment of temporary total disability benefits through the date of hearing and Aand continuing as the facts and law may warrant.@

 

The compensation judge also referred to the employee=s psychological condition in her findings and order.  The judge found that

 

To the extent that there is a psychological component to the employee=s presentation of symptoms, the evidence at this point would relate that component to the work injury.  To the extent that an employee experiences a psychological reaction to a physical work injury the employer and insurer remain liable for the effects of the injury.  Mitchell v. White Castle, 32 W.C.D. 288, N.W.2d 90 (1982).

 

The employer and insurer appeal from the finding of a permanent injury, and also appeal from the compensation judge=s findings concerning the employee=s psychological injury, contending that the compensation judge erred by addressing an issue not litigated at hearing, that of a causal connection between the employee=s injury and her psychological condition.

 

DECISION

 

Nature of Injury

 

The compensation judge found that as a result of the employee=s September 19, 2003, work injury, she sustained a permanent aggravation of her pre-existing medical condition.  The employer appeals, alleging that the employee has fully recovered from her 2003 injury, that she has reached maximum medical improvement from that injury, and that her current condition is related instead to her pre-existing medical condition, including her diagnosed lupus.

 

It is undeniable that the employee had an extensive medical history prior to her 2003 work injury.  The judge referred to this in her findings, but also found that A[d]espite her significant health problems the employee worked full-time for the employer prior to the injury.@  The compensation judge stated that she accepted Dr. Sicora=s opinion that the employee has not recovered from her work injury and that her current symptoms are significantly related to the work injury.

 

On appeal, this court must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1 (2004).  Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

In this case, the record contains conflicting medical evidence concerning the extent and nature of the employee=s 2003 work injury.  Dr. Sicora, whose causation opinion the compensation judge found persuasive, has provided medical treatment to the employee since at least August 1997.  Dr. Sicora concluded that the employee=s 2003 work injury exacerbated her pre-existing condition, including her lupus.  Dr. Sicora=s records since 1997 document the employee=s treatment, and also include reports from the various specialists to whom Dr. Sicora referred the employee for consultation.  Questions on medical causation fall within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).  As adequate foundation existed for Dr. Sicora=s opinion, the compensation judge did not clearly err in accepting his opinion over that of Dr. Raabe, as a compensation judge has considerable discretion in choosing among conflicting expert opinions.  See Nord v. City of Cook, 360 N.W.2d 337, 342-343, 37 W.C.D. 364, 372-73 (Minn. 1985).^[2]

 

The compensation judge also found that the employee Atestified credibly that she continues to suffer from the effects of the injury and that she is not capable of working in her pre-injury position.@  (Finding No. 3.)  In her memorandum, the judge stated that she

 

did not believe that the evidence supported a contention that the employee was malingering.  Although the employee has significant pre-existing health problems the employee was working prior to this injury with only minimal restrictions.  The employee=s physical condition has declined drastically since the injury.  The employee=s complaints related to the cervical spine continue to be significant.

 

(Memo, p. 4.)

 

Both the employee and her daughter testified concerning the employee=s pre-injury ability and post-injury disability.  It is the trier of fact's responsibility to assess the credibility of a witness.  Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)).  It is not the role of this court to make an evaluation of the credibility and probative value of the witness testimony.  Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 734, 40 W.C.D 948, 957 (Minn. 1988), nor to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).  Based upon her review of the medical records and her assessment of the witness testimony, the compensation judge concluded that the employee=s 2003 work injury continues to substantially contribute to the employee=s disability.

 

Where, as in this case, evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.  Redgate, 421 N.W.2d at 734, 40 W.C.D. at 957.  In this case, the employee had a history of extensive medical treatment well before her work injury.  An employee, however, need not prove that her employment was the sole cause, only a substantial contributing cause of the disability for which benefits are sought.  Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989).  And, in view of the medical opinions offered by both parties, including Dr. Sicora=s opinions concerning the causal connection between the employee=s work injury and her ongoing disability, and Dr. Raabe=s contrasting opinion that there is no causal relationship between the employee=s work and her current condition, it was the compensation judge=s role to choose between the conflicting medical opinions.  As outlined in her findings and memorandum, the compensation judge found Dr. Sicora=s opinion to be more persuasive on the issue of causation and found the employee=s testimony concerning the effects of her injury to be credible.  Although the record contains evidence to support a conclusion contrary to that which the compensation judge reached, this court=s standard of review is very specific, and if there is substantial evidence of record to support the compensation judge=s conclusions, we must affirm.  Accordingly, we affirm the compensation judge=s award of the employee=s claims.

 

Issue Concerning Psychological Injury

 

In her findings and order, the compensation judge refers to a psychological component of the employee=s condition, and found that this psychological component is related to the employee=s work injury.  The employer appeals, arguing that the compensation judge erred by rendering a determination on an issue which was not included in the issues to be addressed at the hearing.  We agree.

 

The employee has received treatment for depression, and the record contains references to the employee=s reports of her depression.  The medical records also include references from at least three physicians to a possible conversion reaction, malingering, somatization or the Apossibility of some affective or functional overlay.@  The judge referred to those opinions, and stated that

 

The compensation judge rejects the contention that the employee=s findings indicate malingering.  To the extent that there is a psychological component to the employee=s presentation of symptoms, the evidence at this point would relate that component to the work injury.  To the extent that an employee experiences a psychological reaction to a physical work injury the employer and insurer remain liable for the effects of the injury, Mitchell v. White Castle, 290 N.W.2d 90, 32 W.C.D.288 (Minn. 1982).

 

(Finding No. 4.)  In her memorandum, the compensation judge also commented on those references in the medical records and stated that

 

Although a number of neurologists have discussed a somatic or functional component to the employee=s symptom complaints, there has been no evaluation for treatment of this aspect of her injury by either a psychologist or physician specializing in chronic pain treatment.  To the extent there may be a psychological element to the employee=s complaints the compensation judge believes that this does not break the chain of causation between the employee=s injury and current disability.  The compensation judge found the opinion of Dr. Sicora most persuasive on causation.

 

(Memorandum p. 4.)

 

The issues at hearing, as stated in the findings and order, included whether the employee=s work injury was a substantial contributing cause of the employee=s disability continuing from January 21, 2004, and whether the employer and insurer should be allowed to discontinue temporary total disability benefits since that date.  The employer and insurer admitted liability for a cervical spine injury, and at the hearing there was no discussion or allegation that the employee=s work injury also had resulted in a psychological injury.  To the extent that the judge=s finding could be interpreted as determining that there is a causal connection between the employee=s psychological condition and her work injury, we conclude that such a finding exceeds the scope of the issues addressed at the hearing.  We therefore vacate that portion of the compensation judge=s findings that conclude there is a causal connection between the employee=s work injury and any psychological condition which may be diagnosed.  In so doing, however, we do not express any opinion as to whether there is a causal connection between the employee=s work injury and her psychological condition and related treatment for that condition.  The remaining findings are affirmed.