LACY L. LONG, Employee/Appellant, v. WAL-MART STORES, INC., and CLAIMS MGMT. INC., Employer-Insurer, and CENTER FOR DIAGNOSTIC IMAGING, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 16, 2005

 

No. WC05-163

 

HEADNOTES

 

CAUSATION - TEMPORARY AGGRAVATION.  Substantial evidence, including the report of the independent medical examiner and other medical evidence, supports the compensation judge=s finding that the employee=s work-related injury had fully resolved by June 2004.

 

MEDICAL TREATMENT & EXPENSE - CHANGE OF PHYSICIANS.  Where the employee filed a medical request seeking approval and payment for chiropractic services provided from January 30 through March 17, 2003, the compensation judge erred in denying treatment solely on the basis of lack of prior approval for a change of physicians under Minn. R. 5221.0430, subp. 3, and the matter is remanded for further consideration. See Henschel v. Interfaith Social Services, slip op. (W.C.C.A. Oct. 2, 1995).

 

MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE. Where substantial evidence supported the compensation judge=s finding the employee=s work injury had resolved by June 2004, the judge reasonably found emergency room treatment provided on June 23, 2004, was unrelated to the effects of the employee=s November 2, 2002, work injury.

 

Affirmed in part and remanded in part.

 

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

Compensation Judge: Harold W. Schultz, II

 

Attorneys: David W. Blaeser, Woodbury, MN, for the Appellant.  Christopher E. Sandquist, Gislason & Hunter, Mankato, MN, for the Respondents.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s finding that the employee=s November 2, 2002, personal injury resolved by June 2, 2004, and the compensation judge=s denial of certain medical treatment.

 

BACKGROUND

 

Lacy L. Long, the employee, sustained a personal injury on November 2, 2002, arising out of and in the course of her employment with Wal-Mart Stores, Inc., the employer.  The employer and its insurer admitted liability for the employee=s personal injury.

 

The employee was examined by Dr. Barbara Gamradt on November 4, 2002, at the request of the employer.  The employee gave a history of an acute sudden onset of right low back pain while lifting sweatshirts at work.  The employee denied any radiation into her leg, numbness or tingling.  On examination, straight-leg raising was negative but Dr. Gamradt noted spasm in the right lumbar area.  The doctor diagnosed right low back strain and prescribed Vicodin and physical therapy.  The doctor released the employee to work with a ten-pound lifting restriction.  On November 7, 2002, the employee complained of continued severe back pain with pain radiating into her right leg.  On examination, straight-leg raising was positive on the right.  Dr. Gamradt recommended an MRI scan of the lumbar spine and stated the employee would likely need a referral to an orthopedic surgeon.  On November 13, 2002, the doctor took the employee off work.  On November 19, Dr. Gamradt noted improvement in the employee=s low back pain and radiculopathy with physical therapy and Celebrex.  On December 2, 2002, the employee continued to complain of low back pain radiating into her right leg with numbness.  On examination, straight-leg raising was positive on the right and the doctor noted tenderness over the right sciatic notch.  Her diagnosis remained low back strain with radiculopathy.  The doctor kept the employee off work.

 

Dr. Steven Moen, an orthopedic surgeon, examined the employee on December 13, 2002, on referral from Dr. Gamradt.  The employee complained of low back pain radiating into her right leg with numbness of the right foot.  Dr. Moen diagnosed mechanical low back pain and also recommended a lumbar MRI scan.  The scan was obtained on January 8, 2003, and was noted to be unremarkable with no disk herniation, stenosis or neural compression.  The employee returned to see Dr. Moen on January 21, 2003, and stated she felt she was getting better.  The doctor recommended ten more physical therapy visits and allowed the employee to return to work subject to restrictions.

 

On January 30, 2003, the employee sought treatment from Joshua Rutzick, D.C., of Drake Chiropractic.  By letter dated January 31, 2003, Dr. Rutzick wrote the insurer stating, AThis is to notify you of our intent to proceed with chiropractic treatment as covered under the Minnesota Workers= Compensation Act.  See Minn. Rule 5221.0650, Subp. 9.@  (Pet. Exh. K.)  By letter dated February 11, 2003, the insurer=s senior case manager responded AAfter reviewing your letter dated January 31, 2003 and reviewing the workers= compensation claim all Chiropractic treatment will be denied.  The change of physician was not authorized through my office or myself.  Please forward all bills to her private insurance.@  (Pet. Exh. K.)  Dr. Rutzick commenced treating the employee on January 30, 2003, and provided periodic treatment thereafter through March 17, 2003.  By letter dated May 21, 2003, Dr. Rutzick advised the insurer that the employee had contacted his office for treatment because of an exacerbation of her work injury.  The doctor again advised the insurer of his intent to proceed with chiropractic treatment.  On May 27, 2003, the insurer=s representative stated AAfter reviewing Ms. Long=s claim it has been decided that any chiropractic treatment she receives will be denied under Worker=s Compensation.@  (Pet. Exh. K).  Dr. Rutzick recommenced treatment on May 21, 2003, and treated the employee through August 13, 2003.

 

The employee returned to see Dr. Moen on March 4, 2003, stating that her back was improving and chiropractic treatment was helpful.  On examination, Dr. Moen noted full flexion and extension without pain.  The doctor=s plan was to get the employee into therapy to learn a home-based program to substitute for the chiropractic care.  Dr. Moen continued the employee=s restrictions and asked her to return in six weeks.  The employee did not return to see Dr. Moen.

 

The employee was examined by Paul A. Cederberg on January 12, 2004, at the request of the insurer.  Following a review of the employee=s medical records and a physical examination, the doctor diagnosed a lumbar strain secondary to the November 2, 2002, personal injury.  The doctor noted the employee complained of right lower back and buttocks symptoms without objective findings and pain down her right leg which the doctor stated did not fit an anatomic distribution.  Dr. Cederberg opined the employee=s personal injury was temporary and resolved by April 4, 2003.  The doctor stated the employee could work without restrictions and had no ratable permanent partial disability.  Dr. Cederberg stated any chiropractic or medical care after April 4, 2003, was not reasonable or necessary to cure and relieve the employee from the effects of her personal injury.

 

On March 24, 2004, Dr. Jonathan L. Biebl examined the employee at the request of her attorney.  Following an examination, Dr. Biebl diagnosed a chronic lumbar sprain/strain secondary to her work injury.  The doctor stated there was not much left in terms of treatment other than anti-inflammatory medication and he recommended a daily exercise program.

 

On June 23, 2004, the employee went to the Methodist Hospital emergency room complaining of right-sided low back pain over the last ten days with occasional radiation into her right leg.  Dr. Kent Schwitzer examined the employee and noted that although Ashe complains of pain on a 7-10 scale, she moves perfectly nimbly about from lying to a seated position and seated to standing.@  On examination, the doctor found normal reflexes and motor power in the lower extremities with highly localized tenderness over the right sacroiliac joint without any redness or warmth.  Dr. Schwitzer prescribed a Medrol Dosepac and Vicodin and discharged the employee.

 

The employee was examined by Dr. Patrick Hergott in December 2004 on referral from her attorney.  The employee reported she was currently working at a very physically demanding job without any restrictions.  She complained of worsening low back and right leg pain which she rated at 7 or 8 on a 10-point scale.  On examination, Dr. Hergott found right-sided lumbar tenderness without muscle spasm, normal straight-leg raising and a normal neurologic examination.  The doctor noted the employee was easily able to move from a supine to a sitting position.  Dr. Hergott diagnosed mechanical low back pain with a chronic facet syndrome and recommended a short-term rehabilitation program to continue only if the employee made measurable progress towards functional improvement.

 

The employee filed a medical request seeking payment of the bill of Dr. Rutzick and the case was heard before a compensation judge.  In a findings and order, the compensation judge found the employee sustained a temporary low back sprain/strain on November 2, 2002, that resolved by June 2, 2004.  The judge further found Dr. Rutzick=s treatment from January 10 through March 17, 2003, was not compensable because the treatment was provided by an unauthorized physician under Minn. Rule 5221.0430.^[1]  The compensation judge further found the employee=s need for medical treatment on June 23, 2004, was not caused by her personal injury.  The employee appeals the compensation judge=s finding that her injury was temporary and the judge=s denial of her claim for medical expenses.

 

DECISION

 

1.  Temporary Injury

 

The employee sustained an admitted injury on November 2, 2002.  There is no evidence of any prior history of low back pain and the employee sustained no subsequent injury to her back.  Accordingly, the employee argues, the only conclusion is that the work injury caused a need for any subsequent medical treatment.  This conclusion, the employee asserts, is consistent with the opinions of Dr. Biebl and Dr. Rutzick.  For these reasons, the employee contends the compensation judge=s finding regarding the effects of her personal injury must be reversed.  We disagree.

 

Certainly, there is evidence in the case which, if credited by the compensation judge, would support a different result.  It is not, however, this court=s prerogative to substitute its judgment for that of the compensation judge.  Rather, on appeal, this court must determine whether the compensation judge=s findings and order are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1(3) (1992). Substantial evidence supports the findings if, in the context of the record as a whole, they are Asupported 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).

 

Dr. Paul Cederberg examined the employee in January 2004, and reported the employee had right lower back and buttocks symptoms without any objective findings.  Although the employee complained of pain down her right leg, the doctor noted the symptoms did not fit an anatomic distribution.  The doctor=s neurologic examination was normal and he concluded the employee=s injury had fully resolved.  Dr. Cederberg=s opinions were amply founded and the compensation judge could reasonably rely upon them in concluding the employee=s injury had fully resolved.  Further, the January 2003 MRI scan was normal.  The physical therapy reports document continued improvement in the employee=s condition from November 2002 through April 2003.  Despite the employee=s complaints of pain, Dr. Biebl=s physical examination in March 2004 was essentially normal as was that of Dr. Schwitzer in June and Dr. Hergott in December 2004.  Dr. Cederberg=s medical report together with other medical evidence provide substantial evidentiary support for the judge=s conclusion the employee=s personal injury had fully resolved by June 2004.  The compensation judge=s finding is affirmed.

 

2.  Unauthorized Change of Physician

 

The compensation judge denied the claim for Dr. Rutzick=s treatment from January 30 through March 17, 2003.  The judge found during this period of time the employee was under the care of Dr. Moen and the employee and/or Dr. Rutzick failed to obtain approval for a change of provider before commencing treatment.  Accordingly, the compensation judge concluded the insurer was not liable for the treatment under Minn. Rule 522l.0430, subp. 3.^[2]  We are compelled to conclude the judge erred in denying payment on this ground.

 

In Henschel v. Interfaith Social Services, slip op. (W.C.C.A. Oct. 2, 1995), this court held that reasonable and necessary medical treatment rendered prior to approval of a request to change physicians is compensable if a change of physician is ultimately granted.  See also,  Dawson v. University of Minesota, slip op. (W.C.C.A. May 6, 1999).  Thus, the employee=s failure to obtain approval prior to commencing treatment with Dr. Rutzick is not determinative.  The employee=s medical request was, in effect, a request for approval of a change of physician and the employee=s attorney clearly outlined this request to the compensation judge at the hearing.  Accordingly, to deny the treatment for lack of prior approval alone was clearly erroneous, and we remand the case to the compensation judge for further consideration.

 

3.  Emergency Room Treatment

 

The compensation judge found the employee=s treatment on June 23, 2004, was not related to the effects of the November 2, 2002, personal injury.  The employee contends the evidence is clear that the sole reason for the treatment was the personal injury.  Accordingly, the employee argues the compensation judge=s finding is unsupported by substantial evidence.  Again, we disagree.  We have affirmed the compensation judge=s finding that the employee=s personal injury resolved by June 2004.  Accordingly, the compensation judge could reasonably conclude the emergency room treatment rendered on June 23, 2004, was unrelated to the effects of the November 2, 2002, personal injury.  Affirmed.