AUDRE J. NEWBERG, Employee/Appellant, v. WALGREENS, and BROADSPIRE INS. CO., Employer-Insurer, and PREFERRED ONE/INGENIX, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 5, 2005

 

No. WC05-195

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE; PRACTICE & PROCEDURE - INDEPENDENT MEDICAL EXAMINATION.  The compensation judge did not abuse his discretion in admitting the IME report and there is substantial evidence, even in the absence of the report, to support the denial of the employee=s claim. 

 

Affirmed.

 

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

Compensation Judge: Gary P. Mesna

 

Attorneys: Michael D. Miller, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Appellant.  Krista L. Twesme, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s denial of her claims based on his determination that the employee=s December 16, 1999, work injury was temporary and from the compensation judge=s admission of an IME report which was filed more than 120 days after the filing of the employee=s claim petition. We affirm.

 

BACKGROUND

 

The employee, Audre Newberg, claimed workers= compensation benefits which she alleged were the result of a work injury she sustained at Walgreens on December 16, 1999.

 

The first medical records showing that the employee was having low back problems are dated September, 9, 1986, and are from her family doctors at the Bloomington Lake Clinic. She had been to an emergency room and reported that she still had significant pain in her low back. Spasm and ecchymosis in the lumbar paravertebral musculature were noted.  The records of the emergency room visit are not in evidence, although the clinic records refer to them for the medical history of the condition. On cross-examination at the hearing, the employee testified that this treatment was due to an injury sustained in her employment at the Veterans Administration but she did not recall specifics of the injury or her treatment or any lost time from work. There are no records of additional care for her low back until February 26, 1987, when the employee telephoned her doctor at the Bloomington Lake Clinic about persistent back pain and was supplied with a back brace.

 

During the summer and early fall of 1987 the employee treated  for persistent low back symptoms. She returned to the Bloomington Lake Clinic in June 1987, reporting persistent pain in her low back, particularly at the L5-S1 level.  Pain and spasm were again present on exam in the employee=s paravertebral musculature.  She reported that her pain would worsen when rising from a chair or when turning from side to side.  According to the chart notes, X-rays were done which suggested early degenerative changes, but the x-ray reports are not in evidence.  The employee was advised to avoid bending and stooping and a CAT scan was ordered.  The report of the CAT scan is not in evidence.

 

The employee returned to the clinic on July 6, 1987, reporting that she now had pain radiating down the left leg and continued to have considerable pain in the low back, particularly in the paravertebral musculature.  She had tried to go back to work but had been unable to do so since June 22. Physical therapy was recommended. The employee apparently returned to work around August 23. After medical treatment, consisting of medication, physical therapy, and work hardening, the employee noted improvement and told her doctor on September 14, 1987, that, although she continued to have some pain in the paravertebral muscles, her symptoms were generally much better.  She declined further physical therapy or work hardening which were offered at that time.

 

The employee=s medical records do not show any further treatment for her low back during 1987 and 1988.  However, when seen for a variety of medical issues at the Bloomington Lake Clinic on September 18, 1989, the employee noted that she had been having recurring pain in the mid lumbar spine, which worsened when she would shift positions or when she would get in or out of bed or a chair. In July 1996 the employee was treated for a fracture of the coccyx after she fell down a flight of stairs and landed on her tail bone. Over the next few years the employee had occasional backaches but none she considered serious.  She did not seek medical treatment for her back during this period.

 

The employee began working for the employer, a Walgreens drug store, in March 1998 as a pharmacy technician.  Her duties included filling prescriptions, calling physicians about refills, and waiting on customers both at the pharmacy counter and at a drive-through window.  She testified that the operation of the drive-through window sometimes involved twisting and bending when she turned away from the window to obtain prescriptions from shelves or to ring up  purchases.

Throughout 1998 and most of 1999 the employee continued to have intermittent back pain as before but did not consider the symptoms so severe as to require medical attention.

 

The employee testified that on December 16, 1999, she was working at the drive-through window when she Atwisted wrong@ and experienced an onset of intense back pain.  She testified that although she had previously had Aflare ups@ of her back pain none had ever been so intensely painful.  The employee told the pharmacist that she needed to go to her doctor.  She was excused from work and went to the Bloomington Lake Clinic where she was seen by Dr. Lisa Soldat on December 16.

 

Dr. Soldat recorded that the employee apparently  had a long history of back problems centered in the low back, for which she had been taking Flexeril and Ibuprofen Aintermittently for a long time.@  Her symptoms usually resolved within a day or two.  Recently, she had noticed pain after work on December 14, 1999 which had then increased the next day to a more severe level and which had caused her to be unable to work.^[1]  Dr. Soldat diagnosed an acute musculoskeletal low back strain.  The doctor ordered physical therapy and prescribed pain medications.  She also took the employee off work until December 20, 1999, and recommended that she work at a light duty level until January 2, 2000.

 

The employee returned to Dr. Soldat on January 17, 2000 and reported that she had been making progress in physical therapy.  She reported during the examination that she had Ano pain at this particular time@ but thought she might need further physical therapy as she had noted that her pain worsened whenever she worked at the drive-through window.   Dr. Soldat continued physical therapy and restricted the employee from working in the drive-through window Aat least until her back is healed.@  The employee was given a prescription for a back brace.

 

On March 6, 2000, the employee returned after completing the physical therapy sessions and told Dr. Soldat that she felt her back was almost back to normal. On exam, Dr. Soldat noted, ABack is supple. Formal exam not completed.@ Dr. Soldat=s assessment was of resolved back pain. Dr. Soldat recommended that the employee continue with back strengthening exercises at home and that she should try to limit the amount of time she worked at the drive-through window at work.  She told the employee to follow up if her symptoms worsened. The employee saw Dr. Soldat on several occasions during the remainder of the year for a variety of medical concerns but no mention is made of any low back complaints during this period.

 

On January 4, 2001, the employee saw Dr. Soldat for a physical exam.  At that time, she mentioned persistent low back pain as a current issue.  Dr. Soldat=s assessment included a history of intermittent muskuloskeletal low back pain.  There is no record of treatment specifically for low back pain. There is no further mention of low back symptoms in the employee=s medical records during 2001. Dr. Soldat again listed intermittent musculoskeletal low back pain among the employee=s diagnoses in the chart note recording the employee=s annual physical examination on February 18, 2002.  No further mention of back symptoms appears in medical records during 2002.

 

In October 2001, the employee quit her job with the employer to take a better-paying job working for Fairview Hospital as a pharmacy technician.  However, she was dismissed from that job at the end of her 90-day probationary period.  The employee then returned to the employer seeking to return to her old job.  The employer had already replaced her, but offered her part-time work on an on-call basis.  The employee took this on-call job, but over time fewer and fewer hours became available and by the summer of 2002 she was effectively no longer working for the employer.  She has not worked since.

 

On October 24, 2003, Dr. Walter A. Hinck, a physician with the Bloomington Lake Clinic, wrote a letter responding to a letter to Dr. Soldat from the employee=s attorney.  Dr. Hinck reported that Dr. Soldat was not available to reply as she had left the clinic=s practice as of the end of September 2003.  Dr. Hinck  noted that his opinion was based on a review of the clinic records as he had not treated or examined the employee.  He opined that the employee=s symptoms had been aggravated by work activities identified in the chart notes on December 16, 1999.  He further noted that she continued to have Aat least a low level of pain that flares intermittently,@ and advised that she Ause appropriate body mechanics, avoiding excessive bending and twisting.@  He suggested that the employee return to the clinic for a followup evaluation if further recommendations were needed.

 

The employee returned to the Bloomington Lake Clinic on December 26, 2003, and reported that she had been experiencing chronic low back pain since December 1999, when her pain developed while sitting at work at Walgreens.  Examination disclosed normal reflexes, an almost full range of motion, and no radicular symptoms.  There was no localized tenderness in the low back.  X-rays showed mild degenerative changes in the lumbosacral spine.  The employee declined a suggestion for physical therapy, stating that she wanted to think about it.  She also declined further testing until it was determined whether the costs would be covered by workers= compensation.

 

The employee filed a claim petition on January 7, 2004, alleging entitlement to temporary total disability compensation from December 20, 1999, through January 2, 2000, and from June 2002 to the present and continuing, and to temporary partial disability compensation from January 3, 2000, through June 2002.  The claim petition also sought a rehabilitation consultation and reimbursement for treatment at the Bloomington Lake Clinic. On January 26, 2004, the employer and insurer filed an answer admitting a low back injury on December 16, 1999, but denying the employee=s claims for benefits, alleging that the injury was temporary in nature and had resolved without any disability or need for restrictions.

 

The employee was examined by Dr. Robert A. Wengler on April 26, 2004, at the request of her attorney.  Dr. Wengler diagnosed single-level degenerative disc disease of the lumbar spine.  He rated the employee with a seven percent permanent partial disability.  He recommended a ten-pound lifting restriction and that the employee limit repetitive bending or stooping.  Dr. Wengler noted that the employee had experienced significant back difficulties for a number of years prior to December 16, 1999, which he attributed to a developing degenerative disc at the L5-S1 level.  However, he opined that the employee=s lumbar spine had Adecompensated@ as a result of the work activities on that date, and that this represented a Amaterial aggravation@ of her pre-existing condition and led to Aprobable segmental instability of this segment.@  Dr. Wengler did not have any treatment recommendations.  He did recommend that the employee undergo a diagnostic lumbar spine MRI.

 

The employer and insurer scheduled and then, for reasons not set forth in the formal record, rescheduled a medical examination of the employee on at least one occasion, eventually requesting that the employee attend an examination by Dr. Robert Barnett, Jr., on May 28, 2004.^[2] The date of this examination was more than 140 days after the employee had served and filed her claim petition.  The employee attended this examination without objection.

 

Dr. Barnett diagnosed non-radicular regional low back pain with subjective symptoms and a level of disability unsupported by findings on physical examination.  He opined that the employee had sustained a musculoligamentous low back strain in December 1999 which had resolved with no permanent partial disability by March 6, 2000, when Dr. Soldat had noted normal flexion and the employee had reported her subjective symptoms to be almost normal.  Dr. Barnett offered the opinion that medical treatment for the low back after that date was unrelated to the work injury, and was neither reasonable nor necessary.  He concluded that the employee had not been totally disabled at any point following the date of the alleged injury.  In his view, the employee did not currently require any restrictions or medical treatment for her low back.

 

The employer and insurer served Dr. Barnett=s report on the employee on July 7, 2004.  A few days later, in a letter dated July 9, 2004, the employee=s attorney notified counsel for the employer and insurer that she was amending her claim petition to assert a claim for permanent partial disability compensation pursuant to Dr. Wengler=s opinion.  On March 15, 2005, the employee=s attorney noted in a letter to counsel for the employer and insurer that objection would be made to the report of Dr. Barnett as having been served more than 120 days after the service of the claim petition.^[3]

 

The employee=s claims were heard by a compensation judge on April 13, 2005.  As an initial matter, the employee objected to Dr. Barnett=s report on the basis that it was served more than 120 days after service of the claim petition.  The compensation judge heard argument by counsel on the objection and then ruled to receive that report.  Following the hearing, the compensation judge found that the employee=s December 1999 work injury was a temporary low back strain which resolved by March 6, 2000.  The compensation judge found the employee=s claims were not causally related to the 1999 work injury and denied the claims. The employee appeals.

 

DECISION

 

The employee argues on appeal that the compensation judge clearly erred in admitting the report of Dr. Barnett.  She further contends that, in the absence of this report, substantial evidence fails to support the finding of a temporary, rather than permanent injury.  The employee points out that the report of Dr. Barnett was not served within 120 days of the service of the claim petition.  Minn. Stat. '176.155, subd. 1, provides that where the report is not filed within the 120-day period, A[n]o evidence relating to the examination or report shall be received or considered.@  The statute permits a compensation judge to extend the time for the completion and filing of an IME report for good cause.  The parties argued the applicability of this statute before the compensation judge.

 

In Bey v. Oxford Properties, 481 N.W.2d 40, 46 W.C.D. 198 (Minn. 1991), the Minnesota Supreme Court overturned this court=s decision reversing a compensation judge=s admission of a report served past the 120-day deadline.  This court had held that the statutory language requiring exclusion was mandatory unless the employer and insurer obtained an extension within the 120-day period.  The supreme court, however, noting that the statute set forth no time limit for an extension, treated the compensation judge=s admission of the report at hearing as constituting the grant of an implied application for extension.  The supreme court in Bey further held that since the employee had attended the late examination without objection, had failed to object to the report=s admissibility until the date of hearing, and had herself delayed the hearing by a change of counsel, she had waived noncompliance by the employer and insurer in the service of the report.  Since Bey, this court has regularly reviewed rulings admitting or denying such reports under the standard of whether the compensation judge=s ruling represented an abuse of discretion.

 

The parties have extensively argued this issue in their briefs.  While the employer and insurer point to many similarities to the facts in Bey, the employee has argued that the cases should be distinguished.  The employee also objects to the absence of a written affidavit by the employer and insurer to create a factual record justifying Agood cause@ for an extension.  The employer and insurer, on the other hand, argue that good cause was present for an extension and that the compensation judge=s ruling was not an abuse of discretion.  On the basis of the record before us, we conclude that the compensation judge did not abuse his discretion by admitting the report of Dr. Barnett.

 

Even in the absence of Dr. Barnett=s report, there is substantial evidence to support the compensation judge=s denial of the employee=s claims.  The employee had a pre-existing degenerative disc condition for more than 10 years before she sustained the December 1999 work injury.  Her symptoms would flare up from time to time and then return to baseline.  She continued to have such backaches on an intermittent, recurring basis up to the inception of her job with the employer.  Her pain typically worsened with twisting or bending.  The December 16, 1999, incident similarly involved increased pain after twisting.  The symptoms were different only in being worse than they were previously.

 

On March 6, 2000, the employee told her doctor that her back had returned almost to normal and the exam on that date was normal.  Thereafter she did not seek further medical treatment for the low back until December 2003, and then apparently only in conjunction with the litigation over her workers= compensation claim.  Her examination in December 2003 revealed normal reflexes and an almost full range of motion, with no localized tenderness in the low back.  X-rays simply revealed mild degenerative changes consistent with the pre-existing degenerative disc disease.

 

There was similarly little evidence that the employee had any ongoing disabling effects in her employment from the December 16, 1999, work injury.   After the injury, the employee was able to return to work on a light duty basis after about a week and then to her regular pre-injury job by January 2, 2000, being at first simply advised to limit her work at the drive-through window.   She continued working in her pre-injury job for the employer until some time in October 2001 when she left that job to begin a better-paying job as a pharmacy technician with Fairview Hospital. There was no evidence, nor any contention, that the employee left, or was unable to perform either job, for medical reasons connected with the 1999 work injury.  The employee then returned to work for the employer on a part-time, on-call basis in  the same, pre-injury job. It was lack of work, rather than any inability to perform the job, that caused that job to end.

 

Thereafter, the employee testified, she conducted no job search until after her deposition was taken in March, 2004.  Subsequent to that, she began a job search primarily consisting of reading the newspaper employment advertisements on Wednesdays and Sundays.  The employee could only identify two places where she had actually inquired after work, a pizza restaurant and a convenience store.  The compensation judge could reasonably conclude that the employee had failed to demonstrate that her work injury had resulted in the alleged temporary total disability.

 

The employee=s case otherwise relied principally on the opinion of Dr. Wengler, who examined her on April 2004 and offered the opinion that the December 1999 work injury was a material aggravation of the employee=s pre-existing condition.  The ultimate determination of medical causation is within the province of the compensation judge.  Felon v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). The compensation judge reviewed Dr. Wengler=s opinion, the medical records from the employee=s treating physicians, and the employee=s testimony and other documents in the record, and determined that the evidence did not support a conclusion that the employee=s December 1999 work injury benefits claimed.  The compensation judge=s findings are affirmed.