DEBORAH KRACHMER, Employee/Appellant, v. CARDINAL OF MINN., LTD., and VIRGINIA SURETY MIDWEST, Employer-Insurer, and HEALTH DIMENSIONS REHAB., INC., MINNESOTA DEP’T OF LABOR & INDUS./VRU, and MAYO CLINIC, Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
JULY 29, 2009

No. WC09-115

HEADNOTES

CAUSATION - PSYCHOLOGICAL CONDITION; CAUSATION - AGGRAVATION.  While substantial evidence supported the compensation judge’s conclusion that the employee did not develop complex regional pain syndrome as a result of her work-related wrist injury, remand for additional hearing was required for resolution of the issue of whether the work injury substantially aggravated or accelerated the employee’s preexisting psychological condition.

Affirmed in part and vacated and remanded in part.

Determined by: Wilson, J., Stofferahn, J., and Johnson, C.J.
Compensation Judge: Carol A. Eckersen

Attorneys: Steven S. Fuller, Fuller Law Firm, Rochester, MN, for the Appellant.  David J. Klaiman and Andrew M. Grimsrud, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.

 

OPINION

DEBRA A. WILSON, Judge

BACKGROUND

The employee was working for Cardinal of Minnesota, Ltd. [the employer], as a lead staff person on March 6, 2007, when she fell at a client’s house and injured her left wrist.  She was diagnosed with a triquetral fracture of the left wrist, with a full-thickness tear of the trianglular fibro-cartilage ligament.  On March 8, 2007, she was placed in a cast that held her hand and wrist straight.  A new cast was applied on March 21, 2007, and, on April 16, 2007, that cast was removed, and the employee’s wrist was put in a gutter splint.

On May 1, 2007, the employee was seen by certified nurse practitioner Alice Kaasa, complaining of swelling in her fingers and numbness of her left thumb.  On exam at that time, it was noted that the employee had very little movement in the fingers or wrist.  The splint was removed and replaced with an ACE bandage.  The employee was told to “get the hand moving” and was referred to an orthopedist, Dr. Matthew Kirsch.

The following day, on May 2, 2007, the employee was seen by Dr. Scott Holtz, complaining of persistent swelling in her hand, numbness in the thumb, and “just pain disproportionate to the injury itself ongoing.”  Dr. Holtz described the employee’s pain as diffuse in nature and noted that the employee refused to supinate her arm.  He advised her to get out of the ACE bandage and put her in a slip-on cock-up wrist splint.  He also advised her to supinate and pronate the arm liberally throughout the day.

An MRI of the employee’s left wrist performed on May 11, 2007, demonstrated a full-thickness TFCC tear, a tiny chronic ununited fracture of the dorsal aspect of the triquetrum, significant tenosynovitis, scattered degenerative changes, and dorsal subluxation of the ulnar head, as well as scapholunate widening.

When examined by Dr. Kirsch on May 17, 2007, the employee rated her pain as a 7 out of 10.  Dr. Kirsch removed the ACE bandage and noted that the employee held her wrist in 30 degrees of flexion and that there was diffuse edema from the distal forearm through the metacarpals.  He also noted that her skin was thin and “shiny-appearing,” that she had hypersensitivity to light touch, and that she was unable to pronate, supinate, or flex/extend the wrist to any significant degree.  It was Dr. Kirsch’s opinion that the employee had developed complex regional pain syndrome [CRPS] stemming from her left wrist injury.  He referred her to physical therapy and to the Mayo Clinic for further evaluation.

The employee had an occupation therapy evaluation on May 22, 2007.  At that time, the therapist noted that the employee presented wearing a plaster splint with ACE bandage.  When the splint and bandage were removed, the employee’s hand appeared very stiff and claw-like, with her wrist in a position of 30 degrees of flexion.  It was difficult to gain range of motion due to the employee’s hypersensitivity.  The therapist recommended a resting hand splint to prevent contracture of the left wrist in the 30 degrees of flexion, but the employee was unable to tolerate the palmar abduction of her thumb.  The employee was encouraged to attempt range of motion exercises with her fingers to prevent contracture.

The employee was seen in the Hand Clinic at the Mayo Clinic on June 1, 2007.  On examination, Dr. Matthew Wallace noted skin changes as well as a shiny surface to the employee’s hand.  The employee’s grip and pinch strength were measured at 0, and she was severely limited on active and passive range of motion of her fingers and wrist.  Dr. Wallace noted that the employee’s wrist sat at 40 degrees of flexion and that any amount of movement was very painful.  He diagnosed CRPS, scapholunate widening, TFCC tear, and chronic ununited fracture of the dorsal aspect of the triquetrum.  The employee was fitted with a volar cock-up splint and resting splint.  Doctors in the Hand Clinic advised the employee of the importance of physical therapy and improving range of motion in her fingers and wrist.  The employee was also advised that she should not use any more ACE bandages and that she should not keep her hand cocked in flexion.

The employee was examined by Dr. Keith Bengtson on June 6, 2007, at which time he noted that the employee had very little movement of the left wrist and hand.  He also noted the presence of edema and very scaly skin and reviewed a bone scan, which was markedly positive for increased uptake in the carpus and periarticular areas on the left.  An autonomic screen was also positive for asymmetry in the autonomic functions.  Dr. Bengtson diagnosed left upper extremity CRPS and wrote a prescription for daily physical therapy.

On June 11, 2007, the employee underwent a stellate ganglion block.  A few days later, on June 15, 2007, Dr. Bengtson noted that the employee had experienced no pain relief distally from the elbow from the block and that physical therapy did not seem to be of benefit.  On exam, he noted hair growth changes on the dorsal radial aspect of the wrist, as well as considerable swelling and shininess of the skin.

The employee underwent an axillary block, performed on June 28, 2007, by Dr. P.E. Carns in the Pain Clinic of the Mayo Clinic, followed by physical therapy.  When the employee presented to physical therapy, she had no feeling, due to the block, in the left upper extremity from the distal arm to the finger tips.  The therapist noted that she was able to stretch the wrist into extension and supination and “was able to work the hand more this session.”  The employee’s splint was changed to increase the extension of her wrist.

On July 5, 2007, Dr. Bengtson again noted swelling over the dorsum of the employee’s hand, her wrist was in a fixed flexion to 40 degrees, and she exhibited very little finger movement.  Dr. Bengtson also reported that the physical therapist had only been able to “get some mild leeway” in range of wrist motion at the employee’s session following the axillary block, and he requested that the employee follow up with the Pain Clinic.

During that follow-up on July 16, 2007, Dr. Carns noted that the only improvement that the employee had noticed was that, with her brace, she had a little more extension of the wrist.  Dr. Carns again noted the shiny appearance of the employee’s skin and opined that the sympathetic block had not provided any real benefit.  He recommended no additional injection therapy at that time but, instead, aggressive physical therapy.  The employee’s splint was adjusted following that appointment.

On July 30, 2007, the employee filed a claim petition seeking temporary total and temporary partial disability benefits, medical expenses, and rehabilitation assistance, as a result of the March 6, 2007, injury.  On the claim petition, the employee described her injury as a fracture of the triquetrum, left upper extremity, with TFCC tear, scapholunate widening, and CRPS.

On August 16, 2007, after a month of hand therapy, five times a week, the employee returned to Dr. Bengtson, who opined that the employee had continued to worsen “despite the best efforts of the therapists.”  Dr. Bengtson found “fixed flexion deformity of the left wrist at approximately 75 degrees” with swelling, and he suggested a trial of ongoing catheterization over a four- to five-day period.  On that same date, the therapist noted that the employee was no longer able to tolerate the wrist splint secondary to increased flexion deformity of the fingers and wrist.  She also indicated that she could no longer “passively get the wrist into any extension” and that the employee’s position of comfort was about 30 degrees of wrist flexion with finger flexion.  A new splint was fabricated to keep her in that position.

            On October 2, 2007, Dr. Bengtson noted that the employee had declined to undergo the recommended catheterization because of the risk that her symptoms might worsen.  On exam, the employee’s wrist was “stuck in 70 degrees of flexion,” with limited movement of her thumb, index, and long finger but “absolutely, no movement of the ring and small finger on the left.”

Dr. Bengtson’s records reflect that by October 10, 2007, the employee had considerable swelling in the left hand, with a flexion contracture of 90 degrees.  The employee’s splint was adjusted for improved comfort.  On November 26, 2007, Dr. Bengtson reported that the employee’s wrist was at approximately 95 degrees of flexion and that there was further flexion of the digits.  Dr. Bengtson also noted further supination of the employee’s forearm and that her shoulder continued to be quite stiff.  According to Dr. Bengtson, the employee was not technically at maximum medical improvement [MMI], but his temporary estimation of her impairment was 75% of that applicable to amputation at the shoulder girdle.  By this point, the employee was having difficulty with activities of daily living.  Her splint was again adjusted.

The employee underwent an independent medical examination, performed by Dr. Larry Stern, an orthopedic surgeon, on November 8, 2007.  In his report of that date, Dr. Stern wrote that the employee’s wrist was held in 90 degrees of flexion, “with all of her fingers curled inwards toward her palm.”  The employee complained of pain with light touch, but Dr. Stern noted no skin color difference, no reticulated abnormality, no trophic skin changes, no excessive goose bumps, no excessive sweating or dryness, and no difference in temperature of the left hand when compared with the right.  On exam, he also noted loss of range of motion in the elbow and shoulder.  Dr. Stern diagnosed a left wrist fracture with ligament tear and hysterical conversion reaction.  He went on to opine that the employee was not suffering from reflex sympathetic dystrophy and that the employee’s conversion reaction was not caused by the work injury.

The employee also underwent an independent medical examination with psychiatrist Dr. Thomas Gratzer.  In his report of January 15, 2008, Dr. Gratzer diagnosed the employee with generalized anxiety disorder, somatization disorder, and personality disorder not otherwise specified.  It was his opinion that the employee’s diagnoses preexisted the 2007 work injury and were “not related to physical stresses associated with the March 6, 2007 injury.  Rather, her somatization disorder masquerades as a physical condition.”

The employee was also examined by licensed psychologist Dr. John Cronin for a chronic pain evaluation.  In a report dated January 17, 2008, Dr. Cronin diagnosed pain disorder associated with both psychological factors and a general medical condition and major depressive disorder, recurrent.  It was his opinion that the employee was exhibiting an emotional reaction to the work injury, in the form of depression, and that the employee met the criteria for chronic pain syndrome.  It was also his opinion that the employee had sustained a psychological injury as a result of her 2007 work injury, warranting a Weber permanent partial disability rating of 33%.

            The claim petition proceeded to hearing, and, in findings and order filed on January 20, 2009, the compensation judge found that the employee had not established that the work injury was a substantial contributing cause of her psychological condition, had not established she had CRPS, and had not established that she has a permanent partial disability as a result of the March 6, 2007 injury.  The employee appeals.

STANDARD OF REVIEW

On appeal, the Workers’ Compensation Court of Appeals 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 (2008).  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 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).

DECISION

1.  CRPS Diagnosis

At hearing, the parties stipulated that, at a minimum, the employee had sustained a fracture of her left wrist, with a ligament tear, at the time of her injury on March 6, 2007.  In addition to those conditions, the employee was claiming that she had CRPS as a result of the injury and that she was entitled to benefits for a 45% permanent partial disability for that condition.  Neither attorney made an opening statement at hearing, but both offered closing arguments.  In his closing, the employee’s attorney argued that the employee suffers from CRPS, contending, “you can agree with Dr. Bengtson that she does qualify under the RSD definition and just rate her the way that he did [or] [y]ou can find that she has something such as chronic pain syndrome with a sympathetic component and use the RSD for a Weber.”

The compensation judge found that “Dr. Bengtson’s opinions are not persuasive that the employee has CRPS” and concluded that the employee “has not shown that the nature of the injury to her left upper extremity is . . . complex regional pain syndrome.”  On appeal, the employee argues that there is “no evidence to support a conclusion that the employee does not have a sympathetic system problem.”  We disagree.

We begin by noting that there is certainly evidence that a judge could have accepted that the employee suffers from CRPS related to her work injury.  However, the issue on appeal is 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 (3).  The compensation judge expressly adopted the opinions of Dr. Stern, who opined that the employee does not suffer from CRPS.  A judge’s choice between expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W. 2d 337, 37 W.C.D. 364 (Minn. 1985).   In this case, the facts assumed by Dr. Stern are supported by the evidence.

In his report and deposition, Dr. Stern explained that one of the reasons he did not believe that the employee suffers from CRPS is that she does not qualify for a permanency rating for reflex sympathetic dystrophy under Minn. R. 5223.0420, subp. 7, which requires that an individual have at least five of eight listed symptoms to qualify for a permanent partial disability rating.  We agree with the employee’s contention that satisfying the requirements listed by the permanency rule is not necessary to qualify for a diagnosis of CRPS.  See Ellsworth v. Days Inn/Brutgers Equities, slip op. (W.C.C.A. June 8, 2007).   However, Dr. Stern gave two other reasons for his opinion that the employee does not suffer from CRPS.  The first such reason is that, in his view, the employee’s hand position is “completely incompatible” with that diagnosis, in that the position of a hand with CRPS is “one of neutrality.  That is to say it’s not bent up, it’s not bent down.”   Dr. Stern’s second basis for rejecting a CRPS diagnosis was that the employee did not respond to the sympathetic nerve block.  In this regard, he explained that a patient suffering from CRPS has a malfunctioning sympathetic nerve system and that, if that diagnosis is correct, an injection into the sympathetic nerve system will cause the patient’s pain to improve.  “If you knock out the sympathetic nerve system, your pain has to get better.  If it doesn’t, it means that the patient’s pain is not caused by the sympathetic nerve system.”

In the final analysis, we have two doctors, one an orthopedic surgeon, Stern, and one a doctor of physical medicine and rehabilitation, Bengtson, with very different opinions.  There is no evidence that either doctor is unqualified to render an opinion on the issue of CRPS, and there is also no evidence that either doctor relied on facts not supported by the record.  We must therefore defer to the judge’s choice of expert opinions and affirm the judge’s denial of the employee’s claim that she suffers from CRPS as a result of her work injury.

2.  Psychological Condition

Dr. Cronin diagnosed the employee as having a pain disorder associated with psychological factors and a general medical condition, and major depressive disorder, recurrent, both related to the work injury.  The compensation judge found that Dr. Cronin’s opinions were not persuasive.  To the extent that the employee appears to be arguing on appeal that substantial evidence does not support the judge’s finding in this regard, we are unpersuaded.

As pointed out by the compensation judge, Dr. Cronin evidently based his pain disorder diagnosis in part on his understanding that the employee suffers from CRPS.  That is, when he discussed the “physical injury” giving rise to the employee’s psychological issues, he was not referring to the fracture or ligament tear.  However, we have affirmed the judge’s denial of the employee’s claim for CRPS.  As such, because Dr. Cronin was relying on facts not supported by the evidence, it was reasonable for the judge to reject Dr. Cronin’s opinion that the employee is suffering from a pain disorder related to her work injury.  As for his diagnosis of major depression, Dr. Cronin’s own testing did not support that diagnosis.  We therefore affirm the judge’s decision that the employee did not prove that she developed a pain disorder or major depression related to the work injury.

The compensation judge apparently accepted Dr. Stern’s opinion that the employee is suffering from a hysterical conversion reaction.   On appeal, the employee appears to argue that, as an orthopedic surgeon, Dr. Stern does not have the foundation to make such a diagnosis.  In a footnote in her brief, however, the employee admits that Dr. Gratzer “essentially agreed with Dr. Stern,” thus rendering the foundation argument less significant.   In any event, foundation goes to the competency of a witness to provide an expert opinion, which is dependent on the witness’s scientific knowledge and practical experience with the subject matter of the offered testimony.  Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A. 1996).  As a medical doctor, Dr. Stern had foundation to make the diagnosis that he did.

The employee also argues on appeal that Dr. Stern’s opinion is faulty because he based that opinion on “the employee intentionally holding her left hand/wrist/fingers in hyper-flexion for a period of at least several weeks.”  However, we find nothing in the record to suggest that Dr. Stern had assumed that the employee ever intentionally held her hand in that position.

Dr. Stern testified that a hand held in a position of flexion at the wrist and fingers will start to develop joint contractures after about three weeks, and he related the employee’s contractures to a hysterical conversion reaction.  In his report, he opined that the work injury “is not the cause of the hysterical conversion reaction,” and that “it is not my opinion that the wrist injury resulted in a psychiatric condition, which resulted in the conversion reaction, etc., but, rather this was a preexisting mental condition . . . .”  In his deposition, he was asked if he had an opinion as to the cause of the employee’s hysterical conversion reaction, to which he replied, “I believe it’s related to a previous mental disorder.”

In the instant case, the judge found that the work injury was not a substantial contributing cause of the employee’s psychological condition and that the employee had not shown that she has a permanent partial disability.  Dr. Stern, however, did not address whether the employee’s preexisting psychological/psychiatric condition was aggravated or accelerated by the work injury, and a condition need not be “caused” by a work injury to be compensable.  It is enough if the injury aggravates or accelerates that condition.  In a letter dated October 7, 2008, Dr. Cronin, apparently responding to a hypothetical question, opined, “if we were to assume Ms. Krachmer had a pre-injury psychological condition, her physical work related injury would have aggravated that hypothetical psychological condition, thus aggravating her pre-injury psychological status.”

There is no real argument on appeal that the employee did not have a preexisting psychological/psychiatric condition, and there is similarly no dispute that, following the admitted work injury to her left wrist, the employee developed contractures of that wrist that hold her wrist in a position of 90 degrees of flexion.  Dr. Stern acknowledged that the employee’s left arm “is useless for any work activity or even for use for activities of daily living.”  Both Dr. Bengtson and Dr. Stern see this as a permanent condition, although Dr. Bengtson holds out hope that surgery might eventually help.

The compensation judge apparently concluded that the employee’s hand postition is caused by contractures and has accepted Dr. Stern’s opinion that the contractures are caused by a conversion reaction.  However, until there is a finding as to whether the employee’s work injury aggravated or accelerated her preexisting psychological/psychiatric condition, there can be no determination as to whether the employee has sustained any compensable permanent partial disability.  We therefore vacate the judge’s denial of benefits and remand the matter for hearing on the issues of whether the employee’s work injury aggravated or accelerated her preexisting psychological/psychiatric condition; if so, whether she has reached maximum medical improvement; and whether she is entitled to permanent partial disability benefits for the resulting condition of her left upper extremity.   We recognize that additional testimony and evidence will be required.