TANISE N. WALKER, Employee/Appellant, v. FIRST TRANSIT, INC., SELF-INSURED/GALLAGHER BASSETT SERVS., INC., Employer-Insurer, and CENTRAL MED. CLINIC, L.L.C., and PROFESSIONAL ASSOCS. OF REHAB., Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 21, 2012

No. WC11-5338

HEADNOTES

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, in the form of a medical opinion with adequate foundation, supports the compensation judge’s denial of the employee’s claim that she injured her entire back in a work-related fall and the compensation judge’s consequential denial of claims for medical expenses and permanent partial disability.

Affirmed.

Determined by: Stofferahn, J., Wilson, J., and Milun, C.J.
Compensation Judge: Adam S. Wolkoff

Attorneys: Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Appellant.  Michael J. Patera, MacMillan, Wallace, Athanases & Patera, Annadale, MN, for the Respondent.

 

OPINION

DAVID A. STOFFERAHN, Judge

The employee appeals from the compensation judge’s determination as to the extent of her February 14, 2011, work injury and the denial of her claims for benefits related to that injury.  We affirm.

BACKGROUND

Tanise Walker began working for First Transit in November 2007 as a reservation and data entry clerk.  In her job she made and cancelled reservations for customers and entered time cards and time sheets into a computer.  Her job primarily involved computer work but she also counted money in fare boxes.  Ms. Walker counted money from twenty to twenty-five fare boxes in a day.

On February 14, 2011, as Ms. Walker was walking from her car to start her work day, she slipped on ice in the parking lot and fell backwards, landing on her buttocks and then falling onto her back.  She testified that she felt immediate pain in her tailbone, low back, and upper back and reported the injury to her supervisor that day.  She completed an incident report on which she identified her pain as being limited to the middle of her low back below her waist.

Ms. Walker sought medical care for her work injury the next day and went to Minnesota Occupational Health where she saw Dr. Rocklin Shir.  She provided a history of her fall to Dr. Shir and complained of “localized pain.”  Ms. Walker testified she was not examined by Dr. Shir but his chart notes state that he found tenderness “over the low to sublumbosacral midline to the coccyx.”  X-rays showed a nondisplaced coccyx fracture and this was Dr. Shir’s diagnosis.  Dr. Shir prescribed vicodin and recommended the use of an inflatable chair donut.  Dr. Shir also released the employee to work with restrictions of limited lifting and sitting.

Ms. Walker returned to Dr. Shir on February 21.  She told Dr. Shir that she had pain “diffusely from her neck, upper, and middle as well as lower back” and that she was not able to work “even four hours secondary to pain.”  The employee testified that she was not examined by Dr. Shir on this date but his chart notes indicate that he found tenderness throughout the spine and some weakness in the left leg, “involving the L5 distribution.”  Dr. Shir recommended an MRI scan and took the employee off work until he was able to review the MRI findings.

The MRI scan was done on February 22 and was read as being a “normal MR of the lumbar spine.”  Ms. Walker returned to Minnesota Occupational Health on February 24 and saw Dr. Austin Indritz.  She reported that she continued to have pain in “her low back, sacral area, and upper back.”  Dr. Indritz found some tenderness to palpation in the upper and lower back.  He added ibuprofen to Ms. Walker’s prescriptions, recommended continued use of the chair donut pillow, and prescribed physical therapy.  Dr. Indritz also released her to work full time with limitations on prolonged sitting and lifting no more than ten pounds continuously and twenty pounds occasionally.

Also on February 24, Ms. Walker went to West Side Community Health Services where she saw a physician’s assistant.  Ms. Walker testified that she felt her complaints had been ignored by the doctors at Minnesota Occupational Health and she decided to seek care elsewhere.  She told the physician’s assistant that she had pain in her entire back, and on exam, tenderness was found in the cervical, thoracic, and lumbar muscles.  Physical therapy and home exercises were prescribed, and the employee was taken off work for one day so that the MRI results could be reviewed.

Ms. Walker did not begin physical therapy or return to West Side Community Health.  Instead, she began treating with Dr. Alfonso Morales at Central Medical Clinic in St. Paul.  Dr. Morales’ letterhead identifies him as a Diplomate of the American Board of Pain Medicine.  Ms. Walker testified that a friend had given her Dr. Morales’ name and she decided to go there because his office was closer to her home.  She first saw Dr. Morales on February 28, 2011, and treated with him a number of times after that, with the last visit before the hearing being on August 10, 2011.

At the time of her first visit with Dr. Morales, the employee stated her symptoms began with her work injury in February and that she now had neck pain, mid-back pain, lower back pain, pain in her legs, and daily headaches.[1]  Initially, Dr. Morales prescribed anti-inflammatory and pain medications.  He also allowed Ms. Walker to work fulltime with restrictions on lifting and prolonged sitting that were similar to those set by Dr. Indritz.  When she returned on March 2, Ms. Walker reported “severe pain” and said pain was “nine to ten on a scale of ten.”  Dr. Morales recommended physical therapy and restricted Ms. Walker to four-hour work shifts.

The employer’s general manager testified at the hearing as to the modifications that were made to Ms. Walker’s duties.  Her work station was changed by adding a second computer and keyboard to a wire cart which allowed her to do computer work either sitting or standing.  She was not required to do any cash counting from fare boxes and these duties were handled by coworkers.  When a suggestion was made that Ms. Walker should avoid climbing stairs, her work station was moved to the first floor.  These modifications were later abandoned when Ms. Walker advised the employer that they were not helping her pain.

Ms. Walker returned to Dr. Morales on March 14 after participating in physical therapy.  She still complained of pain at a level of “eight or nine on a scale of ten.”  Dr. Morales recommended continued physical therapy and restricted her to work no more than four hours a day.

A cervical MRI was done at the end of March.  The MRI report is not in evidence but the MRI was noted by Dr. Morales as being “negative for any disc herniation or foraminal compromise.”  On March 29, Dr, Morales noted Ms. Walker had completed physical therapy.  No improvement was reported and Dr. Morales recommended continued physical therapy as well as trigger point injections.  Trigger point injections in the cervical area were done on April 12.  Dr. Morales noted at that time that the employee was continuing to receive chiropractic care.  Additional therapeutic injections in the cervical and lumbar spine were done on April 29.  The employee was also continuing physical therapy twice a week.  The employee testified at the hearing that the injections in fact increased her pain and as a result Dr. Morales took the employee off work for two weeks.

When Ms. Walker returned on May 13, Dr. Morales did cervical spine injections and allowed the employee to return to work four hours a day.  His chart notes for that date contain no indication as to whether the employee’s condition had improved or remained unchanged.  On May 31, however, Dr. Morales found tenderness in the cervical, parascapular, and lumbar spine.  Ms. Walker continued to complain of “pain throughout the neck and lower back as well as the right hip and right lower extremities.”  She was referred for a lumbar MRI.  There is no record of any such MRI in evidence, although Dr. Morales’ chart notes refer to reviewing subsequent MRI scans.

On June 13, Dr. Morales noted that Ms. Walker was working forty hours a week.  He recommended additional physical therapy, chiropractic care, and possible trigger point injections.

Ms. Walker testified that although her job had been modified, she found the work to aggravate her condition and she stopped working about June 29.  The employee had not returned to work as of the date of hearing.  When the employee saw Dr. Morales on July 13, he took her off work and he had not released her to return to work as of the date of hearing.

On July 19, Ms. Walker saw Dr. Sarah Carter at Physicians Neck and Back Clinic [PNBC].  She told Dr. Carter that she had continuous pain in her back and legs at a level of eight on a ten point scale and pain in her neck and arm at seven.  “Diffuse, not well localized tenderness” but no spasm was found on examination.  Dr. Carter noted “hypersensitivity palpation response.”  A short term physical therapy of two times a week for three weeks was recommended.  After physical therapy, Ms. Walker saw Dr. Caroline Mason.  Ms. Walker stated there was no change in her condition.  Dr. Mason found “varying range of motion and sensitivity” and recommended continued physical therapy.

Dr. Morales prepared a narrative report dated July 27, 2011, in which he concluded that Ms. Walker’s cervical spine injury had resolved but that she had permanent injuries to her thoracic and lumbar spine.  He also concluded she had reached maximum medical improvement [MMI] from her work injury and had 10% permanent partial disability of her lumbar spine and 2.5% disability of the thoracic spine.  Dr. Morales also concluded Ms. Walker could work with restrictions which allowed lifting up to forty pounds occasionally and up to twenty pounds frequently.  Dr. Morales’ last meeting with Ms. Walker before the hearing was on August 10, 2011.  It was noted that she was scheduled to have radiofrequency ablation on August 18.  Additional physical therapy was recommended and Dr. Morales completed a Work Ability Report in which he stated Ms. Walker was unable to work for the next four weeks.

Ms. Walker was evaluated by Dr. Gary Wyard at the request of the employer and insurer on June 16, 2011.  He issued a report on that date and also wrote a supplemental report on August 17 after receiving Dr. Morales’ report.  Dr. Wyard reviewed medical records, commented that cervical and lumbar MRI scans were normal and that her exams by treating physicians had no neurological findings.  Dr. Wyard conducted a physical examination that he said was normal, except for what he described as “gross functional overlay and excessive pain behaviors.”  Dr. Wyard concluded Ms. Walker had injured her coccyx at the time of work injury but that there was no injury to her neck, mid-back, or low back.  Dr. Wyard was of the opinion that she needed no work restrictions and had no permanent partial disability.  Dr. Wyard also stated that medical care related to the work injury was reasonable for one month after the injury but that no treatment after that had been needed.

A hearing was held before Compensation Judge Adam S. Wolkoff on August 25, 2011, as a result of various pleadings filed by the parties.  At the hearing, because of time constraints, the parties agreed to limit the issues to be decided to the nature and extent of the work injury, the extent, if any, of permanent partial disability, and the necessity and causation of medical treatment.  In his Findings and Order of September 22, 2011, the compensation judge found that Ms. Walker’s work injury on February 14, 2011, was a “non-displaced fracture of the coccyx” and that she did not sustain any further injury.  He also determined that Ms. Walker had sustained no permanent partial disability and that medical treatment for the coccyx fracture was reasonable and necessary for one month.  Further medical treatment was not reasonable and necessary or related to the work injury.  The employee has appealed.

DECISION

The initial question for the compensation judge’s determination was the nature and extent of the February 14, 2011, work injury.  He concluded that Ms. Walker sustained a non-displaced coccyx fracture when she fell and rejected her claim that she also injured her low back, mid-back and upper back.  The compensation judge’s denial of Ms. Walker’s claim for medical expenses and for permanent partial disability followed from his conclusion as to the nature and extent of her injury.  In making his determination, the compensation judge accepted the conclusions of Dr. Shir and Dr. Wyard and rejected the opinion of Dr. Morales.  On appeal, the employee argues that the compensation judge’s findings are inconsistent with the employee’s testimony and the medical records.  In addition, since Dr. Wyard’s opinion was inconsistent with the medical history and testimony, his opinion should not have been relied upon by the compensation judge.

In considering the issue of the nature and extent of the work injury, the compensation judge was presenting with competing medical opinions, those of Drs. Shir and Wyard on one side and that of Dr. Morales on the other.  We have stated in a number of decisions that it is the compensation judge’s province as the fact finder to choose between competing medical opinions.  Walbridge v. Northern Hydraulics, 65 W.C.D. 152 (W.C.C.A. 2004); Reider v. Anoka-Hennepin Sch. Dist. #11, 67 W.C.D. 94 (W.C.C.A. 2007); Hays v. Dey Appliance Serv. Inc., No. WC10-5017 (W.C.C.A. Oct. 14, 2010).  Further, a compensation judge’s decision which is based on a well-founded medical opinion will generally be affirmed by this court.  Lowe v. Northwest Airlines Corp., No. WC10-5069 (W.C.C.A. Aug. 26, 2010); Donahue v. Top Temp, Inc., No. WC08-150 (W.C.C.A. Jan. 2, 2009).

In claiming that the compensation judge erred in relying on Dr. Wyard’s opinion, the employee does not specifically allege that Dr. Wyard did not have adequate foundation for his opinion.  Rather, the argument appears to be that his opinion was so at variance with the employee’s testimony and medical records that no weight should have been given to his conclusions.  After reviewing the record, we conclude Dr. Wyard’s opinion is adequately supported by the evidence.

Dr. Wyard’s opinion was based in large part on his examination of the employee.  He noted in his report that the examination was normal with no objective findings of any injury to the spine.  He also noted “give-way testing” and “touch-me-not” responses during the exam.  The examination was consistent with his diagnosis.  His diagnosis was also consistent with the employee’s medical records.  In the six months between the work injury and the hearing, Ms. Walker saw a number of providers.  None of the records from those providers mention any objective findings which would support the employee’s complaints.  For example, Dr. Carter at PNBC on July 19 noted on exam that there were no objective findings and the employee had “hypersensitivity palpation response.”  Furthermore, the employee had two MRI scans, both of which were reported as being negative.  An examining doctor or a compensation judge is not required to accept an employee’s testimony without question.

Dr. Wyard’s opinion as to the employee’s injury, need for treatment, and permanent partial disability was based on his exam, the history obtained from Ms. Walker, and his review of the medical records.  His conclusions have evidentiary support and the foundation necessary to render a medical opinion.  Scott v. Southview Chevrolet, 267 N.W. 2d 185, 30 W.C.D. 426 (Minn. 1978 ); Smith v. Quebecor PrintingCo., 63 W.C.D. 566 (W.C.C.A. 2003).  Substantial evidence exists to support the compensation judge’s decision on this issue and we must affirm.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

The employee’s claim for permanent partial disability was based on Dr. Morales’ report of July 27, 2011, in which he rated permanent partial disability for the employee’s low back and mid back.  The compensation judge did not accept Dr. Morales’ opinion, noting in his memorandum that there was no explanation or analysis for Dr. Morales’ conclusions.  The compensation judge again accepted the opinion of Dr. Wyard on this issue.  We have already found his reliance on Dr. Wyard’s opinion to be affirmable and his determination on the issue of permanent partial disability is affirmed as well.

The employee has also raised the question of the employer’s responsibility for medical care related to her work injury.  The compensation judge ordered payment to be made for treatment related to a coccyx injury for one month after the injury.  This award was based on his acceptance of Dr. Wyard’s opinion and which we have already affirmed.  The employee also raises the question of a lack of specificity in the award, stating that one can not tell from the compensation judge’s decision which bills are to be paid or denied.  The medical bills as submitted by the employee at the hearing do not identify treatment for the coccyx alone since it was the employee’s claim that treatment for her entire back was reasonable and necessary.  Given the evidence as submitted to the compensation judge, we see no way that his award could have identified the specific charges to be paid.  We therefore affirm the compensation judge’s award as issued.



[1] Dr. Morales’ history from the first visit also notes that the employee was receiving chiropractic care five times a week.  No chiropractic records are in evidence and there was no testimony about this treatment.