AMANDA CONKLIN, Employee, v. MARY JANE BROWN GOOD SAMARITAN CTR.-LUVERNE GOOD SAMARITAN and SENTRY INS., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 3, 2013
No. WC12-5541
HEADNOTES
CAUSATION - PERMANENT INJURY. Substantial evidence, in the form of the employee’s credible testimony and well-founded medical opinion, supports the compensation judge’s finding that the employee sustained a permanent work injury to her low back.
MEDICAL TREATMENT & EXPENSE - SURGERY. Substantial evidence supports the compensation judge’s approval of fusion surgery as recommended by the employee’s treating doctor.
Affirmed.
Determined by: Stofferahn, J., Milun, C.J., and Hall, J.
Compensation Judge: Harold W. Schultz, II
Attorneys: Christopher P. Rosengren, Rosengren Kohlmeyer Law Firm, Mankato, MN, for the Respondent. Kirk C. Thompson, Cronan Thompson, Minneapolis, MN, for the Appellants.
OPINION
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s determination that the employee sustained a permanent work injury to her low back and from the award of fusion surgery recommended by her doctor. We affirm.
BACKGROUND
Amanda Conklin began working as a CNA at Mary Jane Brown Good Samaritan Center, a residential care facility, in March 2006. Although she was hired to work part time, almost from the outset she worked full-time hours. Her duties involved direct care of residents, including assisting them in using the bathroom, changing incontinent residents, changing bed linens, and helping residents ambulate. The employee testified that 90 to 95 percent of the residents needed direct assistance. Ms. Conklin lives in Luverne, Minnesota, and was born April 6, 1983. There is no history of back treatment before she began work with the employer.
On October 19, 2006, Ms. Conklin consulted a chiropractor at Rock County Chiropractic for low back pain. She provided a history of the onset of low back pain after lifting a resident at work. A diagnosis of a lumbar sprain/strain was made. She had three treatments in October 2006 and testified at the hearing that the employer paid for these visits. There is no history of any other treatment for low back problems until January 18, 2008, when she started chiropractic treatment in Flandreau, South Dakota, for low and upper back pain with headaches and numbness in her arms. The initial chart note references her job as a CNA where “she does a lot of lifting.” No other cause of her symptoms is listed. She had 11 treatments between January 2008 and August 2009 for various complaints involving her upper and lower back. A number of the treatment notes refer to her job as a CNA and states that her job “may be a contributing factor.” There is no mention of pain radiating into her legs in any of these records.
The injury at issue here occurred on August 4, 2009. Ms. Conklin and a co-worker were lifting a resident out of bed and when the co-worker released her hold unexpectedly, Ms. Conklin was left supporting the full weight of the resident. She experienced stiffness at that time and later developed low back and right leg pain with weakness and tingling. She testified that by the time she arrived home after her shift, she needed help getting out of the car because of her pain.
The employee sought medical attention the next day from her family doctor, Dr. Stephan Chesley at Sanford Clinic-Luverne, where she was assessed with “low back pain radiating to right leg,” given pain medication and taken off work. The history in the chart note states, “Pain started at work at nursing home. Pain was milder initially then worse as shift went on. She finished her shift and went home and then was very hard to get oout [sic] of car due to pain.”
Ms. Conklin reported her injury to the employer on August 6. The employer’s representative filled out a reporting guide from the workers’ compensation insurer and stated that the employee was “unsure when or what happened.” Ms. Conklin completed an “Employee’s Report of Claim” for the employer on August 7, in which she stated “was lifting a resident in bed with me & 1 other staff, grabbed soaker pad under resident & lifted her up. back hurt a little at time. I was able to finish shift. Got in car & when returned home, needed help getting out of car.”
The employee continued to treat with Dr. Chesley, receiving conservative care, primarily physical therapy and medication. The employer and insurer accepted liability for the injury and gave the employee light-duty work within the restrictions set by Dr. Chesley.
The employee’s condition worsened over time, and in March 2010, Dr. Mitchell Johnson performed a microdiscectomy at L4-5. The employee noted only short-term relief from this procedure. In June 2010, when she saw her family doctor, she was given a prescription for hydrocodone. She was also seen by Dr. Gene Swanson at the Orthopaedic & Fracture Clinic in Mankato that month. He assessed a recurrent disc herniation. Subsequently, Dr. Swanson concluded that surgery was inappropriate because of the employee’s weight and because Dr. Swanson was concerned about her “motivation” to improve.
During the time Ms. Conklin was consulting with Dr. Swanson about surgery, she was also treating with Dr. John Hansen at the Sanford Clinic Pain Center. Dr. Hansen provided prescriptions for pain medications including hydrocodone and morphine, and also started the employee on physical therapy, pool therapy, and traction. The records indicate the employee was compliant with the treatment recommended by Dr. Hansen.
On May 16, 2011, Ms. Conklin was seen for an independent medical examination (IME) by Dr. Rajan Jhanjee. Dr. Jhanjee noted the employee’s history of her injury on August 4, 2009. She was working for the employer four hours a day with restrictions of no lifting over 10 pounds and no patient transfers. Dr. Jhanjee diagnosed L4-5 degenerative disc disease with a herniated disc which he determined was the result of the lifting incident at work. Dr. Jhanjee noted the possibility of additional surgery, but made no recommendations either for or against surgery.
The employee continued to treat with Dr. Hansen and was referred to Dr. Geoffrey Haft, an orthopedic surgeon with Sanford Health. Ms. Conklin had a repeat L4-5 laminectomy done by Dr. Haft on July 19, 2011. She reported that the surgery took care of most of her leg pain, but she was left with continuing low back pain.
The employee was off work for approximately four weeks after the surgery, and when she returned to Dr. Hansen, he limited her to working two hours a day. Dr. Hansen prescribed physical therapy and home exercises as well as home traction. She continued to be on prescriptions for hydrocodone and morphine.
The employee had a second IME on February 22, 2012, this time with Dr. Paul Cederberg. Dr. Cederberg concluded that the employee’s treatment to date had been reasonable and necessary for the care of her work injury. His opinion was that further surgery was inappropriate because Ms. Conklin was a smoker. She had told Dr. Cederberg she smoked five to six cigarettes a week. Dr. Cederberg also recommended continuing Dr. Hansen’s work restrictions of no lifting more than five pounds.
In his June 30, 2012, report, Dr. Haft recommended an L4-5 fusion for Ms. Conklin. He stated that she continued to have severe pain in her L4-5 region, despite having been treated by a pain specialist with more than six months of physical therapy two or three times a week, use of anti-inflammatories, and “activity modification.”
Dr. Cederberg wrote another report on August 15, 2012, after being provided with additional medical information, including, for the first time, records from the chiropractors Ms. Conklin had seen in 2006 and 2008. Based on this new information, he concluded that “the work injury of August 4, 2009 was a temporary aggravation. It is based on the fact there is no specific incident that occurred on August 4, 2009 according to the medical records and that she had longstanding treatment for similar complaints predating that alleged injury.”
The employer and insurer filed a petition to discontinue benefits based on Dr. Cederberg’s report, and the employee filed a medical request seeking authorization for the fusion surgery recommended by Dr. Haft. The pleadings were heard by Compensation Judge Harold Schultz, II, on October 15, 2012.
In his findings and order, the compensation judge denied the petition to discontinue and found that the employee had sustained a permanent injury at work on August 4, 2009. He also determined that the surgery recommended by Dr. Haft was reasonable and necessary and related to the work injury. The employer and insurer have appealed.
DECISION
Work Injury
The compensation judge found that the employee sustained a permanent injury at work on August 4, 2009. The employer and insurer argue on appeal that this finding is not supported by substantial evidence. They raise two points in their appeal. First, they claim that the absence of a detailed description of the work injury of August 4 in the chart notes of her family doctor on August 5 means that the injury did not occur. Second, the fact that her doctors did not know of her “significant history” of previous back problems renders any causation opinion to be without foundation. We are not persuaded.
As to the first point, the employer and insurer rely on Dr. Cederberg’s August 15, 2012, report in which he concluded there had not been a work injury on August 4, 2009, because the initial medical record, although referring to low back pain that began at work and increased during her shift, did not contain a detailed description of the lifting incident. We note in this regard that the employee provided a detailed description of the incident to the employer on August 7 and she subsequently identified the co-worker with whom she was working when the injury occurred. The employee’s history has remained consistent for more than three years and has never been contradicted.
This is not a case in which the employee’s testimony conflicts with the medical records. Fitzgerald v. DOS Trucking, Inc., No. WC07-222 (W.C.C.A. May 29, 2008). Instead, according to the argument of the employer and insurer, the family doctor did not write down enough information to satisfy the primary liability determination made by the IME. Detailed information as to how an injury occurred is irrelevant to the treatment being provided by a primary care provider and we have never held that such a statement is a prerequisite to the receipt of workers’ compensation benefits. Although provided in the form of a medical report, Dr. Cederberg does not express a medical opinion but instead provides his view of the employee’s credibility. We have held in previous decisions that determination of the credibility of a witness is for the compensation judge, and the compensation judge in this case found the employee to be credible. Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-849, 41 W.C.D. 79, 82 (Minn. 1988); Baker v. T. Maxwells Inc., No. WC09-5003 (W.C.C.A. Feb. 8, 2010).
As to the second point, the “significant” history referenced by Dr. Cederberg, we have discussed earlier that the employee saw a chiropractor three times in October 2006 following a work incident in which she complained of lumbar pain. After these treatments, she did not have any chiropractic care for more than a year. When she started treating again in January 2008, her initial complaint was of pain in her shoulders and low back from lifting at work. There were 11 visits over the next 20 months with complaints of pain throughout her back, but no pain noted, or any other symptom noted, into her right leg. We find no significant evidence to support Dr. Cederberg’s statements that Ms. Conklin had “similar complaints” or that her treatment was “longstanding.”
While it is unclear whether Dr. Haft was aware of Ms. Conklin’s chiropractic care during his treatment of her, he was provided with chiropractic treatment records in October 2012, and responded with his opinion that the employee had “at least two larger injuries that have occurred” that were “major contributing factors.” We conclude this information provided adequate foundation for Dr. Haft’s opinion, and the compensation judge was entitled to accept that opinion over that of Dr. Cederberg. Parker v. Teamvantage Molding, Inc., 72 W.C.D. 559 (W.C.C.A. 2012); Perry v. ADB Constr., Inc., 68 W.C.D. 491 (W.C.C.A. 2008).
We find substantial evidence supports the compensation judge’s determination on this issue.
Surgery
The compensation judge approved the employee’s request for approval of the surgery recommended by her treating doctor, although he noted that this was a “difficult issue because of the employee’s young age, history of cigarette smoking and higher body weight.” The employer and insurer argue on appeal that these factors should have required the compensation judge to deny the claim.
By the time fusion surgery is considered, injured workers often have factors that may complicate treatment: age, previous injuries, chronic pain issues, degenerative conditions, weight issues, failed treatment, or an addiction to tobacco. Nevertheless, even those injured workers with complicating factors are entitled to effective medical care. “Employers must take their employees as they find them with all the infirmities the employees bring to their employment.” Fleener v. CBM Indus., 564 N.W.2d 215, 216, 56 W.C.C. 495,496 (Minn. 1997). In the present case, despite the complicating factors possessed by Ms. Conklin, we find substantial evidence to support the compensation judge’s award of surgery.
Ms. Conklin had surgery for her work injury that was successful in eliminating her right leg pain. Her treating doctor is of the opinion that fusion surgery could be successful in dealing with her continuing low back pain. The employee has been compliant with conservative care, including physical therapy, traction, pool therapy, and home exercises. Despite her efforts, there has been no further improvement in her condition. No other treatment options have been advanced, and Ms. Conklin is presently using opiate pain medication. The ability of this young woman to return to employment is doubtful at best, since even Dr. Cederberg thinks she should be limited to lifting no more than five pounds.
The employer is obligated to provide “reasonable and necessary” medical care to “cure and relieve” the effects of a work injury. Minn. Stat. § 176.135, subd. 1. A guarantee of success is not required and probably not possible in most instances of recommended surgery. The statute does not require a cure for the treatment to be found reasonable. Castle v. City of Stillwater, 235 Minn. 502, 51 N.W.2d 370, 17 W.C.D. 103 (1952); Bryant v. Honeywell, Inc., slip op. (W.C.C.A. April 25, 2003). We conclude substantial evidence exists to support the compensation judge’s award.
The decision of the compensation judge is affirmed.