The employee appeals from the compensation judge’s denial of “the employee’s request to explore a chronic pain rehabilitation program” and his denial of a claim for permanent partial disability benefits based on the compensation judge’s determination that “the employee’s work-related back injuries of March 1, 2007 and October 22, 2007 were temporary in nature, having resolved within six weeks.”  We reverse the compensation judge’s finding that the employee’s injuries resolved within six weeks, and we remand for further proceedings.

The employee, Darla J. Harvey, sustained an admitted work-related injury to her low back on March 1, 2007.  On that date, the employee was working as a teacher’s aide in the daycare for the employer herein, Central Lutheran Church.  The employee sustained her March 2007 injury when she lifted a young child from the floor and felt a pop in her lower back.  At hearing, the employee testified that her back “popped loud enough that a couple of the other teachers heard it.”

The employee’s medical records do show some incidents of prior low back pain and treatment.  For example, the employee had an incident in February 2005 where she treated for back spasms after doing “chores” involving horses.  As another example, she treated on one occasion in December 2006 for complaints of low back pain after attending a wedding.  The records also contain references to fibromyalgia symptoms, which the employee described as a general ache from head to toe.  She said the fibromyalgia symptoms were different from her current low back symptoms because the fibromyalgia symptoms were “all over, it’s not just one specific area.”  However, the employee testified that she did not have any long-term care or long-term problems with her low back before her March 2007 injury.  She did not recall having any physical problems performing her work activities, nor did she recall having any low back pain or problems leading up to her March 2007 injury.

The employee initially treated with a chiropractor for her low back injury between March 2007 and June 2007.  She testified that she continued to work throughout that time and did not have any restrictions on her work abilities.  However, she did not feel that the chiropractic treatment was relieving her symptoms, so she saw her family physician, Dr. Laura Krister, with Gunderson Lutheran Clinic, on July 13, 2007.  The employee was complaining of generalized achiness and back problems, including marked tenderness of the sacroiliac joint.  It was also noted that the employee had “presumed fibromyalgia.”

On October 22, 2007, the employee sustained an admitted exacerbation of her low back injury while she was cleaning cribs at the employer.

The employee returned to Gunderson Lutheran Clinic on October 24, 2007.  Reportedly, because of a lack of insurance, the employee had not attended physical therapy or taken the muscle relaxants that had been prescribed in July 2007.  The employee reported tenderness in the lumbar paraspinal muscles and tenderness over the right SI joint.  Dr. Krister noted no significant findings from x-rays taken as a part of the October 24, 2007, visit.  She referred the employee for an MRI and physical therapy.  The employee was taken off work and given restrictions of no lifting, bending, or twisting at the waist.

The employee did proceed with some physical therapy beginning in the fall of 2007.  Dr. Krister also reported that there was evidence of a small annular tear in an MRI that was taken on October 29, 2007.

On November 14, 2007, the employee told Dr. Krister’s physician’s assistant that her pain was more severe.  The employee was assessed with an acute onset of low back pain that had been persistent since the March 2007 injury date.  The employee was given work restrictions that would allow her to return to work in “very-light-duty,” and her restrictions required her to change positions as needed and to avoid bending.  The employee testified that she returned to daycare work for a short period of time, but other teachers needed to lift infants.  The employee could only sit and have infants set in her lap for feedings.  The employee eventually left for an administrative job.  She testified that she has never been released from restrictions since her injuries in 2007.

As of December 7, 2007, the employee was being assessed with acute onset of low back pain that began as a result of the reported work injury on March 1, 2007.  There was also evidence of a small annular tear on MRI.

In early 2008, Dr. Krister referred the employee to Dr. Randy Shelerud at Mayo Clinic’s Spine Center.  When the employee first saw Dr. Shelerud in March 2008, she was reporting intolerance to medication, and she felt physical therapy was not helping her symptoms.  The employee continued to treat with Dr. Shelerud, periodically, throughout 2008 and the early part of 2009.  She also underwent two injections with Dr. Tim Maus during that time period.  However, her back pain persisted.

The employee underwent an MRI on July 24, 2009.  Dr. Shelerud noted that the MRI showed “some minor foraminal 5-1 disk changes.”  The MRI report noted an annular tear at L5-S1.  A superimposed lateral protrusion of the L5-S1 disc, which “may” contact the exiting nerve root, was also noted, and this was reportedly unchanged from the October 2007 MRI.

In 2010, the employee moved to Alaska with her husband.  She continued to treat and maintain contact with Dr. Shelerud.

The employee underwent another MRI on January 25, 2011.  The MRI report noted that the lateral disc protrusion with near contact on the exiting right L5 root to be slightly improved when compared with the 2009 MRI.  The report also indicated that the previously noted annular tear was less conspicuous and that there was no contact of the L5 or S1 nerve roots and no significant stenosis.

The employee also saw Dr. Shelerud on January 25, 2011.  Dr. Shelerud compared the January 2011 MRI report with the July 2009 MRI report.  He noted that the current MRI “again shows the somewhat broad-based foraminal disc changes at 5 which could corroborate with symptoms potentially.”  Dr. Shelerud planned to proceed with an L5 transforaminal epidural injection.  If that did not work, the doctor indicated that he “could target the SI joint before considering injection options to no longer be an option for her.”  On examination, Dr. Shelerud noted that there were no neural deficits and that the employee’s “gait/gross motor exam, reflexes, and strength testing are all corroborating with prior evaluation with no change in neural status.”  Dr. Shelerud also noted that there were “no root tension signs to seated straight leg raise with passive dorsiflexion of the ankle.”  Dr. Shelerud had no further recommendations beyond injections.

On May 23, 2011, Dr. Shelerud reported that the employee called him and told him that her recent epidural injection was of “practically no use” and that she had only a very short-term response.  Dr. Shelerud suggested a sacroiliac injection, but the employee understood that there was some uncertainty as to whether that would be of benefit to her.  The employee and Dr. Shelerud discussed treatment options.  Dr. Shelerud felt that a pain rehabilitation program “would make sense.”  The employee reminded Dr. Shelerud that there was litigation involved, and he noted, “this is something where she is reaching a point of maximum medical intervention after a pain rehabilitation program would be completed, and we would be willing to document that for her.”

As of May 23, 2011, Dr. Shelerud diagnosed the employee as follows:

Dr. Shelerud issued a health care provider report, signed on May 27, 2011, indicating that the employee had reached maximum medical improvement as of May 23, 2011. Dr. Shelerud confirmed that the employee’s condition was work related, and he also opined that as a result of the employee’s work injuries, she had incurred a seven percent permanent partial disability of the body as a whole based on Minn. R. 5223.0390, subp. 4.C.

The employer and insurer denied the pain rehabilitation program recommended by Dr. Shelerud, arguing that the pain rehabilitation program was not reasonable, necessary, or causally related to the employee’s March 2007 and October 2007 injuries.  The employer and insurer based their denial, in part, on the independent medical examination done by Dr. Gary Wyard on January 20, 2011.  Dr. Wyard gave the following impressions relating to the employee’s condition:

Dr. Wyard felt that the employee had “subjective complaints out of proportion to the objective findings” and that the employee’s examination and diagnostics, including the MRIs, were essentially normal for her age.  He also noted that the employee was a smoker, and he referenced her prior fibromyalgia issues, which he confirmed were unrelated to the employee’s work injuries.

Dr. Wyard felt that the employee’s ongoing subjective complaints were not supported by objective findings.  Dr. Wyard also opined that the employee sustained “no more than a mild myofascial sprain/strain in the incident of March 1, 2007,” with a “possible October 22, 2007 exacerbation.”  Dr. Wyard stated that the employee “reached maximum medical improvement six weeks after each of the injuries.”  Dr. Wyard stated that the employee had undergone “elaborate ongoing treatment and care which, in my opinion, has been enabling, contraindicated, and self-serving.”  Dr. Wyard felt that the employee needed no restrictions related to her low back, and she needed no additional care or treatment.  Ultimately, Dr. Wyard opined that the employee’s MRIs and examinations were essentially normal for her age.  He stated that they showed “no specific pathological lesion,” and he believed the employee’s findings were “only common findings secondary to natural causes and smoking.”  Dr. Wyard also referred to the employee’s fibromyalgia diagnosis, which he felt was unrelated to the employee’s injuries.

The case came on for hearing before compensation judge Cannon on August 7, 2012.  The compensation judge was asked to determine the following issues:

The compensation judge adopted Dr. Wyard’s opinions.  The compensation judge then found that “the employee’s request to explore a chronic pain rehabilitation program is denied, as not reasonable and necessary due to, and not causally related to,” the employee’s 2007 injuries.  Further, the compensation judge determined that “Inasmuch as the employee’s request to explore a chronic pain rehabilitation program is denied, and Dr. Wyard’s medical opinion that the employee’s work-related back injuries of March 1, 2007 and October 22, 2007 were temporary in nature, having resolved within six weeks, is adopted, it is not necessary to address the issue of permanent partial disability (PPD).”

The compensation judge adopted Dr. Wyard’s opinion and based his decision thereon.  In particular, the compensation judge stated that he “adopted” Dr. Wyard’s opinion that the employee’s work injuries “were temporary in nature, having resolved within six weeks.”  A trier of fact’s choice between conflicting expert opinions is usually upheld, unless the expert’s opinion is based on facts not supported by the evidence and so long as there is sufficient foundation for the expert’s opinion.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

In this case, however, Dr. Wyard did not opine that the employee had sustained temporary injuries that had resolved in six weeks.  Rather, he opined that the employee sustained a sprain/strain in March 2007 and a “possible” exacerbation in October 2007.  Dr. Wyard then stated that the employee “reached maximum medical improvement six weeks after each of the injuries.”  “‘Maximum medical improvement’ means the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability, irrespective and regardless of subjective complaints of pain.”  Minn. Stat. § 176.011, subd. 13a.  Maximum medical improvement, however, is a different issue from whether or not an injury has been temporary and has resolved.  An employee may be at maximum medical improvement long before an injury resolves.

In Nord, the compensation judge relied on an adverse medical opinion that the employee’s work did not cause his myocardial infarction.  360 N.W.2d at 341, 37 W.C.D. at 369-70.  The adverse opinion was based on an assumption that the employee had suffered intermittent chest pain for 24 hours, that the pain started on his day off, and that he was under no stress at that time.  360 N.W.2d at 343, 37 W.C.D. at 373.  This court reversed the compensation judge, holding that the adverse opinion was “of no substantial weight when one considers the chronology of events, medical history and information obtained from the employee immediately following his infarction, and the medical opinion in support of petitioner’s claim.”  360 N.W.2d at 341-42, 37 W.C.D. at 370-71.  The Supreme Court affirmed this court’s decision to reverse the choice of expert, stating that “Upon a review of the evidence as a whole, we cannot conclude that the WCCA was clearly and manifestly in error in determining that the compensation judge's findings lacked substantial evidentiary support.”  360 N.W.2d at 343, 37 W.C.D. at 373.

Here, the medical records show that at the end of November 2007 and into December 2007, the employee was participating in physical therapy and continuing to treat with her primary doctor for ongoing low back pain.  As of December 7, 2007, she was being assessed with acute onset of low back pain that began as a result of the reported work injury on March 1, 2007.  There was also evidence of a small annular tear on MRI and evidence of SI joint and piriformis irritation on examination.  The employee had been released to work, but in very light duty.  She testified that she never returned to her regular job without significant modification, and she said she has never been released from restrictions.  The employee did not even begin treating with Dr. Shelerud until March 2008.  There were no significant gaps in her treatment, and she continued to complain of low back pain even up to the hearing in August 2012.

Nonetheless, when Dr. Wyard saw the employee in January 2011, more than three years after the October 2007 injury, he issued an opinion that the employee would have reached maximum medical improvement by six weeks after each 2007 injury date.  Dr. Wyard gave no specific support for his conclusion, and we can find no other record or evidence on review, to support the six-week timeline for maximum medical improvement.  As such, Dr. Wyard’s opinion regarding maximum medical improvement and the six-week timeline, standing alone, does not provide substantial evidence to support the compensation judge’s further determination that the employee’s injuries resolved.

Furthermore, Dr. Wyard did not give the causation opinion “adopted” by the compensation judge.  Rather, Dr. Wyard merely opined that the employee had reached maximum medical improvement within six weeks of the injuries.  That opinion does not provide substantial evidence that could support the compensation judge’s determination that the employee’s injuries resolved within six weeks of her injuries, especially when considering the chronology of events, the evidence presented, and the distinction between maximum medical improvement and resolution of temporary injuries.

Accordingly, we reverse the compensation judge’s finding that the employee’s injuries resolved within six weeks, and we vacate the remainder of the compensation judge’s findings and order, served and filed September 6, 2012, and we remand the matter for further consideration.  The compensation judge may hear additional evidence if he deems it necessary.