SHARON LARSON, Employee/Appellant, v. HERBERGER’S (BON-TON STORES, INC.) and LIBERTY MUT. INS. CO., Employer-Insurer, and ST. PAUL RADIOLOGY, BLUE CROSS BLUE SHIELD OF MINN., ALLINA MED. CLINIC - WOODBURY and ABBOTT NORTHWESTERN HOSP., Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 6, 2013

No. WC12-5453

HEADNOTES

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge’s conclusions and determination that the employee’s work injuries did not result in temporary total disability or ongoing medical care.

Affirmed.

Determined by:  Stofferahn, J., Wilson, J., and Hall, J.
Compensation Judge:  Gary P. Mesna

Attorneys:  Sharon Larson, pro se Appellant.  Joseph G. Twomey and Thomas R. Cutts, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.

 

OPINION

DAVID A. STOFFERAHN, Judge

The employee appeals the compensation judge’s denial of a claim for workers’ compensation benefits.  We affirm.

BACKGROUND

Sharon Larson, the employee, sustained four work injuries to her right leg, ankle and foot while she was employed by the employer, Herberger’s.  The employer and its insurer, Liberty Mutual Insurance, accepted liability for the injuries but took the position that these were temporary injuries that had resolved shortly after the occurrence of these injuries.

The first injury was on September 3, 2008.  Ms. Larson was in the stock room when a co-worker dropped a large mixer on her right foot, hitting her on the top of her foot just behind her toes.  The employee did not seek any medical care for that incident.

The second injury occurred on September 30, 2008, when a co-worker was pushing a rack that struck her on the outside of her right leg, just above her ankle.

Apparently Ms. Larson’s daughter is a physician’s assistant, and with her help, Ms. Larson was able to have an MRI of her right leg done on October 14, 2008.  The MRI was read as showing moderate medial and lateral compartment osteoarthritis of the knee, severe patellofemoral compartment osteoarthritis, and probable degenerative fraying of the posterior horn of the medial meniscus.

The employee saw Dr. Gordon Aamoth on October 24, 2008.  Dr. Aamoth found medial ecchymosis in the right knee and diagnosed a right knee sprain.  He took her off work for a week to 10 days.  Ms. Larson was already using a cane, and he suggested she continue to use it for her right leg symptoms.  The employer and insurer paid for the employee’s care with Dr. Aamoth and paid temporary total disability benefits from October 28 through November 3, 2008.  Ms. Larson then returned to work with restrictions of no lifting over 25 pounds and no standing for more than an hour at a time.

When Ms. Larson saw Dr. Aamoth again on December 19, 2008, she told him that a cart had “rammed” into her right ankle.  It is unclear from the records and the employee’s testimony whether the employee was referring to the September 30 incident or whether this was a new incident.  Dr. Aamoth found no swelling, but noted tenderness of the right fibula.  He continued her previous restrictions.  Dr. Aamoth saw Ms. Larson four more times.  In January 2009, she complained of what Dr. Aamoth described as “stocking anesthesia” in the right leg.  In March 2009, that symptom had gone away, but she had pain in her right knee.  In April 2009, she had “causalgia” pain in her right leg that was much worse after Dr. Aamoth had examined her.  He advised her at that time that there was “not much more I could do for her.”  At the last visit, on June 17, 2009, Dr. Aamoth agreed with her recent independent medical examination (IME) that the employee needed no work restrictions.

Before her September 2008 injuries, Ms. Larson had an extensive history of problems with and treatment for her lower extremities going back to 1994 when she fractured her right ankle in an automobile accident.  Medical records from 1995 to 1997 indicate that she was diagnosed with degenerative arthritis for bilateral knee pain, and as early as August 1997, it was recommended that she consider total knee replacement for her left knee.

In September 2003, Ms. Larson consulted with Midwest Foot & Ankle Specialists where she had hammertoe surgery done on the second toe of her right foot.  In 2005, she had Hyalgan injections in her left knee and was diagnosed as having moderate to severe left knee osteoarthritis.  In May 2006, she told a physician that she had fallen when her right knee gave out while she was getting out of the bath tub.  Finally, Ms. Larson had left knee total arthroplasty sometime in June 2006.

After she stopped seeing Dr. Aamoth in June 2009, Ms. Larson saw Dr. Jack Bert on August 31, 2009, apparently on the referral of a physical therapist, for right knee pain.  Examination showed tenderness on the lateral aspect of the knee, and Dr. Bert diagnosed “right lateral and patellofemoral gonarthritis.”  He recommended Synvisc injections.  These injections were apparently done, but there is no reference as to the results in the records.

Also in August 2009, Ms. Larson saw a podiatrist, Dr. Timothy Szopa, telling him that her entire right foot hurt and it felt like her hammertoes were coming back.  On September 23, 2009, Dr. Szopa did a repeat bunionectomy and hammertoe repair.  From the partial records in evidence, it appears the hammertoe surgery was to the second, third, fourth, and fifth toes.

Ms. Larson’s third injury occurred on December 2, 2009, when a co-worker pushing a pallet jack ran over her right foot.  She saw a doctor at an Allina Clinic in Woodbury the next day and was advised to see Dr. Szopa.

She saw Dr. Szopa on December 4.  He diagnosed a fracture of the second toe on the right foot, but provided no treatment other than suggesting that she wear the post-op shoe she had worn after her surgery in September.  Dr. Szopa saw the employee two more times, and at the last appointment on January 12, 2010, he noted no findings and recommended physical therapy to strengthen her lower extremity.

The fourth work injury was on September 27, 2010, when a metal rack fell on her, striking her ankle and foot.  She saw Dr. Gregory Dunn at Allina the next day.  He told her to elevate her foot and ice the foot and ankle.  Dr. Dunn diagnosed a right ankle contusion.

Since her September 2008 injuries, the employee has had two independent medical examinations by orthopedic specialists at the request of the employer and insurer.

The first of these examinations was on June 2, 2009, and was done by Dr. Scott McGarvey.  Dr. McGarvey took a history from Ms. Larson, reviewed Dr. Aamoth’s records, and performed an examination.  He concluded that, in his opinion, the employee’s symptoms were not the result of the September 2008 work injuries, but were due to osteoarthritis and post-traumatic arthritis which was likely the result of her auto accident in 1994.  He further concluded that the two work injuries were temporary and had resolved six weeks after the last injury, September 30, 2008.  He also stated in his report that the employee needed no restrictions or treatment as the result of her work injuries.

The second independent medical examination was Dr. William Simonet on February 24, 2010.  Dr. Simonet reviewed the records from a number of the employee’s medical providers, discussed her injuries and symptoms with her, and conducted a physical examination, including x-rays of her knee and right foot and ankle.  Based on this information, he concluded that the employee’s symptoms were the result of moderate to severe osteoarthritis in her right knee and mild early osteoarthritis in her right ankle.  It was his opinion that the treatment from Summit Orthopedics, including Synvisc injections, was not the result of her work injuries and that her treatment by Dr. Szopa was not related to any work injury.  On the question of the injury of December 2, 2009, causing a toe fracture, Dr. Simonet stated that the x-rays did not show a fracture, but instead demonstrated a pseud arthrosis, a condition common after hammertoe surgery.  Dr. Simonet found no restrictions or treatment to be necessary as a result of Ms. Larson’s work injuries.

In early 2011, Ms. Larson saw Dr. Szopa with complaints of severe pain in the second toe of her right foot.  Dr. Szopa diagnosed a probable flexor tendon rupture and advised amputation of the second toe.  The surgery was postponed because of other health problems the employee was having.  It is not clear from the testimony at the hearing if Ms. Larson believed that this problem was the result of a fifth injury, and it was not clear if the surgery had taken place.

A claim petition was filed on behalf of the employee in September 2009.  The employee may have been represented by counsel at that time, but in the hearing before the compensation judge and in the present appeal, the employee has appeared pro se.

The employee’s claim petition was scheduled for a hearing on January 13, 2012.  Because there was some question as to the employee’s claims at that point, the compensation judge opted to pre-try the case and set a hearing date for later.

The hearing took place on April 12, 2012.  The compensation judge identified the issues as being:

1. The employee’s entitlement to temporary total disability from September 23, 2009 through October 28, 2009, as the result of her hammertoe surgery.
2. Whether the September 23, 2009, surgery by Dr. Szopa was related to her injuries and was reasonable and necessary.
3. The nature and extent of the employee’s work injuries on September 3, 2008, September 30, 2008, December 2, 2009, and September 27, 2010.
4. Whether the named intervenors were entitled to payment.[1]

The compensation judge issued his decision on May 9, 2012.  Based on his review of the evidence presented at the hearing, he made a number of findings:

1. The work injury on September 3, 2008, was temporary and resolved with no medical treatment being required.
2. The September 30, 2008, injury was a temporary soft-tissue injury which required some initial care, but which resolved by April 27, 2009, when Dr. Aamoth stated the employee needed no follow-up care.
3. The medical treatment the employee received between April 27, 2009 and December 2, 2009, was not related to the employee’s work injuries.  That treatment included the knee injection in August 2009 and Dr. Szopa’s surgery on September 23, 2009, for corrective bunion and hammertoe.
4. Because the September 23, 2009, surgery was not due to a work injury, the employee was not entitled to workers’ compensation benefits in the form of temporary total disability after the surgery.
5. The work injury on December 2, 2009, may have resulted in a minor fracture of the toe which required no treatment after December 3, 2009.
6. The examination on September 28, 2010, was related to the injury of September 27, but no follow-up care was necessary.
7. None of the employee’s medical care in 2010 or 2011 was related to her work injuries other than the September 28, 2010 office visit.

The compensation judge’s order followed these findings and denied the employee’s claims except for medical care identified in his findings.  The employee has appealed.

DECISION

In her written submissions to this court and in her oral presentation, the employee reiterated her statements to the compensation judge at the hearing that she believed most, if not all, of her physical problems with her right knee, ankle, and foot have been the result of her injuries at Herberger’s.

It is understandable that specific work injuries, because they are memorable, become, in the employee’s view, the beginning of her problems and need for medical care.  In a case such as this, however, coverage under workers’ compensation for a medical condition cannot be established by the belief of an employee.  To establish a causation relationship between a work injury and disability when there is a complicated medical history and conditions, as there is in this case, there must be a medical opinion making that connection.  Kock v. American Red Cross, No. WC09-171 (W.C.C.A. Oct. 6, 2009).[2]

It is apparent that the compensation judge carefully considered the employee’s statements and the records of her treating doctors.  This court has done the same.  We find no evidence that would lead us to conclude that the compensation judge made a mistake in reaching his conclusions and in issuing his decision.  Other than the medical visits mentioned by the judge in his conclusion, there are no statements by the employee’s doctors in which they connect the employee’s need for medical care to her work injuries.

In contrast, the employer and insurer presented the opinions of two well-qualified medical doctors who stated that the employee’s injuries were temporary and not the causes of her ongoing problems and need for care her right knee, foot, and ankle.  Because these opinions provide substantial evidence to support the compensation judge’s decision, we must affirm that decision and deny the employee’s appeal.[3]  Minn. Stat. § 176.421, subd. 1; Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003).



[1] Two medical providers and Blue Cross Blue Shield had intervened.  Generally, Ms. Larson’s medical expenses were paid by Medicare, and shortly before the hearing, CMS sent a letter to the insurer advising them of “Medicare’s priority right of recovery.”

[2] For the information of the employee, when this court makes a statement as to what the law is on a particular point, we often refer to or cite to one of our earlier decisions where we have made the same or similar statement.

[3] Throughout this matter, the employee has often referred to the actions of her co-workers in causing these incidents and to the attitudes of her co-workers to her situation.  Those questions have nothing to do with workers’ compensation, and neither the compensation judge nor this court has the authority to deal with those concerns.