BEVERLY PETERSON, Employee/Cross-Appellant, v. ST. PAUL RAMSEY MED. CTR., SELF-INSURED/SFM RISK SOLUTIONS, INC., Employer/Appellant, and TWIN CITIES SPINE CTR., BLUE CROSS/BLUE SHIELD OF MINN., TILLGES CERTIFIED ORTHOTIC & PROSTHETIC, HEALTHEAST ST. JOHN’S HOSP., HEALTHEAST PHYSICIAN SERVS., CTR. FOR DIAGNOSTIC IMAGING, SUMMIT ORTHOPEDICS, LTD., and MED. ADVANCED PAIN SPECIALISTS, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 11, 2014
No. WC13-5577
HEADNOTES:
CAUSATION - MEDICAL TREATMENT; CAUSATION - SUBSTANTIAL EVIDENCE. Where the compensation judge’s potentially erroneous reference to a 1997 injury was not a significant factor in her ultimate conclusions, any error present in this case with regard to the stipulations between the parties was harmless in nature, and because substantial evidence supported the compensation judge’s conclusion that a 1981 low back injury resulted in the need for ongoing treatment related to only the low back, the compensation judge’s findings and order are affirmed.
Affirmed.
Determined by: Hall, J., Milun, C.J., and Stofferahn, J.
Compensation Judge: Jeanne E. Knight
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Cross-Appellant. Thomas L. Cummings and Allison A. Lindevig, Jardine, Logan & O’Brien, Lake Elmo, MN, for the Appellant.
MAJORITY OPINION
GARY M. HALL, Judge
The self-insured employer appeals from the compensation judge’s award of certain medical expenses, procedures, mileage, and intervention claims. The employee cross-appeals from the compensation judge’s denial of payment for a sacroiliac belt and bilateral AFO braces. We affirm.
BACKGROUND
The employee, Beverly Peterson, sustained an injury to her low back while working as a nursing assistant at St. Paul Ramsey Medical Center, the self-insured employer herein, on June 13, 1981. She reported immediate pain in her low back along with numbness and tingling radiating down her left leg. Through a number of stipulations for settlement, the majority of the employee’s workers’ compensation claims related to the June 1981 back injury have been closed, with the exception of ongoing medical treatment that is reasonable, necessary, and causally related to the June 1981 injury.
The issues that are currently in dispute were initiated by a medical request in which the employee requested payment for a sacroiliac (SI) belt and AFO braces. The self-insured employer, based on the opinions of its independent medical examiner, Dr. Teresa Gurin, declined to pay for those treatment modalities, arguing that they were not causally related to the 1981 work injury and were not reasonable and necessary treatments. The parties proceeded to hearing to determine whether the SI belt and AFO braces were reasonable, necessary, and causally related to the employee’s 1981 injury. Before the hearing, the employee amended her claim to include a request for additional payment of medical bills and expenses, such that the compensation judge was asked to address the following: a walker, a bath chair, out-of-pocket payments for prescription medications, medical mileage, supplies related to a TENS unit, the SI belt, the AFO braces, and a radiofrequency ablation procedure. The compensation judge was also asked to consider intervention claims from Medical Advanced Pain Specialists (MAPS), HealthEast St. John’s Hospital, HealthEast Physician Services, Tillges Certified Orthotic Prosthetics, Twin Cities Spine Center, Blue Cross/Blue Shield, Summit Orthopedics, and Center for Diagnostic Imaging (CDI).
The parties presented voluminous medical records in support of their positions. The employee testified on her own behalf, and the self-insured employer introduced independent medical examination reports from Dr. Gurin. The compensation judge noted that the following were at issue:
1. Whether the care and treatment for the employee’s low back is causally connected to the work injuries to her low back.
2. Whether the claims of injury to the foot, ankle, knee, SI joint or other body parts are causally connected to the work injuries.
Since her injury in 1981, the employee has undergone multiple surgical procedures for her low back, and the first surgery took place in 1990. The employee has also been involved in a number of non-work related motor vehicle accidents since the 1981 work injury, some of which occurred before the surgery in 1990. At hearing, the employee contended that the medical expenses and treatment at issue arose either from the low back injury or from the resulting surgeries. The self-insured employer contended that the June 13, 1981, injury was not a substantial cause of the employee’s need for medical treatment and that the 1981 injury would have resolved by January 18, 1986, before the first surgery occurred.
The compensation judge ultimately determined that “[t]he employee has failed to prove that she injured either of her ankles or her knees as a result of the 1981 work injury or the subsequent surgeries.” She stated that any “bills incurred after December 13, 2011, which are not related to the ankles or knees or attributed to ‘foot drop’ are reasonable and necessary and causally related to the 1981 work injury and subsequent lumbar surgeries.” In other words, the compensation judge denied any claims related to the ankles, knees, or foot drop.
The compensation judge also indicated that the medical records “did not contain an explanation delineating the need for a sacroiliac belt or causally relating the need to the employee’s work injuries.” Therefore, the compensation judge determined that the employee “has not proved by the preponderance of the evidence that a sacroiliac belt is reasonable or necessary to cure and relieve her from the effects of the work injuries.”
The compensation judge determined that the medical records “do not show that the employee has developed foot drop or, if she has, they do not relate the foot drop to the work injuries or consequential surgeries.” Therefore, the compensation judge determined that the employee “failed to prove by preponderance of the evidence that a need for orthotics is reasonable, necessary or causally related to her work injuries and surgeries.”
The parties now cross-appeal from the compensation judge’s findings and order and her grant or denial of the various medical expenses and other claims involved herein.
STANDARD OF REVIEW
In reviewing cases 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. 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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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 the evidence or not reasonably supported by the evidence as a whole.” Id.
“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.” Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).
DECISION
Harmless Error
As an initial matter, the self-insured employer argues that the compensation judge relied on purported stipulations between the parties that were factually inaccurate. In her findings and order, the compensation judge stated that the parties had reached certain stipulations at the hearing. Among them, the compensation judge indicated that “[t]he employee sustained injuries to her low back as a result of work injuries on June 13, 1981 and on September 13, 1997.” She then indicated that the self-insured employer had admitted liability for the work injuries and had paid for medical care and treatment to the low back from June 13, 1981 until about six months before the hearing, which took place on January 30, 2013.
The self-insured employer argues that the September 13, 1997, injury involved the employee’s neck and carpal tunnel syndrome. As such, it argues that these injuries were wholly unrelated to the low back and the 1981 injury. Furthermore, the employee was working for a different employer at the time of the 1997 injury. The self-insured employer also argues that the compensation judge inaccurately stated that benefits were paid voluntarily until about six months prior to the hearing in this matter. Rather, the self-insured employer maintains that the employee’s claims were resolved by various means, including compromised settlement agreements. Ultimately, the self-insured employer argues that because the purported stipulations of the parties may have formed a portion of the basis for the compensation judge’s factual determinations the entire findings and order should be vacated.
The employee, in her brief, concedes that the September 13, 1997, injuries were related to the neck and to carpal tunnel syndrome. However, the employee argues that the compensation judge’s error in this regard was not sufficient to overturn her entire findings and order because the totality thereof addresses only the 1981 low back injury. In other words, the employee argues that any errors in the compensation judge’s characterization of the parties’ stipulations are harmless and are irrelevant to her ultimate determinations in the case, which related primarily to the back.
In considering whether an error is harmless in nature, this court analyzes whether the error is a significant factor in the compensation judge’s conclusions, and if it is not, then no action by this court is required. See Engelhart v. Liston Gen. Contracting, Inc., 72 W.C.D. 753, 759 n.1 (W.C.C.A. 2012) (citing Johnson v. Arctic Cat, Inc., 64 W.C.D. 106, 110 (W.C.C.A. 2004) and Dozier v. Control Data Corp., 44 W.C.D. 246 (W.C.C.A. 1990), summarily aff'd (Minn. Mar. 7, 1991) (indicating that the issue is whether the evidence in question is portrayed correctly in substance and, if so, an error may be considered harmless)).
While the compensation judge may have referenced an injury in 1997, we conclude that a reading of her findings and order as a whole shows that the compensation judge based her ultimate decision on the 1981 back injury. For example, she found that “The employee’s series of surgeries to the low back are causally related to her 1981 low back injury.” The compensation judge went on to relate the treatments at issue, including the bath chair and the TENS unit and equipment, to the 1981 injury. The compensation judge also found that the employee had failed to prove that the alleged foot drop, ankle, and knee issues were related to the 1981 injury.
In her memorandum of law, the compensation judge noted Dr. Gurin’s conclusion that the employee sustained temporary injuries to her low back. However, the compensation judge also cited the independent medical examination from Dr. Harvey O’Phelan in 1993. At that time, Dr. O’Phelan concluded that 20 percent of the employee’s low back pain and disability was related to the employee’s 1981 work injury. The compensation judge noted that, “in hindsight,” the employee may not have been a surgical candidate when she underwent her first surgery in 1990. However, the employee was following the advice of her physicians, and the compensation judge concluded that “any further consequences of that first surgery are also attributable to the initial work injury which led to that surgery.” The compensation judge went on to explain that
the 1981 work injury was a substantial contributing causative factor in the surgery she underwent in 1990. The remaining surgeries flowed from the first surgery. The employee has proved that her medical treatment to her low back was causally connected to the 1981 injury.
Although the self-insured employer argues that the compensation judge was influenced by an incorrect understanding of the stipulations between the parties, she denied everything that was not related to the employee’s low back, and she related the treatments awarded to the low back injury that took place at the employer in 1981. Therefore, we conclude that any error present in this case regarding the stipulations of the parties was harmless in nature.
Substantial Evidence
The self-insured employer goes on to argue that substantial evidence does not support the compensation judge’s award of a number of the medical expenses and treatments at issue herein. An employer and insurer are required to furnish medical treatment as may reasonably be required at the time of the injury and any time thereafter to cure and relieve the employee from the effects of the work-related injury. Minn. Stat. § 176.135, subd. 1. The employee bears the burden of proving, by a fair preponderance of the evidence, the compensability of his or her claims. See Swanson v. Fairway Foods, 439 N.W.2d 722, 723-24, 41 W.C.D. 1010, 1013 (Minn. 1989); Adkins v. Univ. Health Care Ctr., 405 N.W.2d 231, 233, 39 W.C.D. 898, 900 (Minn. 1987). Questions of medical causation, as with other factual determinations, fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994); Adkins, 405 N.W.2d at 233, 39 W.C.D. at 900. The reasonableness and necessity of medical treatment is also a question of fact for the compensation judge. See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993).
The self-insured employer argues that substantial evidence does not support the compensation judge’s findings on causation and/or reasonableness and necessity with regard to a number of the treatments involved, including the bath chair, the TENS unit equipment, the radiofrequency ablation, the intervention claims, and the out-of-pocket expenses and medical mileage. The self-insured employer cites Dr. Gurin’s opinions that these treatments are not causally related to the 1981 injury in light of the employee’s minimal low back pain and because of the superseding and intervening motor vehicle accidents and episodes of trauma. Doctor Gurin also generally opined that the treatments at issue were not causally related to the 1981 injury, nor were they reasonable and necessary treatment. Doctor Gurin noted the employee’s inconsistent, subjective, and migratory pain complaints and concluded that the 1981 work injury had resolved and was no longer a substantial contributing cause for any need for additional treatment to the employee’s low back. Furthermore, the self-insured employer references the specific chart notes involving the various treatments at issue, and it argues that these chart notes do not specifically acknowledge the employee’s extensive history of superseding and intervening incidents, and do not address the employee’s extensive history of failed treatment, provide an explanation as to why the proposed treatment would be any more successful than prior modalities, or, in many cases, relate the treatment to the employee’s 1981 injury.
Ultimately, the self-insured employer generally argues that the compensation judge’s “denial of bills did not go far enough.” The self-insured employer maintains that none of the bills submitted were compensable based on Dr. Gurin’s opinion that the 1981 work injury is no longer a substantial contributing cause for any additional medical treatment related to the employee’s low back. In addition, the self-insured employer argues that the employee’s treating doctors failed to address the employee’s extensive history of superseding and intervening motor vehicle accidents and other episodes of trauma.
It is well-settled that an employee has the burden of showing that a work-related injury is a substantial contributing cause, but not the sole cause, of his or her disability and need for treatment. See, e.g., Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 497-98, 40 W.C.D. 117, 122 (Minn. 1987). Here, the compensation judge did consider the self-insured employer’s position, and she noted Dr. Gurin’s conclusion that the employee sustained temporary injuries to her low back. However, the compensation judge also cited medical evidence, including the independent medical examination from Dr. O’Phelan in 1993, which related the employee’s low back pain and disability, at least in part, to the employee’s 1981 work injury. The compensation judge concluded that the 1981 work injury was a substantial contributing causative factor in the surgery she underwent in 1990 and, therefore, that the 1981 injury was a substantial contributing factor in the ongoing low back problems and treatments at issue here.
We recognize that there may have been more than one possible conclusion to be drawn from the evidence here. However, where there is conflicting evidence or evidence from which more than one inference may be drawn reasonably, we must affirm the compensation judge. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). Furthermore, it is the function of the compensation judge to resolve conflicts in expert medical testimony. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The fact that the medical records may not have specifically related the treatments at issue to the employee’s 1981 injury is not necessarily dispositive, and given the circumstances and the lengthy time periods involved here, it was not unreasonable for the compensation judge to look at the totality of the evidence in reaching her conclusions. See, e.g., DeLeon v. Andringa, slip op. (W.C.C.A. Nov. 3, 1998) (holding that a lack of medical records specifically relating an injury to periods of alleged disability was not dispositive given the totality of the evidence). The compensation judge considered the totality of the evidence provided here, including the employee’s testimony and the totality of the medical records submitted. While there may be more than one possible inference to be drawn here, substantial evidence supports the compensation judge’s conclusions, and we will not disturb them on appeal.
Claims at Issue
The self-insured employer next argues that the compensation judge’s findings with respect to the intervention claims fail to adequately dispose of all claims and that these findings were vague and did not adequately set forth what was being awarded. Similarly, the self-insured employer argues that the compensation judge failed to make any findings regarding the reasonableness, necessity, or causation relating to the walker.
Minn. Stat. § 176.371 requires a compensation judge to dispose of “all questions of fact and law submitted” at hearing. The compensation judge made the causation findings discussed in detail above, and she awarded medical bills incurred after December 13, 2011, which are related to the employee’s low back. She also denied the charges that are related to the employee’s ankles, knees, and foot drop.
The self-insured employer argues that the compensation judge’s determinations regarding the intervention claims and the walker are “problematic” because the findings and order does not state exactly what is being awarded or denied, and it fails to consider the fact that some of the intervention claims contain charges for injuries or medical conditions unrelated to the low back injury upon which the employee’s claims were based. The self-insured employer also argues that the compensation judge’s findings, or lack thereof, could be interpreted as awarding treatment for conditions that were not related to the low back.
We disagree. The compensation judge issued sufficient findings to indicate which charges are related to the work injury and which are not. She awarded charges relating to the low back and denied any charges that are related to the employee’s ankles, knees, or foot drop. If, for some reason, the parties are still unable to determine which charges are related to the low back and which are not, additional litigation in the form of a medical request or some other proceeding may be required. However, we see no need to remand this matter for any additional consideration at this time.
Medical Mileage
The employee produced itemizations of pharmacy charges that included charges related to both the low back and other unrelated body parts. Therefore, citing Calhoon v. Sportscraft, slip op. (W.C.C.A. Oct. 11, 1996), the self-insured employer argues that the mileage incurred in relation to the pharmacy charges “was not solely related to her low back, and therefore, the mileage is not compensable.”
In Calhoon, this court analyzed medical mileage involved with obtaining prescription medications. The employee lived with his mother about 35 miles south of Bemidji. He testified that his mother made regular shopping trips to Bemidji, but he made separate trips to obtain his medications. The compensation judge denied the mileage expense incurred by the employee in making separate trips to Bemidji and found that it was not a reasonable or necessary medical expense where he could have instead coordinated his prescription pickups with his mother’s trips to Bemidji. This court noted that where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld (citing Redgate, 421 N.W.2d at 734, 40 W.C.D. at 957). This court determined that it was not unreasonable for the compensation judge to deny the mileage claimed for separate trips to obtain medications, and because substantial evidence supported the denial, we affirmed.
We disagree with the self-insured employer’s interpretation of Calhoun. In that case, we upheld a finding that the employee should have combined his trips to obtain his prescriptions with his mother’s shopping trips. In other words, it was unreasonable to expect separate trips in order to award mileage, and the trips could be combined depending on the compensation judge’s determination of whether it was reasonable to do so. See also Milbrat v. The Marketplace, Inc., 72 W.C.D. 613 (W.C.C.A. 2012) (holding that the employee’s injuries sustained during an automobile accident on her way from her doctor’s office to her usual pharmacy were compensable, even though the employee may also have been planning to do other things as well at the pharmacy, including personal shopping).
Here, the compensation judge determined that it was reasonable for the employee to pick up prescriptions related to the low back as well as other unrelated items. The fact that she may have purchased other unrelated items at the same location during that trip is irrelevant to whether it was reasonable to award the mileage related to the prescriptions, and we affirm the compensation judge’s award of medical mileage.
AFO Braces and SI Belt
The employee argues, on cross-appeal, that substantial evidence supports her claim for AFO braces to treat diagnosed foot drop and for payment of an SI belt as recommended by her medical providers. The employee argues that she “has had ongoing significant back pain and bilateral radiculopathy with leg weakness since her June 1981 work-related injury.” The employee argues that her “medical providers continue to offer recommendations to alleviate the pain and weakness that clearly is a direct result of her lumbar spine condition and the effects of the failed surgeries.” Therefore, the employee argues that the SI belt and the AFO braces are reasonable, necessary, and causally related to the 1981 injury.
The employee argues that the compensation judge overlooked a substantial portion of the records and evidence that shows the employee has been diagnosed with foot drop. For example, in January 2012, her nurse practitioner specifically ordered the SI belt related to a diagnosis of “sacroiliitis s/p lumbar fusion.” The employee argues that that diagnosis is a result of the 1981 low back injury. The employee also argues that the SI belt and AFO braces were in keeping with the employee’s ongoing conservative treatment plan and that they were reasonable and necessary to assist the employee with a number of things such as stability and avoiding falls.
However, the compensation judge found that the medical records did not contain a sufficient explanation of the need for the SI belt or causally relating it to the low back injury. In her memorandum of law, the compensation judge explained that the employee did not have any evidence of sacroiliac joint issues until the SI belt was recommended. As indicated above, the compensation judge found that only treatment related to the low back injury was causally related to the 1981 injury. She determined that even if the employee has developed foot drop, it was not related to the employee’s 1981 low back injury. This determination is supported by Dr. Gurin’s opinions, and, as indicated above, it is the function of the compensation judge to resolve conflicts in expert medical testimony. Nord, 360 N.W.2d at 342, 37 W.C.D. at 372-73.
Again, there is evidence in the record that could potentially allow for a different inference on this issue. However, because there is substantial evidence to support the compensation judge’s causation determination that only the low back is related, we will not disturb her findings with regard to the SI belt or the AFO braces. Redgate, 421 N.W.2d at 734, 40 W.C.D. at 957; Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
SEPARATE CONCURRING OPINION
PATRICIA J. MILUN, Chief Judge
I concur in the result reached by the majority.