ERIC I. PHIPPS, Employee/Appellant, v. BAMBOO BETTY’S/LEX CORP., INC., and AMTRUST GROUP, Employer-Insurer, and MAPLE GROVE HOSP. CORP., FAIRVIEW HEALTH SERVS., ST. CROIX ORTHOPAEDICS, and MINNEAPOLIS RADIOLOGY, Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 10, 2014

No. WC14-5703

HEADNOTES

MEDICAL TREATMENT & EXPENSE - DIAGNOSTIC TESTING.  Because the compensation judge found the employee’s work injury had resolved, the compensation judge did not err in refusing to award diagnostic surgery to rule out alternate explanations for the employee’s symptoms.

Affirmed.

Determined by:  Stofferahn, J., Cervantes, J., and Wilson, J.
Compensation Judge:  Paul V. Rieke

Attorneys:  Joshua E. Borken, Fields Law Firm, Minneapolis, MN, for the Appellant.  Tracy M. Borash, Brown & Carlson, Minneapolis, MN, for the Respondents.

 

OPINION

DAVID A. STOFFERAHN, Judge

The employee appeals from the compensation judge’s denial of requested surgery.  We affirm.

BACKGROUND

Eric Phipps was working as a bouncer for Bamboo Betty’s when he was injured on February 23, 2013.  Mr. Phipps was breaking up an altercation in the employer’s parking lot when he was kicked in the left leg by one of the participants.

The employee’s first treatment for his work injury was at the emergency room of Maple Grove Hospital three days later.  The chart note from that visit states the employee had “crashed” a BMX bike he had been riding on February 16 and “kind of twisted his knee, he was having left knee pain.”  He also stated he had been kicked in the knee while working as a bouncer.  He was found to have a “large left-sided effusion” and x-rays showed a tibial spine fracture.  Mr. Phipps was referred to an orthopedist for follow-up care.

Medical records in evidence demonstrate that the employee had experienced knee problems before his work injury.  Records from Mercy Hospital in 2000 and 2001 referred to “difficulties” with the knee and a past medical history “remarkable for patellofemoral syndrome.”  Records from Northfield Hospital in 2004 refer to past knee surgery, and in 2012, records from Unity Hospital regarding past surgery history identify “right and left knee surgery.”

Mr. Phipps began care for his work injury with Dr. Thomas Conner at Twin Cities Orthopedics on February 27, 2013.  He gave Dr. Conner a history of his work injury; there was no mention of a BMX injury or of his previous knee problems and surgeries.  Dr. Conner found large effusion in the left knee with some restricted range of motion.  An MRI scan was performed, and Dr. Conner’s impression was “minimally displaced medial tibial spine fracture and incidental sprain.”  The employee was referred for physical therapy, and the records indicate he attended four sessions at the Institute for Athletic Medicine.  Mr. Phipps was also taken off work by Dr. Conner.

The employer and its insurer accepted liability for the work injury and began paying the employee’s medical bills as well as temporary total disability benefits.

Mr. Phipps saw Dr. Robert Knowlan at St. Croix Orthopaedics on April 30, 2013, for a second opinion.  He complained of “some popping and catching in the knee, no locking or giving out.  Prior to this time he denies any knee problems.”  No treatment options were provided to the employee other than physical therapy.  Dr. Knowlan’s impression was “left knee injury with tibial spine fracture.”  There is no record of further physical therapy.

The employee was seen on behalf of the employer and insurer by Dr. Paul Wicklund on July 23, 2013.  After his examination and review of the medical records, Dr. Wicklund diagnosed “an undisplaced left tibial fracture which appears healed.”  Dr. Wicklund concluded the work injury had been temporary, the employee needed no work restrictions, and no further medical treatment was necessary.  In a clarification note dated August 7, 2013, Dr. Wicklund stated the undisplaced tibial fracture had healed as of the date of his evaluation.

Mr. Phipps returned to Dr. Knowlan on October 8, 2013.  He noted continued popping and locking in his knee, was “frustrated,” and wanted to discuss surgical options.  Dr. Knowlan noted “obvious popping” when the employee extended his knee and concluded there was a possible loose body in the left knee.  Dr. Knowlan recommended arthroscopic surgery, “debridement as needed.”

Based on Dr. Wicklund’s report, the employer and insurer filed a notice to discontinue benefits which was granted after an administrative conference.  The employee’s objection to the discontinuance was consolidated with a claim petition the employee had filed previously claiming an underpayment of temporary total disability benefits.

In January 2014, after reviewing some additional medical records, Dr. Wicklund prepared a supplemental report in which he stated that the x-rays done in October at St. Croix Orthopaedics were normal.  Because the popping experienced by the employee occurred when he extended his knee, it was Dr. Wicklund’s opinion that this symptom came from the patellofemoral joint.  Dr. Wicklund noted that the employee’s tibial spine fracture would have been the result of a kick to the tibia and not the knee, and since the knee was not kicked, the patellofemoral symptoms were not related to the employee’s work injury.

Dr. Knowlan also prepared a supplemental report dated February 6, 2014, in which he reiterated his opinion that arthroscopic surgery was necessary to rule out a “loose body, cartilage fissuring or scar tissue.”  He stated that all of the employee’s treatment for his left knee was related to his work injury.

The employee’s objection to discontinuance and claim petition were heard by Compensation Judge Paul Rieke on February 11, 2014.  The employee was the only witness at the hearing.  The compensation judge issued his findings and order on February 25, 2014.  The compensation judge denied the employee’s claim for underpayment of temporary total disability benefits.  He adopted Dr. Wicklund’s opinion that the employee’s work injury was temporary and had resolved as of July 23, 2013.  The claims for continuing temporary total, for medical expenses after that date, and for the arthroscopic surgery recommended by Dr. Knowlan were denied as well.  The employee has appealed the denial of arthroscopic surgery.[1]

DECISION

The employee contends on appeal that the compensation judge erred in denying the arthroscopic surgery recommended by Dr. Knowlan.  The employee argues that, since the compensation judge found the proposed surgery to be reasonable, the surgery should have been awarded so that alternate explanations for the employee’s symptoms could be ruled out.

The employee cites to this court’s decision in Ploog v. Premier 94 Truck Servs., Inc., 72 W.C.D. 45 (W.C.C.A. 2012) as well as similar cases.  In Ploog, the compensation judge found the employee had injured his head during the work injury and concluded a referral to a brain trauma specialist was reasonable to consider possible causes for the employee’s tremor symptoms.  This court affirmed the compensation judge’s ruling that diagnostic testing to evaluate possible causes or treatment for a work injury is generally compensable.

What has been referred to as a “rule-out” provision for diagnostic testing does not apply in the present case.  Central to the application of a “rule-out” basis for approving diagnostic testing is a finding that the employee has continuing symptoms that may or may not be related to the work injury.  Such is not the case here.

The compensation judge in the present case accepted the opinion of Dr. Wicklund and made a specific finding that “the preponderance of the evidence of record supports the determination that the employee’s work-related injury of February 23, 2013, had resolved by the date of Dr. Wicklund’s examination of July 23, 2013.”[2]  As a result, because the work injury had resolved, any knee symptoms experienced by the employee after July 23, 2013, are not due to the work injury.  That being so, there is no basis for ordering the employer and insurer to pay for testing of symptoms and a condition not related to the work injury.  See Dahl v. Rice County, No. WC13-5572 (W.C.C.A. Oct. 2, 2013).

The decision of the compensation judge is affirmed.



[1] In the notice of appeal, the employee appealed other findings but did not address issues in those findings in his brief.  Those issues will not be considered here.  Minn. R. 9800.0900, subp. 1.

[2] This finding was appealed but, as noted earlier, was one not addressed in employee’s brief.