TERESA A. HOFFMAN, Employee/Appellant, v. TIMBERLINE SPORTS N CONVENIENCE and EMC INS. COS., Employer-Insurer.

WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 6, 2015

No. WC14-5754

HEADNOTES

REHABILITATION - CONSULTATION.  Substantial evidence in the form of a medical opinion with adequate foundation supports the compensation judge’s determination that the employee had no employment restrictions from her work injury, and the compensation judge’s denial of the employee’s claim for a rehabilitation consultation.

Affirmed.

Determined by:  Stofferahn, J., Cervantes, J., and Milun, C.J.
Compensation Judge:  Adam S. Wolkoff

Attorneys:  John P. Bailey, Bailey Law Office, Bemidji, MN, for the Appellant.  Laura L. Myslis, Gislason & Hunter, Minneapolis, MN, for the Respondents.

 

OPINION

DAVID A. STOFFERAHN, Judge

The employee appeals from the compensation judge’s denial of her claim for a rehabilitation consultation.  We affirm.

BACKGROUND

Teresa Hoffman, the employee, began working for the employer, Timberline Sports N Convenience, in March 2007.  Timberline operated a gas station and convenience store with food service in Blackduck, Minnesota.  Ms. Hoffman worked at the counter in the food service area.

On July 28, 2008, the employee went into a walk-in freezer to get some product.  She tripped over a box on the floor and did not fall, but jammed her right knee on a ramp in the freezer.  Her right knee was sore the rest of the day but she finished her shift.  She advised her supervisor of the incident.  Ms. Hoffman worked the next two days and then was off work for a previously scheduled long weekend.  When she went back to work, her knee pain increased as she stood throughout her work shift.  On Wednesday, August 6, 2008, Ms. Hoffman’s husband gave her a ride to work in his pickup.  She stepped on the running board of the truck with her left foot to get into the vehicle and felt increased pain in her right knee as she lifted her right leg.  After she arrived at the service station, Ms. Hoffman told her supervisor she would not be able to work and made arrangements to see a doctor.

Ms. Hoffman saw Dr. Mark Carlson at Sanford Bemidji Medical Center with a complaint of posterior right knee pain.  She advised the doctor that she had tripped over a box.  Dr. Carlson stated in his chart note that “posterior pain mostly with tenderness makes me think more of knee flexor strain versus symptomatic baker’s cyst.  Consider posterolateral meniscus injury due to DJD.”  The employee was given a knee immobilizer and pain medication.  Dr. Carlson also referred her to physical therapy.  The employee returned to Dr. Carlson a number of times for symptoms of continued right knee pain and had an MRI done at the doctor’s direction on September 23, 2008.  The MRI was read as showing an acute medial meniscus tear along with degenerative changes.  Dr. Carlson referred Ms. Hoffman for an orthopedic consultation with Dr. Patrick Moriarty.

Dr. Moriarty recommended a “diagnostic therapeutic arthroscopy for medial meniscus tear,” and this procedure was done on November 19, 2008.  In his operative report, Dr. Moriarty noted that there was “an intact meniscus with only a very small tearing of the extreme margin.”  Arthritic changes were found, and Dr. Moriarty diagnosed knee pain and degenerative joint disease.  In a follow-up exam with Dr. Moriarty in April 2009, Ms. Hoffman reported that the surgery was of “limited benefit” in relieving her symptoms, and she still had swelling and discomfort at the end of her work day when she had been on her feet for her shift.  In response to the employee’s question regarding a connection to her work injury, Dr. Moriarty stated that the employee “likely had advancing degenerative arthrosis exacerbated with a trip as she described.”  He also commented that she “may very well be on a path for knee replacement here for her advanced degenerative changes.”

In August 2009, Dr. Moriarty prepared a health care provider report in which he concluded Ms. Hoffman was at maximum medical improvement (MMI) with no permanent partial disability.  He made no statement as to the necessity for further treatment or work restrictions.  There are no records of further treatment of the employee for knee problems at Sanford Bemidji Medical Center.

Beginning in February 2009, Ms. Hoffman treated with a chiropractor, Dr. Gregory Denver, for her right knee pain.  In October, Dr. Denver noted that in addition to her right knee pain, she also had pain in the bottom of her left foot.  Ms. Hoffman saw Dr. Denver a number of times for these complaints as well as low back pain.  In her last visit on October 7, 2011, Dr. Denver recorded improvement in low back symptoms but continued soreness in both knees.

On March 29, 2010, the employee went to Deer River Healthcare Center, her general medical care provider, and had x-rays done of her right knee and left foot.  The studies primarily demonstrated degenerative changes in her knee and foot.  A podiatrist, Dr. Bonni-Jo Silbernagel, attributed the plantar fasciitis to the employee favoring her right side because of her knee pain.  Physical therapy was prescribed, and, in a visit on June 3, Dr. Silbernagel recorded that the employee had no pain or symptoms.

The employee consulted with a different podiatrist, Dr. Thomas Perendy, in March 2011 for left foot pain that she described as moderate and that she associated with standing and walking on hard surfaces.  Dr. Perendy diagnosed plantar fasciitis and provided orthotics, but Ms. Hoffman advised Dr. Perendy in September that her feet still hurt at the end of her work day.

Ms. Hoffman saw PA-C Bernice Kane at the Deer River Clinic on June 28, 2012, for her right knee pain.  She reported that her knee pain had slowly worsened ever since her work injury, and she felt she was not able to fully extend her leg.  The employee also stated that she had left foot pain from compensating for her knee problem.  An MRI was done in July and read as showing “fraying” and a subtle linear tear of the meniscus.

A referral was made for an orthopedic consultation, and the employee as seen by Dr. Michael Gibbons on September 14, 2012.  She provided a history of right knee pain since her injury in 2008 that increased in severity with walking and standing for extended periods.  Her knee would swell, but there was no giving out.  She was working without restrictions and took ibuprofen for pain relief.  In his chart notes, Dr. Gibbons stated that he felt “that her symptoms are a progression of her initial work-related injury” and he connected that to what he understood to be a partial meniscectomy done by Dr. Moriarty in November 2008.  Dr. Gibbons recommended a total knee arthroplasty.

The employer and its insurer, EMC Insurance Companies, initially accepted liability for the employee’s July 28, 2008, work injury and paid wage loss benefits and medical expenses.  The employer and insurer denied liability in 2012, alleging a mistake of fact, specifically, that the employee’s knee condition was due to the “significant subsequent injury” which allegedly occurred when the employee was getting into her husband’s truck on August 6, 2008.

Dr. Stephen Barron evaluated Ms. Hoffman at the request of the employer and insurer on March 19, 2013.  Dr. Barron’s opinion, as set forth in his report, was that there had been no work injury but, assuming “arguendo” that an injury occurred, the injury “did not substantially contribute to or cause Ms. Hoffman’s current right knee condition.”  Dr. Barron attributed the employee’s condition solely to pre-existing degenerative joint disease.  Of significance to Dr. Barron was Dr. Moriarty’s operative report which Dr. Barron opined showed no meniscus tear but only what he identified as degenerative changes.  Dr. Barron also found no connection between the right knee condition and the left foot plantar fasciitis.  Dr. Barron stated that if there had been a work injury to the right knee in July 2008, medical treatment for the knee was causally related to the work injury through August 27, 2009, when Dr. Moriarty had concluded Ms. Hoffman was at MMI without permanent partial disability.  Dr. Barron also concluded that no employment restrictions related to the work injury were necessary.

Ms. Hoffman was referred to Dr. Larry Stember, a chiropractor, by her attorney for an evaluation on February 11, 2014.  After his examination and review of the records, Dr. Stember concluded that Ms. Hoffman sustained a right knee injury with a medial meniscus tear, cartilage tearing of the medial femoral condyle and tibial plateau as well as a chronic strain/sprain of the soft tissue surrounding the right knee.  He also stated that the left foot plantar fasciitis represented a consequential injury due to altered gait.  Dr. Stember also rated permanent partial disability and provided employment restrictions.

The employee filed a claim petition in November 2012, seeking various workers’ compensation benefits.  The claim petition was heard by Compensation Judge Adam Wolkoff on August 7, 2014.  The issues identified for determination at the hearing by the parties and the compensation judge were primary liability and the employee’s entitlement to a rehabilitation consultation.  In his findings and order issued August 28, 2014, the compensation judge determined that the employee had sustained a right knee injury in the form of an aggravation of a pre-existing degenerative condition and a temporary consequential injury to her left foot.  He further found that the employee had no permanent partial disability or employment restrictions from the work injury and denied the employee’s claim for a rehabilitation consultation.  The employee has appealed.

DECISION

As identified by the parties and the compensation judge, the issues for determination at the hearing were primary liability and the employee’s entitlement to a rehabilitation consultation.  The compensation judge determined that the employee sustained a work-related injury to her right knee on July 28, 2008.  The employer and insurer have not appealed that finding.  The compensation judge denied the employee’s request for a rehabilitation consultation, and the employee has appealed the denial.

“A rehabilitation consultation is used to determine whether an employee is a qualified employee for rehabilitation services.”  Minn. R. 5220.0130.  A rehabilitation consultation must be provided to an injured employee upon request of the employee.  Minn. Stat. § 176.102, subd. 4(a).  However, as a threshold issue, the employee must establish that there are employment restrictions resulting from the work injury.  A determination that the employee has completely recovered from the work injury or has no employment restrictions from the injury may defeat a claim for a rehabilitation consultation.  Judnick v. Sholom Home West, slip op. (W.C.C.A. Aug. 4, 1995); Brew v. College of St. Scholastica, slip op. (W.C.C.A. Aug. 5, 2003); Brownell v. Hibbing Taconite Mining Co., No. WC09-5036 (W.C.C.A. Apr. 8, 2010).

In the present case, the compensation judge denied the requested rehabilitation consultation on the basis of his determination that the employee had no employment restrictions as the result of her July 2008 injury.  (Finding 42.)  The issue for this reviewing court is whether this finding is supported by substantial evidence when considering the record as a whole.  Minn. Stat. § 176.421, subd. 1; Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).  In his memorandum, the compensation judge stated that he accepted the opinion of the IME, Dr. Barron, in making this determination.

The employee argues on appeal that the compensation judge found that the July 28 injury was a temporary injury and erred in relying on Dr. Barron’s opinion for this determination.  There are two problems with this argument:  1) the compensation judge did not find the July 2008 knee injury to be a temporary injury; and 2) Dr. Barron did not provide an opinion that the July 2008 work injury was a temporary injury.

This court has examined the compensation judge’s findings and order, and we are unable to locate any finding that the right knee injury was temporary.  The compensation judge found that the employee sustained a work injury to her right knee on July 28, 2008, in the nature of an aggravation of the “employee’s pre-existing and previously asymptomatic right knee degeneration.”  (Finding 40.)  The employee sustained a temporary consequential injury to her left foot “which had resolved without residual disability” by the date of Dr. Barron’s examination.  (Finding 41.)  The employee has no work restrictions and has no permanent partial disability as the result of the July 2008 work injury.  “The Compensation Judge accepts Dr. Barron’s opinion in this regard.”  (Finding 42, emphasis added.)

It is apparent from these findings that the compensation judge concluded that the employee sustained a work-related work injury and that the preponderance of the evidence was that the employee did not have work restrictions from that injury which would support the claim for a rehabilitation consultation.  The compensation judge did not find the right knee injury to be temporary and did not conclude that the right knee injury had completely resolved.  In her brief, the employee argues the effect of the compensation judge’s decision on possible future claims, but a decision of a compensation judge addresses the claims presented at the hearing.  The decision of a compensation judge does not have prospective effect other than in the application of res judicata.  Lacey v. Arrowhead Tree Service, slip op. (W.C.C.A. Oct. 14, 1994); Keiser v. Merit HVAC, slip op. (W.C.C.A. Feb. 1, 1995); Tomford v. Mark’s Welding; No. WC06-165 (W.C.C.A. Dec. 4, 2006).  The nature and extent of claims the employee may have in the future as the result of her July 2008 injury has not been decided in this case and is not an issue for review in this appeal.

As to the second point raised by the employee, Dr. Barron’s opinion was that any problems the employee had with the right knee were the result of degenerative changes.  When asked to assume “arguendo” that there had been a work injury, Dr. Barron stated there were no work restrictions and no permanent partial disability.  This is the part of Dr. Barron’s opinion adopted by the compensation judge.  A compensation judge need not accept all of a witness testimony or opinion, but may accept a part of that opinion.  City of Minnetonka v. Carlson, 298 N.W.2d 763 (Minn.1980); Meyers v. Minn. Elec. Supply Co., 69 W.C.D. 405 (W.C.C.A. 2009); Hellgren v. St. Mary’s Med. Ctr., No. WC14-5672 (W.C.C.A. July 9, 2014).  Dr. Barron had adequate foundation for his opinion through his review of the records and his evaluation of the employee.  Grunst v. Immanuel-St. Joseph’s Hosp., 424 N.W. 2d 66, 40 W.C.D. 1130 (Minn. 1988); Gardner v. Elbow Lake Coop Grain/Farmers, No.WC07-180 (W.C.C.A. Jan. 10, 2008); Gossett v Ramsey Excavating Co., 72 W.C.D. 27 (W.C.C.A 2012).  A medical opinion with proper foundation may serve as the basis for a compensation judge’s decision.  Smith v. Quebecor Printing Co., 63 W.C.D. 566 (W.C.C.A. 2003); Gordenier v. Original Mattress Factory, No. WC14-5661 (June 4, 2014).

We conclude that substantial evidence supports the compensation judge’s finding that the employee did not establish she had employment restrictions as the result of her work-related injury.  We affirm the compensation judge’s denial of the employee’s claim for a rehabilitation consultation.