LISA LOWE, Employee, v. ALEXANDRIA-PETERSON d/b/a PETE’S COUNTY MKT., and BERKLEY RISK ADM’RS, Employer-Insurer/Appellants, and CENTRACARE CLINIC, MEDICA HEALTH PLANS, CENTRAL MINN. EMERGENCY PHYSICIANS, ALTRU HEALTH SYS., RIVERVIEW HEALTH, and INJURED WORKERS PHARMACY, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 15, 2015
No. WC -5762
HEADNOTES
CAUSATION - PSYCHOLOGICAL CONDITION; CAUSATION - PERMANENT AGGRAVATION. Substantial evidence supported the compensation judge’s conclusion that the employee’s anxiety and depression were the result of her physical work injury and the employee’s preexisting psychological condition did not preclude compensability of care for the conditions that arose from the work injury.
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS. Where neither party raised the applicability of the treatment parameters nor identified the specific rules relevant to the proposed treatment at issue or how the parameters should be interpreted and applied to the facts of the case, this court will not consider the applicability of the treatment parameters for the first time on appeal.
CAUSATION - MEDICAL TREATMENT; MEDICAL TREATMENT & EXPENSE - SURGERY. Where supported by expert medical opinion and not otherwise unreasonable, the compensation judge’s conclusion that the employee’s multi-level spinal fusion surgery was both reasonable and necessary and causally related to the work injury was not clearly erroneous and was supported by substantial evidence.
Affirmed.
Determined by: Milun, C.J., Stofferahn, J., and Hall, J.
Compensation Judge: James Kohl
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Respondent. Michael J. Kosmerl, Heacox, Hartman, Kosmerl, Cosgriff & Johnson, Saint Paul, MN, for the Appellants.
OPINION
PATRICIA J. MILUN, Chief Judge
The self-insured employer appeals the finding that the proposed T2-L2 fusion surgery is compensable in that the compensation judge failed to apply the treatment parameters applicable to lumbar and thoracic surgery. The self-insured employer also appeals from the compensation judge’s findings that the work injury was a substantial contributing cause of the employee’s mental health conditions and that the mental health care treatment and the proposed surgery were reasonable, necessary, and causally related to the employee’s May 4, 2012 work injury. We affirm.
BACKGROUND
The employee sustained an admitted injury to her low back while in the course and scope of employment on May 4, 2012, while working for the self-insured employer, Pete’s County Market. The employee was working from a platform when she fell approximately 7 feet, landing on her buttocks and lower back on the right side. The employee was transported to the emergency room on a backboard. A CT scan was performed which showed probable acute compression fracture of her L1 vertebra. Some degenerative changes were also noted. No fracture of the employee’s pelvis was noted on the scan. X-ray imaging of her pelvis was interpreted as unremarkable. The employee was initially treated with soft bracing and pain medication. The employee was directed to avoid all movement as she could suffer paralysis. The employee was limited to a bare minimum of ADLs[1] and restricted from walking, driving, or other physical activities.
The employee’s condition did not improve. On May 10, 2012, an MRI was performed from T11 through S1. An acute vertebral compression fracture at L1 was observed. Mild to moderate degenerative changes were observed at T12-L1 and L3-S1. Pre- and paravertebral soft tissues were described as normal.
On May 30, 2012, the employee was examined by Dr. Gregory Sherr, who noted that the bracing was “marginally functioning” and assessed the fracture site as exhibiting “worsening collapse and kyphotic angulation.” The employee described radiating pain into her abdomen and a lack of perineal sensation lasting about two weeks, which Dr. Sherr interpreted as potentially requiring immediate surgery to address potential spinal cord compromise. Dr. Sherr replaced the soft wrap bracing with a TLSO.[2] Dr. Sherr limited the employee to 15-30 minutes ambulating when out of bed and wearing the TLSO at all times when out of bed. Dr. Sherr consulted with Lynn Miller, D.O., regarding possible treatments. Dr. Sherr provided three options to the employee: 1) continuing with bracing; 2) posterior only fusion from T10-L3 with L1 laminectomy, and 3) anterior/posterior fusion with corpectomy and expandable cage graft. The third option was offered due to the employee’s reluctance to undergo a larger surgery. The employee’s medical chart showed that she was leaning toward the continued bracing option using a TLSO.[3]
On June 2, 2012, the employee telephoned Dr. Sherr and said that she was experiencing jealousy issues with her boyfriend and severe back pain. The employee told Dr. Sherr that she had ingested 34 Vicodin tables, 10 to 15 Tylenol, and 10 ibuprofen. Emergency room notes showed that the treating physician inquired as to the possibility of a suicide attempt. The employee denied attempting suicide, and the emergency department report indicated that the employee said that “she could not take this pain anymore and she wanted to get rid of this pain so she took the pills.” [4] The employee was hospitalized for five days for treatment following the overdose. On June 3, 2012, Dr. Sherr expressed concern that the employee was not emotionally ready to undergo L1 burst fusion surgery. Dr. Sherr described the surgery as lacking urgency as well as being “chronic and elective.” [5]
On June 27, 2012, the employee was examined by Dr. Miller on continued complaints of pain. Dr. Miller described the L1 fracture as “worsened on repeat imaging.” The employee described dysesthesias radiating into her groin and extending to her feet. The employee also described a “rain drops” sensation on her legs. Dr. Miller recommended surgical intervention to address the L1 fracture.[6]
On July 31, 2012, the employee was examined by Manuel R. Pinto, M.D. Dr. Pinto noted that the employee weighed 178 pounds. The employee became anxious and tearful when describing the May 4, 2012, work injury. The employee displayed signs of fearfulness when discussing her current condition and some bladder issues that she was experiencing. Based on imaging, Dr. Pinto concluded that the fracture was close to being healed, but the employee was continuing to experience pain from disruptions to her discs at levels above and possibly below the fracture site. Dr. Pinto recommended the employee obtain an epidural injection at the T12-L1 level and treat with a psychiatrist or psychologist to address possible post traumatic issues. Dr. Pinto kept the employee off of work but eased her physical restrictions to allow up to 10 pounds lifting.
On August 21, 2012, the employee underwent an epidural injection at T12-L1 to address mid-thoracic spine pain and radicular pain into the employee’s left leg. The employee reported no relief from the procedure.
On September 10, 2012, the employee was examined by Marie Anderson, psychologist, Broadway Clinic, who referred the employee to Kristi A. Gagne, M.D., for post traumatic injury counseling. On October 15, 2012, Dr. Gagne noted that the employee described ruminating about and being angry and upset over the May 4, 2012, work injury. The employee indicated that she frequently cries about the accident. The employee also described persistent anxiety attacks, particularly when she is passing near the workplace where the injury occurred. Dr. Gagne prescribed Paxil and, if the anxiety symptoms improved, a follow-up with Dr. Pinto in a month. The employee’s anxiety condition improved and she was referred back to Dr. Pinto.
The employee underwent discograms conducted from January 9, 2013, through February 13, 2013. The first discogram showed 2/10 nonconcordant pressure and normal morphology at L2-L3. While the employee tolerated the testing at the first level, the test for another level was postponed due to the employee’s reporting of pain. The subsequent discograms were conducted with sedation and showed 6/10 nonconcordant pain and pressure and mildly abnormal morphology at L1-L2; 2/10 nonconcordant pressure and normal morphology at T12-L1; 10/10 concordant diffuse back pain and abnormal morphology at T11-T12; 8/10 concordant back pain and abnormal morphology at T10-T11; 9/10 concordant back pain and abnormal morphology at the T9-T10 level; and 8/10 back pain and abnormal morphology at the T8-T9 level.
On February 4, 2013, the employee underwent an independent psychological examination conducted by Leesa Scott-Morrow, Ph.D., J.D., L.P. Dr. Scott-Morrow opined that the employee showed a number of symptoms for Borderline Personality Disorder, particularly the number of relationships formed and ended, frequent changes in employment, frequent calls to physicians seeking to resolve her medical conditions, and suicide attempts, particularly in conjunction with a relationship crisis.[7] Dr. Scott-Morrow diagnosed the employee as suffering from Pain Disorder with psychological factors and a general medical condition, and Borderline Personality Disorder. Dr. Scott-Morrow opined that the employee was not suffering from depression or anxiety, and that the June 4, 2012, overdose was not substantially caused by the effects of the May 4, 2012, work injury, but rather by the stresses in the relationship with her boyfriend. Dr. Scott-Morrow described the effect of the May 4, 2012, work injury on the employee’s mental condition as presenting challenges arising from her physical dependency but not substantially contributed to by the May 4, 2012, work injury. Dr. Scott-Morrow ascribed the employee’s psychological care needs to the Borderline Personality Disorder diagnosis, which preexisted the May 4, 2012, work injury.
On February 26, 2013, Dr. Pinto reviewed the employee’s discogram results and he indicated that a surgical option would require an entire thoracic spinal fusion. The employee expressed a desire to try other options. Dr. Pinto directed pool therapy and another epidural injection. The employee undertook self-directed pool therapy but did not obtain any improvement in her back pain. On March 25, 2013, the employee underwent an epidural injection which resulted in an increase in her back pain. At a follow-up examination with her treating physician, Andres Makarem, M.D., the employee was diagnosed with chronic back pain, hypertension, and anxiety/depression.
On April 18, 2013, the employee underwent an IME conducted by John E. Sherman, M.D. Dr. Sherman opined that the employee suffered an L1 compression fracture with minimal bursting component that had consolidated without significant deformity. Relying on a lack of objective neurological findings, Dr. Sherman attributed the employee’s symptoms to fear, avoidance behavior, and anxiety arising from the continuation of restrictions. Dr. Sherman opined that the employee was at MMI as of January 1, 2013. Dr. Sherman indicated that the employee was properly rated at 10.5% PPD under Minn. Rule 5223.0390, subp. 2.A.(3). Dr. Sherman opined that the employee was capable of working full time at her pre-injury employment. Dr. Sherman also opined the employee’s probability of reentering the workforce was low, due to the employee’s preexisting psychiatric abnormality and the employee’s symptom magnification.
On May 7, 2013, Dr. Pinto examined the employee, reviewed the discogram results, and conducted a standing x-ray. Dr. Pinto noted that the employee exhibited 75 degrees of thoracic hyperkyphosis, which Dr. Pinto considered a possible source of the employee’s ongoing thoracic pain. Dr. Pinto proposed a posterior fusion of the employee’s spine from T2 through L2. Dr. Pinto indicated that the employee would need to follow up with her psychiatrist and obtain a note clearing the employee for such extensive surgery and that the employee would have to undergo another MRI. Dr. Pinto sought approval from the treating psychiatrist to ensure that the employee’s depression was under control, that she was ready for the trauma of surgery, and that the employee was not suffering from some other psychological condition that would contraindicate undergoing extensive surgery.
In June, 2013, the employee was evaluated by Michal Jorgens, Psy.D., L.P. Dr. Jorgens administered an MMPI-2 exam and the Mini Mental State Examination (MMSE). The MMPI-2 result assessed the employee as naive regarding psychological problems and exhibiting a tendency to amplify physical problems when stressed. The MMSE assessed her cognitive functioning as average. Dr. Jorgens diagnosed the employee as currently suffering from Anxiety Disorder, Depressive Disorder, PTSD,[8] and Pain Disorder with psychological factors. By history, Dr. Jorgens diagnosed the employee as having suffered from Borderline Personality Disorder. Dr. Jorgens also identified the employee’s chronic back pain, other medical problems, financial problems, employment problems, and workers’ compensation issues as other sources of difficulty. Dr. Jorgens recommended that the employee proceed with the proposed fusion surgery with the understanding that the employee would continue to work with a therapist before and after the procedure to understand her distress and learn to manage stress and anxiety. After subsequent psychological information was gathered, Dr. Pinto agreed to go forward with the fusion, pending an MRI to further evaluate the employee’s kyphosis.
The employee filed a Claim Petition seeking approval of the proposed fusion surgery and payment of mental health treatment costs. The matter was consolidated with a Petition to Discontinue filed by the self-insured employer which maintained that the employee’s psychological condition was preexisting and not caused by the May 4, 2012, work injury, that MMI had been reached for both the physical and mental injuries, that TTD benefits could be discontinued, and that the proposed surgery was not reasonable, necessary, or causally related to the work injury. The matter came on for hearing, which was conducted over three separate days. The record remained open for receipt of evidence relating to the overall cost of the proposed surgery.
In a decision issued on August 28, 2014, the compensation judge determined that the May 4, 2012, work injury was a substantial contributing cause of the employee’s lumbar, thoracic, and mental health conditions regarding anxiety and depression; that the mental health treatment was reasonable, necessary, and casually related to the work injury; that the psychological screening and proposed surgery in the nature of a T2-L2 posterior fusion was reasonable, necessary, and casually related to the work injury; and that the employee had not yet reached MMI. The self-insured employer appeals.
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.”[9] 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.”[10] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.[11] 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.”[12] 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.”[13]
DECISION
The self-insured employer on appeal argues that the compensation judge’s determinations are erroneous and not supported by substantial evidence in the record. For the reasons set forth below, we disagree and affirm.
Treatment Parameters
On appeal, the self-insured employer contends that the compensation judge failed to consider and analyze the appropriate treatment parameters for the proposed fusion surgery to the lumbar and thoracic spine. The self-insured employer argues, for the first time on appeal, that the employee has not exhausted conservative treatment, specifically physical therapy and/or a strengthening program, and therefore the treatment parameters prohibit approval of the proposed fusion surgery.[14] For that reason it asserts the compensation judge’s decision is legally erroneous and must be reversed.
The employee contends that no treatment parameter issue was raised at the hearing and therefore, the issue cannot be raised on appeal. In the alternative, the employee maintains that conservative care was undertaken from the time of the initial injury and there is no basis on which to require that an injured employee exhaust all possible conservative care prior to obtaining approval for surgery.
There is no indication in the hearing transcript that the self-insured employer raised the specific nonsurgical treatment requirement of the treatment parameters at the hearing before the compensation judge. There was minimal testimony from the employee and the QRC regarding conservative treatment, but at no time was this testimony referenced in a way that would raise a question as to whether a treatment parameter precluded an award of surgery.
As a general rule, a hearing shall be limited to the issues raised by the notice or petition unless all parties agree to expand the issues, and it is generally inappropriate for a compensation judge to decide a contested issue on grounds not raised or litigated by the parties. Where treatment parameters are raised as a defense, the party must identify the treatment parameter at issue before the compensation judge.[15] In this case, we decline to consider issues raised for the first time on appeal.[16] And, therefore, we will not address the nonsurgical treatment issue under the treatment parameters applicable to the surgery.
Reasonableness, Necessity, and Causal Relationship for Surgery
The compensation judge concluded that the fusion surgery was reasonable, necessary, and causally related to the May 4, 2012, work injury. The self-insured employer contends that this conclusion is unsupported by substantial evidence. The self-insured employer points to the expert medical opinions of Drs. Sherman and Scott-Morrow in support of this argument. Relying on the opinion of Dr. Sherman, the self-insured employer argues that Dr. Sherman observed three of five Waddell’s signs. Further, Dr. Sherman opined that he would not perform such extensive fusion surgery as is proposed only to treat subjective complaints of back pain. The self-insured employer also relies on the opinion of Dr. Scott-Morrow regarding the employee’s psychological state to contend that the employee was not a good candidate for surgery.
The compensation judge found the need for surgery was based upon the objective findings of the multilevel discogram and the observed kyphosis measured by Dr. Pinto, together with the complaints of severe back pain from the employee. The compensation judge noted that the employee’s failure to recover with nonsurgical treatment in the form of epidural injections and physical therapy supported Dr. Pinto’s opinion. Dr. Pinto was clear in his description of how the mechanism of injury could affect the levels shown to be abnormal in the discogram. Further, Dr. Pinto provided an explanation of how the other levels must be included in the surgery to avoid later complications. Where, as here, the medical experts had ample foundation for their opinions, the compensation judge's responsibility is to resolve conflicts in that expert testimony.[17] The compensation judge’s reliance on Dr. Pinto’s opinion is supported by substantial evidence.
Dr. Pinto noted that the employee’s fall on May 4, 2012, resulted in injuries to the adjacent levels around the fracture. The employee’s hyperkyphosis was asymptomatic until that fall. Dr. Pinto noted that he would not perform this surgery absent the employee’s pain symptoms. Based on Dr. Pinto’s opinion, the judge could reasonably find a clear chain of causation from the May 4, 2012, work injury to the employee’s need for surgery. The employer has not identified any intervening cause that breaks the chain of causation.
Nonetheless, the self-insured employer references Dr. Pinto’s description that the fracture was causing a “slight” increase in the employee’s preexisting hyperkyphosis. It argues that the term “slight” means “insignificant” and therefore cannot be a “substantial cause” to the employee’s request for surgery. We are not persuaded by this argument as it merely confuses the legal standard for medical causation with a term of medical description.
The employer contends that approval of the surgery was premature as Dr. Pinto had indicated that a further psychological approval and an MRI were needed before going forward. Dr. Pinto’s deposition testimony is clear that these conditions are in the nature of a last check to ensure that the surgery will not cause more harm. Dr. Pinto indicated that he had all the information necessary as of February 13, 2014, to schedule the proposed fusion surgery.[18] The compensation judge concluded that approval of the surgery was appropriate, subject to these conditions. We find that substantial evidence in the record supports that conclusion.
Finally, the self-insured employer maintains that the estimated cost of the surgery, along with the potential need for future procedures demonstrates that the surgical request is not reasonable. Cost, the likelihood of success, and the employee’s psychological condition are all factors that are appropriate to consider when assessing the reasonableness of proposed medical care.[19] While the proposed surgery is extensive, and therefore more costly than a more limited fusion, there is no other alternative offered by the employer to address the employee’s ongoing pain symptoms.
As a general rule, we uphold the compensation judge’s findings of fact on review if it is supported by substantial evidence: evidence which provides a substantial basis of fact from which the fact and issue can be reasonably inferred.[20] After reviewing the evidence as presented in the entire record, we conclude, on balance, the compensation judge’s decision that the surgery is reasonable to cure and relieve the employee of the effects of the work injury was supported by substantial evidence. We affirm the award of surgery.
Compensability of a Mental Injury
The Compensation judge found that the employee had developed symptoms consistent with an anxiety disorder after the May 4, 2012, work injury. The judge also determined that the compression fracture of the spine was a work-related physical injury that resulted in a compensable, consequential mental injury under Minnesota workers’ compensation law.
On appeal, we are asked to determine if the onset of anxiety and depression after the May 4, 2012, injury is compensable as a personal injury under circumstances in which the employee had a complicated and extensive history of personality disorder and psychological conditions prior to her employment with Pete’s County Market and whether the physical injury caused a mental injury.
Mental conditions causally related to a personal injury have long been compensable in Minnesota. In a decision in 1954, the Minnesota Supreme Court in Hartman v. Cold Spring Granite Co., held that a psychological injury is compensable when it is the “proximate result of the employee’s injuries, and results in disability”.[21] Since that time, an entire line of cases has moved through the courts expanding the application of the proximate result theory based on a simple principle: where a personal injury aggravates or accelerates a preexisting condition, the resulting condition is compensable.[22] The mental injury is compensable where the work- related physical injury is a substantial contributing factor and the work injury need not be the sole cause of the mental injury.[23] In the present case, the self-insured employer contends the evidence does not support the compensation judge’s finding that the May 4, 2012, injury is a substantial contributing factor in the employee’s mental health conditions. We disagree for the reasons stated below.
Diagnosis
The self-insured employer argues that the compensation judge did not take into account the extensive psychological history of the employee; and if the psychological history of the employee had been considered, the compensation judge would have determined the employee’ suffers from a border-line personality disorder unrelated to the personal injury.
In considering the evidence, the compensation judge reviewed conflicting opinions of the medical experts who were not in agreement with the employee’s diagnosis or the element of causation. Here, the judge was provided with divergent and competing medical opinions constructed from the same or similar symptoms or conditions described to meet the classifications under the current Diagnostic and Statistical Manual of Mental Disorders (DSM-V).[24] Dr. Gagne diagnosed an anxiety disorder with borderline personality traits and provided an opinion that the anxiety disorder after the physical injury was the result of significant stress from an acute compression fracture, subsequent disability, and pain. By contrast, Dr. Scott-Morrow diagnosed a borderline personality disorder unrelated to a personal injury, and provided an opinion that any mental conditions were pre-existing mental traits documented in an extensive history of psychiatric care that were not caused or exacerbated from the May 4th injury. In comparison, Dr. Jorgens classified the diagnosis into two categories: current and by history. Under the current category, Dr. Jorgens diagnosed an anxiety disorder, depressive disorder, PTSD, and pain disorder with psychological factors and general medical condition. By history, Dr. Jorgen’s diagnosed the employee as having a borderline personality disorder, chronic back pain, financial and employment problems, and workers compensation issues.
On appeal, the self-insured employer contends the judge erred in accepting a diagnosis that did not take into account the mental illness that developed over the course of the employee’s life including the periodic episodes of anxiety and depression that are documented in her medical history predating the work injury. We are not persuaded by this argument.
The judge found that the employee’s claim of an anxiety disorder represented a mental disability resulting from a physical injury and concluded that the anxiety disorder and treatment were compensable under the Minnesota Workers Compensation Act. The judge expressly accepted the opinions of Dr. Gagne and Dr. Jorgens and found the employee’s symptoms were consistent with a mental illness classified as a mental injury. As stated in his memorandum, the compensation judge rejected the opinion of Dr. Scott-Morrow who maintained that the employee had been misdiagnosed by her treating mental health professionals and was suffering from the effects of a borderline personality disorder unrelated to any personal injury.
A compensation judge’s choice between conflicting medical expert opinions is generally upheld unless the facts assumed by the expert are not supported by the record.[25] In Nord v. City of Cook, the Workers’ Compensation Court of Appeals reversed a compensation judge’s decision because it found the medical opinion relied upon to be inadequate. In doing so the court held firm that while a factfinder’s “choice between experts whose testimony conflicts is usually upheld, that choice is not upheld where the facts assumed by the experts are not supported by the evidence.”[26] Here, the employee sustained a significant personal injury. For six months prior to the injury, the employee was not treating or medicating for any mental disorder or condition. After the injury the employee began to experience anxiety, panic attacks, insomnia and flashbacks and was diagnosed with an anxiety disorder from the personal injury. The employee was prescribed antidepressants which ameliorated the employee’s symptoms of anxiety. Based on these facts, the compensation judge was free to resolve the diagnostic disagreement by rejecting the medical expert who incorporated a broader dimension of historical temperament and classified the diagnosis as a borderline personality disorder and accepting the medical experts who categorized the symptoms as arising from the personal injury. The compensation judge’s determination that the diagnosis is an anxiety disorder is supported by substantial evidence in the record.
Causation
Dr. Scott-Morrow diagnosed a borderline personality disorder unrelated to a personal injury, and provided an opinion that any mental conditions were pre-existing mental traits documented in an extensive history of psychiatric care that were not caused or exacerbated from the May 4th injury. Dr. Scott-Morrow also perceived the employee’s borderline personality disorder as having a preeminent role in the mental health symptoms displayed post injury. Dr. Scott-Morrow reviewed the medical evidence and then described the personal injury as “healing” during a period where Dr. Scott-Morrow determined that the employee exhibited behavior disproportionate to her limitations imposed by the personal injury.[27] Contrary to Dr. Scott-Morrow’s opinion, the employee’s medical treatment records reflect otherwise.
As of May 30, 2012, the employee’s physical condition had worsened and the treating medical providers restricted the employee’s activities of daily living, cautioning the employee that failure to comply with the restrictions could result in paralysis. There is evidence in the record that the employee’s behavior is proportionate to the effect that the personal injury had on her life.
In its brief, the self-insured employer also points to the deposition of Dr. Scott-Morrow to underscore her overall opinion that the personal injury had a “distal relationship or some minor relationship” [28] to the employee’s post injury mental health issues, but was not a substantial contributing factor in the issues and resulting need for medical treatment.
Mental conditions can be brought on, in part, by an employee’s pre-existing disorders and conditions. It is well established that employers must take employees as they find them with their individual physical and mental conditions.[29] Even if we were to accept the argument of a pre-existing condition, a pre-existing condition does not bar compensation to an employee when the subsequent injury aggravated, accelerated or precipitated the condition.[30] As discussed above, the compensation judge did not err in accepting Dr. Gagne’s expert testimony regarding causation over the evidence presented in the testimony and report of Dr. Scott-Morrow.
The competency of a witness to provide expert medical testimony depends upon the witness’s scientific knowledge and practical experience with the issue which is the subject of the offered testimony.[31] Dr. Gagne examined the employee on several occasions shortly after the employee’s personal injury and treated the employee’s anxiety condition until the employee moved. The doctor’s notes were submitted into evidence as well as her deposition transcript of November 12, 2013. Dr. Jorgens took a history from the employee, examined and treated the employee on multiple occasions, and reviewed relevant medical records and tests. This level of knowledge affords adequate foundation for a doctor to render an expert medical opinion.[32] Further, an expert medical opinion does not lack foundation because the doctor fails to explain the underlying reasons for rejecting the opinions of another doctor.[33]
Although the self-insured employer outlined its objection to the opinions of Dr. Gagne as one of foundation, the objection is essentially that the compensation judge did not adopt the opinions of Dr. Scott-Morrow over the opinions of Dr. Gagne, given the medical history of the employee.
In summary, the compensation judge here was presented with conflicting medical opinions, both with adequate foundation and found the opinion of Dr. Gagne more persuasive. Where there is adequate foundation for the opinion adopted by the judge, the court must generally uphold the compensation judge’s choice between medical experts. The compensation judge’s finding that the employee’s anxiety disorder represents a mental disability caused by the personal work injury has substantial evidentiary support. Thus the judge did not err in his determination that there was a compensable mental injury under well-established Minnesota case law. Under the substantial evidence rule and in accordance with Lockwood, we affirm.
[1] Self-toileting and preparing light meals.
[2] A rigid torso brace.
[3] (Employee’s Ex. A4.)
[4] (Employee’s Ex. A1.)
[5] (Employee’s Ex. A4.)
[6] (Employee’s Ex. A4.)
[7] The employee has a history of mental health issues prior to the work injury, with precipitating traumatic incidents dating back to when she was 3 years old. (Transcript Vol. 2, at 11-18, and 56-87; Employee’s Ex. A12; Employer’s Ex. 8.) The employee was prescribed a variety of medications to address her mental health issues from 2003 through 2011. The employee was no longer taking any medication for any mental health condition from October 28, 2011, through May 4, 2012. (Transcript Vol. 2, at 18; Employer’s Exs. 2 and 4.)
[8] Post traumatic stress disorder.
[9] Minn. Stat. § 176.421, subd. 1.
[10] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
[11] Id. at 60, 37 W.C.D. at 240.
[12] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
[13] Id.
[14] Specifically, Minn. Rule 5221.6200, subps. 6 and 11.(A.) and (B.) (applicable to the lumbar spine), and Minn. Rule 5221.6210, subps. 6 and 11.(A.) and (B.) (applicable to the thoracic spine).
[15] Pinc v. Stepping Out, Inc., 69 W.C.D. 181, 187 (W.C.C.A. Mar. 6, 2009); Lewis v. St. Therese Home, Inc., slip op. (W.C.C.A. Mar. 31, 2004); Rosch v. Long Prairie Mem’l Hosp., slip op. (W.C.C.A. Oct. 1, 2003); Boryca v. Marvin Lumber & Cedar, slip op. at 3 n.3 (W.C.C.A. Nov. 10, 1999); Olson v. Allina Health Sys., 59 W.C.D. 37 (W.C.C.A. 1999); Wise-Thackery v. Universal Colour Lab, Inc., slip op. (W.C.C.A. Dec. 31, 1998).
[16] Malinoski v. North Am. Cable Sys., slip op. (W.C.C.A. Dec. 14, 1989); Hartman v. 3M Co., slip op. (W.C.C.A. Sept. 8, 1992).
[17] Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).
[18] (Employee’s Ex. B.)
[19] See Kenow v. The King Co., 57 W.C.D. 123 (W.C.C.A. Jan. 2, 1996).
[20] Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).
[21] Hartman v. Cold Spring Granite Co., 243 Minn. 264, 271, 67 N.W.2d 656, 660, 18 W.C.D. 206, 212 (1954); see also Welchlin v. Fairmont Ry. Motors, 180 Minn. 411, 230 N.W.897 (1930), and Rystedt v. Minneapolis-Moline Power Imp. Co., 186 Minn. 185, 242 N.W.623 (1932).
[22] Hartman,id.; Salmon v. Wheelbrator Frye, 409 N.W.2d 495, 497-98, 40 W.C.D. 117, 122 (Minn. 1987); Wallace v. Hanson Silo Co., 28 W.C.D. 79, 235 N.W.2d 363 (1975); Vanda v. Minn. Mining & Mfg. Co., 218 N.W.2d 458, 27 W.C.D. 379 (Minn. 1974); Jotblad v. City of Saint Paul, slip op. WC06-247 (W.C.C.A. June 11, 2007). The Minnesota Supreme Court, in Lockwood v. Indep. Sch. District No.877, 312 N.W.2d 924 (Minn. 1981) held that a psychological injury claim was compensable when it resulted in or from a work-related physical injury.
[23] Miels v. Northwestern Bell Tel. Co., 355 N.W.2d 710, 715, 37 W.C.D. 164, 170 (Minn. 1984).
[24] The medical professionals used the preceding version, DSM-IV, but there is no difference in the overall classification of conditions between the DSM-IV and DSM-V that is relevant to this proceeding.
[25] Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D.364 (Minn.1985); see also Welton v. Fireside Foster Inn, 426 N.W.2d 883, 41 W.C.D. 109 (1988)(holding that a doctor's opinion regarding causation which is based on an inadequate factual foundation is of little evidentiary value).
[26] Nord, id.
[27] (Employer’s Exhibit 8.)
[28] (Employer’s Exhibit 8, at 29.)
[29] Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975); Vanda v. Minn. Mining & Mfg. Co., 27 W.C.D. 379, 218 N.W.2d 458 (Minn. 1974); Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W.2d 200, 205-06, 21 W.C.D. 105 (1960); Beckmann v. Quebecor Printing, slip op. (W.C.C.A. June 9, 1997).
[30] See, Hartman 67 N.W.2d at 660, 18 W.C.D. at 212; Schleiss v. Int’l Harvester, slip op. (W.C.C.A. Feb. 15, 1989); Castner v. MCI Telecomms. Corp., 40 W.C.D. 523, 536-37 (W.C.C.A. May 26, 1987), rev. and remanded for specific findings regarding causation, 40 W.C.D. 544 (Minn. Nov. 25, 1987).
[31]Drews v. Kohl’s, 55 W.C.D. 33, 37 (W.C.C.A. 1996), summarily aff’d (Minn. July 11, 1996) (citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)).
[32] See, Schulenburg v. Corn Plus, 65 W.C.D. 237, 244-245 (W.C.C.A. 2005), summarily aff’d (Minn. May 25, 2005); Hillsdale v. Honeywell, Inc., slip op. (W.C.C.A. Feb. 6, 1997).
[33] Goss v. Ford Motor Co., 55 W.C.D. 316 (W.C.C.A. 1996), aff’d. without opinion (Minn. Oct. 18, 1996); Midtling v. Schwan’s Sales Enters., slip op. (W.C.C.A. Sept. 22, 2003); Caizzo v. McDonald’s/T&K Restaurant Franchise Group, slip op. (W.C.C.A. Apr. 14, 2005).