DONALD J. PETERSEN, III, Employee/Appellant, v. INDEP. SCH. DIST. NO. 492 and SFM MUT. INS. CO., Employer-Insurer, and MAYO CLINIC, Intervenor.

 

WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 25, 2015

No. WC14-5771

HEADNOTES

CAUSATION - TEMPORARY AGGRAVATION.  Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee sustained a temporary aggravation of a pre-existing lumbar spine condition as a result of his March 22, 2012, work injury.

Affirmed.

Determined by:  Cervantes, J., Hall, J., and Sundquist, J.
Compensation Judge:  William Marshall

Attorneys:  Donaldson V. Lawhead, Lawhead Law Offices, Austin, MN, for the Appellant.  Andrew W. Lynn, Lynn, Scharfenberg & Hollick, Minneapolis, MN, for the Respondents.

 

OPINION

MANUEL J. CERVANTES, Judge

The employee appeals the compensation judge’s findings that the employee sustained a temporary aggravation of a pre-existing lumbar spine condition as a result of his March 22, 2012, work injury, that the low back work injury had resolved by March 28, 2012, and that any medical treatment after that date was not causally related to his low back work injury.  We affirm.

BACKGROUND

On March 22, 2012, Donald J. Petersen, III, the employee, injured his left shoulder and low back as he restrained a student while working as an aide for emotionally and behaviorally disabled children at Independent School District No. 492, the employer.  The employer was insured for workers’ compensation liability by SFM Mutual Insurance Company.  The employee treated the same day at the Mayo Clinic urgent care department in Austin, Minnesota, for back and shoulder pain.  Lumbar spine x-rays indicated minimal retrolisthesis of L2 on L3, L3 on L4, and L4 on L5 with diffuse lumbar vertebral osteophytes and prominent aortoiliac vascular calcifications.  He was diagnosed with muscle strain and prescribed medication.  The employee returned to the clinic on March 28, 2012, reporting worsening pain in his shoulder and decreased low back pain.  He underwent a left shoulder MRI scan on April 5, 2012.

The employee treated for his left shoulder with Dr. Matthew Kirsch in the orthopedics department on May 2, 2012.  At that time, the employee reported that he had light duty at work.  Dr. Kirsch diagnosed left shoulder proximal biceps tendon partial tearing and subluxation, partial thickness tear of the subscapularis, and left shoulder impingement syndrome, and treated the employee with a lidocaine injection.  The employee’s low back condition was not mentioned.  The employee’s left shoulder symptoms persisted and physical therapy was recommended.  At the June 14, 2012, physical therapy consultation, the therapist noted that the employee stated he had sustained a low back strain at the same time as the shoulder injury but that it seemed to be improving.   The physical therapy did not provide any significant benefit.  The employee’s diagnosis at that time also included left acromioclavicular joint arthrosis.  The employee was off work during the summer vacation period.

On July 24, 2012, the employee underwent an arthroscopic left shoulder subacromial decompression, distal clavicle excision, open proximal subpectoral biceps tendonesis, and limited glenohumeral joint debridement.  The next day, the employee underwent a physical therapy evaluation and was discharged from the hospital with restrictions of no driving or operating machinery while using narcotics, no lifting over three pounds for six weeks, and to use a sling, and was instructed to do home exercises.  The employee had twelve sessions of physical therapy from July 27, 2012, through September 6, 2012.  The employee was released to return to work on September 7, 2012.  There are no restrictions listed in the medical records at that time.  The employee indicated that he returned to light duty work and that he had restrictions for his low back of light duty, no restraints, and no lifting over ten pounds.

The employee sought treatment for his low back on January 10, 2013.  The nurse practitioner noted that the employee was not treated for his low back after the March 2012 injury and that he did not have physical therapy for his low back.  A lumbar spine MRI scan and physical therapy were recommended.  The employee underwent physical therapy from January 1 through February 12, 2013.  A February 20, 2013 lumbar spine MRI scan indicated degenerative disc disease, moderate bilateral foraminal stenosis and severe central spinal canal stenosis at L4-5, moderate foraminal stenosis and moderate to severe spinal canal stenosis at L3-4, and moderate stenosis at L2-3.  The employee was evaluated by Dr. Cara Prideaux at the Mayo Clinic Spine Center on February 28, 2013.  The doctor assessed low back and groin pain with lumbar spinal stenosis and lumbar spondylosis without myelopathy, and recommended an EMG.  In March 2013, Dr. Prideaux reviewed the EMG, which was read as normal with no evidence of radiculopathy in the spine.

The employee returned to Dr. Prideaux in July 2013 after an increase in low back pain after sneezing.  The doctor reviewed the employee’s lumbar spine MRI scan and noted a focal disc protrusion at L4-5, possibly impinging the right L5 nerve root, but noted that the employee did not have any correlating clinical symptoms.  Dr. Prideaux suspected that the employee likely aggravated his underlying spondylosis, possibly with a disc injury.  The employee was treated with an epidural steroid injection, which provided short term relief, and was referred for a neurological consultation.  After a September 18, 2013, examination, Dr. W. Richard Marsh recommended facet injections and possibly surgery, either a laminectomy or a decompression and fusion at L4-5.  In October 2013, Dr. Marsh opined that the employee’s work injury was a substantial aggravating factor of the employee’s medical condition.  He stated that the disc protrusion could have happened at the time of the work injury and that some of the spondylitic changes could have evolved after the injury and before the February 2013 lumbar spine MRI scan.

On February 3, 2014, the employee had a significant increase in low back pain while getting out of the shower.  The employee was taken off work on February 7, 2014, with a return to work date of February 10, 2014, with no restrictions.[1]  The employee’s family medical leave form, which was stamped with February 7, 2014, as the date of service and dated March 14, 2014, indicated that the employee was restricted from lifting over 30 pounds and could require intermittent leave.

On March 5, 2014, the employee underwent an independent medical examination with Dr. Mark Friedland.  Dr. Friedland diagnosed chronic multilevel lumbar degenerative disc disease with facet arthrosis, degenerative annular disc osteophyte complexes resulting in spinal stenosis, and objectively resolved lumbosacral strain/sprain.  He opined that the employee’s March 22, 2012, work injury involved a lumbosacral sprain/strain which was a minor and temporary aggravation of longstanding and pre-existing multilevel lumbar degenerative disc disease that had resolved by March 28, 2012.  He stated that the osteophyte formation and the osteophytes accompanying the annular bulges were consistent with the chronic nature of the employee’s disc protrusions and that the marked facet arthropathy, ligamentum flavum buckling, and disc space narrowing were all indicative of chronic degenerative changes, not traumatic changes.  He also opined that the employee was not a reasonable candidate for surgery, that facet injections were not reasonable and necessary medical treatment, and that the employee did not require physical restrictions.

In February 2014, the employee filed a medical request for approval of a treatment plan with conservative treatment and possible surgery, either laminectomy or fusion, as recommended by Dr. Marsh.  The employer and insurer denied the request.  The Mayo Clinic intervened.  After a hearing on August 13, 2014, the compensation judge found that the employee sustained a temporary aggravation of a pre-existing lumbar spine condition as a result of the March 22, 2012, work injury that had resolved by March 28, 2012, and denied the employee’s request for additional low back treatment and the intervention claims from the Mayo Clinic.  The employee 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.”  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.

DECISION

An employee has the burden of establishing entitlement to payment of medical expenses.  Adkins v. University Health Care Ctr., 405 N.W.2d 231, 233, 39 W.C.D. 898, 900 (Minn. 1987); Odash v. Pepsi, Inc., 66 W.C.D. 336 (W.C.C.A. 2006), summarily aff’d (Minn. July 20, 2006).  In this case, the compensation judge concluded the employee’s March 22, 2012, work injury was a temporary aggravation of a pre-existing lumbar spine condition that had resolved by March 28, 2012, and that any medical treatment after that date was not causally related to his work injury.  Whether a work injury is a substantial contributing factor in the need for medical treatment is a question of causation and a question of fact for the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).

The employee argues that the compensation judge erred by finding that the employee’s low back work injury had resolved by March 28, 2012, claiming that the work injury caused the employee’s low back L4 disc protrusion, facet hypertrophy, and lumbar stenosis at L4.  He asserts that his lack of low back pain before the work injury and the continuation of symptoms after the work injury support his argument, and that he did not seek treatment for his low back because he was waiting until after his left shoulder condition had been treated.

The employee argues that he still had physical restrictions when he returned to work in the fall of 2012.  He points to the restrictions from July 2012 of no driving, no lifting over three pounds, and use of a sling.  These restrictions were put in place after the employee’s left shoulder surgery on July 24, 2012.  The driving restriction prohibits driving while using narcotics and the three pound lifting restriction was limited to six weeks.  The employee testified that he returned to work in September 2012 performing light duty work and that he had restrictions for his low back of light duty, no restraints, and no lifting over ten pounds.  The medical records from the employee’s September 7, 2012, medical appointment indicate that a note was written for a release to work, but there is no copy of it in the record.  There are no restrictions listed in the medical records at that time.  The employee was taken off work on February 7, 2014, after a flare-up of back pain.  While the employee’s medical leave form, which was dated March 14, 2014, with a date of service of February 7, 2014, listed a 30-pound lifting restriction, the medical record from that date indicated that the employee would return to work on February 10, 2014, with no restrictions.  The compensation judge could reasonably conclude that the employee returned to light duty work in September 2012 and later returned to full duty work without restrictions.

The employee relies on Dr. Marsh’s opinion that the work injury was a substantial aggravation of the employee’s low back condition.  Dr. Marsh opined that the disc protrusion could have happened at the time of the work injury and that some of the spondylitic changes could have evolved after the injury and before the February 2013 lumbar spine MRI scan.  The employee also argues that Dr. Marsh is a neurological surgical specialist whose opinion has “more insight and more intellectual analysis” than Dr. Friedland’s opinion.  Dr. Friedland opined that the employee’s March 22, 2012, work injury involved a lumbosacral sprain/strain which was a minor and temporary aggravation of longstanding and pre-existing multilevel lumbar degenerative disc disease that had resolved by March 28, 2012.  He stated that the employee’s MRI scan indicated chronic degenerative changes, not traumatic changes.  The compensation judge, as the trier of fact, is charged with the resolution of conflicts in expert medical testimony.  Where there is adequate foundation for the opinions adopted by the judge, this court will normally uphold the compensation judge’s choice among medical experts.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  Both doctors have adequate foundation, and the compensation judge could reasonably rely on Dr. Friedland’s opinion over that of Dr. Marsh.  The judge found Dr. Friedland’s opinion that the employee’s March 22, 2012, injury was a temporary aggravation of the employee’s pre-existing low back condition to be more persuasive.  The compensation judge did not err by choosing Dr. Friedland’s opinion over that of Dr. Marsh.

Substantial evidence supports the compensation judge’s finding that the employee’s March 22, 2012, injury was a temporary aggravation of the employee’s pre-existing low back condition.  We affirm this finding and the subsequent denial of low back treatment after March 28, 2012, as well as the intervention claim from the Mayo Clinic.



[1] At the hearing, the employee testified on direct examination that the flare-up of back pain he experienced upon stepping out of a shower occurred on February 3, 2013.  (T. 44.)  The respondents’ brief and the compensation judge’s Finding 13 also refer to this incident as occurring on February 3, 2013.  The employee’s exhibit C2 contains medical records dated February 7, 2014, which state that the employee treated for a flare-up of back pain which began on February 3 when he was getting out of the shower.  He was taken off work at that time and the medical record states, “He can return to work with no restrictions on February 10, 2014.”  (Employee’s Ex. C2, p. C2-067.)  There is no documentary evidence of such an incident occurring in February 2013.