GINA WRIGHT, Employee/Appellant, v. SHAFER CONTRACTING CO., INC., and BERKLEY RISK ADM’RS CO., LLC, Employer-Insurer/Respondents, and CAMBRIDGE MED. CTR., UCARE/OPTUM, and CTR. FOR DIAGNOSTIC IMAGING, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 10, 2016
No. WC15-5848
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee failed to prove that she sustained a compensable injury to her cervical spine or left upper extremity while working for the employer.
Determined by:
Patricia J. Milun, Chief Judge
David A. Stofferahn, Judge
Gary M. Hall, Judge
Compensation Judge: Bradley J. Behr
Attorneys: Pro Se Appellant. James A. Schaps and C. Jeremy Lagasse, Hansen, Dordell, Bradt, Odlaug, & Bradt, P.L.L.P., St. Paul, Minnesota, for the Respondents.
Affirmed.
OPINION
PATRICIA J. MILUN, Chief Judge
The pro se employee appeals from the compensation judge’s findings that the employee failed to prove that she sustained a work-related injury to her cervical spine or left upper extremity on July 14, 2014, as a result of hand shoveling or operating a vibrating roller, or a work-related injury as a result of a near rollover incident in June or July 2014. We affirm.
BACKGROUND
Gina Wright, the employee, began working as an apprentice heavy equipment operator for Shafer Contracting Company in June 2014. The employee had a significant medical history of treatment for fibromyalgia prior to and during her employment with Shafer Contracting. Her symptoms ranged in degree and duration and would appear intermittently in her head, neck, upper back and left shoulder. In October 2013 and May 2014, the employee was treated by Dr. Robert Doohen at the Cambridge Medical Center for left shoulder pain with steroid injections. A recheck of her left shoulder was scheduled for July 15, 2014.
On July 14, 2014, the employee was operating a vibrating roller when she began to experience left arm pain. The employee finished her shift and did not report an injury. The next day, she contacted her supervisor, stating that her left arm was numb and that she would not be at work, but did not say that she had injured herself at work. The employee first sought treatment for her alleged work injury on July 15, 2014, when she was seen by Dr. Richard Birdwell for a recheck of her left shoulder.[1] It was noted on that date that the employee had seen Dr. Doohen in the past and had received two separate subacromial injections for left shoulder bursitis. The employee gave a history of sudden increase in diffuse left shoulder pain radiating down her left arm in the biceps region but denied any previous neck problems. The employee told Dr. Birdwell that her entire upper left extremity felt different from her right and questioned whether her symptoms could be related to an antibiotic she was taking. Dr. Birdwell ordered an MRI of the left shoulder. The MRI indicated bursitis, a probable small linear tear in the superior labrum, and tendinosis.
On July 16, 2014, the employee was re-evaluated for left shoulder/arm pain and radiculopathy by Dr. Doohen at the Cambridge Medical Center. The employee told Dr. Doohen that her left “arm became cold…and also later on in the day she could not move her arm.”[2] The employee again inquired whether her tendinosis could be related to a medication prescribed for bronchitis, but Dr. Doohen did not agree. Dr. Doohen noted the MRI findings and further noted “we believe the vibration and heavy work she was doing may have irritated her nerve [or] exacerbated the swelling/bursitis and inflammation in her shoulder which pushed on the nerve.”[3] The employee was given a certificate which took her off work due to her left shoulder and released the employee to return to work without restrictions on July 23, 2014.[4]
On July 17, 2014, the employee left a message for Dr. Doohen. In that message, the employee described a “weird pain in the back of my neck and my left wrist hurts now that my shoulder is calming down. My whole arm is very weak.”[5] She indicated that she “happened to remember” that a few weeks earlier her roller had nearly tipped over and she “more than likely” grabbed the wheel with her left arm to avoid falling. The employee ended the message by stating that she did not think she was going back to her job with the employer and therefore she would “need to get something for workman’s comp.”[6] On July 22, 2014, Dr. Doohen indicated that the employee was off work until August 16, 2014. The employee underwent physical therapy from July 18 through August 15, 2014. Her left arm numbness continued.
After her initial treatment for her alleged work injury, the employee was referred to Dr. Jeffrey Cox at the North Branch Clinic. On July 22, 2014, the employee was evaluated by Dr. Cox for neck pain and rotator cuff tendinitis. The medical record from that date indicates that this was a new problem: neck pain that had started 1 to 4 weeks earlier after nearly rolling over a heavy equipment roller and that her pain had gradually worsened.[7] The employee felt that she was unable to continue working because the pain was aggravated by bending and twisting and her job as a heavy equipment operator would exacerbate the symptoms. The employee was instructed to continue physical therapy, take prescribed medication, and to follow up in two weeks. The employee did not mention hand shoveling. The employee reported that her symptoms of neck pain, numbness, and tingling had started with the near rollover incident. Dr. Cox recommended a cervical spine MRI scan. The September 20, 2014, MRI scan indicated mild multilevel degenerative changes from C3-4 through C6-7, including mild disc bulging at C5-6 and C6-7, and foraminal narrowing at C6-7, but within normal limits. No nerve root compression was noted.
On August 26, 2014, the employee was seen at Cambridge Medical Center emergency department for right arm pain and swelling. She reported that, with use, the right arm had swelling and the right hand becomes “numb” and “gets purplish discoloration.”[8] Dr. Randall Rouse noted that the employee suffers from fibromyalgia and had been referred to a rheumatologist. The employee did not report these symptoms or treatment as part of a work-related injury to her health care provider.[9] On October 22, 2014, the employee was evaluated by rheumatologist Dr. Nancy Meryhew at Fairview Lakes Regional Medical Center for her fibromyalgia, which included symptoms of joint pain in her shoulders.[10]
The employee was evaluated by Dr. Amir Mehbod at the Twin Cities Spine Center for neck and left arm pain on October 23, 2014. The employee reported that she had begun having arm pain at work while operating a vibrating roller. Dr. Mehbod recommended a C7 nerve root injection, which was performed on October 29, 2014. On November 7, the employee called Dr. Mehbod’s office and reported that the injection did not provide relief and that she remembered that on the day her left arm went numb, she had helped a co-worker shovel dirt. On December 17, the employee underwent an anterior discectomy and fusion at C6-7, performed by Dr. Mehbod at Abbott Northwestern Hospital.[11] Dr. Mehbod opined that shoveling, operating a vibrating roller, or the near rollover incident could be substantial contributing factors in aggravating her symptoms in his April 29, 2015, report.[12] In preparation of that report, the doctor was provided with the employee’s medical records from and after July 14, 2014, but none from before that date.
On February 16, 2015, the employee underwent an independent medical examination with Dr. Charles Burton, a neurosurgeon. He obtained the employee’s history, reviewed her medical records, and conducted a physical examination. Dr. Burton diagnosed continuing manifestations of chronic and pre-existing inflammatory and degenerative disease of the left shoulder. Dr. Burton also opined that no objective medical evidence, radiologic or neurologic, indicated that the employee sustained a work injury or aggravation to her shoulder or cervical spine. He also stated that the employee’s work activity was not a substantial contributing factor of the development of her complaints or need for treatment, and that the cervical surgery was excessive and unnecessary. He determined that the employee’s subjective complaints “appear to have been completely related to her chronic degenerative inflammatory disease of her left shoulder potentiated by chronic pain and depression.”[13]
The employee filed a claim petition for a left shoulder injury on August 18, 2014, seeking temporary partial disability benefits and medical expenses, but reserving permanent partial disability benefits and retraining. The employer and Berkley Risk Administrators Company, the insurer, denied primary liability. The employee amended her claim petition by a May 4, 2015, letter to include a cervical spine injury. A hearing was held on May 11, 2015. In Findings and Order served and filed June 18, 2015, the compensation judge found that the employee failed to prove a compensable work-related injury to her cervical spine or left upper extremity on July 14, 2014, as a result of hand shoveling, operating a vibrating roller, or as a result of a near rollover incident in June or July of 2014, and denied the entire claim. The pro se employee appeals.
STANDARD OF REVIEW
The Workers’ Compensation Court of Appeals will uphold the factual findings of the compensation judge if they are supported by substantial evidence and were reached through application of the correct legal standard.[14] Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[15] In reviewing for substantial evidence to support the judge’s findings, we do not make credibility determinations.[16] The judge’s factual findings, including the weighing of the evidence as it relates to credibility, are reviewed based on a substantial evidence standard. Where evidence allows reasonable minds to differ as to whether the employee’s injuries are work related, the responsibility for that decision rests with the compensation judge.[17] With this standard of review in mind, we consider the employee’s argument that the compensation judge erred in finding the employee did not sustain a compensable work- related injury that arose out of or in the course of her employment with Shafer Contracting Company.
DECISION
At the hearing, the parties stipulated that on July 14, 2014, the employee was employed by Shafer Contracting Company as an apprentice heavy equipment operator at a weekly wage of $947.27. The parties also stipulated that the employee was simultaneously employed as a personal care attendant for her aunt at a weekly wage of $151.90. The parties did not agree that the employee was assisting in hand shoveling while working for Shafer Contracting Company on July 14, 2014.
The compensation judge found the employee failed to prove that she sustained an injury to her cervical spine or left upper extremity on July 14, 2014, as the result of hand shoveling or operating a vibrating roller.[18] The judge further found the employee failed to prove that she sustained a work-related injury to her cervical spine or left upper extremity as a result of a near rollover incident in June or July of 2014.[19] The judge concluded that the employee’s burden of proving her claims by a preponderance of the evidence had not been met and dismissed her claims for wage loss benefits, treatment expenses, and all claims from medical intervenors.[20] On appeal, the employee contends the decision of the compensation judge is clearly erroneous and is unsupported by substantial evidence.[21]
The employee asserts that the compensation judge erred by relying on the report of the independent medical examiner, Dr. Burton, and on the testimony of Mr. Brunz, a co-worker whom the employee claims lied to discredit her testimony and embarrass her at the hearing. She accordingly requests that this court reverse the compensation judge’s decision. We decline to do so.
At the hearing, Mr. Brunz denied that the employee had helped him shovel dirt on July 14th and further testified that such activity was not part of the employee’s regular work duties. Assessment of witness credibility is a unique function of the finder of fact, and a compensation judge’s finding that a witness is or is not credible must be given great deference by this court.[22] It is not the role of this court to re-evaluate the credibility and probative value of a witness’s testimony. The point is not whether we might have viewed the evidence differently, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate.[23]
The compensation judge made detailed findings of fact from the employee’s medical records in evidence and then explained in his memorandum the analysis for his conclusions. After the claimed injury, the employee treated with Dr. Birdwell for a recheck of her left shoulder which had been treated in May 2014 before starting her job with the employer. The employee reported a sudden increase in neck pain on July 14, 2014, but did not report any work injury. The compensation judge noted that the MRI scan demonstrated a probable small linear tear of the superior labrum and low-grade tendinosis.[24] The judge also specifically noted in his findings that the employee did not report neck pain or a work-related injury on that date.[25]
On July 16, 2014, the employee treated with Dr. Doohen for left shoulder and arm pain and radiculopathy. Dr. Doohen stated that “the vibration and heavy work she was doing may have irritated her nerve [or] exacerbated the swelling/bursitis and inflammation which pushed on the nerve.”[26] The judge noted in his findings and memorandum that the employee did not report a work-related injury due to hand shoveling and did not report neck symptoms to her doctor.[27] The next day, the employee left a message for Dr. Doohen indicating that she had neck pain and that she recalled a near rollover incident with the vibrating roller where she grabbed something to keep from falling off. The employee did not report a work-related injury due to hand shoveling in this message.
The compensation judge was provided with two competing medical opinions as to whether the employee’s work activities at Schafer Contracting and her symptoms with findings on MRI were causally connected. Dr. Mehbod was of the opinion that shoveling, operating a vibrating roller, or the near rollover incident could be substantial contributing factors in aggravating her symptoms. By contrast, Dr. Burton was of the opinion that the employee had no objective evidence present to indicate that she sustained any type of injury or documentable aggravation to her shoulder or cervical spine on July 14, 2014. Dr. Burton opined that the employee’s symptoms were related to a chronic degenerative inflammatory disease pointing toward a long history of fibromyalgia and chronic pain.
In his findings and order, the compensation judge considered and analyzed the evidence which included the medical records referenced above, the testimony of the employee, and the testimony of her co-worker, Mr. Brunz. The role of a compensation judge is to reconcile inconsistencies in medical records and reconcile contradictions in witnesses’ testimony; and in doing so, establish a factual basis upon which to accept or reject an expert medical opinion on causation. Here, the employee had a significant history of neck, back and shoulder symptoms prior to July 14, 2014. The employee did not initially report symptoms following the near rollover incident nor report any injury related to hand shoveling. There is no dispute that a history of hand shoveling on the job is absent in all medical treatment records until at least three months after the alleged date of injury. This was significant to the judge, who noted that Dr. Mehbod’s opinion on causation relied principally on what the employee told him by way of history at the time of her first office visit in October of 2014. While Dr. Mehbod’s April 29, 2015, report states the employee’s reported hand shoveling on July 14th as a potential cause of her symptoms, at the time of her first office visit on October 23, 2014, his contemporaneous treatment note contains no reference to shoveling. The judge also found significant the fact that no pre-July medical records were provided for Dr. Mehbod’s review. Here, the judge could reasonably conclude that Dr. Mehbod’s medical opinion was not persuasive.
Given his own reconciliation of the competing evidence and ultimate resolution of the other evidence, the judge considered Dr. Burton’s opinion more persuasive than the opinion of Dr. Mehbod.[28] While we appreciate the employee’s position in this case, we cannot say, on the evidence as a whole, that the compensation judge accepted or rejected the testimony of the co-worker in reaching his decision to accept the medical opinion of Dr. Burton over the medical opinion of Dr. Mehbod. We conclude that the compensation judge did not err by relying on the medical opinion of Dr. Burton in this case.
Finally, we note the recitation of several factors the judge considered and relied upon in addition to the medical opinion of Dr. Burton in reaching his findings on causation. Among these factors were the lack of consistency in the mechanism of an injury, the treatment notes from Cambridge Medical Center, and the employee’s pre-July 2014 medical history. Substantial evidence supports the compensation judge’s finding that the employee did not sustain a work-related injury in June or July of 2014. The decision is affirmed.
[1] Employer’s Ex. 5 and Employee’s Ex. B (progress note dated July 15, 2014).
[2] Employer’s Ex. 5 and Employee’s Ex. B (progress note dated July 16, 2014).
[3] Id.
[4] Employer’s Ex. 5.
[5] Employee’s Ex. B (message with reply signed by Dr. Doohen on July 17, 2014).
[6] Id.
[7] Employee’s Ex. B (progress note of July 22, 2014).
[8] Employee’s Ex. B (emergency department notes dated Aug. 26, 2014).
[9] Finding 7.
[10] Employer’s Ex. 4.
[11] Employee’s Ex. D.
[12] Employee’s Ex. A.
[13] Employer’s Ex. 7.
[14] Minn. Stat. § 176.421, subd. 1; Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
[15] Hengemuhle, 358 N.W.2d at 59-60, 37 W.C.D. at 239-40.
[16] Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).
[17] See Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240; Gerhardt v. Welch, 267 Minn. 206, 210, 125 N.W.2d 721, 724, 23 W.C.D. 108, 113 (1964)).
[18] Finding 10.
[19] Finding 11.
[20] Finding 18.
[21] The employee’s brief and reply brief had attachments that were not included in the record. The employer and insurer objected to this evidence being reviewed on appeal. In reviewing cases on appeal, this court is limited to examination of the transcript of the hearing and evidence submitted to and considered by the compensation judge. See Minn. Stat. § 176.421, subd. 1. We did not consider evidence that was not contained in the record below. See Gollop v. Shale H. Gollop, D.D.S., 389 N.W.2d 202, 203, 38 W.C.D. 757, 758 (Minn. 1986).
[22] Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).
[23] See Redgate, 421 N.W.2d at 734, 40 W.C.D. at 957.
[24] Finding 2.
[25] Id.
[26] Employer’s Ex. 5 and Employee’s Ex. B (progress note dated July 16, 2014).
[27] Finding 3.
[28] It is the role of the compensation judge to consider competing medical opinions and a decision based upon a medical opinion with adequate foundation will generally be affirmed by this court. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 363 (Minn. 1985).