CAUSATION – GILLETTE INJURY. Substantial evidence in the record supports the compensation judge’s determination that the employee failed to prove that she sustained a work-related specific or Gillette injury to her neck, back, and shoulders on July 2, 2013.
CAUSATION – CONSEQUENTIAL INJURY. Substantial evidence in the record supports the compensation judge’s determination that the employee failed to prove that she sustained consequential chronic pain syndrome and/or depression as a result of the January 23, 2012, or October 19, 2012, work injuries.
Compensation Judge: Stacy P. Bouman
Attorneys: Pro Se Employee, Sheila Anderson, Eden Prairie, Minnesota, for the Appellant. Andrew M. Grimsrud, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Respondents.
Affirmed.
PATRICIA J. MILUN, Chief Judge
The pro se employee appeals from the compensation judge’s finding that the employee failed to prove that she sustained a work-related injury to her neck, back, and shoulders on July 2, 2013, either specific or Gillette,[1] and from the finding that she did not sustain consequential chronic pain syndrome and/or depression as a result of the January 23, 2012, and/or October 19, 2012, injuries. We affirm.
Sheila Anderson, the employee, began working as an Electronic Field Production Stylist (EFP) for the employer, ShopNBC/Valuevision Media, in 2004. With assistance, the employee would set up products and prepare backgrounds for retail and promotional television shoots. She described her position at that time as primarily a stylist. Following company lay-offs in 2009, the employee was required to perform additional physical work activities that included lifting, carrying, bending, and packing and unpacking product. The employee characterized her work as deadline driven and performance under pressure.[2]
In 2011, the employee began seeking chiropractic care for pain and fatigue she was experiencing as a result of her work duties. She found the treatment helpful. On January 3, 2012, the employee described herself as doing well to her treating chiropractor, Dr. Adrienne Castrovinci of Healthy Living Chiropractic.[3]
On January 23, 2012, the employee was loading a truck when her foot caught on rope attached to a garage door, causing her to fall on the cement floor. The employee finished her work day. Three days later, she presented to Dr. Castrovinci with complaints of tightness in her neck and back, discomfort in her feet, stiffness in her low back, and clicking in her left hip.[4] She did not mention the January 23, 2012, work incident until a February 6, 2012, visit. She continued to treat with Dr. Castrovinci through April 26, 2012, at which time she reported continued improvement.[5]
The employee was seen for purposes of an independent medical examination by Dr. Tilok Ghose on June 12, 2012. Based upon his examination, Dr. Ghose opined that the employee did not sustain a significant injury on January 23, 2012, and needed no restrictions of her work activities.[6]
On October 19, 2012, the employee was injured while assisting with the carrying of a couch. She felt pain in her left arm, shoulder, and neck. She presented at the chiropractor’s office days later, but did not mention the October 19, 2012, work incident.[7] At a later visit on October 31, 2012, the employee reported having experienced a pull in her neck and left shoulder as a result of lifting and dropping a couch at work. Through the end of 2012, the employee continued to treat with chiropractors at Healthy Living Chiropractic, as well as Nielsen Family Chiropractic, for symptoms in her neck, back, shoulders, and hips.[8]
On March 13, 2013, the employee presented at Twin Cities Pain Clinic with complaints of back pain related to the October 2012 injury.[9] She also described symptoms in her left arm and neck. An MRI of the lumbar spine was subsequently taken, showing a small right lateral recess disc protrusion with contact and slight posterior displacement of the nerve root at right S1. A cervical MRI was also taken, showing left central disc protrusions with no compression or displacement at the C5-6 and C6-7 levels.
The employee was again seen for an independent medical examination by Dr. Ghose on March 16, 2013, to address the October 19, 2012, injury. In his report dated April 1, 2013, Dr. Ghose explained how it was possible that the employee suffered a strain/sprain injury as a result of lifting and dropping the couch as she had described, but that such an injury would have resolved after 12 weeks of chiropractic care.[10]
On July 2, 2013, the employee suffered pain in her neck, back, and shoulder as a result of picking up and carrying a tuxedo from the mall to a photo shoot. She worked for approximately two more weeks following this incident.
At the request of the employer and insurer, the employee was seen for purposes of an independent medical examination by Dr. Rajan Jhanjee on September 12, 2013. According to Dr. Jhanjee, any injuries the employee sustained in 2012 were temporary aggravations of her pre-existing condition and were not substantial contributing factors to her condition at the time of his examination. It was also Dr. Jhanjee’s opinion that the employee did not suffer any injury on July 2, 2013, and he did not believe work restrictions or additional treatment were necessary.[11] Dr. Jhanjee performed a second examination of the employee on August 6, 2014. Since the time of his prior exam, the employee had ongoing symptoms in her neck, back, and shoulders, had tried restricting her physical activity, and had pursued acupuncture, massage therapy, meditation, physical therapy, and continued chiropractic care in an attempt to alleviate these symptoms. At that time, it was Dr. Jhanjee’s opinion that the employee would benefit from some activity restrictions, but that her condition was not related to any work injury.[12]
On January 23, 2015, the employee was seen by her medical doctor, Dr. Robert Wengler, for an independent medical examination. It was Dr. Wengler’s opinion that the 2012 work injuries were substantial contributing causes to the employee’s back condition and findings on MRI. He also opined that the employee’s need to cease her work activities in July 2013 was due to a Gillette aggravation injury to her cervical and lumbar spine. Dr. Wengler recommended that the employee not return to her prior employment, and provided a permanent partial disability rating of 21% for the cervical spine, and 12% for the lumbar spine.[13]
On December 18, 2015, the employee was seen by Dr. Parastoo Fazeli for a rheumatology consultation. Dr. Fazeli ordered an MRI of the sacroiliac joints, which showed mild disc desiccation at L5-S1 and findings suggestive of mild/early sacroiliitis. Dr. Fazeli diagnosed the employee with ankylosing spondylitis.[14] She later issued a narrative report, but was unable to definitively say whether and to what extent the employee’s overall condition was related to her work injuries and/or the ankylosing spondylitis diagnosis.[15]
The employee also began treating for depression symptoms, which she stated were consequential to her work injuries. Eventually, the employee was seen for an independent psychological examination by Dr. Marvin Logel on March 2, 2016. Dr. Logel concluded that the employee presented with depressive disorder, however, he declined to associate those symptoms with the employee’s work injuries.[16]
On March 3, 2016, the employee was seen for an independent medical examination by Dr. Kristen Zeller. Dr. Zeller agreed with the diagnosis of ankylosing spondylitis, and explained that ankylosing spondylitis is an autoimmune disorder unrelated to any injury. She was of the opinion that the employee’s work injuries were not related to her current condition, and were temporary sprain-type injuries that have since resolved. Dr. Zeller recommended the employee seek treatment of her ankylosing spondylitis and that she should remain off of work until she is able to manage the condition with proper treatment.[17]
The employer and insurer admitted the January 23, 2012, and October 19, 2012, work injuries and paid for the employee’s chiropractic treatment for limited periods of time. The July 2, 2013, injury was initially admitted, but primary liability was later denied. The employee’s July 24, 2013, request for formal hearing following an administrative denial of medical benefits, the July 29, 2013, claim petition seeking wage loss and rehabilitation benefits, which was later amended to include a Gillette injury and consequential depression, as well as three rehabilitation requests filed in 2013 and 2014, were all consolidated for hearing.
This matter came on for a two-day hearing before Compensation Judge Stacy Bouman. All parties were represented by counsel at hearing. By Findings and Order served and filed November 4, 2016, the compensation judge found that the employee failed to prove a compensable, work-related injury to her neck, back, and shoulders on July 2, 2013, either specific or Gillette. The judge also found the employee failed to prove that she sustained a consequential chronic pain syndrome and/or depression as a result of the January 23, 2012, and/or October 19, 2012, injuries. The employee appeals pro se.
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.[18] Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[19] In reviewing for substantial evidence to support the judge’s findings, we do not make credibility determinations.[20] 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.[21] With this standard of review in mind, we consider the employee’s arguments that the compensation judge erred in finding (1) the employee did not sustain a compensable work-related injury, either specific or Gillette, and (2) the employee failed to prove that she sustained a consequential chronic pain syndrome and/or depression as a result of the January 23, 2012, and/or October 19, 2012, injuries, that arose out of and in the course of her employment with ShopNBC/ Valuevision Media.
At hearing, the parties stipulated that the employee suffered an injury to her neck, back, and bilateral shoulders on both January 23, 2012, and October 19, 2012, though the nature and extent of those injuries remained in dispute.[22] The parties also stipulated that while the employee’s claimed injury of July 2, 2013, to her neck, back, and bilateral shoulders was initially accepted, the employer and injury have since denied primary liability.[23] The compensation judge found the employee failed to prove a compensable work-related injury to her neck, back, and bilateral shoulders, either specific or Gillette, on July 2, 2013. The judge also found the employee failed to prove that she sustained a consequential chronic pain syndrome and/or depression as a result of either the January 23, 2012, or October 19, 2012, injuries. The judge concluded that the employee’s burden of proving her claims by a preponderance of the evidence had not been met, and dismissed the employee’s claims for wage loss benefits, permanent partial disability associated with the work injuries, vocational rehabilitation services, medical treatment expenses beyond the 12 weeks following the January 23, 2012, and October 19, 2012, injuries, and all claims from medical intervenors. On appeal, the employee contends the decision of the compensation judge is clearly erroneous and is unsupported by substantial evidence.
The employee asserts that the compensation judge erred by relying on the report of independent medical examiner, Dr. Kristen Zeller, who concluded the employee’s work-related limitations and pain were due to a systematic autoimmune condition, not the 2012 work injuries. The employee asks this court to reverse the compensation judge’s decision on whether the employee’s work activities and her symptoms with findings on MRI were causally connected. We decline to do so for the reasons stated below.
At the hearing, the employee testified that the January and October 2012 injuries were significant. The compensation judge, however, questioned the accuracy of the employee’s recollection in that regard.[24] The judge pointed to the medical treatment records contemporaneous to the date of the injuries, citing that neither incident was mentioned to her medical providers when she was seen in the few days after each incident. Specifically, on January 26, 2012, the employee returned to see Dr. Castrovinci and made no mention of the January 23rd incident. The compensation judge also noted that the diagnosis made on January 26th was the same diagnosis as had been made three weeks prior to the January 23rd work injury. Similarly, on October 24, 2012, the employee saw Dr. Castrovinci and stated her cervical and thoracic complaints were worse since her last visit, but made no mention of the October 19th incident. The employee first mentioned the October 19th incident to Dr. Castrovinci in a follow-up visit on October 31st. Given the facts in this case, it was reasonable for the compensation judge to question the accuracy of the employee’s testimony, and in doing so, conclude that inconsistencies between the testimony and medical records were significant.
The Minnesota Supreme Court has consistently held that the assessment of a witness’s credibility is a unique function of the finder of fact, and a compensation judge’s determination that a witness’s statement is or is not persuasive, must be given great deference by this court on appeal.[25] It is not the role of this court to re-evaluate the credibility and probative value of a witness’s testimony. Under our scope of review, 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.[26]
The compensation judge made detailed findings of fact from the employee’s medical records in evidence and went on to explain in her memorandum the reasoning behind her conclusions. Specifically, the judge noted that after the claimed dates of injury, the employee continued to treat with Dr. Castrovinci for her cervical, thoracic, and lumbar spine, which she had done since October 2011. With respect to the January 23, 2012, injury, the employee’s diagnosis post-injury was unchanged from her January 3, 2012, pre-injury visit, and, as outlined above, the judge specifically noted in her findings that the employee did not report a work-related injury on that date.[27] With respect to the October 19, 2012 injury, the compensation judge again pointed to the fact that the employee treated with Dr. Castrovinci within a few days of the work incident, but did not mention the incident until a later visit.[28]
Furthermore, in support of her decision, the compensation judge detailed her review of the employee’s treatment records, considering copious records from a variety of medical providers, as well as numerous treatment modalities that provided, at most, temporary relief of her symptoms. The judge identified the fact that the medical records and reports of the employee indicate that her condition seemed to worsen over time, despite her having stopped working in July 2013.
The compensation judge was provided with divergent medical opinions as to the nature and extent of the employee’s condition, and whether the employee’s work activities at ShopNBC/Valuevision Media and her symptoms with findings on MRI were causally connected. Dr. Castrovinci, the employee’s treating chiropractor, was of the opinion that the employee sustained two work injuries and that her work activities could be substantial contributing factors in aggravating her symptoms for a period of 12 weeks before recovery. Dr. Jhanjee was of the opinion that the employee’s two injuries were temporary aggravations of the employee’s pre-existing condition, but were not a factor in the employee’s condition at the time of his examination. Dr. Wengler was of the opinion that the employee had sustained a Gillette injury in July 2013, and opined that the January and October 2012 injuries were a substantial contributing factor to the employee’s condition and inability to work. Dr. Fazeli was of the opinion that the employee’s symptoms could be associated with a combination of her ankylosing spondylitis condition and the work injuries. Dr. Zeller opined that the employee’s symptoms were due to the ankylosing spondylitis condition, a systematic autoimmune disease that attacks the spine and can cause profound pain. Dr. Zeller further opined that the employee’s work injuries resulted in sprain-type injuries that resolved within six to eight weeks following each incident and were unrelated to the current chronic inflammatory disease that left the employee with profound pain and limitations.
In her Findings and Order, the compensation judge considered and analyzed the evidence, which included the medical records referenced above and the testimony of the employee. The role of a compensation judge is to reconcile inconsistencies in medical records and to reconcile variations and contradictions in witness’s testimony, and in doing so, establish a factual basis upon which to accept or reject an expert medical opinion on condition and causation. Here, the employee had a significant and complicated medical history of neck, back, and shoulder symptoms following each injury. The employee did not initially report any work injury related to each incident to her medical providers. The judge could reasonably conclude that Dr. Zeller’s and Dr. Fazeli’s medical opinions were more persuasive than the opinions of other doctors. We conclude that the compensation judge did not err by relying on the medical opinions of Drs. Zeller and Fazeli in this case.
Finally, we note the recitation of several factors the judge considered and relied on in addition to the medical opinion of Dr. Zeller in reaching her findings on nature and extent and causation. As stated above, among these factors were the lack of consistency in the mechanism of injury and the treatment notes of Dr. Castrovinci. Substantial evidence supports the compensation judge’s finding that the employee did not sustain a work-related injury to her neck, back, and shoulders, either specific or Gillette, on July 2, 2013, and the finding that the employee failed to prove that she sustained a consequential chronic pain syndrome and/or depression as a result of the January 23, 2012, and/or October 19, 2012, injuries. The Findings and Order of the compensation judge is affirmed.
[1] Gillette v. Harold, 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
[2] Tr. at 49-50, 57-58, 62.
[3] Joint Ex. 12.
[4] Id.
[5] Id.
[6] Employer and Insurer’s Ex. 1.
[7] Joint Ex. 12.
[8] Id.; Joint Ex. 10.
[9] Joint Ex. 16.
[10] Employer and Insurer’s Ex. 1.
[11] Employer and Insurer’s Ex. 2.
[12] Id.
[13] Employee’s Ex. C.
[14] Joint Ex. 1.
[15] Employee’s Ex. P.
[16] Employer and Insurer’s Ex. 4.
[17] Employer and Insurer’s Ex. 3.
[18] Minn. Stat. § 176.421, subd. 1(3).
[19] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
[20] Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989); Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 41 W.C.D. 79 (Minn. 1988).
[21] Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240.
[22] Findings and Order, November 4, 2016, Stipulation 2.
[23] Id.
[24] Memorandum at 13.
[25] Kubis v. Cmty. Mem’l Hosp. Ass’n, 897 N.W.2d 254, 77 W.C.D. 543 (Minn. June 28, 2017) (internal citations omitted).
[26] Id.
[27] Findings 9 and 10.
[28] Finding 15.