SETTLEMENTS - INTERPRETATION. Given the language of the settlement agreement and the circumstances of the case, the compensation judge properly concluded that medical expense claims for treatment of a cervical condition were closed out by the settlement.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Substantial evidence supported the compensation judge’s decision that certain medical treatment was provided for a cervical condition rather than for the cure and relief of the employee’s right shoulder injury.
Compensation Judge: John R. Baumgarth
Attorneys: Stephanie M. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, Minnesota, for the Appellant. James S. Pikala, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for the Respondent.
Affirmed, in part, and remanded, in part.
DEBORAH K. SUNDQUIST, Judge
The employee appeals from the compensation judge’s interpretation of the language of a 2008 Stipulation for Settlement and from the findings that certain medical treatment was unrelated to the employee’s 2004 work injury. With the exception of one treatment which was not specifically addressed in the Findings and Order, we affirm.
The employee, Douglas Dahl, injured his right shoulder on October 15, 2004, while employed by the employer, AG Processing, Inc., as a grain miller. The employer and insurer admitted liability. The employee was seen in the occupational medicine department at the St. Luke’s Denfeld Medical Center that same day by a physician’s assistant, Kelsy Kuehn. The employee reported the injury as involving the right shoulder and neck. He had pain and tenderness over the right clavicle going up his upper trapezius musculature and into the neck. He also had some lateral right arm pain. X-rays showed no acute injuries and the employee was diagnosed with a right shoulder contusion.
The employee continued to experience right shoulder pain with occasional neck tightness. He was placed under work restrictions and treated with physical therapy from November 27 to December 10, 2004, but continued to experience symptoms. An MRI scan of the employee’s right shoulder on December 20, 2004, showed an extensive tear of the anterior and superior glenoid labrum. The employee was then referred to an orthopedic physician, Dr. G. Douglas Ritts, who saw the employee at Orthopaedic Associates of Duluth on January 7, 2005. Dr. Ritts diagnosed a right shoulder SLAP lesion with a paralabral cyst. He recommended arthroscopic surgery.
The employee underwent a right shoulder arthroscopy, debridement and SLAP lesion repair on January 24, 2005. He was then treated extensively with physical therapy, where he continued to complain of both neck and right shoulder pain.
By August 9, 2005, when seen by Dr. Ritts in follow up, the employee had minimal achiness around the biceps and excellent range of shoulder motion with good stability and strength. Dr. Ritts recommended that the employee return to full activity with his shoulder. The employee also complained of neck pain, which he stated was part of the constellation of symptoms he experienced following his work injury. Dr. Ritts noted that the employee appeared to have cervical degenerative disk disease and that the interscapular pain down his arm was probably radicular in nature related to the C6-7 disk. He ordered an MRI scan of the employee’s neck and recommended a referral to neurology for evaluation of the employee’s cervical spine.
The MRI of the employee’s neck was performed on September 16, 2005.[1] It was read as a negative MRI of the cervical spine with discs fairly normal in height and no significant bulge or protrusion, no central stenosis, and no apparent nerve root impingement. On October 4, 2005, the employee was seen by a neurologist, Dr. David McKee, at Northland Neurology & Myology, Ltd, because of the concern of a possible cervical spine injury. The employee reported having experienced neck stiffness perhaps going all the way back to his work injury. Dr. McKee reviewed the cervical MRI and performed nerve conduction studies. These tests were all normal. Dr. McKee concluded that the employee was neurologically intact, with a normal physical examination and normal EMG. He opined that the employee could gradually resume his normal work activities.
The employee continued to have right shoulder pain. On November 15, 2005, he was again seen by Dr. Ritts, who noted that while the MRI and EMG studies had not supported diskogenic pain, the employee had features of myofascitis and some pain both intrascapular and up his neck. The doctor suggested this might be both tension-related pain and myofascitis. He provided the employee with an injection to the right shoulder subacromial space, and noted that the employee might be a candidate for additional right shoulder surgery.
On December 6, 2005, the employee was seen by Dr. Paul Cederberg, M.D., for an examination at the request of the employer and insurer. Dr. Cederberg noted that the employee was tender along the infraspinatus and over the biceps tendon and right shoulder, and had diffuse tenderness over the right levator scapula. He had a full and painless range of motion of the neck in all planes. Based on his examination and a review of the records, Dr. Cederberg opined that the employee had sustained a permanent right shoulder injury but that he had not sustained a work injury to the cervical spine. He noted that all the employee’s cervical symptoms appeared to be referred to the right shoulder in a manner which he deemed fairly typical from shoulder pathology. Dr. Cederberg agreed with Dr. Ritts that the employee was a candidate for either an arthroscopic or open decompression of the right shoulder.
The employee underwent a revision acromioplasty and SLAP repair on February 9, 2006. He then had further physical therapy through July 2006.
On August 1, 2006, the employee was seen in follow up by Dr. Ritts with persistent right shoulder pain and pain radiating into the neck and shoulder blade. He was referred for a neurologic consultation and an MRI arthrogram. The arthrogram showed some irregular changes in the superior glenoid labral tissue. The employee eventually went on to have a third procedure on his right shoulder on November 2, 2006, in which he underwent a lysis of adhesions with debridement of the subacromial bursa. He then had physical therapy through May 30, 2007, and was released to return to work on February 12, 2007, under permanent restrictions.
The employee was seen by Dr. Daniel Wallerstein, M.D., on March 7, 2007, for evaluation of right shoulder and neck pain. The employee described burning pain in the upper and medial scapular area with aching pain laterally which radiated up to the base of his head. Dr. Wallerstein diagnosed a myofascial pain syndrome of the right scapular stabilizing muscles. He recommended physical therapy for muscle strengthening and ischemic massage to break up trigger points. In follow up appointments with Dr. Wallerstein the employee reported that his right shoulder pain had continued despite attending physical therapy and that he was having neck stiffness. On June 4, 2007, the employee asked Dr. Wallerstein for a repeat shoulder injection, which the doctor provided. Dr. Wallerstein noted on that date that he reviewed with the employee the fact that his cervical MRI had been normal. The doctor thought the neck pain stiffness might be associated with some straining and/or co-contraction. A functional capacity evaluation (FCE) was recommended, with further follow up with the doctor dependent on the date of the FCE.
The functional capacity evaluation was performed on July 19, 2007, and resulted in the recommendation that the employee could work under light to medium restrictions with a 35 pound lifting limitation.
During 2007 and 2008 the employee was treated on a limited basis with medications and further physical therapy.
In September 2008 the employee entered into a stipulation for settlement with the employer and insurer. In the stipulation, the Employee agreed to settle all claims, on a full, final and complete basis, with regard to the October 15, 2004, injury, “except for certain future medical expenses which will remain open to the right shoulder,[2] subject to the defenses of the Employer and Insurer.” The stipulation referenced the 2005 medical opinion of Dr. Cederberg. An Award on Stipulation was served and filed by a compensation judge on September 30, 2008.
The employee was followed for right shoulder pain complaints primarily by his family physicians, Dr. Janus Butcher, M.D., and Dr. Daniel T. Cabot, D.O., during the remainder of 2008 through the first half of 2010. He was treated with variously with medications, physical therapy and occasional shoulder injections. In July 2010 the employee was referred to Dr. Matthew J. Eckman in the SMDC Health System’s Physical Medicine and Rehabilitation Clinic for a consultation regarding the possible use of Botox or other specialized injections to treat the employee’s chronic shoulder pain.
Dr. Eckman saw the employee on July 6, 2010. The employee reported that his anterior right shoulder area hurt and that he had aching and pain which spread upwards into the lateral cervical region and down into the interscapular rhomboid area. He did not have any difficulties with cervical range of motion. Dr. Eckman’s impression was of a residual right shoulder strain and contracture with moderate right shoulder girdle myofascial pain and some muscle tension headaches. He did not think the employee had a serious degree of cervical spine pathology, and saw no need for cervical spine x-rays or a cervical MRI. He considered Botox worthy of consideration but likely “a bit of overdoing it for his problem right now.” Instead, he recommended that the employee use Lidoderm patches and continue his pain medications and periodic steroid shoulder injections.
The employee continued to treat with Dr. Butcher and Dr. Cabot. In September 2012 he reported that his pain was centered in the right mid to upper trapezius and radiated towards the right occiput. On December 10, 2012, the employee told Dr. Butcher that, in addition to his shoulder pain, he continued to have some intermittent neck pain; however, Dr. Butcher noted that this “is not a major component of his symptomology.”
The employee was seen again by Dr. Cederberg on behalf of the employer and insurer on December 4, 2012, for a review of the reasonableness and necessity of the employee’s ongoing treatment. Dr. Cederberg’s diagnosis was of a recurrent SLAP tear of the labrum of the right shoulder with mild adhesive capsulitis status post three arthroscopic procedures. He opined that the employee’s work injury remained a substantial contributing factor to the current diagnosis and treatment. In his view, treatment to that point had been reasonable and necessary.
On May 29, 2013, the employee saw Dr. Butcher for right shoulder recurrent pain and neck pain. The pain had abated following cortisone injections three months previously, but had returned and the employee felt he was now having more lateral neck problems. He told the doctor that he had experienced neck problems off and on since his work injury, but that his neck injury had been denied by workers’ compensation. The employee’s neck range of motion was quite limited due to pain. An X-ray of the employee’s neck now showed lower segment degenerative disk disease in the facet joint. Dr. Butcher diagnosed a right shoulder rotator cuff tendinitis and trigger point as well as facet arthritis. The employee was given another subacromial shoulder injection. Dr. Butcher also recommended an MRI of the cervical spine and possible referral for a facet joint injection.
The MRI was performed on June 12, 2013. It showed mild asymmetric osteophytosis at C4-5 without significant narrowing of the canal and minimal foramen narrowing on the right. The scan was otherwise read as unremarkable.
Dr. Butcher reviewed the MRI on June 13, 2013 during an office visit by the employee. He concluded that it showed multilevel cervical degenerative disk disease in the facet joints. He referred the employee to physical medicine for consideration of possible facet joint injections.
The employee was seen by Dr. Obioma J. Igboko at Essentia Health on June 18, 2013, under Dr. Butcher’s referral. Dr. Igboko noted that the history provided to him was that the employee had “battled neck pain as well as right shoulder pain” since his 2004 work injury and that he has cervical facet arthritis. The employee reported that his pain was presently localized to the right side of his neck and radiated occasionally into the lower part of his right occiput as well as his posterior auricular region. The employee denied any true radicular symptoms into the right upper extremity. Examination revealed no deformity of the neck, and good neck range of motion, although with some tightening on turning the head to the right. There was tenderness on palpation to the upper cervical paraspinal musculature, more on the right than the left. Dr. Igboko noted that he had localized the employee’s pain generators under fluoroscopy as the right C2-3 and C3-4 facet joints. He injected these with steroid and local anesthetic. The employee was advised to follow up as needed.
Dr. Igboko again saw the employee on July 9, 2013, for neck pain complaints. The employee reported significant pain relief from the injections Dr. Igboko had provided three weeks earlier, but stated that he had pain slightly below the areas that were injected, which radiated into the shoulder region. Dr. Igboko opined that the employee’s pain was apparently coming from his lower cervical facet joints. He injected the C4-5 and C5-6 facet joints and also provided trigger point injections.
On July 18, 2013, the employee was seen by Dr. Nayyer Mujteba, M.D. at Essentia Health. Dr. Mujteba provided right shoulder trigger point injections.
The employee returned to Dr. Igboko on July 30, 2013. He stated that the injections had provided some relief but that he was now having pain somewhat lower down than the levels that were injected, involving both the mid to lower trapezius muscles and the lower cervical paraspinal musculature. Dr. Igboko performed repeat facet joint injections from C2-3 through C5-6.
On August 7, 2013, the employee was again seen by Dr. Mujteba to discuss Botox injections “to address cervical region dystonia.” Dr. Mujteba diagnosed right cervical/shoulder region discomfort that appears to be mostly myofascial with trigger points in the trapezius and splenius capitis.” He provided trigger point injections at four locations in the right trapezius, and referred the employee for Botox injections.
The employee received Botox injections into the right trapezius muscle and the right splenius capitis muscle performed by Dr. Mujteba on October 8, 2013, as an inpatient hospital procedure at Essentia Health Duluth. The indication for the procedure was listed as “right trapezius/neck and shoulder region discomfort. Findings are consistent with cervical dystonia impacting mostly trapezius muscle, as well as splenius capitis muscle.”
Dr. Mujteba saw the employee on November 27, 2013, in follow up. His notes state that the employee was seen for “chronic right-sided neck pain issues with myofascial component.” The employee reported that for the first few weeks following the Botox injection in October he had not experienced any pain relief, but that overall he had since had significant improvement. The employee stated that he still had a few trigger points that were bothersome, and requested trigger point injections. Dr. Mujteba injected four trigger points in the right trapezius muscle.
On December 2, 2013, the employee returned to Dr. Mujteba for what was described as chronic right-sided neck pain issues with a myofascial component. The employee was pleased with his pain reduction following the Botox injections, but still had multiple and bothersome trigger points. Dr. Mujteba provided trigger point injections.
The employee returned to Dr. Mujteba for repeat trigger point injections on March 5, 2014. On that date, he reported to the doctor that he had been doing well until he had begun to have increased tightness and spasms due to shoveling and removing snow from his roof. Dr. Mujteba’s impression was of myofascial neck pain with trigger pints. He injected multiple trigger points in the right trapezius muscle.
From April 29, 2014, through 2016 the employee continued to treat for right shoulder pain at the Essentia Health Duluth Clinic, receiving several cortisone injections.
On March 10, 2015, the employee was seen by Dr. Joseph V. Richards, a family practitioner at Essentia Health, for a chronic pain management visit due to pain from the right shoulder and right knee. The employee also brought along “multiple forms to be filled out.” Dr. Richards provided the employee with renewals to several of his prescriptions.
The employee was seen by Dr. Nolan M. Segal, M.D., on July 13, 2015, for an independent medical examination. Dr. Segal reviewed the medical records and examined the employee. Dr. Segal opined that the employee’s right shoulder condition had reached maximum medical improvement no later than May 30, 2007, with an overall excellent prognosis. He considered the employee’s current subjective right shoulder complaints unsubstantiated by objective findings. In his view, the employee had been provided with an excessive number of subacromial and trigger point injections despite any evidence to suggest long term relief. The doctor further noted that the employee had idiopathic cervical disc disease which he considered unrelated to the 2004 work injury. He saw no specific evidence of cervical facet disease such as to warrant cervical facet injections.
On September 23, 2015, the employee’s attorney wrote to Dr. Mujteba asking whether the 2004 work injury was s substantial contributing cause of the employee’s current neck condition, and whether that doctor’s treatment had been reasonable and necessary. The letter provided check boxes by which each question could be answered either “yes” or “no.” Dr. Mujteba returned the letter on October 9, 2015, having checked both boxes “yes.”
The employee had repeat trigger point injections with Dr. Mujteba on November 30, 2015.
On January 7, 2016, the employee returned to Dr. Mujteba requesting further trigger point injections, complaining that he was having “a great deal of neck pain.” He denied frank radicular symptoms but noted that the pain did radiate at times to the right deltoid. He reported tightness and knots in the neck muscles and deltoid. Dr. Mujteba noted that the employee was quite tender about the cervical facet joints, and that his neck pain increased with extension and facet loading. Dr. Mujteba suggested that the employee should undergo a repeat cervical spine MRI. He provided trigger point injections in the right splenius capitis, the right trapezius, and the right deltoid muscles.
In March 2015, the employee filed a medical request seeking payment for various medical expenses. The employer and insurer responded denying payment for any services related to a cervical condition or for Botox injections as excessive under the treatment parameters. Following an administrative denial of the employee’s claims, the employee requested a formal hearing, resulting in the hearing below before a compensation judge.
The issue below was the compensability of certain medical treatments. The treatments at issue were the office visit with Dr. Butcher on June 13, 2013, the office visits with and injections by Dr. Igboko on June 18 and July 9, 2013, the Botox injections performed by Dr. Mujteba on October 8, 2013, the office visits with and injections by Dr. Mujteba on August 7, 2013, November 27, 2013, March 5, 2014, and January 7, 2016, and the office visit with Dr. Richards on March 10, 2015.[3] The employer and insurer asserted several defenses to these medical expenses. Their primary defense, was the contention that some of the treatments were for a cervical condition and that treatment for such a condition was both unrelated to the work injury and closed out by the terms of the 2008 stipulation for settlement.[4]
The compensation judge found that the treatments in question were provided for a cervical condition, rather than for the employee’s shoulder injury. The judge found that the stipulation for settlement closed out the employee’s claims for treatment due to a contested cervical injury and left open only treatment for the admitted right shoulder condition. The employee appealed from the compensation judge’s denial of payment for the treatment at issue on May 20, 2016.
On July 13, 2016, the Minnesota Supreme Court issued its decision in Ryan v. Potlatch Corp., 882 N.W.2d 220, 76 W.C.D. 491 (Minn. 2016). Concluding that the Ryan decision might directly affect the compensation judge’s determination, this court remanded the case to the compensation judge for reconsideration on October 5, 2016. On November 29, 2016, the compensation judge issued an Order on Remand from WCCA determining that no changes or additional findings to the original findings and order were necessary. We now consider the employee’s appeal from the Order on Remand.
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(3). 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, 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 evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
The 2008 stipulation was “a full, final and complete settlement of any and all claims that [the employee] may have under the Workers’ Compensation Act of the State of Minnesota as a result of his personal injuries on or about October 15, 2004 except for certain medical benefits to the right shoulder, which will remain open subject to the defenses of the employer and insurer.” The compensation judge noted that, prior to entering into the stipulation for settlement, the employee had asserted a claim that he had sustained a cervical injury in addition to a right shoulder injury as a result of the October 15, 2004, work injury. The judge concluded that the employee’s claims relating to a cervical injury were thus among the “any and all claims” the employee settled for that date of injury when he entered into the stipulation for settlement. Since the terms of the stipulation unambiguously leave open only certain medical treatment for the right shoulder,[5] the judge found that the employee had closed out any claim for medical treatment for an alleged cervical injury associated with that date of injury.
The appellant argues that the compensation judge erred as a matter of law in reaching his conclusions. He contends that the judge’s decision is contrary to the decision of the Minnesota Supreme Court in Sweep v. Hanson Silo, 391 N.W.2d 817, 39 W.C.D. 51 (Minn. 1986) as well to various prior decisions by this court. Specifically, the appellant argues that the scope of a stipulation for settlement is limited only to those injuries or conditions which are specifically identified in writing. Since the stipulation here was a close-out of “any and all claims” related to the October 15, 2004, injury, the employee argues, it did not close out a cervical injury where there is no language specifically referencing that condition. We are not persuaded.
In Sweep, the parties submitted a stipulation that purported to close out all future claims, not only claims related to the specific injuries in dispute but also claims for any other injuries which the employee might have sustained in his employment. This court concluded the settlement was impermissibly broad and disapproved the agreement, and the Minnesota Supreme Court affirmed. Since Sweep, this court has held on numerous occasions that a settlement may not close out an employee’s future claims for injuries that were unknown or not in dispute at the time of the agreement. See, e.g., Munklewitz v. Bladholm Bros., slip op. (W.C.C.A. July 28, 1993); Larson v. St. Louis Co., 62 W.C.D. 545 (W.C.C.A. 2002); Gates v. Costco Wholesale, No. WC04-201 (W.C.C.A. Jan. 14, 2005).
In Ryan v. Potlatch Corp., 882 N.W.2d 220, 76 W.C.D. 491 (Minn. 2016), the supreme court further clarified that while Sweep stands for the proposition that a settlement agreement may not close out other distinct, work-related injuries not at issue in the claim petition and, therefore, not in dispute at the time of the agreement, a workers’ compensation settlement agreement may close out conditions and complications that arise from the same injury and are within the reasonable contemplation of the parties at the time of the settlement agreement, even where those conditions or complications were not yet fully realized at the time of the stipulation.
The compensation judge found that a cervical injury claim was clearly within the reasonable contemplation of the parties at the time they entered into the stipulation. In reaching that finding, the judge noted that the employee had filed a medical request in 2005 alleging a cervical injury and seeking payment for a cervical MRI; that on May 2, 2006, an Order on Agreement was issued in which the employee settled that medical payment claim and the employer and insurer expressly retained defenses against a claimed October 15, 2004, cervical injury. The judge further noted that the stipulation for settlement referenced the 2005 medical opinion of Dr.Cederberg, who opined, among other things, that the employee had sustained only a shoulder injury and not a cervical injury. The judge also noted that the employee, subsequent to the stipulation, had informed some of his physicians that his neck injury claims had been denied.[6]
The employee argues that the evidence relating to the dispute in 2005 and 2006 over the employee’s claimed cervical injury is not relevant to the issue of whether the 2008 stipulation for settlement closed out such a claim. He asserts that because the 2006 Order on Agreement settled the parties’ dispute at that time, there was no pending issue of a cervical injury claim when the employee entered into the 2008 stipulation for settlement. The employee further argues that the judge erred by giving greater weight to “hearsay” comments recorded in the medical records than to the employee’s hearing testimony, in which he denied that he understood his cervical injury claims to have been closed out in the 2008 settlement. The employee also argues that other chart notes that might support the employee’s testimony were not given adequate weight.
We are not persuaded. Although we are required to look at all the evidence in performing our review function, we must give due weight to the compensation judge's opportunity to judge the credibility of the witnesses and must uphold the findings based on conflicting evidence or evidence from which more than one inference might reasonably be drawn. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59‑60 (Minn. 1984). In the present case, we conclude that there is substantial evidence which supports the compensation judge’s findings on this issue.
Finally, the employee suggests as an alternative argument that the employee’s neck symptoms might constitute a consequential injury rather than an independent condition. The employee argues that Minnesota law does not allow a close out of a consequential condition that had not yet manifested as of the date of the stipulation. Here, however, the compensation judge did not find that the employee’s current cervical symptoms were consequential to the employee’s neck injury, and the evidence was not such as would compel such a finding. Further, even if the employee’s recent cervical symptoms had been found to arise from a consequential injury, our supreme court in Ryan, supra, 882 N.W.2d 220, 76 W.C.D. 491, specifically held that a consequential condition which was in the reasonable contemplation of the parties could be foreclosed by a stipulation for settlement despite the fact that the condition only became compensable subsequent to the stipulation.
The compensation judge’s interpretation of the 2008 stipulation is reasonable and supported by substantial evidence, and we affirm.
The compensation judge then applied the terms of the stipulation for settlement to the specific treatment dates at issue in this case. In his findings and memorandum, the judge discusses in some detail the basis for his findings with respect to most of these dates of treatment.
The judge found that although the employee asserted that his pain starts in his right shoulder and radiates to the right side of his neck, the medical records in question primarily reflect that the pain starts in the neck and radiates to the right shoulder.
Specifically, the judge noted that during the May 29, 2013, visit with Dr. Butcher, just prior to the series of treatments at issue, the employee reported he was now having more lateral neck pain, and Dr. Butcher distinguished the employee’s right shoulder rotator cuff tendinitis from his cervical facet arthritis. On July 13, 2013, the first date at issue, Dr. Butcher specifically diagnosed cervical degenerative disc diseases.
The judge also noted that Dr. Igboko saw the employee on July 9, 2013, for neck pain complaints which the employee characterized as radiating into the shoulder region. Dr. Igboko thought that the employee’s pain was apparently coming from his lower cervical facet joints. He injected the C4-5 and C5-6 facet joints and also provided trigger point injections. The judge reasoned that because cervical facet joints are a structure of the cervical spine, and as a source of pain would not represent radiating pain from a shoulder condition, the treatment at issue was for a cervical condition.
As to the injection provided by Dr. Mujteba, the judge noted that although Dr. Mujteba provided injections to the right trapezius muscles, Dr. Mujteba's October 8, 2013, hospital procedure note states that his “findings are consistent with cervical dystonia impacting mostly trapezius muscle." It was not unreasonable for the compensation judge to find on these facts that his injections were provided to address symptoms related to the neck/cervical spine, even though they appear to have been administered in the shoulder musculature.
The employee argues that the compensation judge should have found that the cervical spine condition treated during this period was causally related to the work injury, based on the causation opinion of Dr. Mujteba, as indicted by his check marked response to a letter from employee’s attorney, as well as on the history recited by Dr. Ritts and by Dr. Eckman in their medical records. We note that a contrary finding would be supported by the medical opinions of Dr. Cederberg and Dr. Segal, as well as by the employee’s cervical scan findings on more than one occasion. However, the judge did not, and was not required to, reach the question whether cervical treatment was causally related to the work injury. The judge’s denial of the specific dates of injury was based not on causation, but on his determination, which we have affirmed above, that the stipulation for settlement closed out treatment for a cervical condition.
The compensation judge makes no mention of the March 10, 2015, treatment with Dr. Richards, however that date of service appears to have been disputed pursuant to the parties’ opening statements and as outlined in Exhibits O and Y. The treatment provided at the time was for chronic pain of the right shoulder.[7] Because the treatment here is in part to the right shoulder, and not the cervical spine, we remand for findings to as to whether said treatment was closed out by the stipulation for settlement.
[1] A payment issue apparently arose over the costs of the September 2005 MRI. The employee filed a medical request, which was denied by the employer and insurer. The dispute eventually resulted in an Order on Agreement, served and filed May 2, 2006, in which the employee withdrew his medical request and the employer and insurer reserved their defenses against the employee’s claim of a work-related cervical injury. See Exh. D.
[2] Specifically, paragraph 9 of the stipulation provides that “Future reasonable, necessary and causally related medical treatment expenses shall remain open to the right shoulder, subject to the defenses of the employer and insurer, except for the following services: remodeling of residence, nursing services by a family member, acupuncture, acupressure, chiropractic, massage therapy, health club memberships, TENS Unit and supplies, in-patient chronic pain clinics (whether inpatient or outpatient), psychiatric or psychological treatment and psychiatric or psychological medication (unless given for non-psychiatric purposes).”
[3] See Exhs O and Y, and T. 35. An office visit with Dr. Butcher on February 26, 2015, at which a right shoulder injection was provided, was originally at issue below, but at the hearing counsel for the employer and insurer agreed to payment for this visit. T. 35.
[4] The employer and insurer also denied payment for Botox injections as prohibited by Minn. R. 5221.6205, and denied payment for the treatments on March 5, 2014, and March 10, 2015, on the basis that the treatments were provided for flare ups of pain related not to the work injury but to the employee’s personal activities. These two defenses were denied by the compensation judge in unappealed findings and are not part of the issues presented in this appeal.
[5] The judge further appropriately noted that reasonable and necessary medical treatment for the right shoulder injury would remain compensable regardless of whether the treatment was administered to the shoulder area or to some other part of the body.
[6] See, e.g., Dr. Butcher’s chart note of May 29, 2013: “He has had neck problems off and on since his original injury. Apparently, the neck injury had been denied at some point by worker’s [sic] comp.” Exh. E.
[7] The treatment notes describe the reason for the visit as chronic pain which was from the right shoulder and the right knee, as well as depression.