SHANNON GEORGE, Employee/Appellant, v. CUB FOODS and CINCINNATI INS. COS., Employer-Insurer/Cross-Appellants.

The employee appeals the compensation judge’s findings that the employee had failed to comply with a reasonable request for an independent medical examination and that the employee had reached maximum medical improvement as of May 3, 2016. The employer and insurer cross-appeal the judge’s findings that a functional capacities evaluation and work hardening therapy are reasonable, necessary, and causally related to the employee’s work injury, and the award of a rehabilitation consultation. We affirm.

Shannon George, the employee, worked as a cashier for Cub Foods, the employer. On April 3, 2015, while traversing a stairway at work, she fell on the steps injuring her right upper extremity. The employee testified that immediately following the fall she experienced pain in her right thumb and throughout her right hand, wrist, forearm and elbow. Before that date, the employee had no symptoms or treatment for her right wrist or hand.

Following the injury, the employee sought care with Amy Schwartz, P.A., at HealthPartners’ Eagan clinic. The employee reported that she had tripped on stairs landing on her right thumb and complained of pain in the thumb radiating up into the wrist and distal forearm. On examination, there was no obvious swelling or deformity in her right hand. An x-ray of the right thumb was read as negative and showed no fracture or dislocation. The employee was diagnosed with a thumb sprain and prescribed a thumb splint, ibuprofen, Tylenol, and work restrictions.

Upon returning to work, the employee reported increasing pain when using the right hand for repetitive grasping, pushing, and pulling. A week post-injury, on April 10, 2015, she returned to HealthPartners and was seen by Brittney Matheson, PA-C. The employee described pain localized to the anatomical snuffbox, with flexion and extension of the wrist, and with pronation and supination of the wrist. She also had pain with thumb extension, abduction, and opposition. X-rays were again read as negative for any acute injury. The employee was diagnosed with a right thumb sprain.

The employee treated with additional providers through HealthPartners, but because she believed her symptoms were not improving, she asked her primary care provider, certified nurse practitioner (CNP) Rebekah A. Morris, to coordinate her treatment for the April 3, 2015, work injury. CNP Morris noted that the employee’s diagnosis was of a wrist sprain, but thought that as a complication of this injury she had also developed lateral epicondylitis on the right side. The employee was started on some general range of motion and strengthening exercises and advised to return in one week.

The employee returned to CNP Morris on June 2, 2015, reporting that she had been given duties standing as a greeter at work and that this did not allow her any way to prop her arm and wrist, as a result of which she had experienced increased pain and swelling, with new pain in the hand and up to the shoulder. CNP Morris ordered an MRI of the right wrist which showed minimal extensor carpi ulnaris (ECU) tendinopathy, but otherwise it was read as negative. CNP Morris took the employee entirely off work. The employee’s last day of work with the employer was June 3, 2015.

The employer and insurer, Cincinnati Insurance Companies, admitted liability and paid temporary total disability benefits from June 4 to July 30, 2015.^[1]

The employee saw John Wechter, M.D., regarding the possible tendinopathy in the ECU tendon. The employee gave a history of the work injury noting that her pain had initially been near the basis of the right thumb, but over time had grown to involve the base of the right thumb, the metacarpals of the other fingers, and pain through the right wrist. Dr. Wechter reviewed the recent MRI as showing a possible fracture of the hook of the hamate and recommended a CT scan. Christina Ward, M.D., an orthopedic surgeon, also examined the employee, reviewed the MRI scan, and recommended a CT scan. The CT scan revealed a chronic nonunited right hook of the hamate fracture with neocortication at the fracture margins. The employee underwent surgery in the nature of an excision of a nonunion of the hook of the hamate performed by Dr. Ward on July 29, 2015. Dr. Ward also injected the right extensor carpi ulnaris tendon with Kenalog and lidocaine.

Between August and December 2015, the employee underwent hand therapy twice a week at HealthPartners Specialty Center, but she continued to complain of pain.

CNP Morris referred the employee to Jess Olson, M.D., a physical medicine specialist at HealthPartners Specialty Center, for a chronic pain evaluation. Dr. Olson felt there had been some early signs of complex regional pain syndrome (CRPS), but that they were going away. Dr. Olson recommended continuing her physical therapy and use of Percocet, but slowly reducing the dosage. Dr. Olson eventually diagnosed hyperalgesia in the hand, similar to CRPS, but without the skin changes. The employee stated that the therapy and the surgery failed to improve her pain or function. On December 16, 2015, the employee was given a TENS unit which also failed to help her symptoms. Dr. Olson prescribed medication, exercises, recommended consideration of a stellate ganglion block, and discussed a referral to a pain psychologist.

The employee obtained multiple narrative reports from her treating providers and physicians in support of her diagnosis, causation, care, and treatment. CNP Morris wrote a narrative report on June 22, 2016,^[2] stating that the employee’s work injury had directly caused the hook of the hamate fracture and the employee’s continuing symptoms. She considered the employee’s use of her right hand highly limited for occupational tasks due to pain as well as decreased strength and functioning of the right hand. CNP Morris suggested that the employee would benefit from a work hardening program.

Dr. Ward also wrote a narrative report^[3] in which she opined that the employee had chronic pain in the right hand following a hook of the hamate fracture. In her view, the work injury of April 3, 2015, was a substantial contributing factor to the employee's current symptoms, occupational restrictions and permanent partial disability. She recommended that the employee undergo a work hardening program and a functional capacity evaluation (FCE) to determine the nature of her restrictions. She rated the employee with a two percent permanent partial disability for the hook of the hamate excision. Dr. Ward agreed that the employee had reached maximum medical improvement (MMI).

Finally, Dr. Olson opined that the employee’s work injury to her hand had led to a hook of the hamate excision on July 29, 2015. Dr. Olson noted that the employee had continued to have pain in her wrist of unknown cause, and had only had slight benefit from multiple sessions of hand therapy. Dr. Olson stated that the employee might continue to require some hand therapy and restrictions as movement of her wrist and hand seemed to exacerbate her pain. Opining that the employee might still improve from her current condition, he offered only a fair prognosis, as she had continued to have this pain for an extended period.^[4]

Two medical experts were retained by the employer and insurer. The first examination, with William Call, M.D., resulted in only a partial narrative report^[5] as the employee had refused to allow Dr. Call to touch her right hand, wrist or arm, and declined to submit to an orthopedic examination. In his report, Dr. Call noted that because the employee had not permitted a physical examination, he based his opinions solely on his review of the employee’s medical records and the radiological studies. He opined that there was no evidence that any hamate hook abnormality was the result of the work injury. He stated that the MRI scan, as well as the physical examination findings contemporaneous with the injury, indicated the hamate hook anatomy was chronic, probably developmental, and was not the result of any recent injury. In his opinion, the work injury was a right thumb sprain. He found no objective evidence of reflex sympathetic dystrophy, causalgia, complex regional pain syndrome, or any similar condition. Because he had not been allowed to conduct a physical examination, Dr. Call stated he would not offer an opinion with respect to MMI, work restrictions, future medical treatment, need for pain medication, or need for physical therapy.

Upon receipt of Dr. Call’s report, the employer and insurer filed a notice of intention to discontinue (NOID) workers’ compensation benefits, alleging that the employee had refused to submit to the examination with Dr. Call. Following an administrative conference, a compensation judge granted the discontinuance based on noncooperation with the independent medical examination. The employee objected to the discontinuance and requested a formal hearing to address the need for a vocational rehabilitation consultation.

The employer retained a second medical expert, Jeffrey Husband, M.D., an orthopedic surgeon. In his report of May 17, 2016, and supplemental reports of May 24, 2016, and June 19, 2016,^[6] Dr. Husband opined that the chronic non-union of the hook of the right hamate was most likely due to a pre-existing injury rather than to the work injury of April 3, 2015. In his view, that injury had resulted only in a sprain which would have resolved by June 5, 2015, after which any further treatment would have been unnecessary and unrelated to the work injury. He also opined that the employee had reached MMI from her work injury as of May 3, 2016. Dr. Husband further opined that there was no objective basis for the employee’s current symptoms, which consisted of chronic, unexplainable pain with symptom magnification. Dr. Husband recommended that the employee discontinue narcotic pain medication, and opined that further physical therapy was not indicated. He saw no objective basis for work restrictions.

Based on the employee’s cooperation with this examination, temporary total disability benefits were reinstated as of May 3, 2016. A few weeks later, on May 25, 2016, the employer and insurer filed a subsequent NOID upon the receipt of Dr. Husband’s report. Following an administrative conference, a compensation judge denied the employer and insurer’s request to discontinue benefits and benefits were reinstated. On July 13, 2016, the employer and insurer filed a petition to discontinue workers’ compensation benefits. This petition was consolidated with the employee’s prior objection to discontinue benefits and request for formal hearing^[7] and a hearing was held on December 21, 2016, before Compensation Judge Stephen Daly.

At issue at the hearing was whether temporary total disability (TTD) benefits were payable for the period of March 25 to May 2, 2016, because of the employee’s noncooperation with Dr. Call; whether TTD benefits could be discontinued beginning May 24, 2016, because the employee had no medical restrictions; whether TTD benefits could be discontinued as of August 18, 2016, because the employee had reached MMI; whether the employee was entitled to work hardening therapy and an FCE as recommended by Dr. Ward; and whether the employee was entitled to a vocational rehabilitation consultation.

In Findings and Order filed January 13, 2017, the judge found that the employee had unreasonably refused to submit to a physical examination with Dr. Call and denied the employee’s claim for TTD benefits from March 24 to May 2, 2016, based on the employee’s failure to cooperate and submit to the orthopedic examination of Dr. Call on March 22, 2016. The judge also found that the employee had reached MMI on May 3, 2016, and that ninety days post service of MMI was reached on August 18, 2016, and denied the employee’s claim for TTD benefits from August 18, 2016, to the date of hearing. The judge further found that the employee continued to have ongoing persistent pain symptoms in her right wrist and hand and restrictions as a substantial result of her work injury of April 3, 2015, at the time of the hearing, and that the employer had not offered a job within the employee’s restrictions. The judge allowed the FCE and work-hardening program as reasonable, necessary, and causally related to the employee’s work injury and also awarded a rehabilitation consultation.

The employee appeals the compensation judge’s findings that the employee had reached MMI as of May 3, 2016, and that the employee had failed to comply with a reasonable request for an IME. The employer and insurer cross-appeal the judge’s findings that the FCE and work hardening therapy are reasonable, necessary, and causally related to the employee’s work injury, and the award of a rehabilitation consultation, on grounds that the employee had recovered from the work injury.

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 employee appeals the compensation judge’s denial of TTD benefits from March 24 to May 2, 2016. The compensation judge found that the employee had unreasonably refused to submit to a physical examination with Dr. Call and denied the employee’s claim for TTD benefits from March 24 to May 2, 2016, based on the employee’s failure to cooperate and submit to the orthopedic examination of Dr. Call on March 22, 2016, and her subsequent examination by Dr. Husband on May 3, 2016. The employee argues that the request for examination with Dr. Call was not reasonable because she did not trust him or feel comfortable with him after Dr. Call stated he would report that she was not cooperating with him when she did not know the answers to all of his questions during the history-taking portion of the examination.

There is no dispute that the employee refused to allow Dr. Call to touch her hand or arm, thus making a standard orthopedic examination impossible. She did not claim her condition or symptoms rendered her arm and hand too painful to touch, and allowed Dr. Husband to conduct an orthopedic examination less than two months later. The compensation judge found that the reasons given by the employee for not allowing Dr. Call to perform the physical orthopedic examination did not excuse the employee’s duties under the statute to submit to an examination.

Minn. Stat. § 176.155, subd. 3, provides that an employee’s right to compensation may be suspended by order of a compensation judge where the employee refuses to comply with any reasonable request for examination and that no compensation shall be paid while the employee continues in the refusal. The compensation judge did not err by denying the employee’s claim for temporary total disability benefits based on the employee’s failure to cooperate and submit to the orthopedic examination of Dr. Call on March 22, 2016, until she underwent an examination by Dr. Husband on May 3, 2016. Accordingly, we affirm.

The employee argues that substantial evidence does not support the judge’s finding that she had reached maximum medical improvement (MMI) as of May 3, 2016. Based on Dr. Husband’s opinion, the compensation judge found that the employee had reached MMI on May 3, 2016, and that ninety days post service of MMI was reached on August 18, 2016, and denied the employee’s claim for temporary total disability benefits from August 18, 2016, to the date of hearing. Maximum medical improvement is defined as “the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability.” Minn. Stat. § 176.011, subd. 13a. An employee reaches MMI “upon medical proof that the employee’s condition has stabilized and will likely show little further improvement.” Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740, 742 (W.C.C.A. 1987). Maximum medical improvement is an issue of ultimate fact to be determined by the compensation judge after considering medical records, medical opinions, and other relevant evidence. Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989).

The employee asserts that Dr. Ward’s recommendations for an FCE and work hardening therapy are grounds for finding that the employee had not reached MMI, citing Lane v. Silvernail Sheet Metal Co., slip op. (W.C.C.A. Apr. 29, 1988) (finding that employee was not at MMI affirmed where conditioning program needed and also based on other evidence), and Goulet v. West Central Turkeys, slip op. (W.C.C.A. May 27, 1999) (finding that employee was not temporarily totally disabled affirmed where employee was not at MMI because a strengthening program was needed). We have noted that an affirmance by this court of a compensation judge’s finding of fact on a substantial evidence basis is of limited precedential value. Regan v. VOA Nat’l Housing, 61 W.C.D. 142, 151 (W.C.C.A. 2000), summarily aff’d (Minn. Apr. 6, 2001). The judge’s award of an FCE and work hardening therapy are not necessarily inconsistent with his finding that the employee had reached MMI. The judge stated that the FCE and work hardening therapy would facilitate the employee obtaining employment, but would not lead to significant lasting improvement. Reasonable and necessary medical care may be required after a MMI determination. Hopp v. Grist Mill, 499 N.W.2d 812, 814, n.3, 48 W.C.D. 450, 452, n.3 (Minn. 1993).

The employee emphasizes evidence that supports a finding that she had not reached MMI, i.e., that she had testified that her symptoms fluctuated, that she had shown some improvement in later 2015, and that work hardening therapy would also improve her function and provide relief. She also argues that work hardening therapy and an FCE were not needed simply to ascertain restrictions, but were primarily therapeutic. We note that it is not this court’s function to assess whether substantial evidence might exist to support a conclusion contrary to that reached by the compensation judge, but to assess whether substantial evidence exists to support the conclusion the judge reached. See Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (the issue is not whether the appellate court might have viewed the evidence differently, but whether the compensation judge’s findings are adequately supported by the evidence).

The compensation judge relied on Dr. Ward’s and Dr. Husband’s opinions that the employee was at MMI, and also on the employee’s testimony that her condition had not changed for a considerable period of time in finding that the employee had reached MMI, and also noted that four months of physical therapy after the employee’s surgery had not improved the employee’s pain level. Substantial evidence supports the compensation judge’s finding that the employee had reached MMI, and we affirm.

The employer and insurer cross-appealed the compensation judge’s findings that the FCE and work-hardening program are reasonable, necessary, and causally related to the employee’s work injury. The employer and insurer point to the compensation judge’s reasoning regarding MMI, where the judge stated that there was no evidence that the FCE or the work hardening therapy would lead to significant lasting improvement given the stable nature of the employee’s symptoms over the last year. The compensation judge noted that the standard for a finding of maximum medical improvement of no lasting improvement is different from the standard for awarding reasonable and necessary medical treatment. As we noted above, reasonable and necessary medical care may be required after an MMI determination. Hopp, 499 N.W.2d at 814, n.3, 48 W.C.D. at 453, n.3.

The employer and insurer also argue that substantial evidence does not support the award of the FCE or work hardening therapy as reasonable and necessary, asserting that previous physical therapy did not help the employee’s condition and that Dr. Husband opined that additional therapy was not medically necessary. The reasonableness and necessity of medical treatment sought under Minn. Stat. § 176.135 is a question of fact for the compensation judge, and the employee bears the burden of proof that the medical treatment is reasonable and necessary. Adkins v. Univ. Health Care Ctr., 405 N.W.2d 231, 233, 39 W.C.D. 898, 900 (Minn. 1987). Pursuant to Minn. R. 5221.6300, subp. 1.J(a), of the medical treatment parameters, an FCE is indicated when permanent activity restrictions and capabilities must be identified. The compensation judge relied on Dr. Ward’s recommendation for an FCE and work hardening therapy, stating that an FCE was reasonable to identify the employee’s restrictions and workability and that work hardening therapy would facilitate the employee’s efforts to find and secure employment. Substantial evidence supports the compensation judge’s finding that the FCE and work hardening therapy were reasonable and necessary, and we affirm.

The compensation judge found that the employee’s April 3, 3015, work injury was a substantial contributing factor to the employee’s ongoing symptoms and need for restrictions. The employer and insurer argue that the employee’s ongoing right hand condition and need for treatment and restrictions are not causally related to the work injury but were related to a chronic nonunion of her hook of the hamate due to an old injury based on Dr. Call’s and Dr. Husband’s opinions. They assert that the employee’s medical records after the injury and through May 31, 2015, only indicate pain in her right thumb, distal wrist, and anatomical snuffbox, which are the opposite side of the hand from the hamate hook. They further claim that the employee did not report pain in her entire palm and on the ulnar side until after the June MRI indicated a possible fracture of the hamate hook.

Questions of medical causation fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). The compensation judge specifically found Dr. Ward’s opinion that the employee’s work injury was a substantial contributing factor of the employee’s current symptoms to be more persuasive and that her conclusions more reasonably account for the employee’s ongoing symptoms. Dr. Ward opined that the employee’s work injury was a substantial contributing factor to the employee’s current symptoms and restrictions. Dr. Olson stated that the employee’s work injury led to a hamate fracture and that she may need hand therapy and restrictions. A judge’s choice between medical experts whose testimony conflicts is usually upheld where the facts assumed by the expert in rendering an opinion are supported by the evidence. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37W.C.D. 364, 372-73 (Minn. 1985). The judge also found that the employee did not have treatment or symptoms in her right hand before the work injury, that the April 3, 2015, work injury was significant, and that she fell with enough force to cause a hamate fracture. Substantial evidence supports the compensation judge’s finding that the employee’s April 3, 3015, work injury was a substantial contributing factor to the employee’s ongoing symptoms and need for restrictions, and we affirm.

The employer and insurer also cross-appeal the compensation judge’s award of a rehabilitation consultation, arguing that the employee had recovered from the April 3, 2015, work injury without any work restrictions or need for medical treatment related to the work injury. “A rehabilitation consultation is used to determine whether an employee is a qualified employee for rehabilitation services.” Minn. R. 5220.0130, subp. 1. A rehabilitation consultation must be provided to an injured employee upon request of the employee. Minn. Stat. § 176.102, subd. 4(a). A determination that the employee has completely recovered from the work injury or has no employment restrictions from the injury, however, may defeat a claim for a rehabilitation consultation. Judnick v. Sholom Home West, slip op. (W.C.C.A. Aug. 4, 1995); see also Brownell v. Hibbing Taconite Mining Co., No. WC09-5036 (W.C.C.A. Apr. 8, 2010); Brew v. College of St. Scholastica, slip op. (W.C.C.A. Aug. 5, 2003). Here, the compensation judge adopted Dr. Ward’s opinion and found that the employee continued to have restrictions as a substantial result of her work injury. The judge further ordered both an FCE and work hardening therapy to facilitate the employee’s efforts to find and secure employment. A vocational rehabilitation consultation is a reasonable extension of the FCE and work hardening therapy in that it may assist the employee’s efforts to find employment. A consultation is not vocational rehabilitation per se, it is only the first step in determining whether the employee qualifies for vocational rehabilitation benefits. See Minn. Stat. § 176.102, subd. 4(a); Minn. R. 5220.0130, subp. 1.

The employer and insurer again argue that the employee’s ongoing right hand condition and need for restrictions are not causally related to the work injury. We have determined above that substantial evidence supports the compensation judge’s findings that the employee’s right hand condition and need for restrictions were causally related to the employee’s work injury. The judge did not err by awarding a rehabilitation consultation, and we affirm.