SCOTT T. HANSON, Employee/Respondent, v. ELEC. BUILDERS, INC., and EMC INS. COS., Employer-Insurer/Appellants, and CIGNA HEALTHCARE, ST. LUKE’S HOSP. & REG’L TRAUMA CTR., ST. LUKE’S CLINICS, ESSENTIA HEALTH SYS., ELEC. WORKERS HEALTH/WELFARE FUND, Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 3, 2017

No. WC16-5987

CAUSATION – SUBSTANTIAL EVIDENCE; PERMANENT TOTAL DISABILITY. Substantial evidence, including expert medical and vocational opinion, supports the compensation judge’s findings that the employee’s work injury is a substantial contributing cause of his disability and the employee is permanently and totally disabled.

CAUSATION – MEDICAL TREATMENT. Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the disputed treatment for the employee’s cervical spine was causally related to the employee’s work injury.

    Determined by:
  1. Manuel J. Cervantes, Judge
  2. Patricia J. Milun, Chief Judge
  3. David A. Stofferahn, Judge

Compensation Judge: Jerome Arnold

Attorneys: Gustav C. Layman, Petersen, Sage, Graves, Layman & Moe, P.A., Duluth, Minnesota, for the Respondent. Robin C. Merritt, Hanft Fride Law Firm, Duluth, Minnesota, for the Appellants.

Affirmed.

OPINION

MANUEL J. CERVANTES, Judge

The employer and insurer appeal the compensation judge’s findings that the employee’s work-related cervical spine injury is a substantial contributing cause of the employee’s permanent total disability and that certain disputed medical treatment was related to the employee’s work injury. We affirm.

BACKGROUND

On July 30, 2013, Scott T. Hanson, the employee, sustained an admitted work-related cervical Gillette[1] injury while working as an electrician for Electric Builders, Inc., which was insured for workers’ compensation liability by EMC Insurance Companies. The employee was 49 years old at the time of injury.

The employee had earlier treated with Dr. John Benson, a chiropractor, for a few weeks in December 2006 for back and neck symptoms. The employee treated again with Dr. Benson for neck and back pain for a few visits in September and October 2012. Dr. Benson assessed cervical segmented dysfunction. The employee returned again in June 2013 and on July 5, 2013, Dr. Benson referred the employee to Dr. John Van Etta for a consultation due to the employee’s right arm numbness and tingling. On July 10, 2013, the employee was examined for neck and arm pain by Dr. Van Etta, who ordered an MRI scan. The July 18, 2013, MRI scan showed significant osteoarthritis and a right C5-6 disc protrusion. Dr. Van Etta referred the employee to Dr. Donysios Klironomos, a neurosurgeon.

The employee was evaluated by Dr. Klironomos on July 30, 2013. He reported neck pain and numbness down his right arm which had been ongoing since the beginning of June, as well as significant pain when looking up or doing overhead work. Dr. Klironomos recommended physical therapy, traction, and no overhead work. The overhead work restriction prevented the employee from working for the employer. The employee attended physical therapy and at a 6-week follow-up appointment, Dr. Klironomos recommended surgery. The employee underwent an anterior cervical discectomy and fusion at the C5-6 level on September 27, 2013. The employee continued to have neck pain, headaches, difficulty moving his neck, difficulty working overhead, and numbness in his hands. In November 2013, the employee began receiving physical therapy treatment for his cervical symptoms.

Before the work injury, the employee had non-work-related medical issues with his feet. These issues continued after his injury and the employee underwent a partial right transmetatarsal amputation, hardware removal, and a left foot surgery.

On January 21, 2014, the employee underwent an independent medical examination with Dr. Terry Hood who opined that the employee’s work activities with the employer substantially contributed to the employee’s cervical spine injury by aggravating his preexisting cervical spine condition, that the employee’s medical treatment was reasonable, necessary, and causally related to the work injury, that he would be at maximum medical improvement after physical therapy was completed, and that the employee had sustained an 11.5% permanent partial disability for his cervical spine condition. He assigned a 25 pound lifting restriction for overhead work and avoiding extreme cervical range of motion. The employer and insurer paid various workers’ compensation benefits for the cervical spine injury.

The employee treated with Dr. Klironomos on February 4, 2014, for follow up of his left arm pain and tingling. Dr. Klironomos continued the employee off work and ordered a cervical spine CT scan. The employee also treated for his lower spine condition with Dr. Edward Martinson. On May 13, 2014, Dr. Klironomos recommended a cervical injection, which was performed on June 2, 2014, by Dr. Hal Heyer. The employee reported only temporary relief after the injection, and was referred to a pain clinic by Dr. Klironomos. Dr. Van Etta continued the employee off work as of September 9, 2014.

On September 23, 2014, the employee was evaluated by Dr. Ifeyinwa Igwe at Essentia Health’s Pain Management Clinic. Dr. Igwe diagnosed cervical chronic pain syndrome and found the employee to be a candidate for the pain management program. A psychologist, an occupational therapist, and a physical therapist also evaluated the employee and found him to be a proper candidate for the program. Dr. Igwe ordered a TENS unit which was fitted for the employee on October 10, 2014. On October 21, 2014, Dr. Van Etta opined that the employee was unable to return to work involving heavy lifting, pushing, or pulling due to his cervical spine restrictions.

An addendum report issued by Dr. Hood after he reviewed additional medical records is dated December 8, 2014. It states that the employee was at maximum medical improvement for his work-related cervical spine injury and needed no further treatment for that injury. He opined that the injection treatments the employee had received were not reasonable. Dr. Hood continued the previously recommended work restrictions of no lifting over 25 pounds for overhead work and avoiding extreme cervical range of motion.

On December 12, 2014, Dr. Igwe referred the employee to Dr. Obioma Igboka, who diagnosed occipital neuralgia, cervical spondylosis, chronic headaches, and post C5-6 fusion, and treated the employee with occipital nerve blocks. The employee also used topical treatments as part of the pain management program. The employee completed the program on March 19, 2015.

Dr. Van Etta indicated in a letter dated April 29, 2015, that the employee’s treatments of ketoprofen gel, compounding cream, and occipital nerve injections were reasonable and necessary medical treatment for the employee’s cervical symptoms caused by positioning in tight spaces for electrical work. He also opined that the employee was not at maximum medical improvement for his foot condition and may not be for one to two years.

The employee was evaluated by Dr. Mark Gregerson at his attorney’s request on June 5, 2015. Dr. Gregerson opined that the disputed cervical spine treatment, including the pain program, TENS unit, occipital nerve injections, ketoprofen gel, and compounding cream, was reasonable and necessary, and that less physically demanding work would be appropriate.

After an independent vocational evaluation, on February 17, 2016, rehabilitation consultant Mark Stewart opined that the employee would be capable of more than sporadic and insubstantial employment, once he was released to work by his treating physicians, and that the employee was not permanently and totally disabled. In April 2016, the employee’s qualified rehabilitation consultant (QRC), Michael Anderson, opined that a job search would be inappropriate due to the employee’s medical conditions and that he hads not been released to work by his treating physicians.

Dr. Van Etta referred the employee to Dr. Rebecca Myerson, a neurologist, for balance problems. On April 5, 2016, Dr. Myerson examined the employee, took his history, and reviewed his medical record. Dr. Myerson opined that the employee was unable to work as an electrician and was not likely employable given his cervical spine, lumbar spine, and right foot conditions. In an addendum dated April 14, 2016, Dr. Gregerson opined that the employee should be restricted from all vocational activities due to the severity of his cervical spine, lumbar spine, and right foot conditions. In an April 15, 2016, report, Dr. Van Etta continued to recommend that the employee be restricted from all work activities and stated that the employee’s symptoms from all of his conditions prevent him from being released to any category of work activities.

Dr. Mark Nipper conducted an earlier independent medical examination of the employee regarding his low back condition. In April 2016, he reviewed additional medical records, and opined in an April 20, 2016, report that the employee’s cervical spine condition was not related to his work activities, that the employee was not permanently and totally disabled due to his work injury, and that the employee’s foot condition was the most profound component of his condition and also the limiting factor for activities. Dr. Nipper recommended a functional capacities evaluation.

A hearing was held on April 20, 2016, on the employee’s claims for a lumbar spine Gillette injury, medical expenses for treatment of the lumbar spine and cervical spine, and permanent total disability. At the hearing, the employee testified that his neck injury generally causes him the most constant pain, prevents him from twisting to the side, static positioning, or working on computer, and requires frequent change of position and frequent rest.

The compensation judge found that the employee’s lumbar spine condition was not related to a work-related acute or Gillette injury and therefore denied any claims or medical expenses related to the lumbar spine. The judge also found that the employee’s cervical spine condition was causally related to his work injury and was a substantial contributing factor of his disability. Further, the judge found that the employee was restricted from all vocational activity “which can be expected to remain as such for an indefinite period of time” (finding 60) and that a job search would be futile given his condition and his restrictions. The judge awarded permanent total disability benefits and also awarded the disputed medical expenses. The employer and insurer appeal.

STANDARD OF REVIEW

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).

DECISION

 

1.   Permanent total disability

The employer and insurer argue that substantial evidence does not support the compensation judge’s finding that the employee’s work-related cervical spine injury is a substantial contributing cause of the employee’s permanent total disability. The employer and insurer claim that the employee’s non-work-related medical conditions, including peripheral neuropathy and bilateral partial foot amputations are the cause of his disability, not his work-related neck injury. They assert that the medical evidence does not adequately explain the causal connection between the work injury and the disability in comparison to his other conditions, and that a reversal or remand for more specific medical opinions is necessary. The employee argues that substantial evidence supports the judge’s finding of permanent total disability since the employee’s symptoms and work restrictions related to the work injury significantly contribute to his inability to work, and the medical opinions taking the employee off work reference his neck condition.

The employer and insurer also assert that a finding of permanent total disability is premature since the employee is not at maximum medical improvement for his foot conditions and he has skills which could lead to gainful employment. The employer and insurer cite two cases where this court affirmed a compensation judge’s decision that a finding of permanent total disability was premature, Avery v. Farmstead Foods/Seaboard Corp., 60 W.C.D. 204 (W.C.C.A. 2000), summarily aff’d (Minn. June 19, 2000) and Fish v. Carlson Trucking, Inc., 74 W.C.D. 57 (W.C.C.A. 2014). 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, 2000); Larson v. Hampton Care Ctr., No. WC04-245 (W.C.C.A. Jan. 20, 2005). These cases do not establish a rule of law and do not mandate a reversal of the compensation judge’s determination in the present case. Further, the employer and insurer acknowledge that maximum medical improvement is not a condition precedent for a finding of permanent total disability.

The employee disagrees that the permanent total disability finding is premature, noting that the employee had been off work for three years and the evidence does not show that his ability to work will change any time soon. The compensation judge agreed, finding that the employee was restricted from all vocational activity for an indefinite period of time and that a job search would be futile given his condition and his restrictions.

An employee is totally disabled if the employee’s physical condition, in combination with age, education, training, and experience, causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income. See Minn. Stat. § 176.101, subd. 5; Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967). In this case, QRC Anderson opined that a job search would be inappropriate due to the employee’s medical conditions and his restriction from all work by his treating physicians. Several medical opinions also support the compensation judge’s decision. Dr. Van Etta stated that no release to any category of work activities would be safe due to the employee’s symptoms from his cervical spine, lumbar spine, and foot conditions. Dr. Gregerson opined that the employee should be restricted from all vocational activities due to the severity of his cervical spine, lumbar spine, and right foot conditions. Dr. Myerson opined that the employee was unable to work as an electrician and was not likely employable given his cervical spine, lumbar spine, and right foot conditions. In addition, the employee testified that his ongoing neck symptoms caused him more constant pain than his other conditions and would affect potential work activities such as twisting to the side, static positioning, or working on computer. He also testified that his neck condition requires frequent change of position and frequent rest.

Given the medical opinions that the employee was restricted from work due to his medical conditions, including his cervical spine condition, and the employee’s testimony regarding the impact of his cervical spine symptoms on his ability to perform work activities, substantial evidence supports the compensation judge’s findings that the employee’s cervical spine condition was causally related to his work injury and was a substantial contributing factor of his disability, and that the employee is permanently and totally disabled. We affirm.

2.   Medical treatment

The employer and insurer also argue substantial evidence does not support the compensation judge’s finding that disputed medical expenses for treatment, including occipital nerve injections, TENS unit, gel-cream, and pain management, were related to the employee’s work injury. The employer and insurer argue that the employee’s ongoing cervical spine treatment, including the pain management program, was not related to his work injury but to his non-work-related back injury and preexisting neuropathy, relying on Dr. Hood’s opinion that the employee was at maximum medical improvement for his work-related cervical spine injury six months after the surgery and that he needed no further treatment for that injury. The employer and insurer also argue that the record does not sufficiently indicate whether the employee was being treated for his work injury or other conditions with these treatments.

An employer and insurer are required to furnish medical treatment as may reasonably be required at the time of the injury and any time thereafter to cure and relieve the employee from the effects of the work-related injury. Minn. Stat. § 176.135, subd. 1 (a). 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). The reasonableness and necessity of medical treatment sought under Minn. Stat. § 176.135 is a question of fact for the compensation judge. See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993).

In this case, Dr. Igwe prescribed the employee’s treatment in the pain management program and referred the employee for occipital nerve blocks. Dr. Gregerson opined that the disputed treatment, including the pain program, TENS unit, occipital nerve injections, ketoprofen gel, and compounding cream, was reasonable and necessary to treat the employee’s admitted cervical symptoms. Dr. Van Etta stated that the employee’s treatments, including ketoprofen gel, compounding cream, and occipital nerve injections, were reasonable and necessary medical treatment for the employee’s cervical symptoms caused by positioning in tight spaces for electrical work. It is the role of the compensation judge to resolve conflicts in expert medical testimony, and the judge’s choice of expert opinion is usually upheld unless the facts assumed by the expert in rendering an opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985). Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). The compensation judge specifically relied on the employee’s treating physicians in finding that the disputed medical treatment was causally related to the employee’s work injury. Substantial evidence supports this finding, and we affirm.



[1] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).