EVIDENCE – EXPERT MEDICAL OPINION. Where the treating physician reviewed the report prepared by the independent medical examiner which outlined the chronology of the employee’s past low back injuries and treatment, the opinions of the treating physician cannot be said to lack foundation on the basis that the treating physician was not aware of prior injuries.
CAUSATION – TEMPORARY INJURY. Substantial evidence in the record, including the adequately founded medical opinion of the independent medical examiner, supports the compensation judge’s determination that the employee’s work injury was a temporary aggravation of her pre-existing degenerative condition, which has since resolved.
Compensation Judge: Kathleen Behounek
Attorneys: Stephen R. Quanrud, Midwest Disability, P.A., Minneapolis, Minnesota, for the Appellant. Karen M. Charlson, Minneapolis, Minnesota, for the Respondents.
Affirmed.
DEBORAH K. SUNDQUIST, Judge
The employee appeals the compensation judge’s finding that the employer had reasonable grounds to discontinue benefits. Because substantial evidence supports the compensation judge’s finding, we affirm.
Charlene Kness, age 57, worked for Kwik Trip, a convenience store in southeastern Minnesota, since 2011. As an assistant leader, the employee waited on customers, provided operational support for the store leader, and stocked inventory.
On November 8, 2015, while moving 40-pound milk crates to clean up spilled milk, the employee developed significant low back pain, but managed to finish her shift. Two days later, she attended a previously scheduled annual physical examination with her doctor, Charles R. Sanderhoff, M.D. Dr. Sanderhoff recorded the history of the injury as “on Sunday, November 7, 2015 [sic], she twisted her back moving a container of milk.”[1] The employee complained of pain and difficulty standing and walking. An examination revealed low back and straight leg raising tenderness. Dr. Sanderhoff restricted the employee from work for the remainder of the week and released her to return to work without restrictions on November 14, 2015. A day before the restrictions were to end, the employee sought care with Jodie M. Smith, NP, who took her off work for another 7 to 10 days.
The employee underwent an MRI scan on December 2, 2015. The MRI showed moderate degenerative lumbar spondylosis, with no neural compression.
The employer and its insurer, Tristar Risk Management, admitted liability and paid wage loss, medical expenses, and provided vocational rehabilitation benefits.
Before the employee’s injury on November 8, 2015, she had a history of multiple low back injuries and medical treatment. In 1996-1997, she complained of low back pain following a motor vehicle accident in which her car hit a deer and overturned into a ditch. At the time, she was diagnosed with lumbar spine strain/sprain and persistent myofascial pain. In 2001, the employee sought emergency room care for severe back pain after getting out of bed. The diagnosis was left lumbar back spasms and strain. Between 2002 and 2006, she obtained chiropractic treatment for her low back. Of note was chiropractic treatment in February 2004 for low back pain due to another motor vehicle accident. In 2006, the employee was on a motorcycle which crashed into a ditch. She was airlifted for emergency care. From 2010 to 2011, the employee treated for an onset of constant, moderately severe pain in the low back region. The employee claimed a work-related hip and low back injury in 2012 while moving milk crates. She underwent intermittent chiropractic treatment through December 5, 2014. It appears that none of these prior injuries resulted in an MRI scan or low back surgery.
Following the November 8, 2015, work injury, the employee treated through the Mayo Clinic. She saw Cooper Renden, PA-C at the Faribault Mayo Clinic on December 8, 2015, who released the employee to work eight hours per day with restrictions. The employee was unhappy that PA-C Renden released her to return to work and thereafter, the employee did not attend follow-up appointments.[2] She received no treatment for her low back between December 8, 2015, and January 13, 2016.
The record reflects that on December 11, 2015, the employer called the employee with a job offer based on the restrictions outlined by PA-C Renden.[3] Although the job offer was made, the employee did not return to work with the employer. Subsequently, the employer and insurer filed a notice of intention to discontinue benefits (NOID) on January 6, 2016, although benefits were later reinstated.
On January 13, 2016, the employee sought treatment with Stefano Sinicropi, M.D. Dr. Sinicropi took a history from the employee which included the work injury of November 8, 2015. Despite a history of prior low back complaints, the employee denied she had any prior low back injuries. Dr. Sinicropi diagnosed the employee with back pain and bilateral lower extremity radiculitis. He placed her on restrictions of two hours of work per day, but soon after took her off work completely. He ordered bilateral epidural steroid injections, but because the injections failed to provide lasting symptom relief, Dr. Sinicropi recommended surgery in the nature of a bilateral decompression at the L5-S1 level.
The employer and insurer obtained a medical expert opinion from Eric Deal, M.D. in March 2016. Dr. Deal reviewed multiple medical records, took a history of the employee’s complaints, and examined her. Finding no evidence of objective neurologic findings, Dr. Deal diagnosed the employee’s condition as chronic multilevel degenerative lumbar spondylosis unrelated to any acute injury. He observed multiple positive Waddell’s signs and symptom magnification. He concluded that the employee had not sustained a traumatic injury on November 8, 2015, and at worst suffered an exacerbation similar to those she had in the past, which had resolved. He determined that she had reached maximum medical improvement six weeks post-injury, or December 25, 2015, and he assigned a zero percent permanent partial disability rating. He concluded that future medical treatment was not necessary, nor were restrictions on work activity.
Dr. Sinicropi reviewed Dr. Deal’s report and responded to his conclusions in a narrative report dated June 9, 2016. Noting the prior low back history outlined by Dr. Deal, he disagreed with Dr. Deal’s description of a temporary aggravation. Instead, he cited the employee’s lapse in treatment between 2014 and November 2015, and the ongoing nature of the employee’s complaints following her work injury, as indicative of a permanent injury. Dr. Sinicropi opined that the November 8, 2015, injury was a substantial contributing factor to her current condition and need for medical treatment, and the recommended surgery.[4]
On July 14, 2016, Dr. Sinicropi performed a bilateral decompression and foraminotomy at L5-S1. Following surgery, the employee’s symptoms failed to improve. She reported in December 2016 that her pain was still quite severe and was progressive.[5] An MRI scan showed severe disc desiccation at L5-S1 and retrolisthesis at L5-S1. The employee was referred back to Dr. Sinicropi for a consult on further surgical options.
Based on both Dr. Deal’s independent medical examination (IME) report and the employer’s job offer, the employer and insurer filed a NOID seeking to discontinue temporary total disability (TTD) benefits. The NOID was granted following an administrative conference. The employee appealed that decision by filing an objection to discontinuance requesting a formal hearing. Rehabilitation requests were also filed; one by the employee for the change of QRC, and one by the employer and insurer for a termination of vocational rehabilitation. The pleadings were consolidated and the matter was heard on January 19, 2017, before Compensation Judge Kathleen Behounek. The issues presented were whether the employer and insurer had reasonable grounds to discontinue the employee’s benefits, and whether the employee is a qualified employee for ongoing vocational rehabilitation services.
Judge Behounek found that the employee had suffered a temporary aggravation of her pre-existing degenerative condition which resolved as of December 25, 2015. She further found that the employer and insurer established reasonable grounds to discontinue wage loss benefits as of March 28, 2016. Finally, she found that closure of vocational rehabilitation was appropriate. The employee appeals.
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 discontinuance of TTD benefits and closure of vocational rehabilitation. She argues that the compensation judge erred in concluding that the opinions of Dr. Sinicropi lacked foundation, and erred in the ultimate rejection of those opinions in favor of the opinions of Dr. Deal.
Citing Hillsdale v. Honeywell, Inc., slip op. (W.C.C.A. Feb. 6, 1997), the employee argues that since Dr. Sinicropi had reviewed Dr. Deal’s comprehensive narrative, Dr. Sinicropi had the same foundation on which to base his opinion as did Dr. Deal. In Hillsdale, we concluded that a treating doctor, who did not appear to be aware of the employee’s past medical history, had foundation upon which to base his opinion because he had reviewed the IME report. Because the IME report “recited apparently all of the history he found to be pertinent,” we held that it was reasonable to conclude that this left the treating doctor with essentially the same foundation for his opinion as the IME doctor had for his. Arguing Dr. Sinicropi had foundation on this basis, the employee seeks a vacation and remand.
It is important to note that the judge did not make a specific finding that Dr. Sinicropi’s opinion lacked foundation. Instead, she found that the preponderance of the evidence supported the employer and insurer’s discontinuance of benefits. The employee appeals this finding. The employee appears to base her argument on what the judge noted in the memorandum attached to the Findings and Order. In the memorandum, the judge outlined the bases for her finding, which included among the reasons for her decision, a determination that Dr. Sinicropi’s opinion lacked foundation. Specifically, the judge noted that:
“The evidence fails to show that Dr. Sinicropi was aware of the employee’s reported injury in 2012, the nature of her symptoms from that injury and her statement that following the injury, her work activities were accommodated due to her low back condition. Further, the employee testified that she believed her low back symptoms did not resolve since the 2012 injury. Dr. Sinicropi’s opinions are based upon inaccurate or incomplete foundation.”
We will address whether the judge erred in finding that the preponderance of the evidence supported a discontinuance of benefits and vocational rehabilitation based in part on the choice between medical experts whose opinions may or may not have adequate foundation. In Mattick v. HyVee Foods, __N.W.2d__, __W.C.D. __ (Minn. July 12, 2017), the Minnesota Supreme Court outlined three elements that may establish a lack of foundation. First, the opinion does not include the facts and/or data upon which the expert relied in forming the opinion. Second, it does not explain the basis for the opinion. Third, the facts assumed by the expert in rendering an opinion are not supported by the evidence. The opinion need only be based on “enough facts to form a reasonable opinion that is not based on speculation or conjecture.” Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802 (Minn. 2017).
Based on the record, it appears that Dr. Sinicropi’s opinions had the necessary foundation. While it is true that the employee neglected to tell Dr. Sinicropi about her history of back problems, it is also true that Dr. Sinicropi represented that he reviewed Dr. Deal’s IME report which outlined the chronology of past low back injuries and treatment. The judge correctly noted that the 2012 injury was not referenced in Dr. Sinicropi’s report. However, the 2012 injury was also not referenced by Dr. Deal. That the judge made a specific reference to the exclusion of the 2012 injury should have applied to both medical expert opinions and not to Dr. Sinicropi’s alone.
The employee argues that because Dr. Sinicropi’s opinion was based on adequate foundation, the finding must be vacated and a remand is in order. We disagree. What is important is not whether the opinion rejected by the judge had foundation. What is important is whether the medical opinion the judge adopted is supported by adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003).
Here, the judge noted in the memorandum that Dr. Deal’s opinion regarding the diagnosis of underlying multiple level degenerative spondylosis without neurological involvement, is more persuasive and consistent with the medical records, and diagnostic and examination findings. She adopted Dr. Deal’s opinions in finding that the employee suffered a lumbar strain on November 8, 2015, resulting in a temporary aggravation of a well-established, chronic underlying degenerative lumbar spine condition.
The standard of review under Hengemuhle is whether substantial evidence exists in the record as a whole to support the compensation judge’s finding. Here, there is substantial evidence in the record to support the compensation judge’s decision. The employee had a long history of low back complaints. There were no neurologic deficits on examination. The MRI scan showed no neural compression. On examination, Dr. Deal noted a number of positive Waddell’s signs indicating symptom magnification. Dr. Deal explained that these findings supported the conclusion that on November 8, 2015, the employee suffered a temporary aggravation of a pre-existing condition which resolved by December 25, 2015. Because the medical expert opinion upon which the judge relied was based on adequate foundation and is supported by the record as a whole, we affirm.
[1] Ex. B, November 10, 2015.
[2] Finding 17.
[3] Ex. 23. Jill Eitland in Human Resources wrote to the employee on December 31, 2015, confirming that a job offer was made to the employee when the two spoke on December 11, 2015, for immediate full-time work. The letter also indicated that the employee’s supervisor called the employee twice, and Ms. Eitland left multiple messages about returning to work. The employee testified that she told her employer why she was not coming back to work. Transcript at 73.
[4] Ex. D, June 9, 2016.
[5] Finding 19.