EVIDENCE – CREDIBILITY; SUBSTANTIAL EVIDENCE. The assessment of credibility is the unique function of the compensation judge, and the WCCA will not disturb the credibility findings and reasonable inferences taken from those findings on appeal.
EVIDENCE – EXPERT MEDICAL OPINION. Where the treating physician had enough facts to form a reasonable opinion, and that opinion does not appear to be based upon speculation or conjecture, that opinion was adequately founded and could be relied upon by the compensation judge.
REHABILITATION – FEES & EXPENSES. Where the QRC testified to the actual time spent on providing rehabilitation services, substantial evidence supports the compensation judge’s award against unsupported assertions of what time is reasonable.
REHABILITATION – FEES & EXPENSES. Where the QRC provides medical management to the qualified employee, there is no deduction for those services directed toward medical care for nonwork injuries.
Compensation Judge: Kirsten M. Tate
Attorneys: Rick R. Larson, Rick R. Larson, P.A., Woodbury, Minnesota, for the Cross-Appellant. Larry J. Peterson, Peterson, Logren & Kilbury, P.A., St. Paul, Minnesota, for the Appellants.
Affirmed, as modified.
PATRICIA J. MILUN, Chief Judge
The self-insured employer appeals from the compensation judge’s determinations that the employee’s work-related injuries of November 5, 2015, and April 5, 2016, were substantial contributing causes to her ongoing left foot/ankle and right shoulder conditions, respectively, and from the order regarding payment of outstanding rehabilitation bills. The employee cross-appeals from the judge’s determination that the April 5, 2016, work injury, as it related to her neck condition, constituted only a temporary sprain/strain injury that resolved without the need for additional medical treatment or restrictions 12 weeks after the injury. We affirm.
The employee, Pamela Beguhl, started working for the self-insured employer, Supportive Living Solutions, in January of 2015. She was a full-time independent living skills counselor (ILSC). In this role, she met with clients with mental illnesses and helped them with their daily living skills.
Prior to her November 5, 2015, and April 5, 2016, work injuries with the employer, the employee had other work-related and non work-related injuries affecting the same body parts involved in this matter. In 1992, she was rear ended in the parking lot at a Target store, which injured her neck, mid back, and low back. She sustained a left foot injury in 1995 while working at McDonald’s. In July of 1999, she fell down stairs at work and injured her low back, hip, thigh, left ankle, and right shoulder. On March 5, 2002, she fell backwards onto ice and hit the back of her head, injuring her head and neck. By the time of her November 5, 2015, work injury, she had not sought treatment for her left ankle for over 13 years. By the time of her April 5, 2016, work injury, she had not sought treatment of her right shoulder for over ten years.
On November 5, 2015, while walking to her vehicle after a meeting, the employee stepped into a pothole with her left foot. She fell to the ground and was taken by ambulance to the emergency room at Hennepin County Medical Center (HCMC), where she reported feeling pain in her medial ankle and foot. X-rays revealed left midfoot osteoarthritis but no acute fractures were observed, and she was diagnosed with a left foot and ankle sprain. When swelling and pain in her left foot continued for several weeks, her family physician, Dr. Anthony Ferrara, referred the employee to Dr. Troy Vargas, a doctor of podiatric medicine (DPM). Dr. Vargas ordered an MRI. The MRI of December 15, 2015, showed acute nondisplaced fractures of the medial and middle cuneiforms. Dr. Vargas gave the employee work restrictions, including no standing, minimal walking, no lifting more than five pounds, resting as needed, and elevating her left foot as needed.[1] Dr. Vargas indicated that these restrictions were causally related to the employee’s work injury. Although her job as an ILSC required her to stand and walk, the employee continued to perform her work duties on a full-time basis.
The employee sought a second opinion with Dr. Fernando Pena, an orthopedic surgeon. He became the employee’s treating physician with respect to her left foot and ankle. In March of 2016, Dr. Pena gave the employee restrictions that included no standing, minimal walking, no lifting more than five pounds, resting as needed, using a cam boot as needed, limited use of stairs, and the need for the employee to elevate her foot at work as needed.
On April 19, 2016, Dr. Timothy Felton performed an independent medical examination of the employee’s left foot and ankle, at the request of the self-insured employer.[2] After taking a history, conducting a physical examination, and reviewing medical records, Dr. Felton opined that the employee sustained a fracture of her middle and medial cuneiforms as a result of the work related injury of November 5, 2016. Dr. Felton also opined that the employee had preexisting midfoot arthritic pain and lateral ankle ligament pathology, and that the November 5, 2016, work injury was a “minor contributing factor” that temporarily aggravated these preexisting conditions.
A June 3, 2016, CT scan of the employee’s left foot showed that she had arthritis in the mid foot area. Dr. Pena recommended cortisone injections.
On June 20, 2016, Dr. Felton issued a supplementary one-page report regarding his review of the June 3, 2016, CT scan of the employee’s left foot. Dr. Felton noted his observation that it appeared as though the cuneiform fractures had healed, and that the employee was at maximum medical improvement with respect to the fractures, as of June 3, 2016. The self-insured employer denied authorization for the cortisone injections that Dr. Pena had recommended.
Dr. Pena agreed that the employee’s cuneiform fractures had healed by the time of the June 3, 2016, CT scan, but indicated that the employee continued to have left foot symptoms. It was Dr. Pena’s opinion that while the employee had preexisting midfoot osteoarthritis, this condition was “clearly aggravated secondary to [the employee’s] work-related injury.” He noted that the employee had not been symptomatic leading up to November 5, 2015. Dr. Pena had not yet placed the employee at maximum medical improvement as of the last date of treatment in the record, which was September 26, 2016. At that visit, Dr. Pena indicated that the injections could help the employee’s ankle return to the “baseline of symptoms, which in this case was none that she had prior to the accident even though she presented with some arthritis.” The last restrictions Dr. Pena gave to the employee included no more than 10 stairs and one block of walking at each client meeting. As of the hearing in this matter, the employee had not returned to see Dr. Pena due to treatment of her right shoulder and low back conditions.
On April 5, 2016, the employee was driving from one work location to another when the car she was driving was hit by another car. She was brought to HCMC by ambulance. A CT scan of her cervical spine showed multilevel degenerative changes.[3] Records indicate that over the course of the next few months, the employee sought treatment of several different body parts, including her right shoulder, neck, low back, and hips. Dr. Ferrara diagnosed sprain/strain injuries to the right shoulder and neck. He referred her to Dr. Michael Sethna for further treatment of her neck and low back. Dr. Sethna later referred the employee to Dr. Bryan Lynn.
In June of 2016, the employee began seeing Dr. Jonathan Biebl for treatment of her right shoulder. An MRI revealed a right rotator cuff tear. On June 28, 2016, Dr. Biebl recommended surgery to perform an arthroscopic decompression, rotator cuff repair, distal clavicle excision, and a biceps tenotomy. He recommended that the employee refrain from working until after the surgery. In August, he gave the employee restrictions of no outstretched or overhead movements, and the only lifting the employee was to perform was up to ten pounds, with two hands, from her knees to her waist.
On July 7, 2016, at the request of the self-insured employer, Dr. Rick Davis performed an independent medical examination of the employee, focusing on her bilateral hips, low back, neck, and right shoulder. He issued a report on August 8, 2016. With respect to the employee’s neck, Dr. Davis opined that the employee sustained, at most, a temporary strain/sprain injury on April 5, 2016, that fully resolved within 12 weeks of the injury. He cited the MRI of the employee’s cervical spine, which he opined “identified chronic stable degenerative findings without any evidence of traumatic spinal column injury.” He also opined that there were no “objective radiographic findings to correlate with her pain complaints,” and stated that his physical examination of the employee did not reveal any objective findings.
With respect to the employee’s right shoulder, Dr. Davis wrote that, “given the described mechanism of injury, by MRI, Ms. Beguhl has a right rotator cuff tear and had pain in the right shoulder subjectively and objectively with tenderness over the rotator cuff insertion without any pain identified weakness.” He recommended rotator cuff rehabilitation for eight weeks, which was not explicitly identified as unrelated to the April 5, 2016, work injury. He indicated that the employee was not at maximum medical improvement with respect to her right shoulder. He indicated that appropriate restrictions for the employee’s right shoulder would be determined based upon the additional treatment she received.
In a letter dated October 25, 2016, Dr. Biebl opined that “given the mechanism of injury as described, I think this is compatible with [the employee’s April 5, 2016] injury.” He further explained that the employee “may have had some preexisting tendency toward rotator cuff disease due to her anatomy, but I think the tear and the subsequent need for surgery is secondary to the motor-vehicle accident.” He maintained his recommendation that the employee undergo right shoulder surgery. Dr. Biebl performed the right shoulder surgery on November 3, 2016.
Dr. Davis reexamined the employee on February 2, 2017. He indicated that all of the treatment for the employee’s right shoulder was reasonable and necessary.[4] He indicated that appropriate postoperative restrictions for the employee included “no repetitive overhead work, no lifting more than 20 pounds, no repetitive pushing or pulling more than ten pounds.” The employee underwent a bilateral L3-4 decompression surgery on February 20, 2017, as recommended by Dr. Lynn.
Except for a few weeks in September 2016, the employee did not work from the April 5, 2016, injury through the date of the hearing in March of 2017.
The employee filed a claim petition on January 5, 2017. The self-insured employer filed a Request for Formal Hearing on January 25, 2017, and the employee filed an Objection to Discontinuance on January 27, 2017.[5] These matters were consolidated, and on March 28 and 30, 2017, this case came on for hearing before Compensation Judge Kirsten Tate.
In her Findings and Order dated May 15, 2017, Judge Tate found that the work injury of November 5, 2015, remained a substantial contributing factor in the employee’s left foot and ankle condition, and that the work injury of April 5, 2016, remained a substantial contributing factor in the employee’s right shoulder condition.[6] The compensation judge awarded temporary total disability benefits from November 3, 2016, through the date of the hearing and continuing, payment of outstanding rehabilitation bills, ongoing rehabilitation benefits, and payment of intervention claims related to the left foot/ankle and right shoulder.[7]
The compensation judge found that the work injury of April 5, 2016, was no longer a substantial contributing factor in the employee’s low back and neck conditions, and that the employee sustained temporary sprain/strain injuries to her neck and low back, which resolved without the need for additional medical treatment or restrictions 12 weeks after the injury. The judge denied the employee’s claim that the April 5, 2016, work injury was a substantial contributing factor to her bilateral hip condition.
The self-insured employer appealed several of the compensation judge’s findings regarding the right shoulder and left foot/ankle, along with the associated orders awarding benefits. The employee cross-appealed the compensation judge’s finding that the April 5, 2016, work injury caused a temporary strain/sprain to her neck that resolved without the need for additional treatment or restrictions after 12 weeks. We affirm the compensation judge’s determinations regarding the injuries and affirm the judge’s determination on rehabilitation benefits as modified.
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.”[8] 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.”[9] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.[10] 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.”[11]
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.[12]
The self-insured employer contends that Dr. Pena lacked adequate foundation for his opinion that the employee’s November 5, 2015, work injury was a substantial contributing cause of the employee’s left foot and ankle condition. Although the self-insured employer framed its objection to the opinions of Dr. Pena as one of foundation, the objection is essentially that the compensation judge did not adopt the opinions of Dr. Felton over those of Dr. Pena given the medical history of the employee. In support of its argument, the self-insured employer maintains that the history relied on by Dr. Felton was more complete and asserts that the compensation judge should have relied on Dr. Felton’s opinion. We are not persuaded by this argument.
A compensation judge’s choice between expert opinions is generally upheld unless the facts assumed by the expert are not supported by the record.[13] In this matter, Dr. Pena obtained a CT scan of the affected area, noted that the employee suffered from pre-existing degenerative joint disease, noted that the employee had not complained of symptoms prior to the work injury, and was currently suffering from pain at the affected area after the fracture suffered from the work injury had healed. Dr. Pena concluded that the employee’s ongoing symptoms were caused by an aggravation of the preexisting condition resulting from the work injury. This is adequate information to arrive at an opinion not based on speculation or conjecture.[14] The decision of the compensation judge is affirmed.
The compensation judge found that the employee’s April 5, 2016, work injury is a substantial contributing cause of the employee’s right shoulder condition. In arriving at this conclusion, the judge adopted the opinion of Dr. Biebl, the employee’s treating physician, over Dr. Davis, the independent medical examiner.[15] The self-insured employer asserted that the compensation judge should have made different determinations regarding the employee’s credibility, particularly regarding the absence of right shoulder symptoms. The self-insured employer asked this court to take “judicial notice” of facts regarding the manner of the work injury and its likely impact.
As a general rule, the WCCA’s “authority is limited to reviewing the record as submitted to the compensation judge.”[16] The assessment of witness credibility is the function of the trier of fact.[17] As a reviewing court, there is no basis for reevaluation of the credibility and probative value of witness testimony. This court cannot choose a different inference from that taken by the compensation judge where the chosen inference was reasonable.[18]
Here, the compensation judge found the employee’s testimony regarding her right shoulder, particularly that the shoulder lacked pain symptoms, to be credible. The employee received no treatment for any right shoulder condition from 2002 to 2016, after her work injury. The judge was free to infer that the significant time span was indicative of, one, that the employee’s preexisting condition was asymptomatic, and two, that the April 5, 2016, work injury was a substantial contributing cause of the pain symptoms experienced after that date. The compensation judge’s decision regarding the employee’s right shoulder is supported by substantial evidence, including well-founded medical opinion, and that decision is therefore affirmed.
The compensation judge found that the employee’s April 5, 2016, work injury resulted in a temporary injury to the employee’s neck that resolved. The judge adopted the opinion of Dr. Davis, the independent medical examiner, in arriving at this conclusion. The employee maintained that the judge relied on the employee having long-standing neck problems in arriving at this decision and that this was unsupported by the record. The employee acknowledged that she underwent treatment to her neck in 2007 and 2009. This evidence, together with the medical opinion of Dr. Davis, is sufficient to support the compensation judge’s findings regarding the employee’s neck condition.[19] The compensation judge’s decision regarding the employee’s neck is supported by substantial evidence, including well-founded medical opinion, and that decision is affirmed.
The self-insured employer disputed the award of payment for the QRC’s rehabilitation services, as well as the award of ongoing rehabilitation services. The self-insured employer contends that these itemized disputes were not individually addressed by the compensation judge.[20] The self-insured employer advanced the following disputes regarding some of the billings:
The vast majority of the self-insured employer’s objections to the QRC billings arose from the charge of two tenths of an hour, rather than one tenth of an hour, for activities that arguably took less time. For many of these same services, an additional contention is that the services provided were inadequately described. This court has expressly held that adoption of a minimum time increment for timekeeping of QRC services, very close to the objected time in this matter, is in most cases reasonable.[26] The disputed descriptions of QRC activity are adequate to describe the service provided. The actual time spent appears sufficient on this record to support the time billed. These services were found to be reasonable by the compensation judge and the award of those services is affirmed.
Several services are identified by the self-insured employer as unpayable under Minn. R. 5220.1900, subp. 7, including leaving voicemail messages and providing services after a request to suspend services has been filed. We are not persuaded by this argument. Subpart 7 explicitly states that “the presence or absence of [the self-insured employer’s prior] consent shall not preclude the commissioner or a compensation judge from determining the reasonable value or necessity of these case activities.” As this court has stated, the QRC takes the risk of nonpayment, but upon a showing of the need and reasonableness of the service, “all appropriate services are compensable.”[27] The compensation judge found that the rehabilitation services were reasonable, and substantial evidence in the record supports that conclusion. Those services are payable by the self-insured employer and the compensation judge’s conclusion on those services is affirmed.
The self-insured employer correctly points out that administrative tasks conducted by the QRC that are not in furtherance of the rehabilitation plan are not payable. The QRC identified 4 items for 0.8 hours that relate to QRC billing.[28] The compensation judge’s award of rehabilitation benefits is modified to exclude those items.
Minn. R. 5220.1900, subp. 1f, requires that a QRC apply a reduction of $10.00 per hour to the claimed fee where the total cost of services provided exceeds $3,500.00. The self-insured employer contends that the QRC invoice numbers 2054 and 2131 failed to follow this rule. Invoice 2054 has a figure of $2,991.87 labelled “Total QRC CTD.” Invoice 2131 lists $3,281.34 for that figure.[29] The QRC testified at the hearing that when the threshold was reached, the hourly adjustment was applied.[30] Substantial evidence in the record supports the full award of QRC costs claimed on this issue.
The self-insured employer maintains that the award of QRC fees improperly included medical management services provided to the employee related to care for her neck and low back, as those conditions were found to be not compensable. As the employee points out, the definition of “qualified employee” eligible to receive QRC services expressly includes any prior disabilities in the assessment of need.[31] Similarly, the definition of “medical management” describes communication among parties of the employee’s medical condition, and contains no limitation to compensable injuries.[32] One purpose of medical management is to ensure that the ultimate goal of the rehabilitation plan, in this case returning to work, can be accomplished. Since the employee’s ability to work is affected by her medical condition regardless of the origin of any particular aspect of that condition, a qualified employee is entitled to reasonable medical management of her whole condition, not merely the portion identifiable as treating a compensable work injury. The compensation judge’s award of QRC fees is affirmed, as modified above.
[1] Ex. 4.
[2] Ex. 22.
[3] Ex. C.
[4] Dr. Davis also stated, “The right shoulder surgery appears to be reasonable and necessary for rotator cuff tear.” Again, no explicit statement regarding causation was made. Ex. 24.
[5] The Request for Formal Hearing followed a decision after a hearing under Minn. Stat. § 176.106 that continued the provision of rehabilitation services. The Objection to Discontinuance was from a decision after a hearing under Minn. Stat. § 176.239 that terminated temporary total disability benefits.
[6] Finding 55.
[7] Judge Tate also denied the employee’s claim that she was entitled to temporary partial disability benefits, citing a lack of causal connection between the work injuries and the wage loss during the claimed period of time. The finding that the employee was not entitled to temporary partial disability benefits was not listed in the appeal or cross appeal. The employee appealed the order denying all of her claims that were not specifically awarded, but did not brief the issue of whether she was entitled to temporary partial disability benefits. The issue is therefore waived. Minn. R. 9800.0900, subp. 1 (issues raised in notice of appeal but not referenced in briefs are deemed waived).
[8] Minn. Stat. § 176.421, subd. 1(3).
[9] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
[10] Id. at 60, 37 W.C.D. at 240.
[11] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
[12] Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
[13] Nord v. City of Cook, 360 N.W. 2d 337, 37 W.C.D. 364 (Minn. 1985).
[14] Thyer v. Dallas Stars Hockey Club, slip op. (W.C.C.A. Aug. 4, 2000) (citing State Farm Fire & Casualty Co. v. Wicka, 474 N.W.2d 324 (Minn. 1991)).
[15] The self-insured employer maintained that the compensation judge erred regarding the opinion of Dr. Davis. The judge found that Dr. Davis attributed the right shoulder rotator cuff tear to the employee’s work injury. Dr. Davis did not make an explicit connection between the right shoulder condition and the work injury. The ambiguity in that opinion in this case does not substantially affect the propriety of the compensation judge’s ultimate determination.
[16] Sharp v. Great Northern Oil Co., slip op. (W.C.C.A. Dec. 13, 1990) (citing Minn. Stat. § 176.421, subd. 1.(3) and Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D 235 (Minn. 1984)); see also Pelzer v. Molin Concrete Prods., slip op. (W.C.C.A. July 21, 1995) (citing Gollop v. Gollop, 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986), Skic v. Beverage Transp. Corp., slip op. (W.C.C.A. Oct. 6, 1995), and Kallestad v. Old Dutch Foods, Inc., No. WC08-215 (W.C.C.A. Feb. 27, 2009)).
[17] Even v. Kraft, Inc., 445 N.W. 2d 831, 834, 42 W.C.D. 220, 225 (Minn. 1989) (citing Brennan v. Joseph G. Brennan, M.D., P.A. 425 N.W.2d 837, 839-40 (Minn. 1988)).
[18] See Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734 (Minn. 1988).
[19] Mattick v. HyVee Foods, 898 N.W.2d 616, 77 W.C.D. 617 (Minn. 2017).
[20] A clearer statement regarding the billings at issue, together with cross referencing to the locations of those billings in the record, may have provided a more manageable method of advancing these issues before the compensation judge, rather than appending notes to each individual billing.
[21] Exs. 40-43, 46, 48.
[22] Exs. 40-44.
[23] Exs. 44-45.
[24] Exs. 42-43, 46 and 48.
[25] Ex. 47.
[26] Boss v. Tandem Prods., Inc., No. WC04-316 (W.C.C.A. May 23, 2005) (minimum billing increment of 0.18 hours per contact not unreasonable).
[27] Parker v. University of Minnesota, slip op. (W.C.C.A. Sep. 16, 2003).
[28] One additional item is cited, but it only partially discussed billing. Ex. 48. As that item furthered the rehabilitation plan and the self-insured employer offered no evidence regarding the duration of the different matters discussed, that item is payable as claimed.
[29] Ex. 47.
[30] Another invoice, with a total QRC CTD figure of $3,206.29, and billed at the QRC’s standard rate, was not objected to on this basis. Ex. 45. A later invoice, with the total QRC CTD figure of $8,657.46, is billed with the $10.00 reduction in the rate applied. Ex. 46.
[31] Minn. R. 5220.0100, subp. 22.
[32] Minn. R. 5220.0100, subp. 20.