JUDY A. CARDA, Employee/Respondent, v. MINN. DEP’T OF HUMAN SERVS. and STATE OF MINN., Employer-Insurer/Appellants, and  BLUE CROSS BLUE SHIELD OF MINN./BLUE PLUS, UNITED HOSP., ALLINA MED. CLINIC, and CONSULTING RADIOLOGISTS, Intervenor.

The self-insured employer appeals from the compensation judge’s decision that:

We affirm the compensation judge.

Judy Carda was employed as a Behavior Modification Assistant at a youth group home maintained by her employer, the Minnesota Department of Human Services (DHS).  On July 30, 2015, a resident struck the employee on the left hand and wrist with a fiberglass pole he was using as a weapon.

The employee was treated initially at the Allina Health emergency room in Cambridge where it was noted that her left thumb, wrist, and forearm were red and swollen.  Having been advised to consult with an occupational medicine specialist, she was seen by Dr. William Brunell on August 14, 2015.  Dr. Brunell provided pain medication, ordered hand therapy, and referred her to a neurologist, Dr. Steven Stein.  Dr. Stein considered several possible conditions which might be responsible for the employee’s symptoms:  direct trauma to muscles in the hand, cervical spine trauma, or complex regional pain syndrome (CRPS).  Dr. Stein recommended a referral to Dr. Todd Hess to evaluate the employee for CRPS.

The self-insured employer accepted liability for the work injury and began paying medical expenses and wage loss benefits but objected to the referral to Dr. Hess.  The employee was seen by Dr. Adam Bakker on June 21, 2016, for an independent medical examination (IME) on behalf of the self-insured employer.  Dr. Bakker observed no objective signs of injury and concluded the employee’s work injury had resolved by November 23, 2015, with no restrictions or need for further medical treatment.  The self-insured employer filed a notice of intent to discontinue (NOID) temporary total disability benefits (TTD).  The employee filed a medical request for approval of the referral to Dr. Hess.

After an administrative conference on September 9, 2016, the NOID and the medical request were both granted.  A request for formal hearing was made on the discontinuance of TTD.  That hearing was held on November 16, 2016.  The compensation judge accepted the opinion of Dr. Bakker that the employee had no upper extremity restrictions as a result of the work injury and allowed the discontinuance of TTD.  The employee appealed the discontinuance of her wage loss benefits to this court and we affirmed the decision of the compensation judge.^[1]

The employee began treating with Dr. Hess on December 8, 2016.  She complained of pain from her fingers through her left shoulder, numbness and tingling in her left hand and a burning sensation in her left arm.  Dr. Hess diagnosed CRPS, recommended injection therapy, and took the employee off work.  Dr. Hess performed stellate ganglion blocks, which were found to be ineffective in addressing the employee’s symptoms.  He then administered median nerve and trigger point injections.  This treatment provided immediate relief, reducing the employee’s pain level from 8/10 to 0/10.  Dr. Hess continued these injections with similar results.  Dr. Hess also referred the employee for evaluation of cervical complaints.  An anterior cervical discectomy and disc replacement surgery was done on July 25, 2017.  It was determined in the first hearing and appeal that the cervical condition was not related to the 2015 work injury.

The employee retired from her position with the employer on April 17, 2017.  She testified that she did so to access her pension benefits because she did not have any income following the discontinuance of her TTD benefits.  The QRC’s progress report of May 23, 2017, noted that the employee would be willing to return to work at a “place other than the date of injury employer when her pain is managed.”  The compensation judge found the employee’s testimony on these points to be credible.  (Finding 30.)

Dr. Bakker performed a second evaluation of the employee on January 23, 2018.  Dr. Bakker observed no color changes, abnormal swelling, or temperature changes in the employee’s left upper extremity that would support a diagnosis of CRPS.  His opinion was unchanged from his July 11, 2016, report.  He concluded that the employee may have suffered from deQuervian’s syndrome from the work injury which was temporary and resolved.  Dr. Bakker opined that any injury to the employee had resolved by November 23, 2015, with no residual disability and no need for restrictions or further treatment.

At the request of the employee’s attorney, Dr. Hess prepared a narrative report dated October 15, 2018, in which he set out his diagnosis, treatment program, and opinion as to the employee’s condition.  Dr. Hess indicated that he had 28 years of experience in dealing with chronic pain patients.  Dr. Hess stated the employee’s primary diagnosis was “left upper extremity RSD/CRPS” that he attributed to the work injury of July 30, 2015.  He noted the employee “did not show any signs of subjective versus objective inconsistencies.  Her physical findings are stable, they are physical, and they are reproducible.”

The employee’s claim petition was heard by a compensation judge on December 6, 2018.  The compensation judge’s Findings and Order was served and filed February 26, 2019.  In pertinent part, the judge determined that: the employee credibly testified that she suffered from CRPS symptoms (Finding 48); that the medications and injections prescribed by Dr. Hess make her pain more tolerable and provide relief for several weeks (Finding 49); that Dr. Hess’s opinion that the employee suffers from CRPS as the result of the July 30, 2015, work injury is persuasive and adopted by the judge (Finding 50); that the employee’s treatment for CRPS by Dr. Hess was reasonable, necessary, and causally related to the work injury (Finding 51); that the employee was temporarily totally disabled as the result of her CRPS from December 8, 2016, through January 26, 2018 (Finding 56); that the employee’s retirement from the employer was not a voluntary removal from the labor market (Finding 57); and that the medical treatment paid for or provided by the intervenors is reasonable and necessary (Finding 58).  The compensation judge ordered payment of benefits in accordance with these findings.  The self-insured employer has appealed.

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 self-insured employer makes four arguments in its brief on appeal:

The parties presented competing medical opinions on this issue. The self-insured employer relied on the opinion of Dr. Bakker, who saw the employee on June 21, 2016, and January 23, 2018.  His opinion in 2016 was that the employee had “pain of unknown etiology, unrelated to a specific injury, diagnosis or treatment.”  He also opined that the July 30, 2015, injury was not a substantial contributing factor in the current condition of the employee’s left upper extremity.  In his report after the 2018 evaluation, Dr. Bakker disagreed with the diagnosis of CRPS, based on his examination of the employee’s arm which showed an absence of changes which would indicate CRPS.

The employee relied on the opinions of Dr. Hess as reflected in his treatment records and his narrative report of October 15, 2018.  Dr. Hess concluded the employee had CRPS as a result of the July 30, 2015, work injury.  Dr. Hess stated the employee had objective reproducible findings on examination which led him to that diagnosis.

Both Dr. Bakker and Dr. Hess had adequate foundation for their opinions.  They each examined the employee, reviewed the employee’s records, and the medical opinions presented by the parties.  A compensation judge’s decision based on a choice between competing medical opinions will generally be affirmed so long as the opinion relied upon by the compensation judge has adequate foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D 364 (Minn. 1985); Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003).  We are presented with no compelling argument why that general rule should not be applied here.

We conclude substantial evidence in the form of the well-founded medical opinion of Dr. Hess supports the compensation judge’s determination that the employee developed CRPS in her left upper extremity as the result of the July 30, 2015, work injury.

The self-insured employer argues that the treatment provided by Dr. Hess was not reasonable since the employee’s condition continued to worsen, even with that treatment.  The self-insured employer further contends that the medical treatment in this case is not reasonable given the absence of a treatment plan, the duration of the treatment, and the cost of the continuing care.  The self-insured employer’s argument is based on Dr. Bakker’s opinion as stated in his report of February 6, 2018, “Ongoing treatment is not reasonable, necessary, or related to the July 30, 2015, date of injury regardless of causation.  It has not benefited her and therefore I would not recommend any treatment.”

The compensation judge found that while the employee’s overall condition was worsening, the treatments by Dr. Hess made the pain “more tolerable and provide[d] relief for several weeks.”  (Finding 49.)  The compensation judge specifically found that the treatment from Dr. Hess was reasonable, necessary, and causally related to the work injury.  (Finding 51.)

The self-insured employer cites this court’s decision in Field-Seifert v. Goodhue Cty., slip op. (W.C.C.A. Mar. 5, 1990), which the self-insured employer argues requires a treatment plan for medical care to be found reasonable.  The self-insured employer contends that since Dr. Hess has not indicated how long his treatment will continue or whether the treatment will resolve the employee’s condition, the treatment cannot be found to be reasonable.  The cited decision does not provide any information as to what constitutes a treatment plan.  The compensation judge could reasonably conclude that Dr. Hess’s report of October 15, 2018, in which he discussed his objectives in treating the employee, constituted a sufficient treatment plan in light of the evidence in this case.  Dr. Hess pointed out that CRPS is a condition with no known cause or cure and his care had been aimed at reducing the employee’s pain so she can function to some extent.  The compensation judge’s reliance on this opinion is supported by the employee’s credible testimony.

Substantial evidence, including the employee’s medical records and Dr. Hess’s well-founded opinion, supports the decision of the compensation judge that the employee’s medical care has been reasonable, necessary, and causally related to the July 30, 2015, work injury.

The self-insured employer argues that the compensation judge’s award of TTD benefits from December 8, 2016, to January 26, 2018, is not supported by substantial evidence.  Dr. Hess took the employee completely off work when he first saw her on December 8, 2016.  He released her to return to work in September 2018.  The compensation judge accepted Dr. Hess’s opinion as the basis for his award of TTD benefits.  That opinion constitutes substantial evidence which supports the compensation judge’s determination and award.

The employee took early retirement from the employer as of April 17, 2017.  The self-insured employer argues that her retirement was a voluntary withdrawal from the labor market and, as a result, the employee was not entitled to wage loss benefits after that date, relying on Minn. Stat. § 176.101, subd. 8.

The employee testified that she took an early retirement to access her pension after her TTD benefits were discontinued as she needed an income.  She also needed the health insurance provided by the retirement program because her medical bills were not otherwise being paid.  The compensation judge found this testimony credible.  (Finding 30.)  The QRC’s progress report of May 23, 2017, noted that the employee was willing to return to work at a “place other than the date of injury employer when her pain is managed.”

The self-insured employer presented no evidence contradicting the employee’s testimony.  Having found the employee’s testimony credible, the compensation judge concluded the employee’s retirement was not a voluntary removal from the labor market.  Davidson v. Thermo King, 64 W.C.D. 380 (W.C.C.A. 2004).  The judge’s determination on this issue is supported by substantial evidence.

The decision of the compensation judge is affirmed.