CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee's work injury was a substantial contributing factor of her ongoing symptoms and disability.
Compensation Judge: Grant R. Hartman
Attorneys: Katelyn R. Bounds, Stephen R. Quanrud, Midwest Disability, Coon Rapids, Minnesota, for the Respondent. Kirk C. Thompson, Kirk C. Thompson Law Office, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed.
GARY M. HALL, Judge
The employer and insurer appeal the compensation judge’s findings that the employee’s work injury was a substantial contributing factor to her ongoing symptoms and disability and that she is presently unable to work due to her symptoms. We affirm.
On July 14, 2016, Lori Schallock, the employee, sustained a low back injury as she transferred a patient while working as a certified nurse assistant for Battle Lake Good Samaritan Center, the employer. The patient was beginning to fall and as the employee attempted to catch him, she twisted and experienced severe back pain and left leg numbness. The employee had no low back or left leg symptoms before this injury. The employee was off work for one week and returned to work with light-duty restrictions. She followed up with her primary physician, Dr. Dylan Folkstad, and received conservative treatment but she continued to have low back pain radiating down her left leg. She underwent physical therapy and received a steroid injection which provided minimal relief. During physical therapy, the employee was noted to have weakness in her left foot with foot drop and left leg pain. A lumbar spine MRI scan performed in August 2016 indicated no disc herniation but facet joint arthritis at L2-3, L3-4, and L5-S1 with minimal disc bulging.
In October 2016, the employee was evaluated by Dr. Sunny Kim at the Tristate Brain and Spine Institute. Dr. Kim noted severe hyperreflexia in the left leg with a partial left foot drop. He suspected a thoracic disc herniation with myelopathy and ordered a thoracic spine MRI scan, which indicated T11-12 and T12-L1 disc degeneration with disc bulges, but no spinal canal or neural foraminal narrowing. She was diagnosed with left hemiparesis or left leg paralysis and taken off work. Dr. Kim ordered a cervical spine MRI scan which indicated C5-6 and C6-7 disc degeneration but no spinal canal narrowing. In November 2016, Dr. Kim diagnosed C5-C7 stenosis but opined that the employee's cervical MRI scan findings were "not severe enough to cause severe weakness of the left lower extremity” and that her thoracic and lumbar spine scans did “not explain her left hemiparesis.” (Ex. I.) He recommended that the employee should remain off work. After having a brain MRI scan, the employee returned for a follow up appointment in December 2016. Dr. Kim reported that the brain scan indicated plaques in the occipital cortex, which could be consistent with multiple sclerosis and could account for her left leg weakness.
The employee was referred to a neurologist and began seeing Dr. Kathleen Rieke in January 2017. Dr. Rieke opined that the employee did not meet the criteria for a diagnosis of multiple sclerosis and ordered an EMG. Dr. James Andrews conducted an EMG, which was incomplete but suggested a peripheral etiology for her symptoms according to Dr. Rieke.
On February 2, 2017, Dr. Thomas Nelson, an orthopedic surgeon, conducted an independent medical examination (IME) of the employee and opined that the employee had sustained a temporary low back strain superimposed on her pre-existing facet joint arthritis as well as idiopathic left leg hemiparesis. Dr. Nelson stated that the employee’s presentation appeared to be like a case of polio and that another possibility was a neurologic illness such as multiple sclerosis. He concluded that there was no evidence of radiculopathy on the employee’s lumbar MRI scan and that her current left leg condition was not related to her low back injury.
Dr. Andrews treated the employee with a left L5 transforaminal epidural steroid injection on March 8, 2017, which provided some relief of the employee’s left leg pain, but not her foot pain. Dr. Rieke concluded that the employee was having radicular pain related to her low back pain and possibly had chronic regional pain syndrome. In April 2017, the employee was treated with L5 and S1 epidural injections. The employee reported significant improvement in her left leg pain and weakness. Another EMG was performed in May 2017 which Dr. Rieke interpreted as indicating L5 radiculopathy on the left. Dr. Rieke evaluated the employee on August 4, 2017, and opined that the employee’s examination demonstrated an L5 radiculopathy.
In August 2017, Dr. Timothy Lindley, a neurosurgeon at Heartland Orthopedics, noted that the employee had weakness throughout her entire left leg and, given that her thoracic MRI scan was negative, he would refer her for evaluation of a stroke in her spinal cord, avascular necrosis, and multiple sclerosis.
In November 2017, Dr. Eric Sorenson, a neurologist at Mayo Clinic, performed another EMG which indicated no evidence of lumbosacral radiculopathy and that her condition may be consistent with facioscapulohumeral (FSH) dystrophy, a type of muscular dystrophy. A new lumbar spine MRI was negative for lumbar root compressive lesions. Dr. Julie Hammack, another neurologist at Mayo Clinic, opined that the EMG performed at Mayo indicated a diffuse myopathy and no evidence of radiculopathy or neuropathy. She also suspected FSH dystrophy, given the employee’s family history. Dr. Russell Gelfman, a physiatrist at the Mayo Spine Center, opined that the EMG was suggestive of a generalized myopathy and that there was no convincing evidence of lumbar radiculopathy on the MRI scan. He diagnosed low back strain and opined that the employee was a probable carrier of FSH dystrophy. Dr. Nelson reviewed the records from the Mayo Clinic and concluded that there were no objective abnormal findings to account for the employee’s ongoing back and left leg symptoms.
In May 2018, Dr. Khalafalla Bushara, a neurologist at the University of Minnesota, conducted a neutral medical examination of the employee. He reported the employee’s lumbosacral spine MRI scan and the EMG did not indicate radiculopathy. He concluded that the employee's work injury was a temporary sprain/strain injury that resolved and was not the cause of, or a substantial contributing factor to, her current left leg weakness. Dr. Bushara opined that the cause of the employee’s condition was an upper motor neuron condition, likely multiple sclerosis, and that the employee was an FSH dystrophy carrier.
Dr. Andrews stated in a May 9, 2018, letter that the left leg weakness was not explained by the lumbar MRI scan, but also stated that she has a permanent lumbar facet joint strain and that another possible diagnosis for her leg weakness was FSH dystrophy, which was beyond his scope of practice.
In August 2018, the employee returned to Dr. Rieke for a follow-up appointment for low back and left leg pain. Dr. Rieke noted that the employee had treated at the Mayo Clinic and that providers there suspected some sort of muscular dystrophy. She acknowledged that, in theory, that condition could produce leg weakness, but opined that it would not be the source of the employee’s pain. Dr. Rieke referred the employee to a pain clinic.
The employer and insurer filed a notice of intention to discontinue the employee's temporary total disability (TTD) benefits on February 21, 2017. After an administrative conference, discontinuance was not allowed. On June 5, 2017, the employer and insurer filed a petition to discontinue benefits. After a hearing on September 21, 2018, the compensation judge found that the employer and insurer did not meet its burden of proof that the employee’s work injury was a temporary low back strain that had resolved and denied the petition to discontinue. The employer and insurer appealed this finding, and this court vacated on grounds that the judge had erroneously placed the burden of proof on the employer and insurer, and remanded the matter to the judge. Schallock v. Battle Lake Good Samaritan Ctr., 79 W.C.D. 407 (W.C.C.A. 2019).
On remand, the judge found that that the employee’s work injury was a substantial contributing factor to her ongoing symptoms and disability and that she is presently unable to work due to her symptoms. The employer and insurer appeal, asserting that substantial evidence does not support the judge’s findings, that the judge did not make sufficient findings to explain his decision, and that the finding that the employee is unable to work was unnecessary.[1]
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 employer and insurer argue that the compensation judge's findings should be reversed as clearly erroneous and not supported by substantial evidence in view of the entire record. They also assert that the compensation judge did not determine all contested issues of fact and law as required by Minn. Stat. § 176.371 because he did not explain his findings, making his decision essentially unreviewable by this court. We disagree.
The employer and insurer contend that only Dr. Rieke’s opinion directly supported the employee's claim and that the overwhelming medical evidence in the record is contrary to the judge’s decision. The employer and insurer submitted numerous medical opinions from neurologists, a neurosurgeon, and orthopedic surgeons regarding the causation of the employee's condition. The employee’s tests and scans were not conclusive regarding the diagnosis of her left leg condition. Potential diagnoses included low back sprain/strain, lumbar facet arthropathy, L5 radiculopathy, chronic regional pain syndrome, multiple sclerosis, and FSH dystrophy.
In finding that the employee's July 14, 2016, work injury was a substantial contributing factor of her ongoing symptoms and disability, the compensation judge adopted the opinion of the employee’s treating neurologist, Dr. Rieke, that the employee’s left leg symptoms were related to her low back injury, and the opinion of Dr. Andrews that the employee had a permanent lumbar facet joint strain. The employer and insurer argue that Dr. Rieke did not review testing from Mayo Clinic in November 2017 and that she misrepresented the employee’s test results. In addition, they argue that Dr. Andrew’s diagnosis of a facet joint strain was new in 2018 and that the employee’s claim is not related to her low back. These arguments go to the weight to be given to the opinions by the compensation judge. There was no objection to the foundation of the opinions of Drs. Rieke or Andrews. A compensation judge’s choice of competing adequately-founded medical opinions is generally affirmed. 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, 573 (W.C.C.A. 2003), summarily aff’d (Minn. Aug. 15, 2003). The judge further noted that the employee had no previous symptoms, had consistently treated for her symptoms, had experienced significant relief from injection treatment, and that she was presently unable to work. The compensation judge made sufficient findings to provide an adequate basis for this court to review his decision. See, e.g., Regan v. VOA Nat’l Housing, 61 W.C.D. 142, 149-50 (W.C.C.A. 2000), summarily aff’d (Minn. Apr. 6, 2001); Lang v. H & W Motor Express, slip op. (W.C.C.A. June 11, 1991) (absence of detailed explanation for rejection of evidence is not a basis for reversal where the findings and order indicate the basis for the decision).
On review, the issue is not whether the evidence may support a conclusion different from that of the compensation judge, “but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate.” Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). Substantial evidence supports the judge’s finding that the employee's July 14, 2016, work injury was a substantial contributing factor of her ongoing symptoms and disability, and we affirm.
The employer and insurer also argue that the compensation judge’s finding that the employee “is presently unable to work” should be vacated as an unnecessary finding. We disagree. A general requirement in awarding TTD benefits is to prove that a work-related injury is causally related to the employee’s inability to work. See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 432 (Minn. 1978); Kautz v. Setterlin Co., 410 N.W.2d 843, 845, 40 W.C.D. 206, 208 (Minn. 1987); Schulte v. C. H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967). In arguing that the employee’s TTD benefits should be discontinued, the employer and insurer claimed that her left leg condition was not causally related to her work injury. There was no assertion that the employee was able to work to support the petition to discontinue benefits. The judge’s finding that the employee was unable to work simply supports his order denying the petition to discontinue TTD benefits, and we affirm.