EVIDENCE – EXPERT MEDICAL OPINION. Where the medical opinion of the self-insured employer’s expert was supported by evidence in the record, the compensation judge did not err in relying upon that opinion over the employee’s expert.
PERMANENT PARTIAL DISABILITY - SCHEDULE. Where the compensation judge awarded permanent partial disability based upon rules applied to dates of injury occurring prior to the date of injury claimed, the PPD ratings are vacated and remanded for ratings consistent with the applicable rules based upon the date of injury.
Compensation Judge: Nicholas W. Chang
Attorneys: Dana L. Gerber, Atkinson Gerber Law Office, P.A., St. Paul, Minnesota, for the Appellant. Arlen R. Logren and Bretta I. Hines, Peterson, Logren & Kilbury, P.A., St. Paul, Minnesota, for the Respondent.
Affirmed, in part, and vacated and remanded, in part.
PATRICIA J. MILUN, Chief Judge
The employee appeals the compensation judge’s findings regarding the nature and extent of her May 3, 2017, work injuries, the denial of medical expenses and rehabilitation services, and the amount of permanent partial disability benefits. We affirm in part, and vacate and remand Finding 71 and Order 1, in part.
Prior to her date of injury, Aaliyah Heikkila, the employee, was treated for various medical conditions including low back pain, bilateral hand numbness, and bilateral wrist pain, as well as other conditions unrelated to her work injuries. She was also diagnosed with de Quervain’s tendinitis and was eventually recommended for an orthopedic surgical consultation. In 2012, the employee was awarded SSDI benefits related to her medical conditions, including her low back.
In 2016, the employee began working for Allied Staffing, the self-insured employer. On May 3, 2017, the employee was working on a packaging line, which required lifting over 50 pounds. She had trouble keeping up with its increased speed that day. The next day, the employee sought treatment for soreness and shock-type pains up and down the right wrist and to the elbow. She was diagnosed with right de Quervain’s tenosynovitis and right carpal tunnel syndrome, was advised to wear a wrist splint, and was given work restrictions. Due to her work restrictions, she was taken off work until she could again perform all tasks. In June 2017, the employee reported ongoing pain in her right hand, wrist, and forearm and began occupational therapy. She did not report any left arm pain.
In July 2017, the employee began treating with Dr. Mario DeSouza, who diagnosed her with right medial epicondylitis, mild carpal tunnel syndrome, and radial styloid tenosynovitis. The employee continued to have right arm pain in August 2017, and Dr. DeSouza recommended that she see a specialist. In October 2017, the employee began seeing Dr. Clare McCarthy, an orthopedic surgeon at Twin Cities Orthopedics, for her right arm symptoms. She denied having any left arm symptoms. Dr. McCarthy diagnosed the employee with trigger finger of the right thumb, index, and long fingers, de Quervain’s tendonitis of the right wrist, and medial epicondylitis of the right elbow, for which she was treated with injections. In November 2017, the employee underwent occupational therapy, but treatment was discontinued due to limited progress and ongoing pain.
On January 24, 2018, the employee was evaluated by Dr. Jeffrey Husband, an orthopedic surgeon, at the self-insured employer’s request. Dr. Husband opined that the employee had sustained a Gillette[1] injury in the nature of right carpal tunnel syndrome and right ulnar nerve subluxation with medial epicondylitis as a result of her work activities. He recommended the employee undergo surgery in the form of anterior transposition of the right ulnar nerve and right carpal tunnel release. Dr. McCarthy agreed with this surgical recommendation and surgery was performed on April 16, 2018. After the surgery, the employee underwent occupational therapy.
The employee continued to report ongoing swelling and tenderness in her right wrist and elbow. On September 6, 2018, Dr. McCarthy did “not feel more therapy would be of benefit”[2] and recommended a functional capacities evaluation (FCE) for determination of permanent restrictions. Dr. McCarthy also noted mild swelling and tenderness in the employee’s left elbow and diagnosed her with left lateral epicondylitis at that visit.
The employee was evaluated again by Dr. Husband on October 30, 2018. Dr. Husband diagnosed the employee’s right arm condition as status post right submuscular transposition of the ulnar nerve and endoscopic carpal tunnel release. The employee reported loss of sensation in her right hand and also reported that her left forearm pain had increased after her surgery. Dr. Husband observed no objective cause of the employee’s reported symptoms, and no evidence of ongoing symptomatic subluxation of the right ulnar nerve, medial epicondylitis, or carpal tunnel syndrome. He saw indications of malingering, somatization, and symptom magnification. He determined that she had reached maximum medical improvement (MMI) as of the date of his examination, and noted that neither he nor Dr. McCarthy had further treatment recommendations. He also opined that the employee had not sustained a consequential injury to her left arm, that any restrictions would be due to her subjective symptoms and not to her preoperative diagnoses, and that she had no ratable permanent partial disability (PPD).
In November 2018, the employee returned to Dr. McCarthy reporting left elbow pain. Dr. McCarthy diagnosed the employee with lateral epicondylitis of the left elbow with associated radial nerve symptoms and recommended therapy and use of a splint for her left arm. In December 2018, the employee reported pain in her right arm and Dr. McCarthy prescribed a pain patch and recommended that the employee see a neurologist for any additional medication treatment. On February 14, 2019, Dr. McCarthy diagnosed right de Quervain’s tendonitis and lateral epicondylitis of the right elbow and treated the employee with an injection. She recommended additional therapy and use of a splint for the right arm and assigned work restrictions of avoiding repetitive right elbow bending, no lifting over five pounds with her right arm, and no repetitive right hand pushing, pulling, or grasping.
On February 28, 2019, the employee began treating with Dr. David Falconer, an orthopedic surgeon at Summit Orthopedics, for bilateral elbow pain. Dr. Falconer’s notes indicate that the employee had untreated left carpal tunnel syndrome and was self-referred for treatment. He also noted there was no evidence of de Quervain’s tendinitis and recommended MRI scans and EMG testing. The EMG testing revealed prolonged latency of the right medial sensory nerves, chronic denervation of the right flexor nerves, and mild carpal tunnel syndrome on the left. MRI scans of the employee’s wrists revealed mild degenerative changes and a small ganglion cyst on the right and mild degenerative changes on the left. A right elbow MRI scan showed mild degenerative changes and changes consistent with the employee’s surgery. Dr. Falconer diagnosed the employee with right chronic medial epicondylitis, recommended corticosteroid injections, and referred the employee to Dr. Kirk Schofield at Summit Orthopedics.
Dr. Schofield diagnosed the employee with chronic compartment tenosynovitis and right elbow tendinosis and recommended cortisone injections. The employee underwent these further injections on April 22 and July 12, 2019. By May 16, 2019, Dr. Falconer had placed the employee at MMI for right carpal tunnel with a 3 percent PPD rating for her right arm.
On August 19, 2019, Dr. McCarthy completed a referral for the employee to see Dr. Falconer.
The employee underwent an FCE on October 30, 2019, which concluded that the employee should observe work restrictions of no lifting over one pound frequently, 10 pounds occasionally, and 15 pounds seldom, no firm grasping, and no forceful push/pull or lift activities with her right arm. In November 2019, Dr. Falconer recommended a left carpal tunnel release, a left ulnar nerve release, and a Kenalog injection for de Quervain’s on the employee’s right wrist.
In a report dated February 11, 2020, Dr. Falconer concluded that the employee had chronic residual pain and dysfunction of the right hand with objective evidence of mild persisting sensory prolongation of the medial sensory nerve and chronic damage to the flexor pronator origin and compartment. He also diagnosed untreated left carpal tunnel syndrome and left lateral epicondylitis. He thought that the employee might benefit from additional injections and that she should have a functional capacity assessment. He suggested consideration of additional treatment for untreated left carpal tunnel, wrist tendonitis, epicondylitis, left elbow lateral epicondylitis, and left wrist carpal tunnel. Dr. Falconer opined that permanent work restrictions would be appropriate.
Dr. Falconer stated the employee had reached MMI for her right carpal tunnel and ulnar nerve transposition, but not for her right tendonitis or epicondylitis, or for left lateral epicondylitis or left carpal tunnel syndrome. He noted that the employee showed incomplete resolution on EMG testing after her right arm surgery. Finally, he felt that the employee’s right carpal tunnel syndrome should be rated at 3 percent PPD under Minn. R. 5223.0470, subp. 2B(3), and zero percent for any other right arm conditions.
Dr. Husband conducted another evaluation and issued a report on July 8, 2020. He reviewed Dr. Falconer’s report and the employee’s more recent medical records, including the MRI scans and the EMG testing results. He determined that the employee had evidence of left ulnar nerve subluxation, but found no evidence of right ulnar neuropathy, right carpal tunnel syndrome, or right de Quervain’s disease. He was of the opinion that any left arm diagnoses were unrelated to her work injury and that she had no ratable PPD for her right arm. He considered work restrictions related to the work injury to be unnecessary.
An evaluation of the employee was conducted by Dr. Jack Bert in November 2020 at the request of the employee’s attorney. Dr. Bert opined that the employee’s work injury was a substantial contributing cause of her bilateral arm conditions, that she was at MMI for her bilateral arm conditions, and that PPD would be appropriate.
The employee filed a claim petition seeking various benefits related to both arms. At the hearing held on July 23, 2021, the employer admitted primary liability for the employee’s right upper extremity, but disputed the nature and extent of the injury. The employer also argued that the employee’s treatment with Dr. Falconer was an unauthorized change of provider. The hearing was set for a second day, which was canceled, and the record closed on September 28, 2021.
In his Findings and Order filed and served on November 23, 2021, the compensation judge found that the employee had not proven she had sustained a left arm injury on May 3, 2017, and denied reimbursement for any left arm medical treatment. He found that the employee had sustained a right arm injury in the nature of carpal tunnel syndrome and subluxation of the ulnar nerve, from which she had reached MMI on October 30, 2018, and had thereafter not required additional treatment. Medical expenses for these conditions were awarded through that date. The judge also determined that the employee’s treatment with Dr. Falconer was not compensable because the employee’s change of provider to Dr. Falconer was unauthorized. Finally, the judge determined that the employee was not a qualified employee for rehabilitation services, denied her claim for TTD benefits from December 2018 through November 2019, and awarded 2.5 percent PPD for the employee’s right arm. 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).
On appeal, the employee argues that the compensation judge erred in limiting the nature and extent of the employee’s injuries and duration of necessary medical treatment; in interpreting and applying the treatment parameters of Minn. R. 5221.0430, subp. 4; in denying medical expenses and rehabilitation services; and in applying the PPD rules.[3]
We affirm the compensation judge’s findings regarding the nature and extent of the employee’s injuries, the duration of her need for medical treatment, the determination that the employee’s change of provider was not authorized as required under the treatment parameters, the partial denial of medical expenses, and the denial of rehabilitation services. We vacate the award of PPD and remand that issue for further proceedings consistent with this opinion.
The employee argues that the compensation judge erred by failing to find that her work injury resulted in right medial epicondylitis in addition to the right carpal tunnel syndrome and subluxation of the ulnar nerve. The employee also contends that she suffers from chronic residual pain, dysfunction, sensory prolongation, and damage to the flexor pronator origin and the second extensor compartment of her right arm as a result of her work injuries.
The determination of the nature and extent of an injury is a factual question within the province of the compensation judge.[4] In his report dated January 24, 2018, Dr. Husband concluded that the employee had developed right carpal tunnel syndrome and right ulnar nerve subluxation with medial epicondylosis culminating on May 3, 2017, as the result of her work activities. Dr. Husband did not observe objective conditions supporting a diagnosis of right de Quervain’s tenosynovitis. In his report dated November 5, 2018, Dr. Husband diagnosed the employee’s right arm condition as status “post right submuscular transposition of the ulnar nerve and endoscopic carpal tunnel release”[5] and opined that the employee did not have objective findings to support her ongoing reported symptoms. Specifically, he determined that the employee “does not have evidence of ongoing symptomatic subluxation of the right ulnar nerve, medial epicondylosis, or carpal tunnel syndrome.”[6]
The compensation judge adopted Dr. Husband’s opinion. The choice between competing adequately founded expert medical opinions is a decision for the compensation judge which will not be reversed absent an abuse of discretion.[7] While the employee contends that Dr. Husband did not address the scans and testing ordered by Dr. Falconer in 2019, apparently questioning the foundation for his opinion, these reports were included in the records reviewed by Dr. Husband. The compensation judge reasonably concluded that Dr. Husband interpreted these records as showing minimal or mild findings which did not support the employee’s subjective symptoms. Substantial evidence in the record supports the compensation judge’s findings regarding the nature of the employee’s work injuries, and we affirm.
The employee next contends that the compensation judge erred when he found that she did not require work restrictions. She argues that the judge improperly required objective findings in order to demonstrate a need for work restrictions. After reviewing the compensation judge’s discussion of the issue in his memorandum, we conclude that, contrary to the employee’s argument, the compensation judge did not require objective findings as a prerequisite to a need for work restrictions. Rather, the judge again simply chose to adopt Dr. Husband’s medical opinion over that of the employee’s medical expert.
The employee next argues that the compensation judge erred by denying medical expenses incurred after October 30, 2018. That is also the date on which the judge found that MMI had been reached. Based on the dates, the employee argues that the judge may have denied subsequent medical expenses solely on the basis that the employee had reached MMI. As our supreme court has recognized, medical care subsequent to MMI, if reasonable and necessary, remains compensable after an MMI determination.[8] However, regardless of MMI status, an employee has the burden of proving that medical expenses are reasonable, necessary, and causally related to her work injuries.
In this case, the compensation judge expressly adopted Dr. Husband’s opinion indicating no further treatment to be necessary for the employee’s work-related injuries after October 30, 2018. The convergence of dates for several findings – MMI, lack of restrictions, lack of need for further medical treatment – is merely due to the fact that Dr. Husband’s examination took place on that date, and that his expert opinion was based on what he was able to conclude was the employee’s situation as of that date based on that examination. We note, also, that while Dr. Husband’s report directly linked his opinions on the issues of MMI and treatment, he did so by basing his opinion that MMI had been reached on his conclusion that the employee did not need further treatment, which contradicts the employee’s argument. Thus, in adopting Dr. Hubbard’s opinion, the compensation judge did not, even implicitly, rely on an erroneous conclusion that the attainment of MMI precludes further medical treatment. Substantial evidence supports the compensation judge’s denial of medical expenses incurred after October 30, 2018, and we affirm.
The employee similarly argues that the compensation judge erred when he denied rehabilitation services following October 30, 2018, contending that the judge improperly denied rehabilitation services merely because of the attainment of MMI on that date. We also disagree with this characterization of the judge’s finding on this issue, as the convergence of dates is again due to the date of Dr. Husband’s examination as the effective date of his opinions. An employee who is not subject to work restrictions is generally not a qualified employee entitled to rehabilitation services. [9] The compensation judge found, again based on the opinion of Dr. Husband, that the employee did not have work restrictions related to her work injury and, on that basis, was not a qualified employee for rehabilitation services. Substantial evidence supports the compensation judge’s denial of rehabilitation services, and we affirm.
The compensation judge found that the employee’s treatment with Dr. Falconer constituted an unauthorized change of treating physician pursuant to Minn. R. 5221.0430, such that the self-insured employer was not obligated to pay for that physician’s treatment.[10] All of Dr. Falconer’s treatment occurred after the date on which the compensation judge found no further treatment for the work injury to be reasonable or necessary. We have affirmed that determination above. As the compensation judge noted in his memorandum, that determination renders moot the issue of whether the employee’s treatment with that physician should be considered an unauthorized change of physician.[11]
The compensation judge awarded 2.5 percent PPD for the employee’s right arm condition based on .5 percent PPD for carpal tunnel release and 2 percent PPD for ulnar nerve transposition under Minn. R. 5223.0130, subp. 3E, and Minn. R. 5223.0120, subp. 3H, respectively. Both parties agree that these rules apply to dates of injury occurring before July 1, 1993, and are not applicable to the employee’s date of injury.[12] Therefore, we vacate Finding 71 and Order 1 to the extent they relate to the PPD ratings and award, and remand to the compensation judge for redetermination consistent with the rules governing PPD ratings in effect on the date of injury.
[2] Ex. D(2) at 179-80.
[3] In her notice of appeal, the employee appealed the compensation judge’s finding that she did not sustain a work-related left upper extremity injury on May 3, 2017; however, she did not address this claim in her briefs. An issue raised in the notice of appeal but not addressed in the appellant’s brief is deemed waived and will not be addressed by the court. Minn. R. 9800.0900, subp. 1.
[4] Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994); Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987).
[5] Ex. 9 at 124.
[6] Id. at 125.
[7] See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
[8] Hopp v. Grist Mill, 499 N.W.2d 812, 814, n.3, 48 W.C.D. 450, 452, n.3 (Minn. 1993); George v. Cub Foods, 77 W.C.D. 939, 950 (W.C.C.A. 2017).
[9] See Judnick v. Sholom Home West, slip op. (W.C.C.A. Aug. 4, 1995) (an employee who has no employment restrictions from the injury is not entitled to rehabilitation benefits); see also Lewis v. Honeywell, Inc., 53 W.C.D. 364 (W.C.C.A. 1995); Brownell v. Hibbing Taconite Mining Co., No. WC09-5036 (W.C.C.A. Apr. 8, 2010); Brew v. College of St. Scholastica, slip op. (W.C.C.A. Aug. 5, 2003).
[10] After the first 60 days of treatment for an injury, any change of primary provider must be approved by the insurer, the department, or a workers’ compensation judge, or the insurer is not liable for the treatment rendered prior to approval, unless the insurer has agreed to pay for the treatment. Minn. R. 5221.0430, subps. 2-3.
[11] We therefore decline to address the employee’s additional arguments on this issue, including claims that Minn. R. 5221.0430 does not apply under the procedural posture of this case; that a subsequent referral by Dr. McCarthy was sufficient to defeat the application of that statute if applicable; and that the compensation judge applied an incorrect standard in denying retroactive approval for a change of physicians.
[12] See Resp. Brief at 27.