ROBERT KRAMM, Employee/Respondent, v. LUND FOOD HOLDINGS, INC., and SENTRY CAS. CO., Employer-Insurer/Appellants, and HIDDEN VALLEY CHIROPRACTIC CLINIC, Intervenor.

The employer and insurer appeal from the award of ten percent permanent partial disability (PPD) benefits and the order for payment of a single chiropractic visit to the intervenor.  We affirm.

The employee, Robert Kramm, has worked as a meat cutter for the employer, Lund Food Holdings, Inc. (operating as Lunds & Byerlys), since 1988.  The employee had no significant medical issues for his low back prior to the date of injury.  He experienced a sore back in 1988 and, in approximately 2012, he sustained a slip and fall work injury to his low back that quickly resolved on its own.  He did not seek medical treatment, did not miss work, and required no work restrictions as a result of either of these incidents.

While working for the employer on December 31, 2019, the employee was retrieving a case of meat from a cooler.  It weighed 60-70 pounds and was located on a low shelf.  As the employee lifted the case, he twisted his body in order to set the case on a cart and felt a pulling sensation in his low back followed by sharp pain.  The employee continued about his workday.  As the day wore on, the pain increased, and his back started to stiffen.  Over the next few weeks, the employee began experiencing left leg symptoms.  He attempted to work through the symptoms, but they continued to worsen.

On January 20, 2020, the employee was seen by a chiropractor, Dr. Michael Novak of Hidden Valley Chiropractic Clinic, for the first time.  The employee reported that he had been pushing through the pain since the work injury and had not missed any work.  Dr. Novak evaluated the employee and noted his gait was altered and his range of motion was limited by pain.  He also detected hypertonicity and spasm with pain at various levels of the employee’s spine, and that palpation resulted in tenderness, spasm, edema, and radiation.  Dr. Novak treated the employee with a course of chiropractic care and massage therapy and instructed him on home care including exercises and icing.  He also limited the employee’s lifting to 20 pounds.

Over the next couple of visits with Dr. Novak, the employee’s symptoms and objective findings remained consistent.  By the end of January 2020, Dr. Novak found some subjective and objective improvement and determined that care would continue as long as improvement continued.

By early February 2020, Dr. Novak observed that the employee’s symptoms were plateauing.  The employee reported that he was improving in his ability to walk and perform activities of daily living but that pushing through the workday remained difficult, painful, and only possible due to his work restrictions and “altered behavior.”  (Ex. B.)

An MRI scan was conducted on February 25, 2020, and showed severe disc degeneration, bulging, and osteophytic rigging contacting and impinging the traversing S1 nerve roots, left greater than right, without stenosis at L5-S1.  At that level, there also was mild right and moderate left foraminal stenosis with left L5 ganglionic contact and mild bilateral facet arthropathy.  At L4-5, there was a bulge with a superimposed 6 millimeter left extruded disc herniation compressing the left L5 nerve root and deforming the left ventral thecal sac with only mild overall central stenosis, mild bilateral facet arthropathy, and mild bilateral foraminal stenosis.

Based on the results of the MRI scan, Dr. Novak ordered a spinal stabilization muscular strengthening program, and the employee began using a therapeutic ball for home exercise.   The employee continued to improve slowly through mid-March 2020, but after the COVID-19 pandemic began, the employee’s work duties significantly increased, resulting in an aggravation of his low back symptoms.  On March 23, 2020, Dr. Novak noted that the employee’s work “has been more demanding both physically and emotionally as he needs to deal with the demands [caused by the COVID-19 pandemic].”  (Ex. B.)  However, he also noted that the employee was progressing as expected.

Upon referral from Dr. Novak, on March 30, 2020, the employee saw Dr. Thomas Schriefer of Noran Neurological Clinic.  The employee described low back pain radiating into his left buttock and leg.  Dr. Schriefer assessed the employee’s pain as consistent with left L5 nerve root impingement.  While he considered spinal surgery or injections, he ultimately suggested ongoing conservative chiropractic care, and the employee agreed.

Through April 2020, the employee continued to treat with Dr. Novak.  He reported more back pain and increased leg pain, which he attributed to the increase of his workload due to the COVID-19 demand.  At a chiropractic visit following a work shift, Dr. Novak noted that the employee’s weakness and instability may be due in part to having just finished his work shift.  Dr. Novak also planned to contact the workers’ compensation insurance adjuster because he was concerned “that any significant reduction in his current treatment plan will result in a flaring of his condition which if his pain management is lost, allopathic options are simply not currently available due to the COVID-19 pandemic….”  (Ex. B.)

In an April 22, 2020, chart note, Dr. Novak detailed the conversation he had with the adjuster in which it was agreed that until additional consultation or treatment options became available, maintaining the current treatment plan was appropriate and that applying the 12/12 treatment parameter rule pertaining to chiropractic care was not advisable.^[1]

Throughout the remainder of April and into May 2020, the employee continued to work at his strenuous job without missing time and continued to show objective findings of injury to his low back including hypertonicity, tenderness, spasm, and decreased range of motion.  He reported ongoing back and leg pain.

On May 11, 2020, Dr. Novak noted the employee’s comment that “either he is just getting more use[d] to managing with his pain or overall he feels improvement.  He believes that it is probably a little of both.”  He continued having pain and demonstrating objective findings in his back and leg.  Dr. Novak noted “allowing for ongoing employment is being achieved.  He has not reached MMI^[2] nor has he returned to pre-injury status.”  (Ex. B.)  At a May 27, 2020, visit with Dr. Novak, the employee reported that he had taken a week off work for his wedding and that he felt better simply from not being on his feet all day.  However, once he returned to work, his back and leg pain increased.  Dr. Novak told the employee that he would be calling the adjuster to update the treatment plan.

Although he also considered a surgical consultation, Dr. Novak believed an additional consultation with a neurologist was necessary and appropriate based upon the employee’s ongoing symptoms.  The employee’s lifting restrictions remained in place, and he reported that without the ongoing work restrictions and continued treatment, work would not be possible. 

On July 20, 2020, the employee was seen by Ann Rechtzigel, a certified nurse practitioner, at Noran Neurological Clinic.  Following her examination, CNP Rechtzigel found the employee had limited range of motion in the lumbar spine with muscle tenderness and spasm in the paraspinal muscles of the lumbar spine.  He told her that Dr. Novak’s 20-pound lifting restriction helped reduce the number of aggravations he had at work.  She recommended continued chiropractic care, use of biofreeze, ice packs, and the therapeutic ball.

By the end of July 2020, the employee had seen Dr. Novak six times in January, 11 times in February, 13 times in March, 11 times in April, seven times in May, nine times in June, and eight times in July.  At the employee’s next visit with Dr. Novak at the end of August 2020, he again reported that reduced range of motion, hypertonicity, and spasm at various spinal levels continued. As had been the case during many prior visits, various orthopedic tests were all positive. Dr. Novak indicated that testing of the employee’s motor function showed diminution of L4 on the left compared to the right.

On September 7, 2020, the employee reported that his workweek was challenging, but his employer remained helpful by allowing him to follow lifting limitations despite the department being understaffed and the work being busy and demanding.  Dr. Novak noted a continued positive test for joint-related orthopedic pain, tenderness, localized muscle spasms, and decreased motion. The employee was next seen by Dr. Novak on September 16, 2020, where he reported that his symptoms had decreased since his last visit, although he was experiencing leg pains daily and that his back pain was worse by the end of a workday.  He also felt that the treatment was helpful and improved his physical abilities.  Dr. Novak noted that there was improvement in objective findings compared to the previous visit and that progress was continuing within the expectations.  Following this visit, the employee continued to treat with Dr. Novak two to four times per month through January 2022, and on a less frequent basis through October 2022.

The employee underwent a second MRI at Burnsville CDI on February 15, 2021.  The MRI scan showed similar severe disc degeneration at L5-S1, L4-5, L3-4, and L2-3 as seen in the MRI scan the previous year.  The disc herniation at L4-5, however, was no longer present.

On March 12, 2021, the employee was seen by Dr. Eric Deal for an orthopedic evaluation at the request of the employer and insurer.  Dr. Deal took a history from the employee, reviewed medical records, including the 2020 MRI records and the 2021 MRI films, and performed an examination.  He issued his report on April 27, 2021.  He noted that the 2021 MRI scan showed a “resorption of a left-sided L4-5 disc herniation as it does not appear to exist in this most recent MRI” (Ex. 1a.) and no evidence of left L5 nerve root compression.  He also noted that there was a significant amount of multi-level degenerative disc disease with multiple levels of foraminal narrowing bilaterally, but determined these findings had unknown significance, and were unrelated to the work injury.  On examination of the employee, Dr. Deal found somewhat limited range of motion and decreased sensation in the left lateral calf and the left lateral foot which represented L5 and S1 distribution, respectively.  Dr. Deal concluded that the examination was unremarkable except for the decreased motion and decreased sensation.  He opined that the employee’s only work injury was a left-sided L4-5 disc herniation which spontaneously resolved by the time of the 2021 MRI scan.  He concluded the employee needed no further medical care nor work limitations, and that any further chiropractic care was not reasonable or necessary to treat the work injury.  Following the receipt of this report, the employer and insurer discontinued paying for the employee’s chiropractic care.  The employer no longer accommodated the employee’s ongoing work restrictions.

Dr. Novak wrote a report at the request of the employee’s attorney on December 27, 2021.  Dr. Novak noted that during the most recent examination of the employee on December 22, 2021, he showed continued objective findings supportive of his subjective complaints and directly related to his work injury.  Dr. Novak noted that the employee continued to have limited motion with palpation of the low back revealing involuntary muscle tightness and spasm.  Orthopedic tests remained positive, and imaging showed structural changes and/or abnormalities at multiple levels. Dr. Novak rated the employee as ten percent PPD under Minn. R. 5223.0390, subpart 3.C(2).^[3]

On June 2, 2022, after having reviewed additional medical records, Dr. Deal wrote a supplemental report to the employer and insurer’s attorney.  He opined there was a left L4-5 disc herniation likely occurring as a direct result of the work injury, which had resolved as documented by the second MRI scan.  He diagnosed the employee with chronic back pain with ongoing reports of left leg symptoms and noted that the employee had decreased sensation during the March 2021 examination.  He opined that the employee’s multi-level degenerative disc disease did not correlate with the acute work injury.  He determined that the employee did not require any additional restrictions for his work injury and was at MMI as of the second MRI scan.  Dr. Deal also opined that the preexisting multi-level degenerative disc disease was not a ratable condition because it had no relationship to the work injury and because there was no evidence of involuntary muscle tightness, spasm, or tenderness to palpation during his March 2021 examination of the employee.  Finally, he determined that any medical care after the second MRI in February 2021 was not reasonable or necessary.

The employee filed a claim petition seeking PPD benefits and payment of chiropractic bills, some unpaid from before Dr. Deal’s report, but most from after that date.  The matter came on for hearing before a compensation judge on November 2, 2022.  At the hearing, the employee testified that despite the employer no longer accommodating his work restrictions, he has continued working with the help of home exercise, chiropractic care, assistance from co-workers, and by virtue of his senior status with the employer.  He has not missed any time from work.  He also testified that while the second MRI scan showed that the disc had resorbed and his condition has improved since the onset of the work injury, he still experiences soreness in his back and radicular pain in his legs.

On December 14, 2022, the compensation judge issued his findings and order and found that the employee sustained a permanent injury and awarded ten percent PPD benefits under Minn. R. 5223.0390 subp. 3.C.  The compensation judge also ordered payment of a chiropractic bill for September 16, 2020, because the visit was reasonable and necessary and met the departure requirements under Minn. R. 5221.6050, subp. 8.  The remaining chiropractic bills were denied.  In his memorandum, the compensation judge noted that there was sufficient evidence, including the opinion of Dr. Novak, the employee’s credible testimony, the nature and extent of the injury, and the ongoing nature and extent of the employee’s symptoms, that the preexisting degenerative abnormalities were permanently aggravated by the work injury.

The employer and insurer appeal.

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 award of PPD benefits is not supported by substantial evidence.  Specifically, they argue that the employee only sustained a herniated disc at L4-5, which later resorbed, and therefore the work injury was temporary and had resolved as opined by their medical expert, Dr. Deal.  We disagree.

The employer and insurer are responsible for the resulting condition when a work injury aggravates or accelerates a preexisting condition.  Vanda v. Minn. Mining & Mfg. Co., 300 Minn. 515, 218 N.W.2d 458, 27 W.C.D. 379 (1974).  Substantial evidence supports the findings of the compensation judge that the employee suffered not only the herniated disc, but also multi-level degenerative disc disease, which was permanently caused or aggravated by the work injury.

The evidence demonstrates, and the employer and insurer acknowledge in their brief, that the employee had no significant injuries to his low back prior to December 31, 2019.^[4]  While he did have two separate episodes of low back pain earlier in his life, both of those resolved quickly without the need for any medical care, wage loss, work limitations, or other adverse effect.  He was able to perform his heavy job duties for many years without pain, wage loss, limitations, or difficulty.  However, after the work injury, he has consistently endured low back pain, spasm, and limited motion.  Likewise, while it is true that the February 2021 MRI scan showed the L4-5 disc herniation had resorbed, it is also true that both the February 2020 and February 2021 MRI scans showed other pathology, including multi-level degenerative disc disease with disc bulging and facet arthropathy as well as the traversing L5 nerve root encroached by a disc bulge.  As the medical records show, these findings are consistent with the employee’s symptomology.

Further, the employee credibly testified that he had no symptoms or functional limitation prior to the December 31, 2019, work injury, and he has since suffered various level of symptoms and functional limitations.  In addition, the finding of permanency is supported by Dr. Novak’s medical opinion that employee’s degenerative disc disease was substantially and permanently caused or aggravated by the work injury, objective findings of injury in two neurological evaluations, and even Dr. Deal’s report in which he found a reduction of range of motion and decreased sensation.

In awarding permanency, the compensation judge necessarily adopted the medical expert opinion of Dr. Novak that the employee suffered from multi-level degenerative disc disease permanently caused or aggravated by the work injury.^[5]  A decision which rests upon a compensation judge’s choice between conflicting medical opinions will be affirmed if both doctors had adequate foundation to render opinions.  Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003) (citing Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985)), summarily aff’d (Minn. Aug 15, 2003).  Where causation is at issue, the compensation judge must resolve the conflicts between the evidence.  See Golob v. Buckingham Hotel, 244 Minn. 301, 304-05, 69 N.W.2d 636, 639, 18 W.C.D. 275, 278 (1955) (“[U]ntil the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining compensable injury or disease will have to remain in the province of the trier of fact.”).  Substantial evidence supports the conclusions reached by the compensation judge, and we affirm.

The employer and insurer also appeal the order for payment of a single chiropractic visit totaling $170.00, asserting that the employee and the intervenor did not prove that a departure from the treatment parameters was appropriate.  We disagree.

At hearing, the employee sought payment for chiropractic care from January 20, 2020, through October 13, 2022.  The compensation judge found that treatment from and after May 5, 2021, was beyond the treatment parameters, did not satisfy the departure requirements under Minn. R. 5221.6050, subp. 8, and did not satisfy the rare case exception requirements in Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998) and Asti v. Nw. Airlines, 588 N.W.2d 737, 59 W.C.D. 53 (Minn. 1999), and therefore denied payment.  Additionally, a chiropractic visit bill for July 13, 2020, was denied by the compensation judge because there was no corresponding chart note in the record.  The only other outstanding chiropractic bill was from September 16, 2020.  The compensation judge awarded the bill for this visit, finding that the care provided exceeded the treatment parameters, but was payable because it was reasonable and necessary and met the treatment parameter departure requirements.

Minn. R. 5221.6050, subp. 8.D, states that a departure may be appropriate where the treatment continues to meet at least two of three criteria as documented in the medical record of the provider.  In this case, the compensation judge found that the chiropractic treatment on September 16, 2020, met two of the three criteria, specifically that (1) the employee’s objective clinical findings were progressively improving as documented in the medical record or objectively measured improvement, and (2) the employee’s functional status, especially vocational activity, was objectively improving as documented in the medical record of less restrictive limitations on activity.  We conclude that substantial evidence supports this conclusion.

For the treatment date at issue, Dr. Novak noted objective evidence of clinical and vocational improvement.  Dr. Novak wrote in the September 16, 2020, note, “[o]verall, his symptoms are described as having decreased since his last visit.  . . .  He does feel that treatment helps and improves his physical abilities.  . . .  There is improvement in the objective findings when compared to the last visit.  . . .  His progress is consistent with expectations.”  (Ex. B.)  Further, the medical records prior to and during this visit indicate that Dr. Novak performed objective tests and indicated improvement in both subjective complaints and objective findings.  Id.  In addition, the employee credibly testified that his symptoms had improved, including vocationally, since his initial visit with Dr. Novak compared to the date of hearing. 

Finally, it should be noted that at hearing the main issue involving chiropractic care was the care after the employer and insurer stopped paying in light of the first report of Dr. Deal.  The bill for the September 16, 2020, treatment at issue on appeal took place before that cessation of payment.  In April 2020, the claims adjuster and Dr. Novak discussed whether the 12/12 rule should be strictly applied due to the circumstances at that time.  The claims adjuster and Dr. Novak agreed not to apply the rules strictly, and the insurer continued to pay for all of the treatment, except for this one visit for unknown reasons, until the date of Dr. Deal’s report.  This agreement between the insurer and Dr. Novak and the insurer’s continued payment per the agreement, further support our affirmance of the compensation judge’s order awarding payment for this treatment date.

Substantial evidence satisfies the departure requirements set forth in the rules, and therefore we affirm.