SINENG NY, Employee/Appellant,
v.
E.A. SWEEN CO. and SENTRY INS. GROUP, Employer-Insurer,
and
BLUE CROSS BLUE SHIELD OF MINN., CONSULTING RADIOLOGISTS, LTD., MEDICAL ADVANCED PAIN SPECIALISTS, and PROGRESSIVE DIRECT INS. CO., Intervenors.
No. WC12-5390
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
October 31, 2012
HEADNOTES:
CAUSATION
- MEDICAL TREATMENT; CAUSATION - SUBSTANTIAL EVIDENCE. The
issue in superseding, intervening cause cases is not merely
whether the intervening injury or condition is itself a
substantial contributing cause of the employee’s
subsequent disability but whether that intervening injury or
condition has broken the causal connection between the
employee’s work injury and that disability. In this
case, substantial evidence, including expert medical opinion,
supports the compensation judge’s finding that the
employee’s work injury was not a substantial
contributing cause of the employee’s claimed disability
or need for medical treatment after the motor vehicle
accident.
CAUSATION
- INTERVENING CAUSE. Where substantial evidence supports the
conclusion that the employee’s work injury was merely a
temporary aggravation of a preexisting condition, and where
the employee was involved a subsequent motor vehicle accident
that resulted in a dramatic increase in the employee’s
symptoms, along with additional complaints and objective
findings, and additional need for treatment not recommended
before the motor vehicle accident, substantial evidence
supports the compensation judge’s finding that the
motor vehicle accident was a superseding, intervening cause.
Affirmed.
Jeffrey D. Thill and Christine M. Wojdyla, Thill Law Firm,
St. Louis Park, MN, for the Appellant.
Deborah K. Sundquist and Radd Kulseth, Aafedt, Forde, Gray,
Monson, & Hager, Minneapolis, MN, for the Respondents.
Determined by: Hall, J., Johnson, J., and Milun, C.J.
Compensation Judge: Jane Gordon Ertl
OPINION
GARY
M. HALL, Judge
The
employee appeals from the compensation judge’s Findings
and Order, served and filed January 12, 2012. Because
substantial evidence supports the compensation judge’s
conclusions, we affirm.
BACKGROUND
The
employee, Ms. Sineng Ny, came to the United States from
Cambodia in 2006. She began working at the employer herein,
E.A. Sween Company, in April 2008. The employee needed an
interpreter at the hearing in the present matter. There were
interpreters present at a number of the employee’s
various medical appointments as well.
The
employer operated Deli Express, a business that prepares food
for packaging and sale. The employee originally worked on the
day shift. In an unappealed finding, the compensation judge
confirmed that the employee had no problems doing her job on
the day shift.
The
employee presented to Fairview Oxboro Bloomington Urgent Care
on September 27, 2009, with complaints of pain in the
bilateral low back region, with radiation into the right leg.
She did not recall any injury, and her pain was exacerbated
by bending or changing position. She denied any previous
history of low back problems. On examination, the employee
had a positive straight leg raise test. She was assessed with
myofascial low back strain.
The
employee began working evening shifts at the employer on
October 6, 2009. The employee testified that her work on the
evening shift required more lifting and faster movements.
However, the employee continued to work five days per week,
eight hours per day, and she did not work on weekends.
The
employee sustained a work-related injury to her low back on
May 15, 2010, while in the course of her work for the
employer herein, E.A. Sween Company. The employee testified
at the hearing that she noticed low back pain while pulling a
cart. According to the First Report of Injury, the employee
first notified the employer of the injury on June 15, 2010,
and she reported low back pain “while pulling meat
supply cart.” The employer and insurer acknowledged
liability for the May 15, 2010, injury and commenced payment
of benefits.
The
employee’s first treatment after the work injury took
place on May 27, 2010, when she presented to Allina Medical
Clinic Shakopee for evaluation of back pain and to establish
care. The employee was complaining of “constant low
back pain for over a year.” She stated that her pain
was worse just before her period and when she bent over. The
only reported injury history was a “motorcycle
accident” she was involved in as a child. Dr. Nancy
O’Connor noted a history of back pain for more than a
year. The pain was worse if the employee lifted something
heavy or did any bending. The employee wondered if her
symptoms related to an epidural while giving birth. On
examination, straight leg raise test was negative. The
employee was noted to have a tender right “SI”
and mid lower lumbar. The employee was diagnosed with lumbar
pain radiating down the right leg and referred to physical
therapy.
The
employee had an initial physical therapy evaluation at St.
Francis Regional Medical Center on June 1, 2010. The employee
was complaining of low back pain that started a year ago and
had gradually gotten worse, but “the last few weekends
it seems to have gotten even worse.” The employee also
said it was worse with lifting 10-pound sandwich plates. The
pain was located on the low right side and reportedly
radiated “right LE to hip.”
The
employee had another physical therapy session on June 3,
2010. She reported less low back pain, but she had some pain
into the right buttock and tingling into the lower extremity.
She rated her pain at 3/10, but she “did report no pain
post appointment.” On June 8, 2010, the employee told
the physical therapist that she felt better. Her pain that
day was only in the middle of the spine, with some pain in
the right shoulder.
The
employee presented for additional physical therapy on June
10, 2010. She reported having to leave work the day before.
She said that she feels well after her appointments and then
lifts and bends at work causing more pain. She wanted a note
saying that she should lift less. She also noted that she
might be pregnant.1 She reported no pain post-treatment.
On June
10, 2010, the employee also returned to see Dr.
O’Connor. The intake notes stated that the employee
wanted a work note to adjust her restrictions. She wanted to
do light duty/lifting. The employee said that she had pain in
her back after therapy. Dr. O’Connor noted that the
employee’s pain was sometimes worse after physical
therapy, but therapy “does seem to be helping.”
After therapy, the employee said she would feel better, but
then her pain would return with work. She was wondering about
less lifting for some time to see if she could improve her
strength and mechanics to be able to return to her usual
work. Dr. O’Connor issued restrictions of not lifting
more than 10 pounds along with avoiding movements such as
repetitive bending or bending and lifting. The restrictions
were to remain in force until July 10, 2010. The employee was
assessed with lumbar back pain that was improving with
therapy.
LeAnn
White, a human resources specialist with the employer,
testified that the employee missed about five days of work
beginning June 11, 2010. After that, she continued working
full time, with restrictions, until July 19, 2010.
Dr.
O’Connor saw the employee on June 17, 2010 to fill out
an FMLA form and short-term disability form. Dr.
O’Connor indicated that the employee would not be
incapacitated for a single continuous period of time.
However, she might have one to three periodic flare ups per
month. The nature of the injury was described as a lumbar
strain due to the employee’s work. The injury date was
listed as May 15, 2010.
The
employee had her seventh physical therapy visit on June 22,
2010. She reported feeling good after therapy. However, she
was returning to work and felt that she needed support for
her back. The employee once again reported no pain after her
therapy session.
The
employee continued working in a full time capacity. She did
not seek any additional medical treatment, nor did she return
for physical therapy, until July 19, 2010. The employee had
the weekend off, as usual, and she did not work on July 17
and 18.
On July
19, the employee went to work at her regular evening start
time but left after about half an hour. The employee then
presented to Fairview Oxboro Bloomington Urgent...