Todd v. West Wind Vill., 111011 MNWC, WC11-5275

• Case Date: November 10, 2011
• Court: Minnesota

JULI A. TODD, Employee/Appellant, v. WEST WIND VILL. and MINNESOTA HEALTH CARE ASS’N/CCMSI, Employer-Insurer, and PRIME W. HEALTH, Intervenor. No. WC11-5275 Minnesota Workers Compensation Workers’ Compensation Court of Appeals November 10, 2011          HEADNOTES          EVIDENCE - EXPERT MEDICAL OPINION. Where the opinion of the medical expert on whom the judge relied was not without sufficient foundation by its failure to address the date of the employee’s first treatment for depression, and where arguable factual errors in that opinion were neither importantly relevant nor dispositive as to the directness of the causal relationship between the employee’s work injury and her subsequent depression condition, the compensation judge’s denial of benefits for a consequential depression injury was not reversible on grounds of insufficient foundation for the credited medical opinion.          CAUSATION - CONSEQUENTIAL INJURY; CAUSATION - PSYCHOLOGICAL CONDITION. Where the judge reasonably concluded that the employee’s claim centered not directly enough on the work injury itself but on the employee’s job loss, the compensation judge’s denial of the employee’s claim to compensation for a consequential depression injury was not clearly erroneous and unsupported by substantial evidence.          Affirmed.           DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant.           George W. Kuehner, Jardine, Logan & O’Brien, Lake Elmo, MN, for the Respondents.           Determined by: Pederson, J., Johnson, J., and Milun, C.J.           Compensation Judge: Jane Gordon Ertl           OPINION           WILLIAM R. PEDERSON, Judge          The employee appeals from the compensation judge’s conclusion that the employee did not sustain a psychological disability consequent to her low back work injuries. We affirm.          BACKGROUND          On April 8, 2008, Juli Todd sustained a work-related injury to her low back while transferring an obese resident in the course of her employment as a certified nursing assistant with West Wind Village [the employer]. Ms. Todd [the employee] was forty-three years old on that date and was earning a weekly wage of $568.50. She reported her injury but did not seek medical treatment at that time. On September 25, 2008, the employee sustained also a Gillette-type injury1 to her low back, due to her strenuous work activities with the same employer. The employee was treated initially for her low back condition by Dr. Anthony Lussenhop, who prescribed physical therapy but initially imposed no work restrictions. When physical therapy did not resolve the employee’s symptoms, on October 22, 2008, Dr. Lussenhop imposed restrictions limiting the employee to ten pounds of lifting and eight-hour work shifts, with no repetitive bending and twisting and no lifting from the floor. The employer had no work for the employee within those restrictions, and the employee has not returned to work with the employer since that time. By letter to the employee’s attorney dated December 11, 2009, Dr. Lussenhop opined in part that the physical demands of the employee’s work

prior to April 8, 2008 at [the employer] including multiple transfers of heavy residents did cause a previously asymptomatic condition to become symptomatic, namely low back strain with low back pain. The work activities that took place between April 8, 2008 and September 25, 2008 continued to aggravate her low back condition.

The medical treatment provided, the requests for physical therapy, and ongoing treatment for her back pain were causally related to the original April 8, 2008 work injury, and subsequent work activities at [the employer].

         On January 7, 2009, the employee filed a claim petition, alleging entitlement to temporary total disability benefits continuing from October 22, 2008, together with rehabilitation and unspecified medical benefits, resulting from her work injuries on April 8 and September 25, 2008.          On April 30, 2009, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Tilok Ghose. In his report on May 26, 2009, Dr. Ghose diagnosed subjective symptoms of pain with no objective evidence of muscle spasm, tightness, or other abnormal condition. It was Dr. Ghose’s opinion that the employee’s symptoms were not related to any employment activities at the employer, and he did not recommend any restrictions or further medical care or treatment. He concluded that the employee’s physical examination had been completely normal and that she had reached maximum medical improvement [MMI] with regard to her work injuries without sustaining any permanent partial disability.          On September 3, 2009, the employee was examined by Dr. Robert Vennerstrom, who diagnosed persistent low back pain of unclear etiology and referred the employee to physiatrist Dr. James Andrews. When he examined the employee on September 16, 2009, Dr. Dr. Andrews diagnosed lumbar spondylosis with suspected facet arthropathy and related pain, and he referred her for repeat physical therapy and, in the event that she should not respond to that, for an L3-S1 medial branch blockade. On November 13, 2009, the employee underwent a health maintenance exam with Dr. Patricia Lindholm, who noted that the employee had “been unable to work for over a year due to a back injury,” that the employee’s husband suffered from severe depression and had himself been out of work for over two years, and that “[s]he feels financially stressed.” With that, the doctor diagnosed chronic pain syndrome, acute major depressive episode “which may be related to [her chronic pain syndrome],” and gastroesophageal reflux disease. When he saw her again on November 17, 2009, Dr. Andrews noted that the employee had experienced minimal improvement with physical therapy, and he scheduled her for diagnostic medial branch blocks. By letter to the employee’s attorney dated December 8, 2009, Dr. Andrews opined in part that the employee’s work for the employer prior to April 2008 was a substantial contributing cause of her lumbar spondylosis with associated facet syndrome. On December 9, 2009, the employee underwent the first of two bilateral L3 to S1 medial branch blocks, administered by Dr. Andrews, and on December 30, 2009, she underwent a second such procedure. A hearing had been held on the employee’s claim petition on December 15, 2009, following which, under findings and order filed March 22, 2010, the employer and its insurer were ordered to pay temporary total disability benefits continuing from October 22, 2008.          On January 18, 2010, the employee...