Azuz v. Vescio’s, et al.,

Azuz v. Vescio’s, et al.,No. WC17-6086 ( WCCA February 1, 2018)

Employee slipped and fell in the kitchen on April 27, 2013, causing low back pain.  She sought medical care the next day, with low back and right leg radiating pain complaints, but no numbness or weakness. She was taken off work until May 14, 2013.  An MRI showed multilevel degenerative disc disease and foraminal stenosis from L3 –S1.

Employee had prior low back pain complaint back to 2002, with x-rays showing degenerative disc disease L3-L5.  In 2008, after a fall on ice, she complained of low back and right leg pain.  She had minimal treatment in 2008, and was working without restriction on April 27, 2013.

Ms. Azuz came under conservative care with physical therapy and epidural injections.  Three treating doctors believed she was not a surgical candidate. She reported being pain free by July 16, 2014.  She was released to return to work with no specific restriction on her activity, but she was given a 10% PPD rating.  The report of the doctor giving the rating described the 4/27/13 injury as being an aggravation of a preexisting problem.

In August, 2014 the employee moved to Chicago to live with her daughter. She was without health insurance.  She said she continued low back pain for nine months before seeking medical treatment.  She explained that she did not seek medical attention because of the lack of insurance.  She did not recall contacting the workers’ compensation carrier regarding her symptoms. – In March, 2015 she sought medical treatment in Chicago with a neurosurgeon.   He had two rhizotomies without any relief. She reported to the neurosurgeon that she’d had low back pain for many years that was progressively worsening over time.  A CT and MRI scan were done in December, 2015 showing the DDD from L2-L5.–She had two-level posterior fusion at L3-L5 and anterior fusion L2-S1 on March 7, 2016.  Surgery bills were in excess of $200,000.00.

Employee had an IME on August 5, 2014 with Dr. Simonet, whose report reflects the employee told him she had no symptoms and was “pretty close to 100%”.  He found she was not a candidate for surgery. –Following the 3/7/16 surgery, Dr. Simonet issued two supplemental reports opining that the five-level fusion was not reasonable and necessary, and that the employee had no improvement in reported symptoms following the surgery.  Dr. Simonet rated PPD at 10% which he opined was unrelated to the work injury.

The compensation judge found the 4/27/13 injury to be a temporary aggravation, and denied wage loss and medical treatment claims.

Employee argued the compensation judge failed to adequately address the temporary versus permanent nature of the work injury aggravation using the McClellan factors: 1)nature and extent of preexisting condition, 2) nature of symptoms prior to aggravating incident, 3) nature and severity of aggravating incident and resulting restrictions and disability, and 4) nature of symptoms following the aggravating incident. – The WCCA affirmed the compensation judge, stating that the McClellan factors represent a guide to assist the compensation judge not a requirement. Where, as here, the expert opinion is based on enough facts to form a reasonable opinion that is not based on speculation, there is adequate foundation for the expert opinion.  Gianotti v. ISD 152, 889 NW2d 796, 77 WCD 117 (Minn. 2017)