Huwe v. Workforce Safety & Insurance

MARING, Justice,

concurring.

[¶ 29] I respectfully concur. After a thorough review of the medical evidence in *168this record, I agree with the majority that the administrative law judge (“ALJ”) did not sufficiently address the evidence presented by Huwe. I write only to further point out the medical evidence not addressed in the ALJ’s decision.

[¶ 30] The record indicates that after his work injury Huwe continued to have severe headaches, which were thought to be “vascular and muscle contraction type headaches secondary to neck injury in December of 1992” according to the notes at Trinity Medical Center in 1998. It was also noted at that time that the patient was narcotic dependent. Huwe was experiencing numbness and tingling and weakness in both arms. The diagnostic considerations were cervical radiculopathy, thoracic outlet syndrome or severe musculoskeletal strain on neck and shoulders. He received several epidural injections.

[¶ 31] In 1999, Dr. Melissa Ray, a doctor of osteopathy, conducted a permanent partial impairment evaluation of Huwe at the request of WSI. His current complaints were “headaches from the posterior occipital region over the top of his head into the frontal skull region.” He reported that his pain radiates “through the eyes.” He also reported pain over the TMJs bilaterally, “posterior cervical spinal pain radiating from the superior aspect of the posterior neck medially to the inferior scapular regions,” and “left lower back pain over the L5-S1 region, more on the left.” Dr. Ray noted: “the patient reports depression due to his physical limitations and pain.” Huwe reported to Dr. Ray that his symptoms had essentially remained the same over the past three years. He was taking aspirin and Lorcet. Dr. Ray noted Huwe was a recovering alcoholic and that his last drink was in 1981.

[¶ 32] Dr. Ray concluded Huwe suffered a 25 percent whole person impairment for his cervical spine injury, a 5 percent whole person impairment for his lumbar spine injury and a 12 percent whole person impairment for the TMJ, teeth problems and associated headaches. She found that these combined to equate to a 37 percent whole person impairment utilizing the combined values chart of the AlMA Guides to the Evaluation of Permanent Impairment.

[¶ 33] On November 16, 1999, Huwe was admitted to Mercy Medical Center by Dr. Mark Olson. Dr. Olson noted that Huwe had a “history of Lorcet and other narcotic abuse from an occupational accident.” Huwe had used up his prescription of Lorcet and was having withdrawal symptoms from Lorcet. Dr. Olson’s impression was: “1. Narcotic withdrawal. 2. Chronic pain due to occupational accident. 3. Recovering alcoholic.”

[¶ 34] In 2000, Huwe discussed with Dr. Olson and Dr. Moore, an orthopedic surgeon about undergoing a “provocative discography.” Dr. Michael Moore told Huwe he could not do that without Huwe reducing his Lorcet tablets to no more than three a day.

[¶ 35] The ALJ found that a cervical discography was performed on February 1, 2001, and that Dr. Moore recommended an anterior discectomy and fusion at C4-C5 and C5-C6 based on the amount of degeneration. Huwe chose not to undergo surgery at that time.

[¶ 36] On June 17, 2003, Huwe attended physical therapy at Mercy Wellness Center. The physical therapist noted significant deficits in his cervical range of motion.

[¶ 37] On July 3, 2003, Huwe went to see Dr. Moore, an orthopedic surgeon, again. Dr. Moore noted he had seen Huwe in 2001 and “[w]e had discussed surgery with him previously in 2001, but *169he decided to hold off on that until things got worse and he feels like he is at that point now.” Dr. Moore noted that the “[pjatient uses no alcohol.”

[¶38] On August 8, 2003, Dr. Moore reviewed Huwe’s MRI and found no significant changes from his previous MRI study. He noted a history of difficulty of swallowing, ringing in ears, limited neck motion, neck pain, arthritis, fracture, frequent headaches, numbness in hands or feet, depression and anxiety. Dr. Moore recommended an anterior cervical discec-tomy and fusion C4 to C7. In 2001, Dr. Moore recommended fusion only from C4 to C6.

[¶ 39] Dr. Moore performed the surgery on September 2, 2003. Dr. Moore noted under “INDICATIONS: The patient is a 52-year-old gentleman with a long-standing history of neck pain and shoulder pain related to a work-related injury. Conservative treatment has been tried for a protracted period of time and been unsuccessful. Because of this the patient is judged to be a suitable candidate for the above-noted procedure.” Dr. Moore carried out discectomies at each level of C4 to C7. The osteophytes were removed and the anterior/inferior lip of the superior vertebral body margin was removed. An Atlantis plate was then “opposed to the spine and bent into the increased lordosis which was demanded by the patient’s alignment.”

[¶ 40] On September 17, 2003, Huwe was seen for follow-up after his neck surgery. Huwe reported he had an 8 out of 10 pain in his anterior neck and chest. He reported his headaches were improved. Dr. Moore’s nurse practitioner noted Huwe was to continue to protect his neck, but may wean himself out of his cervical collar. On October 1, 2003, Huwe returned for postoperative care to Dr. Moore’s office. Huwe reported he was getting better, but his pain was still a 6 on a scale of 10. He denied use of alcohol. He was told to discontinue use of his cervical collar, but to continue to protect his neck and avoid lifting greater than 20 pounds. He was told they wanted to wean him off of Vicodin and replace it with Ultracet.

[¶ 41] Dr. Moore’s nurse practitioner saw Huwe again on November 4, 2003, and December 5, 2003, when she said he could return to his normal daily activities.

[¶ 42] In October 2003, Huwe continued to see his physician, Dr. Mark Olson, and his nurse practitioner at Trinity Community Clinic. On October 21, 2003, he presented with complaints of increased neck pain and depression. The record notes: “He is having tears rolling down his face as he is talking to me.” The nurse practitioner wrote: “I am quite concerned about his mental state and I am going to also place him on some Wellbutrin.... Obvious inadequate pain control at this time.... Would like him to return to Bone & Joint Clinic in Bismarck for follow up cares as his pain has increased.” He was prescribed Oxycodone and Naproxen together with the Wellbutrin.

[¶ 43] On November 17, 2003, Huwe was again seen at Trinity Community Clinic. At that time, the record states: “Have discussed with him at some length that his physical dependence does not necessarily mean that he has an addiction to this [Oxycodone] although he does, because of his alcoholism, have an addictive type personality and he is agreeable with this course of action and will follow quite closely.” Huwe was switched to some OxyCon-tin with Oxycodone for breakthrough. He also was going to receive some epidurals. He was seen again on November 26, 2003, and it was noted he was doing much better with the OxyContin and Oxycodone.

*170[¶ 44] On December 10, 2003, the medical records of Trinity Community Clinic indicate he had relief from the epidural and is somewhat better with the OxyCon-tin and Oxycodone. The nurse practitioner again notes “I think at this point I am worried about some depression. He was expecting better results from having this neck fusion surgery and have tried to explain to him it still can take up to three months before any pain relief from the fusion can be present.”

[¶ 45] On December 23, 2003, the Trinity Community Clinic records indicate Huwe admitted he got drunk over the weekend. He was seen and evaluated at Mercy Recovery and was to start outpatient therapy as soon as possible. The assessment was “chronic neck pain, status post cervical fusion.”

[¶ 46] Huwe was seen on January 9, 2004, at Trinity Community Clinic to renew his pain medications. The notes indicate he was to be seen at the pain clinic in Bismarck for regulation and pain management. On January 21, 2004, the notes state: “He continues to have an overlap of facet mediated pain and left sciatic pain. Degenerative changes to the low back.”

[¶ 47] None of the foregoing medical records from Trinity Community Clinic are mentioned by the ALJ. The ALJ states that Huwe could not explain why the nurse practitioner’s notes for Dr. Moore reflected a “more rosey picture.” The fact that Huwe was receiving heavy pain medications in the form of OxyContin and Oxy-codone from Dr. Mark Olson of Trinity Community Clinic might explain it, but the ALJ never mentions the treatment Huwe was receiving, including epidurals following his surgery.

[¶ 48] The records indicate that after the surgery, he had an emergency room visit in Williston on October 19, 2003, with complaints of neck pain after the fusion; on February 2, 2004, for a narcotic overdose; and on May 13, 2004, with complaints of headaches and alcohol abuse.

[¶ 49] On February 2, 2004, Dr. Mark Olson noted he has “frequent visits to the emergency room because of the pain in his neck and back secondary to his accident that occurred in 1992.” Dr. Olson wrote: “He admits that he is taking more alcohol and narcotics than prescribed. He states he has to do that to control the pain.” Dr. Olson’s impression: “[N]arcotie overdose likely accidental,” and “[c]hronic pain.” The plan was: “1. Given his history of abuse in the past, I think we are going to need to get Mercy Recovery Center and Dr. Greiner involved. 2. I think my job tonight is going to be getting him into the hospital and start weaning him off his narcotics.”

[¶ 50] The ALJ found that Huwe’s last day of physical presence at his job as a motor carrier inspector was February 4, 2004. Huwe then went on sick leave to attend a residential treatment program for his alcohol and narcotic over use at Mercy Recovery Center.

[¶ 51] On February 16, 2004, Huwe saw Dr. Mark Olson with slurred speech, dizziness, and confusion. Dr. Olson’s impression was “[mjedication side effect.”

[¶ 52] On March 3, 2004, Dr. Olson noted Huwe had been hospitalized with a very significant pneumonia and was also found to have acute bacterial endocarditis. Huwe was still under treatment for these conditions. On March 17, 2004, he was put back in the hospital.

[¶ 53] On April 7, 2004, Dr. Olson saw Huwe at the Trinity Community Clinic. Huwe came in regarding his pain. Dr. Olson wrote in his notes:

He was down and saw Carol Miller who did some trigger point injections. He thought there was some relief for a *171short period of time, but the pain has returned at this point in his neck. He is wondering if he should get back on some type of narcotic. Carol Miller did mention in her note that the symptoms may be facet mediated pain and is thinking that facet injections may be worthwhile.

Dr. Olson’s plan was to set Huwe up in Bismarck for facet injections.

[¶ 54] On April 21, 2004, Huwe saw Dr. Olson because his wife was concerned he was suicidal. Dr. Olson wrote:

Apparently, two days ago he started drinking again. He had been doing very well, but two days ago something changed. He is blaming it on the pain, but he did not do anything different in his activities that would exacerbate the pain. He does have a history of chronic pain and history of depression in the past.

Dr. Olson referred him to Dr. Campos so he could get admitted into the inpatient unit.

[¶ 55] On May 5, 2004, Huwe was rechecked by Dr. Olson at Trinity Community Clinic for his neck and back pain. Dr. Olson noted: “He sits in his chair with a very flat affect. He is obviously very frustrated if not angry about the situation that he is in. He at one point expresses understanding of being off the narcotics and the next he is requesting there [sic] return.” Dr. Olson planned to set Huwe up with Dr. Zhang to get a second opinion from a physiatrist to see if there is anything further that can be done to help with his back pain. Dr. Olson wrote: “It should be noted that I did not clear him to go back to work. We will wait until after Dr. Zhang has had a chance to review things.”

[¶ 56] On May 13, 2004, Huwe went to the emergency room of Mercy Medical Center complaining of chronic head and neck pain and requesting treatment for acute and chronic alcohol abuse.

[¶ 57] On May 19, 2004, Huwe saw Dr. Moore, the orthopedic surgeon. Huwe reported he continued to have neck pain, occipital headaches, frontal headaches, as well as lower back pain. Huwe told Dr. Moore he feels like he is about 10 percent better from his cervical fusion. Dr. Moore told him he did not have anything further to offer him and that he would refer him to Dr. Killen for long term pain management and for any disability and impairment issues.

[¶ 58] Huwe went to Dr. Olson at Trinity Community Clinic for his chronic neck and back pain on May 28, 2004. The notes indicate: “At this time he does look quite miserable. He has little motion to his neck since his fusion. He has no smell of alcohol at this time.” The nurse practitioner explained she would not give him narcotics.

[¶ 59] The evidence in this record indicates that Huwe continued to suffer severe pain in his neck and severe headaches after his surgical fusion of C4-C7 in September 2003. The record repeatedly states Huwe had become narcotic dependent as a result of his pain and needed to be taken off narcotics. Dr. Zhang was of the opinion Huwe should undergo drug rehabilitation as well as a chronic pain management program. Without the availability of narcotics to control his pain, Huwe had begun to drink more heavily and his depression worsened to the point of suicidal ideation.

[¶ 60] After a thorough review of the record of this case, I agree with the majority that the findings of fact of the ALJ do not sufficiently address the medical evidence and the issue of whether Huwe sustained a significant change in his compen-sable medical condition and I agree the matter must be reversed and remanded.

[¶ 61] Mary Muehlen Maring