JEFFREY ROMINE, Employee/Appellant, v. BONFE PLUMBING & HEATING and CNA/TRANSCONTINENTAL INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 3, 2002

                                                                             

HEADNOTES

 

CAUSATION - TEMPORARY AGGRAVATION.  Substantial evidence supports the compensation judge=s finding that the employee sustained a work-related musculoskeletal strain injury on January 27, 2000, which resolved by November 1, 2000, and the judge=s finding of no causal relationship between the work injury and the employee=s surgery in July 2001.

 

PRACTICE & PROCEDURE - REMAND.  The case must be remanded for redetermination where the compensation judge denied the employee=s claims for temporary partial disability benefits for periods prior to November 1, 2000 and for medical expenses incurred prior to November 1, 2000, the date by which the judge found the employee=s work injury had resolved, without explanation or factual findings to support the denial of benefits.

 

Affirmed in part, and vacated and remanded in part.

 

Determined by: Johnson, C.J., Wilson, J. and Pederson, J.

Compensation Judge: James R. Otto

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s finding that his January 27, 2000, low back injury resolved by November 1, 2000.  We affirm.  The employee further appeals the judge=s denial of temporary partial disability benefits and medical expenses for periods prior to November 2, 2000.  We vacate and remand for additional findings.

 

BACKGROUND

 

Jeffrey Romine, the employee, sustained an injury to his low back and a cut on his left leg on January 27, 2000, while working for Bonfe Plumbing & Heating, the employer.  The injury occurred when the employee slipped and fell while lifting a wall-hung toilet.  The employee=s weekly wage was $1,307.66.  The employer and its insurer initially admitted liability for the employee=s injury, but later contended the low back injury was temporary and had resolved.

 

The employee complained of throbbing and radiating pain in his low back after his injury, but continued to work for the employer.  On March 4, 2000, the employee sought medical care for his low back with Dr. A. Salazar at Fairview Urgent Care.  The employee complained of stiffness in his low back and gave a history of his January 2000 injury.  Dr. Salazar diagnosed musculoskeletal back pain and released the employee to return to work with restrictions.  The employee next sought medical care on July 23, 2000, when he was seen at the Fairview University Medical Center for removal of a foreign body in his right eyelid. 

 

On August 8, 2000, the employee saw Dr. Todd Holm at Park Nicollet Clinic.  The employee gave a history of an injury to his back which improved until July 27, 2000, when he again strained his back while doing heavy lifting at work.  On examination, the doctor noted tenderness in the lumbosacral area with limited flexion.  Straight leg raising was negative and muscle strength was normal.  The doctor diagnosed a low back musculoskeletal strain and referred the employee for physical therapy.  The doctor kept the employee off work until August 10, 2000.  Between August 10 and August 20, 2000, the doctor stated the employee could work subject to a 20-pound lifting restriction with limited kneeling, squatting and bending.  The employee returned to see Dr. Holm on September 6, 2000, and reported his pain was much better.  An x-ray showed a slight narrowing of the L5-S1 disc.  On examination, the doctor found some tenderness in the lumbosacral area with full range of motion and positive straight leg raising on the right.  The diagnosis was again musculoskeletal low back pain.  Dr. Holm instructed the employee to continue physical therapy and increased his lifting restrictions to 50 pounds.  On November 1, 2000, the employee told Dr. Holm he was working at his job with full capabilities without significant problems, but com­plained of occasional low back soreness and stiffness.  The employee denied any weakness, numb­ness or tingling in his legs.  On examination, Dr. Holm found no spinous process tenderness and full range of lumbar motion.  The doctor reported some discomfort in the low back on the right with normal strength and reflexes.  The diagnosis was low back pain, improved and resolving.  Dr. Holm released the employee to return to work without restrictions, and instructed the employee to return if he had any increasing pain, otherwise, the doctor felt no further follow up was required. 

 

On May 1, 2001, Dr. Holm ordered an MRI scan which showed a herniated disc at L5-S1 which appeared to impinge on the right S1 nerve root and a herniated disc at L4-5 without nerve root impingement.  The employee returned to see Dr. Holm on May 3, 2001, and the doctor referred the employee to a neurosurgeon.  On May 21, 2001, the employee saw Dr. Mark B. Larkins for a neurosurgery consultation.  The doctor received a history of the employee=s January 27, 2000 injury with problems since then.  The employee complained of radicular symptoms into the right calf and right foot weakness with occasional foot flapping.  The doctor reviewed the MRI scan, examined the employee and diagnosed right L5 radiculopathy.  Dr. Larkins recommended an L5-S1 hemilaminec­tomy which he performed at Methodist Hospital on July 18, 2001. 

 

On September 21, 2001, Dr. John Dowdle examined the employee at the request of the employer and insurer.^[1]  The doctor obtained a history from the employee of his injury and sub­sequent complaints and activities, reviewed the employee=s medical records and performed an examination.  The doctor opined the employee sustained an aggravation of an underlying degenera­tive disc condition on January 27, 2000.  Dr. Dowdle noted, however, the employee did not start having leg pain until almost 18 months later.  During the 18-month period, the employee was able to perform his full work duties and sporting activities.  The doctor opined the employee=s work injury was a flare-up of a degenerative dehydrated disc and was not a disc herniation.  Dr. Dowdle further opined the employee=s January 27, 2000 injury was temporary in nature, and that no further medical treatment was necessary for that injury.

 

The employee filed a claim petition in May 2001, seeking temporary total disability benefits from and after May 10, 2001, together with medical expenses.  In their answer, the employer and insurer admitted the employee sustained a temporary work-related injury on January 27, 2000, but denied liability for any further benefits.  The employee later filed a medical request seeking authorization for payment of the surgery recommended by Dr. Larkins.  The claim petition and the medical request were consolidated for hearing.

 

The case was heard by a compensation judge at the Office of Administrative Hearings on October 9, 2001.  The employee was then claiming intermittent temporary partial disability benefits from January 27, 2000 to May 10, 2001, and temporary total disability benefits from May 10, 2001 to the date of the hearing.  The parties stipulated the employee had not yet reached maxi­mum medical improvement (MMI) and stipulated the employee was totally disabled from and after May 10, 2001, but disputed causation for the disability.  The compensation judge allowed the em­ployee=s attorney to submit a post-hearing summary of the medical expenses and a schedule of the temporary partial disability claim, by days worked if possible, but if not, by weeks worked.  The compensation judge also kept the record open for a response by the employer and insurer.  In a Findings and Order filed November 7, 2001, the compensation judge found the employee sustained a low back musculoskeletal strain type injury on January 27, 2000, which injury resolved prior to November 1, 2000.  The judge further found the July 18, 2001 surgery was not reasonably required to cure or relieve the employee from the effects of his personal injury.  Finally, the compensation judge denied the employee=s claims for wage loss benefits and medical expenses.  The employee appeals.

 

DECISION

 

1.  Temporary Injury

 

The employee contends the compensation judge=s finding that the employee=s January 27, 2000, low back injury was temporary and resolved by November 1, 2000, is unsupported by sub­stantial evidence.  Rather, the employee asserts, the evidence, taken as a whole, compels a conclu­sion that the employee=s herniated disc was caused by the January 27, 2000 personal injury.  We are not persuaded.

 

Certainly, there is evidence which, if accepted by the compensation judge, would support the conclusion urged by the appellant.  The employee testified to continuing acute low back pain following his injury and testified he often asked to leave work early because of the pain.  Mrs. Romine=s testimony was consistent with the employee=s.  The employee=s supervisor, Scott Erickson, testified the employee complained to him of low back pain on many occasions.  On ap­proxi­mately six occasions, the employee declined to go out on after hour calls and told Mr. Erickson his back was bothering him, he had taken medication and felt he shouldn=t be driving.  Kerwin Moran, a co-employee, testified the employee complained to him of low back pain after his injury.  The medical records of Dr. Holm provide support for a causal connection between the work injury and the employee=s herniated disc and surgery. 

 

However, under this court=s standard of review, the issue is not whether the evidence will support alternative findings, but whether the Afindings of fact and order were 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, Athey 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).  Findings of fact may not be disturbed, even though the reviewing court may disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the 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).  Where evidence con­flicts or more than one inference can be drawn from the evidence, the judge=s findings are to be affirmed.  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).

 

The employee was injured on January 27, 2000, but did not seek medical care until March 4, 2000, when he saw Dr. Salazar.  Thereafter, the employee did not return to see Dr. Salazar until July 23, 2000.  The employee then saw Dr. Holm on August 8, September 6, and November 1, 2000.  By the latter date, the employee told Dr. Holm he was working at his job with full capabilities and with­out signi­ficant problems.  The employee complained only of occasional low back soreness and stiffness and denied any weakness, numbness or tingling in his leg.  Dr. Holm released the employee to return to work without restrictions and felt no follow-up care was required.  The first recorded complaint of right leg pain and numbness is contained in Dr. Larkins= report of May 21, 2001.  Dr. Dowdle diagnosed a musculoskeletal injury, opined the employee did not sustain a disc herniation as a result of his injury, and opined the employee sustained a temporary aggravation of an underlying degenerative disc condition on January 27, 2000.  This evidence supports the compensation judge=s finding that the employee sustained a musculoskeletal strain injury which resolved by November 1, 2000, and the finding of no causal relationship between the injury and his need for surgery on July 18, 2001.  Because the judge=s findings are supported by substantial evidence, they must be affirmed.

 

The employee further argues the compensation judge ignored the majority of the employee=s evidence, failed to weigh opposing evidence and did not consider the record as a whole.  Such failure, the employee contends, is an error of law which requires a reversal.  We disagree.  This court has repeatedly stated the compensation judge is not required to relate or discuss every piece of evidence introduced at the hearing.  Rothwell v. Minnesota Dep=t of Natural Resources, slip op. (W.C.C.A. Dec. 6, 1993).  It is clear from the compensation judge=s Findings and Order that he did consider the lay and expert testimony offered by the employee.  The compensation judge=s decision is, therefore, affirmed.

 

2.  Gillette Injury

 

On appeal, the employee further argues his work activities for the employer following his personal injury aggravated, accelerated or substantially contributed to the onset of the herniated disc.  We have reviewed the transcript and find no claim by the employee that he sustained a Gillette injury arising out of his employment.  Since the issue was not raised before the compensation judge, it will not be considered on appeal.

 

3.  Temporary Partial Disability/Medical Benefits

 

The employee claimed temporary partial disability benefits from January 27, 2000 through May 2001 and sought payment of certain medical expenses.  Included in the file is a letter dated October 16, 2001, from the employee=s attorney to the compensation judge containing a sum­mary of the claims for temporary partial disability benefits and medical expenses.  By letter dated October 29, 2001, counsel for the employer and insurer submitted a response.^[2]  In the Findings and Order, the compensation judge denied the employee=s claims for temporary partial disability benefits and medical expenses in their entirety.  The employee appeals.

 

The compensation judge found the employee=s injury had resolved by November 1, 2000.  The employee claimed temporary partial disability benefits prior to November 1, 2000.  The medical benefits claimed by the employee include charges from the Park Nicollet Clinic for services on and before November 1, 2000.  The compensation judge provided no explanation why he denied the employee=s claims for wage loss and medical benefits between January 27 and November 1, 2000.  We therefore vacate Findings 3 and 4 and remand the case to the compensation judge for further findings.