MARGARET TOWEH, Employee/Cross-Appellant, v. CENTENNIAL CARE/THE EVERGREENS and AMERICAN COMPENSATION INS./RTW, Employer-Insurer, ALTERNATIVE LIVING SERVS. and EBI COS., Employer-Insurer/Appellants, and HUMANA/EMPLOYERS HEALTH INS., UNITED HOSP., HEALTHSYSTEM OF MINN. - PARK NICOLLET CLINIC, and COLUMBIA PARK MEDICAL GROUP, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 7, 2000
CAUSATION - SUBSTANTIAL EVIDENCE. Where the employee initially gave a history of several years of knee pain and did not indicate her pain was related to her work activity on a specific date, and several physicians attributed her pain to a preexisting degenerative condition, the compensation judge was supported by substantial evidence in denying a work injury on July 6, 1997.
CAUSATION - SUBSTANTIAL EVIDENCE. Where the employee fell while aiding a patient, was then unable to walk because her knee was locked up, and where her treating surgeon indicated that her work activity contributed to the Alocking@ of her knee, the compensation judge was supported by substantial evidence in finding the work incident on September 24, 1997, to have been a substantial contributing cause of her need for surgery, permanent partial disability, and wage loss benefits.
Determined by Wheeler, C.J., Wilson, J., and Rykken, J.
Compensation Judge: Paul V. Rieke
STEVEN D. WHEELER, Judge
The employer Alternative Living Services, and its insurer, EBI Companies, hereinafter ALS/EBI, appeal from the compensation judge=s determination that the employee sustained a specific work-related injury on September 24, 1997, which was a substantial contributing cause of her need for a surgical procedure on October 10, 1997, a permanent partial disability rating of 2% to the whole body, and a period of temporary total disability immediately following the injury. The employee cross appeals from the compensation judge=s determination that she did not sustain a compensable injury on July 6, 1997. We affirm.
The employee, Margaret Toweh, was born in Liberia, in 1947, where she resided until early 1995, when she immigrated to the United States. In March 1995, the employee sought medical attention from doctors at the Columbia Park Clinic. At that time she complained of right knee pain, and ultimately was referred to Dr. David Carlson, an orthopedic surgeon, who performed arthroscopic surgery on the employee=s right knee in May 1995. Following surgery the employee=s basic medical care was provided at the Columbia Park Clinic. Her principal family physician appears to have been Dr. R. D. Pistulka. During office visits to Dr. Pistulka in 1995 and 1996, on several occasions she complained of right knee pain. (Pet. Ex. B.)
On August 30, 1995, the employee was hired by The Evergreens nursing home, hereinafter the employer, as a residence services assistant. Her principal responsibilities in this capacity were to assist residents with daily tasks such as washing, movement, and eating. She was also responsible for setting up and serving meal service.
On June 30, 1997, the employee sought medical attention at the Columbia Park Clinic. At that time she complained of bilateral knee pain with swelling in both knees. A few days later, on July 6, 1997, following her regular work shift, the employee was taken by a relative to the emergency room at North Memorial Hospital, where she complained of left knee pain. The nurse=s notes from that admission indicate that the employee=s chief complaint was stiff knees. The nursing assessment stated that, AFor years having arthritic pain. Today sitting when standing up it was stiffer than usual.@ The employee was seen by Dr. Leonardo Saavedra who diagnosed bilateral knee pain. The history noted by Dr. Saavedra was that the employee had A2-3 years worth of knee pain which has been worse the last 2-3 days.@ The employee described pain which was Aworse with walking and movement. In both knees.@ She indicated that she had not had any falls at that point and that there was no trauma to her knees. The employee was given a prescription for Percocet and advised to ice the painful areas and return to see her regular physician.
At the hearing, the employee testified that the histories in the June 30, 1997 and July 6, 1997 medical records are not accurate. She stated that her first onset of left knee pain was while she was pushing a cart from the kitchen to the dining room on July 6, 1997. She further stated that later in her shift she again experienced pain while walking with a patient.
The employee followed up with Dr. Donald Johnson, at Columbia Park Clinic, on July 18, 1997. Dr. Johnson obtained a history which indicated that the employee experienced a sudden pain and locking in her left knee when she was walking with a resident of the nursing home. X-rays were taken which showed a loose body in the knee. As a result, the employee was referred to Dr. David Lindgren, an orthopedic surgeon at Park Nicollet, who felt that the employee had a loose body plus a possible meniscus tear in the left knee and recommended an MRI. The employee was also advised to not engage in any significant squatting or kneeling. The employee returned to see Dr. Donald Johnson on August 27, 1997, at which time she was still complaining of left knee difficulties. An MRI was performed at Unity Hospital on September 3, 1997, which showed a complex tear of the posterior horn of the medial meniscus with two large loose bodies inside the knee.
The employee returned to Dr. Lindgren on September 16, 1997. Based on the MRI study, Dr. Lindgren recommended that the employee undergo arthroscopic surgery to remove the loose body and repair the tear. (Pet. Ex. B.) On September 24, 1997, while the employee was assisting a patient while transferring to a wheelchair, she either twisted her knee or her left knee locked up. She states that her knee gave way and she fell on her knee. She indicates that the pain in her left knee became more severe and she had swelling. Apparently she was placed in a wheelchair and was taken by her family to Park Nicollet Clinic where she saw Dr. Paul Bearmon. Dr. Bearmon removed her from all work activity and she was referred to Dr. David Carlson, the orthopedic specialist who had operated on her right knee in 1995.
She first saw Dr. Carlson on October 7, 1997. Dr. Carlson=s note from that consultation indicates that the employee was already scheduled for arthroscopic surgery later in the month but that she was unwilling to wait because of the disability caused by her knee locking and her inability to ambulate. On physical examination Dr. Carlson found that the employee had a Alocked knee@ which could not be fully straightened or bent very far. Dr. Carlson=s notes reflect the following observations:
She has clearly on x-ray a loose body in the notch which would be consistent with this problem and this probably causes the locking. She has a grade II effusion. Ligamentous exam seems to be normal. She is tender fairly globally about the knee but especially on the anterior medial and anterior lateral joint line.
On reviewing the x-rays taken back in July and also most recently she has two or three loose bodies in the knee and now they seem to be in the notch and is causing the locking. I think these loose bodies have been present for quite some time, they look old, it is difficult to tell. I don=t have any previous x-rays and so I don=t know for sure. She reports that she did not have any trouble with this left knee until she started having these problems at work. But I suspect the loose bodies have been present for a long time and that probably the work aggravated these and when they moved in a position where it caused the knee to lock it caused pain and problems.
At any rate, she needs to have these loose bodies removed and the knee explored with an arthroscopy and she wants to go ahead and have this done as soon as possible.
(Pet. Ex. D (emphasis added).)
The surgery was performed by Dr. Carlson on October 10, 1997, at St. Francis Regional Medical Center. Contrary to the September 3, 1997 MRI report, Dr. Carlson=s report of the operation indicates that the medial meniscus was essentially normal. He also found the medial tibial plateau and femoral condyle to be normal. He noted some grade I-II chrondromalacia changes on the medial femoral condyle but stated that it was Anothing severe@ and there was no fragmentation. He further stated that,
The anterior and posterior cruciates were intact; however there was a very large loose body, over 1 cm in size, in the notch, . . . The lateral compartment was entered and there was a small flap tear of the lateral meniscus on the lateral horn, and this was removed without difficulty with a shaver. The remainder of the lateral compartment was essentially normal. . . Less than one-third of the lateral meniscus was removed.
The employee was again seen by Dr. Carlson for a follow-up visit on October 17, at which time the employee reported that her left knee pain was substantially improved. The employee was placed in a physical therapy program through November 10, 1997. She returned to work with the employer under some restrictions on October 26, 1997. (Pet. Ex. D.) Apparently the employee did not see Dr. Carlson after October 17, 1997. (Pet. Ex. I, report of 6/22/98.)
In his report of June 22, 1998, Dr. Carlson provided the following opinion concerning the employee=s injury and its cause:
In regards to her left knee I do not believe that she had a Gillette injury. I believe that her injury was related to the work activities that she was doing. I am sure she had some pre-existing degenerative changes. She had no knee symptoms before her first injury.
Therefor [sic], I would say that the work was definitely a contributing factor to her knee problems. I suspect that on September 24, 1997 she sustained a re-injury and possible additional damage to the knee.
In regards to her permanent impairment I would give her a 2% permanent impairment rating based on worker=s compensation schedule for medial meniscectomy less than one-half of the meniscus removed. . . .
I definitely think that she had a pre-existing problem in her knee with degenerative changes. She definitely had no symptoms related to the left knee until the first work related injury in July of 1997.
The employee was examined by Dr. Mark E. Friedland at the request of the employer Alternative Living Services and EBI, the insurer on the risk on September 24, 1997. Dr. Friedland=s report of that date indicated that he placed all of the responsibility for any injury related to work on the work activity of July 6, 1997, indicating that the September 24, 1997 incident was only a temporary aggravation of the pre-existing and underlying degenerative condition. In a subsequent report, dated September 25, 1999, after Dr. Friedland had an opportunity to review the operative reports from Dr. Carlson=s October 10, 1997 surgery, he stated that he did not believe that the employee had sustained any work-related injury to her left knee. He opined that because the arthroscopic surgical procedure performed by Dr. Carlson indicated that there was no tear to the medial meniscus, that all of the conditions that were repaired by that surgery were related to degenerative changes. He specifically stated that the loose body found in the knee and the minor lateral meniscus tear were clearly signs of degeneration and not the Aresult of either her described and alleged July 6, 1997 or September 24, 1997 incidents.@ (Resp. EBI Exs. 1 and 2.)
The employee was examined at the request of the employer Evergreens/RTW on October 31, 1998 by Dr. Paul T. Wicklund. In his report of November 5, 1998, Dr. Wicklund indicated as follows:
Based on my history, physical, and review of the medical records, it is my opinion to a reasonable degree of medical certainty that Margaret Toweh did not injure her left knee walking on a flat surface with someone. This is an activity of daily living and would not cause any cartilage tears or any development of loose bodies. It is my opinion that she had a manifestation of the symptoms of her pre-existing problems in the left knee which would have been the two loose bodies. Therefore, it=s my opinion that she did not have a work injury to her left knee in July 1997. Likewise, she had another manifestation of symptoms of these loose bodies on September 24, 1997, when she was lifting a patient from a recliner. In my opinion the September 24 incident did not contribute to the need for surgery or any time off work. It is my opinion that the only problem she had with her left knee was a chronic degenerative arthritis to a mild degree and two loose bodies which had been present for many years. She doesn=t have any restrictions at this point and can work full-time. Using the workers= compensation permanent partial disability schedules, a disability of 2% would be appropriate because there was a small lateral meniscectomy done in October 1997 when she had surgery. This would be found in section 5223.0510, subpart 3B(1). It is my opinion this rating is for a non-work related condition. It appears from the operative report that this small flat tear of the lateral meniscus was an incidental finding and was simply smoothed off with a shaver indicating it was not a significant injury.
On July 27, 1998, the employee filed a claim petition seeking temporary total, temporary partial, and medical expense payments as a result of injuries on July 6 and September 24, 1997. The matter came on for hearing before a compensation judge at the Office of Administrative Hearings on June 16, 1999. In his Findings and Order, served and filed June 22, 1999, the compensation judge found that the employee did not sustain a work-related injury on July 6, 1997, but did sustain an injury to her left knee on September 24, 1997. As a result, the compensation judge awarded payment for the cost of all medical treatment after September 24, 1997, temporary total disability for the period from September 24, 1997 through October 26, 1997, and a permanent partial disability rating of 2%, as a result of the meniscectomy performed on October 10, 1997. The employer and its insurer on the risk on September 24, 1997, Alternative Living Services/EBI appeal. The employee cross appeals from the finding of no work injury on July 6, 1997.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). 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). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might 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.@ Id.
July 6, 1997 Injury
In denying the employee=s claim of having sustained a July 6, 1997 injury the compensation judge made the following statement:
The preponderance of the evidence of record does not support the employee=s claim that she sustained a compensable work-related personal injury to her left knee on July 6, 1997. There is no question that the employee had a pre-existing underlying degenerative condition in her left knee. Although the employee may have exacerbated such a condition on July 6, 1997, the facts do not support that the alleged work activity was a substantial contributing factor to the employee=s need for surgery and the resultant disablement from work. . . .
(Finding 11.) The medical evidence outlined earlier in the finding indicated that the compensation judge was impressed by the medical records from June 30, 1997, which indicated that the employee had previous problems with both knees. In addition, the judge noted the nurse=s assessment and the history taken by Dr. Saavedra on July 6, 1997 at North Memorial Hospital. These notations indicated that the employee had been suffering from arthritic pain for years, that she had worsening pain in the preceding two or three days, that it was in both knees, and that there was no trauma or history of trauma. In addition, the compensation judge was impressed by Dr. Wicklund and Dr. Friedland=s opinions that the employee did not sustain a work-related injury on July 6, but rather experienced a manifestation of her underlying pre-existing degenerative arthritic left knee condition. The judge noted that the employee=s treating physician, Dr. Carlson, also recognized that there was a pre-existing condition to the employee=s left knee and that the medial meniscus tear evidenced by the September 3, 1997 MRI was not found to exist at the time of the October 10, 1997 surgery. He noted Dr. Friedland=s comments that the findings from the surgery were that the employee=s condition was primarily degenerative in nature.
On appeal, the employee argues that the compensation judge=s decision is not supported by substantial evidence in the record and is clearly erroneous. The employee points to her testimony that she had no prior problems with her left knee and that the histories taken on June 30 and July 6 were simply incorrect. She states that the first time that she had any left knee pain was when she was pushing the cart and helping the resident on July 6, 1997. In support of her position, she cites the reports of Dr. Lindgren and Dr. Carlson.
The question of whether a specific work incident occurred or whether it was significant enough to cause an injury is a question of fact. In this case, the evidence cited by the compensation judge clearly supports his factual determination that if there was any injury at all it was not a significant injury that was separate and distinct from or which substantially aggravated the degenerative conditions which pre-existed July 6, 1997. It is the compensation judge=s responsibility to resolve any disputes between conflicting medical opinions. In this case, the compensation judge chose the opinions of Dr. Wicklund and Dr. Friedland over those of Dr. Lindgren and Dr. Carlson. As all of these opinions were based on adequate foundation, the compensation judge=s choice of doctors= opinions will not be overruled. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). As the compensation judge=s determination is supported by substantial evidence and is not clearly erroneous, it is affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
September 24, 1997 Injury
In finding that the September 24, 1997 incident was a substantial contributing cause of the employee=s subsequent disability, need for surgery and permanent partial disability, the compensation judge made the following finding:
On September 24, 1997, the employee performed her job tasks as a nursing assistant for the employer. One of her duties was to assist a particular resident in getting from a bed into wheelchair. The employee told the resident that her knee was hurting but she proceeded to attempt to help the resident into the wheelchair. The resident fell onto the employee and this caused the employee=s knee to give way and the employee fell and screamed for help. The employee again sought medical attention and was taken off work by her attending physician. The employee underwent surgery to her knee. The employee stated that her knee felt worse after the September 24, 1997 work incident. The employee was unable to work as a result of her left knee condition from September 24, 1997 through October 26, 1997, and has sustained a 2 percent whole body permanent partial disability relating to her knee. None of the parties to this action contest the extent of the disablement of the employee relating to the left knee condition.
(Finding 13.) The compensation judge went on to also state in his findings as follows:
Despite the fact that surgery had been recommended to be performed on the employee=s left knee, the employee was able to perform her work duties. The nature of the injury was severe in that a resident fell onto the employee causing her knee to give way and causing the employee to fall. The effect of this incident resulted in the employee being unable to work. The employee testified as to the increased pain she experienced following the September 1997 work incident. The preponderance in the evidence results in the Court=s conclusion that the September 24, 1997 incident was a compensable workers= compensation injury and was a substantial contributing cause of the employee=s need for surgery and of the employee=s temporary disablement from employment and permanent partial disability of the knee.
(Finding 13.) In his memorandum, the compensation judge further noted as follows:
The dramatic nature of the employee=s September 1997 incident at work and the resulting inability of the employee to continue to perform her job tasks result in the Court=s conclusion that a work injury occurred. This conclusion is reached despite the obvious left knee problems of the employee that existed before the September 1997 work incident. Although the employee=s physician does not specifically state that the employee=s work activity was a Aprobable@ cause of the employee=s left knee condition, it is the Court which must make the final legal determination as to whether the incident of September 1997 rises to the level of a work injury and whether such was a significant contributing factor to the employee=s need for surgery and resulting disablement. The preponderance of the evidence of record results in the conclusion that the September 1997 incident was a significant contributing cause for the employee=s left knee surgery, her inability to work from September 24, 1997 to October 26, 1997, and her permanent disablement.
(Memo. at 6-7.)
On appeal, the employer and its insurer on September 24, 1997, ALS/EBI, contend that the compensation judge should be reversed because there is no medical support for his finding of a causal link between the September 24, 1997 fall and the employee=s disability, surgery or permanent partial disability rating. The employer and insurer, ALS/EBI, observe that both Drs. Wicklund and Friedland explained that the results of the surgery on October 10, 1997 clearly showed that the only problem the employee had was related to degenerative changes in her left knee. The operative report from Dr. Carlson shows only that there was a loose body in the joint, that the meniscus tear shown on the September 3, 1997 MRI was not present, and that the only tearing of meniscus was to the lateral meniscus, which was insignificant in nature. They point out that the employee=s treating physician, Dr. Carlson, confirmed that the employee=s problems were related to degenerative changes and that there was not a significant meniscus tear. They argue that the compensation judge could not rely on Dr. Carlson because he was unable to state with a sufficient degree of probability that the September 24, 1997 incident was a substantial contributing cause of the employee=s disability and need for surgery. They point out that the employee was already scheduled for surgery on October 24, 1997 with Dr. Lindgren. They argue that the surgery that was performed on October 10 was simply the same surgery that was proposed prior to September 24, 1997. They argue that there is no medical evidence to support that any anatomical or structural changes occurred as a result of the September 24, 1997 incident. They contend that the only change which occurred on September 24, 1997 was that the employee may have experienced some additional pain, which is not a sufficient basis upon which to conclude that there was a substantial permanent aggravation of the employee=s underlying condition. They argue that the compensation judge has improperly relied on Dr. Carlson=s weak opinion in finding a substantial causal relationship between the September 24 incident and the ensuing disability and surgery. (ALS/EBI brief at pp. 8-10.)
While we understand the employer and insurer=s arguments, there does appear to be substantial evidence in the record which supports the compensation judge=s conclusion. In addition to the employee=s testimony that she was able to work until September 24, 1997, the employee testified that the amount of pain she endured and the physical limitations she encountered significantly increased after September 24, 1997. This testimony is supported by Dr. Carlson=s office notes from October 7, 1997 when he found that the employee=s knee was locked and that she was only able to ambulate with crutches. Dr. Carlson=s explanation that the employee=s work activity caused the loose bodies in the employee=s knee to move to a place which caused the knee to lock supports the inference that the incident on September 24, 1997 caused one of these loose bodies to move into a position which resulted in locking of the employee=s knee and an increase in pain. Since the locking and pain occurred while the employee was assisting a resident the compensation judge was free to accept this opinion as establishing that the incident of September 24, 1997 was a significant and a substantial factor in causing the employee=s disability and need for advancing the date of her surgery. Dr. Carlson=s opinion of October 7 was stated in terms of Aprobability@ and was of sufficient certainty to support the compensation judge=s decision. As noted above, the compensation judge=s apparent reliance on Dr. Carlson=s opinion over those of Drs. Friedland and Wicklund will not be disturbed. Nord, 360 N.W.2d 337, 37 W.C.D. 364.
As a result, we find that there is substantial evidence in the record which supports the compensation judge=s determination that the incident of September 24, 1997 was a substantial contributing factor in the employee=s need for surgery. Since the employer and insurer do not make substantially different arguments with respect to the employee=s claim for period of wage loss benefits and permanent partial disability, than they made as to the need for the October 10, 1997 surgery, we will not deal with the issues of temporary total disability or permanent partial disability separately. As a result, those findings are also affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
 On September 1, 1997, the nursing home was sold to and was thereafter operated as Alternative Living Services and was insured for workers= compensation liability by EBI Companies. Until September 1, 1997, the insurer was American Compensation Insurance/RTW.
 Apparently the employee was scheduled to have an arthroscopic procedure performed by Dr. Lindgren on October 24, 1997. This surgery was canceled after the surgery was performed by Dr. Carlson on October 10, 1997.
 Minn. R. 5223.0510, subp. 3B(1), AMeniscectomy, or excision of demilunar cartilage in a single knee. If meniscectomy, . . . (1) up to 50 percent of a cartilage removed, two percent . . . .@