WILLIAM B. BECKER, Employee, v. YELLOW TRANSPORTATION, SELF-INSURED, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 17, 2002
CAUSATION - GILLETTE INJURY. Substantial evidence, including expert opinion, minimally but adequately supported the compensation judge=s finding that the employee had sustained a Gillette injury to his low back.
PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; PRACTICE & PROCEDURE - REMAND. Where the judge did not adequately explain his permanent partial disability award, and the basis for the award was not evident from the record, remand to the judge was appropriate for reconsideration and explanation as to how the elements of the permanent partial disability rating category had been satisfied.
Affirmed in part, reversed in part, and remanded.
Determined by Wilson, J., Johnson, C.J., Pederson, J.
Compensation Judge: James R. Otto.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge=s decision that the employee sustained a Gillette-type injury to his low back as claimed and that the employee is entitled to benefits for a 9% whole body impairment as a result of that injury. We affirm in part, reverse in part, and remand.
The employee began working as a dock worker for Yellow Transportation, the employer, in about 1986. His job entails moving freight, both by hand and using a forklift, and he estimated that he might move as many as four to eight hundred pieces of freight by hand in a given shift, depending on the makeup of the trailer loads.
On January 29, 1998, the employee experienced low back pain while moving boxes at work, and he subsequently received treatment, including physical therapy, for what was generally thought to be an acute lumbar strain. X-rays taken in March of 1998 revealed osteoarthritic changes at L1-2, L2-3, and L3-4; no other diagnostic scans were performed at that time. When his symptoms continued, the employee was referred for a consultation with Dr. Nils Fauchald, who diagnosed low back strain with A[p]ossible underlying disc injury@ but Ano evidence of radiculopathy at the present time.@ The employee was off work for some period and then returned to his usual job with a 30- to 50-pound lifting limit. He testified that he was able to perform his job duties by paying attention to body mechanics, that his employer accommodated his condition, and that he took over-the-counter pain medication to relieve occasional symptoms.
In late April of 2000, the employee returned to see Dr. Karl Molenaar, his usual treating physician, complaining of radiating right leg pain over the last four to six weeks. Noting positive straight leg raising and a decreased reflex on the right, Dr. Molenaar referred the employee for an MRI scan, which was performed on April 28, 2000, and read by the radiologist to reveal as follows:
Multiple levels of degenerative disk disease with hypertrophic spurring are noted from L1 through S1. At the L2-3 and L3-4 levels marked disk space narrowing is noted with diffusely bulging disks anteriorly and posteriorly at both these levels. Some compression of the dural sac is seen at L2-3 and L3-4, especially the latter.
At the L4-5 intervertebral disk space there is a right lateral herniated disk seen on both the transaxial as well as the sagittal images. The most revealing image is one of the sagittal images far laterally and to the right where the high-signal fat is obliterated by low-signal disk intrusion.
The employee was also referred back to Dr. Fauchald for another orthopedic consultation. In his May 9, 2000, report, Dr. Fauchald noted equal knee and ankle jerks with positive straight leg raising on the left and diagnosed A[d]egenerative disc disease with probable left nerve root irritation but no nerve root compression at present.@ Dr. Fauchald referred the employee for physical therapy and possible epidural injections and recommended restrictions on lifting and bending.
The employee was evidently off work from May 12, 2000, to May 31, 2000, due to his low back condition. Near the end of that period, on May 30, 2000, Dr. Fauchald noted that the employee had improved considerably and had no neurological deficit in the lower extremities, with negative straight leg raising. The employee apparently missed no time due to his low back symptoms following his return to his usual job on May 31, 2000.
The matter came on for hearing before a compensation judge on March 6, 2002, for resolution of the employee=s claim for various benefits related to his January 29, 1998, work injury and/or an alleged Gillette injury culminating on May 12, 2000. Evidence included the employee=s medical records and a report from Dr. Joseph Tambornino, the employer=s independent examiner. Disputed issues included the nature of the employee=s 1998 work injury, whether the employee had sustained a Gillette injury as claimed, and whether the employee had any permanent partial disability due to either or both injuries.
In a decision issued on March 22, 2002, the compensation judge determined, in part, that the employee=s 1998 injury was merely a temporary strain/sprain that had resolved on or before April 13, 1998. The judge also determined that the employee had sustained a lumbar Gillette injury on May 12, 2000, and that he was entitled to certain benefits as a result of that injury, including benefits for a 9% whole body impairment. The employer appeals.
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.
1. Gillette Injury
The compensation judge concluded that the employee=s 1998 work injury was merely temporary, a determination that is not disputed on appeal. However, the compensation judge also found, with regard to the employee=s Gillette injury claim, as follows:
On May 12, 2000, Mr. William B. Becker sustained a daily wear and tear type injury to his low back, in the nature of a permanent aggravation of a pre-existing multiple level degenerative disk disease condition with hypertrophic spurring and mark[ed] disk space narrowing involving the L2-3 disk; the L3-4 disk and the L4-5 disks with diffused bulging disks anteriorly and posteriorly at both the L2-3 and the L3-4 levels, as well as a right lateral herniated disk at the L4-5 level.
The judge gave no explanation for his Gillette injury finding; that is, he did not cite any specific medical records or adopt any specific medical opinion. However, the reports of Dr. Fauchald provide support for the conclusion that the employee=s symptoms beginning in the spring of 2000 were related to the employee=s work activities. Specifically, in a May 9, 2000, report the doctor wrote that A[t]he patient asked about the work relatedness of this problem and it would seem to me that this should be considered an exacerbation of problems from the work injury of January 29, 1998, with work aggravation by the mid-March episode@ (emphasis added).
The employer contends that Dr. Fauchald=s opinion lacks foundation because the doctor did not Ademonstrate any understanding of the employee=s work activities@ or Aleisure - time activities.@ However, Dr. Fauchald initially treated the employee in 1998, and his consultation report from that treatment contains reference to the fact that the employee worked Aas a dockman at Yellow Freight . . . doing a lot of unloading semis, etc.@ Moreover, the employer has pointed to no evidence indicating that any physician considers the employee=s leisure activities to be significant on the issue of causation. The extent of Dr. Fauchald=s understanding of the employee=s work and recreational activities was a factor for the compensation judge to weigh. We would also note that, in his April 26, 2000 office note, Dr. Molenaar indicated that, while Athere has been no specific [new] injury that has caused [the employee=s current leg pain],@Ahe does work quite physically loading things day in and day out with his job and it is certainly possible that he has irritated his back secondary to his work.@ This is also evidence that the compensation judge could consider to be supportive of the employee=s claim. Finally, contrary to the employer=s suggestion, the fact that the employee himself did not connect his symptoms to his work in the spring of 2000 is not determinative. See Steffen v. Target Stores, 517, N.W.2d 579, 50 W.C.D. 464 (Minn. 1994).
While the evidence on causation is not extensive, and while some additional explanation by the compensation judge would have been helpful, we conclude that the judge=s Gillette injury determination is minimally but adequately supported by substantial evidence, and we therefore affirm it.
2. Permanent Partial Disability
The compensation judge concluded that the employee was entitled to benefits for a 9% whole body impairment as a result of his May 12, 2000, injury. While not citing any specific rule, the compensation judge presumably made his award under the rating category claimed by the employee, Minn. R. 5223.0390, subp. 4D, which reads as follows:
D. Radicular pain or radicular paresthesia, with or without lumbar pain syndrome, and with objective radicular findings, that is, hyporeflexia or EMG abnormality or nerve root specific muscle weakness in the lower extremity, on examination and myelographic, CT scan, or MRI scan evidence of intervertebral disc bulging, protrusion, or herniation that impinges on a lumbar nerve root, and the medical imaging findings correlate anatomically with the findings on neurologic examination, nine percent . . . .
Under the particular circumstances of this case, we deem it necessary to reverse the award and remand the matter to the compensation judge for reconsideration and further findings.
The judge explained his permanent partial disability award as follows:
I do not accept as probably true Dr. Tambornino=s opinion that Mr. William B. Becker does not need limitations on his work activities or that he has no permanent partial disability. While it may be true that the MRI taken April 28, 2000, did not show specific nerve root compression or significant disc protrusion, it certainly showed multiple levels of degenerative disc disease (with hypertropic spurring) from L2-3, L3-4 including marked disc space narrowing with diffused bulging disc anteriorly and posteriorly at both of these levels, as well as a right lateral herniated disc at L4-5 which was seen on both the transaxial as well as the sagittal images. The radiologist indicated in his report of April 28, 2000, in connection with his observations of the L4-5 intervertebral disc space that one of the sagittal images was far laterally and to the right with a high signal that was obliterated by low-signal disc intrusion.
However, the presence of degenerative changes, disc bulges, or disc herniations is not by itself sufficient to establish the employee=s entitlement to a 9% rating under the cited rule, and the judge did not address the permanency claim further. Moreover, this is not a case where the basis for the award is evident: we could find only a single reference to symptoms that would qualify as Aobjective radicular findings@ in the employee=s medical records, and, while Dr. Fauchald assigned the employee a 9% rating under the rule, the doctor=s report to that effect indicates that he based his rating on a herniated L5-S1 disc, which was not disclosed on the MRI and which had never previously been diagnosed. For these reasons, we reverse and remand the matter to the compensation judge for reconsideration and explanation as to how the elements of the rating category at issue have been satisfied. See Knutson v. Twin City Hide, 40 W.C.D. 336, 338 (W.C.C.A. 1987) citing Davies v. Marriott Host Int=l., 39 W.C.D. 631, 633 (W.C.C.A. 1987); Thorston v. Minnesota Laborers, Local 132 slip op. (W.C.C.A. March 16, 2001).
 See Gillette v. Harold Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 The judge did explain, with reference to medical records and opinions, why he found the 1998 injury to be temporary, but, again, his decision to that effect is not at issue on appeal.
 Indicating that the employee has the burden of establishing that each of the elements of a claimed permanency rating category has been met.