GEORGE BOHME, Employee/Appellant, v. TENSION ENVELOPE and LIBERTY MUT. INS. CO., Employer-Insurer, and GRAPHIC COMMUNICATIONS LOCAL H & W FUND, FAIRVIEW/INST. FOR ATHLETIC MEDICINE, FRANK Y. WEI, M.D., MN DEP=T OF LABOR & INDUS./VRU, MN DEP=T OF ECONOMIC SEC., and CONSULTING RADIOLOGISTS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 9, 2002
TEMPORARY BENEFITS - FULLY RECOVERED. Where the employee=s treating doctor had diagnosed the employee=s low back injury as a Astrain@ and had issued restrictions that appeared to have been temporary pending the employee=s return in one week with continuing symptoms, and where there was no evidence that the employee returned to his doctor with continuing symptoms or reported any continuing symptoms to another doctor with whom he treated four months later for a neck condition, the compensation judge=s denial of benefits for the low back condition after the date on which the employee was to have returned to the first doctor was not clearly erroneous and unsupported by substantial evidence.
CAUSATION - PRE-EXISTING CONDITION. Where there was clear medical evidence in the record that the employee was complaining of neck problems less than a year prior to his alleged work injury, where the employee had not pleaded a Gillette-type neck injury, where the employee=s treating doctors had not related the employee=s neck condition to specific events occurring in the course of the employee=s work on the date of his low back injury, and where one treating doctor=s suggestion that the employee=s neck condition was consequent to the low back injury was unsupported, the compensation judge=s conclusion that the employee did not prove a compensable neck injury was not clearly erroneous and unsupported by substantial evidence, particularly in light also of the vagueness of the employee=s own very general testimony regarding the mechanism of his alleged injury.
Affirmed as modified.
Determined by Pederson, J., Rykken, J. and Wilson, J.
Compensation Judge: William R. Johnson.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge's denial of certain wage replacement benefits related to the employee=s low back injuries and from the judge=s denial of compensation for a neck injury. We affirm.
At some point in the early 1970s, at the age of twenty-five, George Bohme sustained a work-related fracture of a cervical vertebra, from the effects of which he fully recovered about five weeks later. Subsequently, at some point in the mid 1970s, Mr. Bohme also sustained a work-related injury to his low back, consequent to which he was off work for from six to nine months. In August of 1991 Mr. Bohme experienced new neck problems, and radiological studies at that time revealed mild to moderate mid cervical spondylosis. A few years later, in September of 1997, Mr. Bohme experienced pain in his neck and left shoulder, which his doctor related to overhead work that he performed in his work as a machinist.
On May 28, 1998, Mr. Bohme [the employee] sustained a work-related injury to his low back while unloading a twenty-five- to fifty-pound piece of equipment from a truck in the course of his work as a machinist with Tension Envelope [the employer]. The employee was fifty years old on the date of his injury and was earning a weekly wage of $588.84. On June 1, 1998, the employee saw rehabilitation specialist Dr. Edgardo Yutangco at Occupational Medicine Consultants, Ltd. [Occupational Medicine], who diagnosed a A[l]ow back strain work related by history.@ Dr. Yutangco recommended ibuprofen and the use of ice or heat and released the employee to return to work at light duty, restricted from lifting more than ten pounds and from more than limited bending and twisting at the waist. Dr. Yutangco indicated that A[i]f [the employee] doesn=t get better a week from now he will be referred to physical therapy. He will return in one week.@ There is no record of a follow-up visit by the employee with Dr. Yutangco or of any related physical therapy.
On September 25, 1998, the employee commenced treatment with Dr. Gary Kohls for what Dr. Kohls described that day on a restrictions slip as Asignificant neck problems.@ In his office note, Dr. Kohls reported that
over the last number of weeks [the employee] has been having left neck pain, aching and sometimes in both arms, but the left much greater than right, especially upper arm. Feels weak at times, dizzy, hot, disoriented. It is always worse at night. He notices a lot of tightness in the left neck muscles frequently. Aspirin tends to help and Motrin hasn=t. He does have a cervical collar left over from the previous injury and he gets relief with that. He works in maintenance, although his job description is as a machinist and he does a lot of heavy lifting, shoulder activities, bending, etc., that aggravate his neck.
Having noted also the employee=s history of a fractured cervical vertebra many years earlier, Dr. Kohls diagnosed cervical radiculitis, left side, secondary to neural foraminal impingement, recommended aggressive home physical therapy such as heat applications, and ordered an MRI scan. X-rays conducted on that same day were read to reveal moderately severe degenerative disc disease at C3-4 and C6-7, but no acute abnormalities. On follow-up four days later, Dr. Kohls noted that the employee=s neck and shoulder pain had Aresponded dramatically to Physical therapy, anti-inflammatories, and splinting with a cervical collar and taking time off work.@ On that same date, Dr. Kohls reported that the MRI scan had revealed Asevere bilateral intervertebral foraminal stenosis at C3-4 bilaterally and C4-5 on the left,@ with Amarked disc space narrowing at C6-7 and osteophytes and disc bulging at C6-7 with a deformity that does not compress the spinal cord@ and Ano stenosis of the spinal canal at any level.@ Dr. Kohls reported also on that date that the employee
feels that he was doing fine until about a year ago, when he fell at work, suffered a laceration of the right lower leg that required stitches and injuring his left elbow, left hip and he now realizes that perhaps the left neck and head. Ever since that injury on 9/16/97 [the employee] has been having increasing problems with the left neck pain, left shoulder and upper arm radiculitis problems.
In that light, Dr. Kohls diagnosed A[c]ervical radiculitis with pre-existing neural foraminal stenosis definitely aggravated by certain activities at work.@ Identifying the radiculitis as work-related and the stenosis as preexisting, Dr. Kohls released the employee to work with restrictions against lifting over twenty pounds and against overhead reaching. The employee asserted no claim for workers= compensation benefits relative to any work injury in the fall of 1998, but he apparently missed work periodically from October 1998 through January 1999.
On July 30, 1999, the employee sustained a second work-related low back injury, while installing a two-hundred-pound motor on a machine in a cramped space in the course of his continuing work for the employer. On the date of this injury, the employee was earning a weekly wage of $620.00. On August 11, 1999, the employee saw Occupational Medicine associate Dr. Joseph Horozaniecki for low back pain and chest wall pain. Chest x-rays proved negative, and Dr. Horozaniecki diagnosed lumbar strain and chest wall strain. He referred the employee for low back physical therapy, prescribed medication, and released the employee to work with restrictions against lifting over twenty-five pounds, against more than ten lifts an hour, and against more than minimal bending.
On August 18, 1999, the employee returned to see Occupational Medicine associate Dr. Thomas Jetzer, Afor follow-up on his back,@ complaining that he had Abeen doing some various other alternate tasks@ that had been Agiving him some neck pain as well.@ Noting continued soreness in the back but no radicular symptoms and no spasms, Dr. Jetzer diagnosed A[l]umbar strain with symptoms in the neck as well,@ prescribed continued physical therapy and medication, and released the employee to continue working with the same restrictions. On August 23, 1999, the employee returned to see Dr. Jetzer, complaining that he was having Aas much pain in his neck as he [was] in his lower back.@ Examination revealed entirely normal findings, and Dr. Jetzer diagnosed A[r]esolving lumbar back strain with complaints of neck pain without objective findings.@ On August 30, 1999, the employee saw Dr. Horozaniecki in follow-up, who diagnosed A[r]esolving cervical and lumbar strain,@ noting full neck rotation, near full flexion and extension, minimal cervical tenderness, and full lumbar extension and lateral flexion. On September 7, 1999, the employee returned to Dr. Jetzer with complaints of continuing neck pain, but Dr. Jetzer found normal range of neck motion, a normal neurological examination, no spasms, and a negative Spurling=s test. Noting that the employee=s low back also was without any objective or other negative findings, Dr. Jetzer diagnosed A[c]ervical neck pain, possible strain,@ and concluded that the employee had reached maximum medical improvement [MMI] with regard to his work injury.
On September 8, 1999, the employee commenced treatment with Dr. William Knopp, complaining of neck and low back pain consequent to a work injury on July 30, 1999. Dr. Knopp concluded that the employee had Aaggravated a pre-existing injury at work. He has not injured his neck when off duty or injured himself in any recreational way. This is a work related injury.@
On September 13, 1999, the employee reported to Dr. Jetzer that his lower back was no longer bothering him, although his neck had begun to bother him again. Finding the employee neurologically normal upon examination, Dr. Jetzer diagnosed a A[h]istory of neck fracture 25 years ago@ and an A[a]pparent degenerative spinal stenosis of the neck, based on an MRI from degeneration of a previous fracture.@ Dr. Jetzer concluded as follows:
[a]t this point in time, the patient has minimal findings in his neck. He has no symptoms or findings in his lower back. His lower back has reached MMI, which apparently has been accepted as work related. I concur with the insurance company that his neck is not a work related problem. I have already stated in previous examinations that there is no specific injury. He seems to have persistent pain over the last year from gradual early degeneration of his back from his fracture.
I did not have this information available to me until now, although when I look back on the pre-placements, there is a vague reference to some neck problem, which apparently did not claim to be symptomatic at the time of his pre-placement two and a half years ago.
On September 22, 1999, the employee reported to Dr. Knopp that he had almost no low back pain at all any longer but that his neck pain was remaining constant. Dr. Knopp took the employee off work, reiterating that
[t]he [employee] has a neck injury that was caused at work. He initially injured his low back and was unable to bend his spine due to the low back pain and used his neck more and developed a compensatory neck injury due to the lack of motion in the lumbar spine.
Dr. Knopp=s examination of the employee on October 6, 1999, was essentially unchanged, but on October 20 the employee returned to Dr. Knopp, explaining that about a week earlier he had developed neck spasms so severe and painful that he had had to call an ambulance. Dr. Knopp referred the employee for a cervical MRI scan, which was conducted on October 21, 1999, and was read to reveal a disc herniation at C6-7, multilevel degenerative disc disease, most advanced at C6-7, moderate multilevel foraminal stenosis, and degenerative facet disease at C4-5 on the left. The radiologist noted, AIn comparison with the prior study, the questionable left C6-7 disc herniation is new. Degenerative disease is otherwise unchanged.@ Dr. Knopp referred the employee for a surgical consultation with neurosurgeon Dr. John Mullan, who saw the employee on November 2, 1999. Dr. Mullan found neck range of motion mildly limited in all directions and diagnosed A[l]eft C7 radiculopathy with significantly displaced left C6-7 disc.@
On November 29, 1999, the employee saw neurologist Dr. Frank Wei, on referral from Dr. Mullan. In his report on that date, Dr. Wei diagnosed resolving left C7 radiculopathy secondary to C6-7 disc herniation, together with cervical spondylosis and degenerative disc disease, noting on the employee=s October 21, 1999, MRI scan Ano significant cord impingement.@ After noting the employee=s preexisting degenerative disc disease and discussing his findings with the employee, Dr. Wei concluded that A[f]rom his work activities it sounds like he had an exacerbation [that] actually caused a disc herniation.@ Dr. Wei recommended a tapering course of medication, recommencement of physical therapy, and restriction to sedentary to light duty, with avoidance of repetitive or frequent looking down. On January 3, 2000, Dr. Wei diagnosed resolving left C7 radiculopathy secondary to herniated nucleus pulposis with cervical spondylosis and degenerative disc disease, and he released the employee to work with continuing light duty restrictions for another ten days, after which the employee was free to work unrestricted.
On March 20, 2000, the employee filed a claim petition, alleging entitlement to temporary partial disability benefits from May 28, 1998, to August 29, 1999, and to temporary total disability benefits continuing from August 30, 1999, together with rehabilitation benefits and payment of certain medical expenses, all consequent to Aback and neck@ work injuries on May 28, 1998, and July 30, 1999. On April 5, 2000, the employer and insurer denied liability, affirmatively alleging in part that the disability and need for medical treatment at issue did not arise out of and in the course of the employee=s employment with the employer and that all benefits claimed were related to a pre-existing neck condition for which they denied any liability.
On June 15, 2000, the employee was examined for the employer and insurer by Dr. Gary Wyard, who diagnosed longstanding cervical degenerative disc disease with a history of cervical sprain/strain and lumbar sprain/strain. Dr. Wyard concluded that the employee=s two lumbar injuries were both merely temporary aggravations that had each resolved within three months and that the employee had not sustained a permanent aggravation of either his preexisting cervical condition or his preexisting lumbar condition on either of the injury dates alleged. He added, AThere are no new objective findings. There are no persistent clinical findings.@ Dr. Wyard concluded also in part that the employee had been capable of full-time sustained employment ever since August 30, 1999, that he was not currently subject to any work restrictions related to his employment with the employer, that he was no longer in need of any additional medical care or treatment for his neck or low back, and that he had not sustained any permanent partial disability related to his neck or low back consequent to his work for the employer.
The employee saw Dr. Knopp once more on September 15, 2000, complaining of chronic lumbar, thoracic, and cervical back pain. Dr. Knopp=s final assessment was in part that A[t]he [employee] has known, significant osteoarthritis of his spine. He=s having some radicular symptoms down the left upper extremity. He clearly cannot tolerate repetitive physical activity given his arthritis.@
On October 4, 2000, the employee amended his claim petition to allege also a claim for penalties under Minnesota Statutes ' 176.225, subdivisions 1 and 5. The matter eventually came on for hearing before a compensation judge about a year later, on October 11, 2001. Issues at hearing included whether the employee had sustained a work injury to his neck as well as to his low back on July 30, 1999, together with the employee=s entitlement to temporary partial disability benefits from May 28, 1998, to August 15, 1999, temporary total disability benefits from August 16, 1999, to April 16, 2000, and temporary partial disability benefits continuing from April 17, 2000. By findings and order filed December 20, 2001, the compensation judge awarded in part temporary partial disability benefits from June 1, 1998, through June 7, 1998, and wage replacement benefits from August 2, 1999, through September 22, 1999. The judge also concluded, however, that the employee=s May 28, 1998, low back injury had resolved by June 8, 1998, that the employee=s claim for benefits from June 8, 1998, through July 25, 1999, was in all respects denied, that the employee had failed to prove that he sustained a work-related neck injury, and that the employee was no longer subject to any restrictions related to his low back after September 22, 1999. The employee 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. Temporary Partial Disability Consequent to the May 28, 1998, Work Injury
At Finding 4, the compensation judge denied all but one week of the temporary partial disability benefits claimed by the employeeBthe week of June 1 through June 7, 1998. The employee contends that there is no dispute over the fact that he was working at a wage loss thereafter through July 25, 1998, and he argues that the judge=s conclusion that that wage loss was not caused by the employee=s low back condition is unsupported by substantial evidence. In support of that position, the employee cites his own testimony as to continuing low back symptoms up to the date of his July 30, 1999, injury, and he argues that A[h]is treating doctors likewise continued to recommend ongoing physical therapy and restrictions with regard to his low back.@ We are not persuaded.
On June 1, 1998, Dr. Yutangco diagnosed the employee=s low back injury as a Astrain@ and issued restrictions that appear to have been temporary, pending the employee=s return in one week with continuing symptoms. Subsequent to June 1, 1998, there is no documented evidence of any low back complaints until the time of the employee=s second injury, in July of 1999, over a year later. Midway between those two injuries, the employee saw Dr. Kohls on two separate occasions for specifically cervical problems, making no mention at all of any low back pain or disability. Nor is there any indication that the physical therapy to which Dr. Kohls refers on September 29, 1998, as having dramatic results on the employee=s neck condition was any other than that home therapy recommended by the doctor on September 25, 1998, for the express purpose of treating the employee=s neck condition. Given the fact that the employee did not return to see Dr. Yutangco with continuing low back problems, together with the complete absence in Dr. Kohls= records of any continuing low back problem, we cannot conclude that the compensation judge was unreasonable in finding that the low back disability related to the employee=s May 1998 injury ended on June 8, 1998, with the apparent expiration of Dr. Yutangco=s contingent restrictions. Therefore we affirm the judge=s denial of the post-June 7 wage replacement benefits at issue. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
2. Neck Injury
At Finding 3, the compensation judge concluded that the employee had failed to prove a work-related neck injury, indicating expressly that his decision was based on his reliance on the opinion of Dr. Jetzer over that of Dr. Wei. Having referenced the employee=s history of preexisting neck problems, the judge stated his conclusion that Athe employee=s neck symptoms following the 1999 injury worsened gradually and were not related to the 199 injury.@ The judge acknowledged in his finding that ADr. Wei talks in vague terms about a[n] exacerbation cause by the work activities,@ but the judge noted also that Athe employee never pled a Gillette-type injury claim.@ The judge reiterated in his memorandum that A[t]here are vague reference[s] to the employee=s job aggravating [h]is problem but the treating doctors don=t find that the employee=s neck problems have any relationship to either of his work injuries.@ Noting expressly that he was claiming a neck injury only on July 30, 1999, the employee contends that Athe records of [the employee=s] treating physicians [are] replete with direct correlation between a work injury and [the employee=s] increased neck pain.@ The employee cites in support Dr. Knopp=s records for September 8 and 22, 1999, and Dr. Wei=s reference to language in the employee=s October 21, 1999, MRI report to the effect that the employee had sustained a Anew@ cervical disc herniation. The employee emphasizes also his own testimony that he had had no neck problems prior to July 30, 1999, and that he had always been able to perform his work duties without complaint prior to that date. We are not persuaded.
Contrary to the employee=s contention that he had had no neck problems affecting his work prior to July 30, 1999, there is clear evidence in the record that the employee was complaining of neck problems less than a year earlier, in September of 1998, that were severe enough for Dr. Kohls to order an MRI scan and to diagnose on its basis A[c]ervical radiculitis with pre-existing neural foraminal stenosis@ that was Aaggravated by certain activities at work.@ The employee has not attributed these September 1998 neck problems to the May 1998 injury, these same problems pre-dated the July 1999 injury, and, as the compensation judge has noted, the employee has not pleaded a Gillette-type, cumulative-trauma injury. Nor does Dr. Wei specifically relate the employee=s neck condition to specific events that occurred in the course of the employee=s work on July 30, 1999. While Dr. Knopp does appear to be suggesting that the employee=s neck condition constitutes an injury consequent to the employee=s May 28, 1998, low back injury, he does not make the mechanism of that injury at all persuasive or even clear, and it was not unreasonable for the compensation judge to rely instead on the contrary opinion of Dr. Jetzer. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence). Because this reliance was reasonable, and in light also of the vagueness of the employee=s own very general testimony at hearing as to the onset of his injury on July 30, 1999--that he Afelt stiff@ and Agot sore@ in the A[l]ower back and in [the] shoulders@Afrom being bent over all the time@Bwe will not reverse the compensation judge=s conclusion that the employee failed to proved that he sustained a compensable work injury to his neck. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
3. Cessation of Benefits after September 22, 1999
In the first of his two Finding 5s, the compensation judge concluded that the employee was entitled to wage replacement benefits between August 16, 1999, and September 22, 1999, evidently consequent to his July 30, 1999, low back injury, but that he was no longer compensably disabled subsequent to September 22, 1999. The judge based his conclusion on Dr. Jetzer=s letter of September 13, 1999, and also cited Dr. Knopp=s release of the employee from any low-back-related restrictions on September 22, 1999. The employee contends that, A[g]iven a work-related neck injury, it is undisputed that permanent restrictions have been imposed on [the employee]@ (emphasis added). In that we have affirmed the judge=s denial of a compensable neck injury, we affirm also the judge=s denial of any wage loss benefits after September 22, 1999.
 At the first Finding 5 (the judge made two Finding 5s), the compensation judge concluded that the employee was temporarily partially disabled from August 16, 1999, to September 22, 1999, but the judge then went on to order temporary partial disability benefits from August 2, 1999, to September 22, 1999. Noting that Petitioner=s Exhibit D indicates a basis for a temporary partial disability claim only from August 2, 1999, through August 15, 1999, and a basis for only a temporary total disability claim for eight months commencing August 16, 1999, noting also nothing in the judge=s decision to explain the apparent discrepancy between the finding and the order, and noting also no appeal by either party concerning the discrepancy, we presume that, instead of specifically temporary partial disability benefits, the judge intended to award the wage replacement benefits as claimed from August 2, 1999, through September 22, 1999Bi.e., temporary partial disability benefits from August 2, 1999, through August 15, 1999, and temporary total disability benefits from August 16, 1999, through September 22, 1999. And we modify the first Finding 5 and Order 1 of the judge=s decision accordingly, to accomplish that reconciliation.
 The compensation judge denied wage loss benefits from June 8, 1998, to July 25, 1999. In his brief, the employee asserts entitlement to benefits continuing from June 8 through July 25, 1998. We presume that the year in the latter date is a typographical error, but the question is moot given our affirmance of the judge=s finding.
 See Gillette v. Harold Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 See footnote 1.