COLUMBUS BROWN, Employee/Appellant, v. PROSPECT FOUNDRY, INC., and LIBERTY MUT. INS. CO., Employer/Insurer, and MEDICA CHOICE/HRI, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 15, 2002
EVIDENCE - BURDEN OF PROOF. Where the employee filed a claim petition and the employer and insurer denied liability for the cervical injury, alleging in their answer that the employee=s claimed disability and any need for medical treatment was the result of a disease process or another incident, and stated that any medical payments made that were related to a cervical injury were paid by mistake of fact, the compensation judge did not err by placing the burden of proof regarding causation on the employee.
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s finding that the employee=s cervical condition and fusion surgery were not causally related to his March 17, 1998 work injury.
Determined by Rykken, J., Stofferahn, J., and Pederson, J.
Compensation Judge Ronald E. Erickson.
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge=s finding that the employee=s neck problems and resulting cervical fusion surgery were not causally related to his March 17, 1998, work injury. We affirm.
On March 17, 1998, Columbus Brown, the employee, sustained an admitted right shoulder injury while working as an iron pourer at Prospect Foundry, the employer, which was insured for workers= compensation liability by Liberty Mutual Insurance Company, the insurer. The employee was treated at Fairview University Medical Center emergency room. According to the history taken at the emergency room, the employee reported feeling a Asnap@ in his right shoulder when prying apart some casting molds at work and he experienced right shoulder pain but no posterior neck pain. He was diagnosed with right shoulder strain and mild trapezius strain. The employee returned to work with restrictions and on April 1, 1998, he experienced a worsening of his shoulder symptoms after a work activity jerked his right arm upward.
The employee was seen by Dr. James Anderson of HealthWorks on April 3, 1998, who diagnosed right shoulder strain and right rotator cuff strain, and who prescribed a sling, pain medication, and physical therapy. Dr. Anderson restricted the employee to left-handed work and passive right-handed use with no active gripping or grasping with the right hand. In April 1998, the employee reported right shoulder, underarm and neck pain while in physical therapy. He worked light duty, and continued to treat for his symptoms. Dr. Anderson referred the employee for an orthopedic evaluation with Dr. J. Patrick Smith in May 1998, who treated the employee=s right shoulder with an anesthetic and corticosteroid injection. Dr. Smith continued the employee=s light-duty restrictions. On July 8, 1998, the employee again consulted Dr. Anderson, and reported a sore left arm and left shoulder. On July 10, the employee reported continued right shoulder pain to Dr. Smith, who referred him for an ultrasound of the right shoulder; that ultrasound, taken on July 10, 1998, showed no significant tendinitis, tendinopathy, or rotator cuff tear.
When treated in August 1998, the employee complained of neck symptoms as well as shoulder symptoms. On August 7, 1998, Dr. Smith recommended continued conservative treatment for the employee=s right shoulder and stated that he anticipated no long term permanent disability from this condition. Dr. Smith also noted that after his injury, the employee performed an excessive amount of work with his left shoulder and had developed Aa rather acute left lateral epicondylitis.@ Dr. Smith recommended physical therapy for both the employee=s right shoulder and left elbow, and deferred to Dr. Anderson for modification of the employee=s work activities. Dr. Anderson assigned restrictions based on both the employee=s right shoulder and his left upper extremity, and opined that the employee=s work activities contributed to his left lateral epicondylitis as well.
On September 14, 1998, the employee was examined by Dr. Chris Tountas at the employer and insurer=s request. Dr. Tountas found no objective findings for a diagnosis of the right shoulder or left upper extremity and recommended no further medical treatment or physical therapy. Dr. Tountas concluded that the employee Asustained a strain to the right shoulder and left forearm and elbow, which has had good treatment and adequate time to resolve.@ He concluded that the employee had reached maximum medical improvement, and recommended no restrictions on the employee=s work activities or activities of daily living.
The employee consulted Dr. Anderson on August 10, 1998, reporting a burning pain in his right arm and tenderness in the right lower cervical spine. Dr. Anderson referred the employee for an EMG, which was taken on August 22, 1998. The EMG suggested right C6-7 radiculopathy. In a letter to the insurer dated September 28, 1998, Dr. Anderson noted degenerative changes at C6-7 and C5-6 levels, as documented on x-ray, and the radiculopathy detected on the EMG. He stated that those findings would not necessarily Apreclude [the employee] from being put on a program to move him gradually back into his regular job.@
On November 2, 1998, Dr. Anderson diagnosed Amild strain/inflammation left shoulder@ and released the employee to regular duty, recommending use of good body mechanics and minimization of over-the-shoulder work. Dr. Anderson concluded that the employee had reached maximum medical improvement.
The employee was not treated for his shoulders, neck or arms between November 1998 and July 2000. The employee was treated at North Memorial Hospital in July 2000 for complaints of chest pain and recurrent right cervical pain, extending down his arm and shoulder, with intermittent numbness and tingling extending into his right hand. The employee was diagnosed for hypertension, and remained off work due to that condition from July 28, 2000, through October 17, 2000. On August 19, 2000, the employee reported right shoulder and right pain to Dr. Pamela Kolacz. She referred the employee for an MRI scan, which was taken on August 23, 2000. The MRI scan indicated moderate to severe bilateral neural foraminal narrowing at C6-7 and C7-T1 and mild canal stenosis at C6-7. Dr. Kolacz referred the employee to Dr. Robert Roach, who conducted a neurological examination on September 28, 2000. The employee reported to Dr. Roach that his problems began with the work injury on March 17, 1998. The employee stated that he was prying a mold apart along a track on the floor when the bar slipped and he Aran headlong into the mold striking the right side of his head and shoulder.@ He reported that he experienced immediate pain in his neck with pain and numbness into the right axilla and numbness in 3 right digits. Dr. Roach diagnosed right cervical myofascial pain and foraminal stenosis, and found evidence of cervical radiculitis with subjective sensory changes. He referred the employee for an EMG and cervical myelogram, and on January 11, 2001, performed surgery in the nature of a C6-7 anterior cervical fusion for right C7 radiculopathy. Dr. Roach opined that the employee=s neck injury was the result of his March 17, 1998, work injury. The employee remained off work from January 11, 2001, through May 7, 2001, when he returned to work part-time. The employee was released for full-time work on July 11, 2001.
On April 16, 2001, the employee was examined by Dr. Larry Stern at the employer and insurer=s request. The employee advised Dr. Stern that he had struck his head and upper torso on the day of his injury. Dr. Stern noted that the medical records do not mention the employee struck his head and do not mention neck-related symptoms at the time of the injury. Dr. Stern concluded that the employee=s cervical problems were due to pre-existing cervical spondylosis, and not to his injury on March 17, 1998. He opined that the employee needed no further medical treatment for his right shoulder, and that he had reached maximum medical improvement from his right shoulder injury.
On January 19, 2001, the employee filed a claim petition for temporary total disability benefits from and after January 11, 2001. Although the employee=s claim petition made no reference to the nature of the injury, he later clarified that his claim was based on an alleged injury to his cervical spine that occurred at the same time as his right shoulder injury. The employer and insurer denied liability for the claimed cervical injury, alleging in their answer that the employee=s claimed disability and any need for medical treatment was the result of a disease process or another incident, and that any medical payments made for treatment related to a cervical injury were paid by mistake of fact. A formal hearing was held on December 4, 2001. In Findings and Order served and filed February 5, 2002, the compensation judge found that the employee=s cervical and neck problems and resulting fusion were not causally related to his March 17, 1998, work injury, and denied his claims for temporary disability benefits and medical expenses. 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. 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, 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.
The employee appeals from the compensation judge=s finding that his cervical spine condition and related medical treatment and disability are not causally related to his injury on March 17, 1998. The employee argues that the compensation judge erred by placing the burden of proof on the employee to establish that his March 17, 1998, injury represents a substantial contributing cause of his cervical spine injury. The employee alleges since the employer and insurer paid medical expenses related to a neck injury, they bear the burden of proving that those benefits were paid under a mistake of fact and did not meet that burden. We are not persuaded.
In this case, the employee filed a claim petition alleging entitlement to temporary total disability benefits and medical expenses. The employer and insurer denied liability for the claimed cervical injury, stating in their answer that the employee=s claimed disability and any need for medical treatment was the result of a disease process or another incident and that any medical payments made for treatment of a cervical spine were paid under mistake of fact. While it is true that the employer and insurer had the burden or proving that certain payments were made under mistake of fact, the employee still had the burden of establishing that his 1998 injury caused his cervical spine condition, disability and need for medical treatment. Tolzmann v. McCombs-Knutson Assocs., 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989). The burden is on the employee to prove by a fair preponderance of the evidence that he or she is entitled to workers' compensation benefits. Fisher v. Saga Corp., 463 N.W.2d 501, 501, 43 W.C.D. 559, 560 (Minn. 1990); see also, Steinhaus v. F.B. Clements, 47 W.C.D. 22, 30 (W.C.C.A. 1992). See Daar v. St. Paul Fire & Marine Ins., 54 W.C.D. 28, 33-34 (W.C.C.A. 1995), summarily aff=d (Minn. Jan. 17, 1996). The compensation judge found that the employee failed to establish by a preponderance of the evidence that his cervical condition and resulting fusion surgery were causally related to his March 17, 1998, work injury. The compensation judge did not err by placing the burden of proof regarding causation on the employee.
Also at issue is whether the compensation judge=s conclusions on the causation issue are supported by substantial evidence of record. Questions of medical causation fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). The compensation judge emphasized that the employee testified at the hearing that he hit the mold with his shoulder, not with his head as he had told Dr. Roach. Further, the employee=s 1998 medical records reported that the employee was prying molds apart with a pry bar and experienced pain in his shoulder at the time of his injury. The compensation judge could reasonably conclude that the record does not support the employee=s claim of a neck injury. In addition, Dr. Stern concluded that the employee=s cervical problems were due to a pre-existing condition. The compensation judge noted that the employee had long-standing cervical degenerative changes, and concluded that the employee had not established his claim of a work-related injury to the cervical spine. Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). As substantial evidence of record supports the compensation judge=s finding that the employee=s cervical condition and fusion surgery were not causally related to his March 17, 1998 work injury, we affirm.
 In his notice of appeal, the employee appealed from the compensation judge=s determination that the parties had agreed to a weekly wage of $572.67, and that the employer and insurer were entitled to a credit for an overpayment of temporary disability benefits during the period from May 1, 1998, through August 21, 1998, since they had paid benefits based on a weekly wage of $654.20. Our review of the hearing transcript notes that the parties stipulated to a weekly wage of $572.67, and the employee agreed that the wage issue was not in dispute. However, since the employee did not address the overpayment and credit issue in his brief on appeal, that issue is deemed waived and will not be addressed. Minn. Rule 9800.0900, subp. 1.