NICHOLAS M. DEMORRETT, Employee/Appellant, v. BLAKE DRILLING and SAFECO INS. COS., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 21, 2002
PRACTICE & PROCEDURE - FINDINGS OF FACT. Mere recitations of evidence do not qualify as findings of fact. However, under the particular circumstances of this case, remand was not required for findings and/or additional explanation by the compensation judge.
CAUSATION - EVIDENCE. Substantial evidence, including expert medical opinion, supported the compensation judge=s decision that the employee=s herniated cervical disc was not causally related to the employee=s work injury, and the compensation judge=s implicit acceptance of expert opinion testimony was not clearly erroneous.
CAUSATION - SUBSTANTIAL EVIDENCE. Where the medical evidence indicated that the employee=s left upper extremity condition was causally related to the employee=s herniated cervical disc, but the herniated cervical disc was not causally related to the employee=s work injury, the compensation judge did not err in concluding that the employee=s left upper extremity condition was also not related to the work injury.
Determined by Wilson, J., Rykken, J., and Johnson, J.
Compensation Judge: Carol A. Eckersen.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s decision granting the employer and insurer=s petition to discontinue benefits on medical causation grounds. We affirm.
The pertinent facts are relatively straightforward. The employee was employed by Blake Drilling as a seasonal laborer. On September 9, 1999, while at work, the employee was struck in the head, above the right eye, by a large counterweight that was attached to a backhoe. According to the emergency room treatment record for that date, the force of the blow caused the employee to fall to his knees and to see Astars,@ but he denied having any neck pain. The examining physician diagnosed a concussion, with no loss of consciousness, and a superficial laceration above the right eyebrow, which did not require sutures. The employee was given Tylenol with codeine and was advised to rest and apply ice to his eyebrow area.
On September 13, 1999, the employee sought follow-up treatment at his usual clinic, reporting pain on the left side of his neck. Diagnosing A[s]tatus post head injury with cervical pain,@ Dr. Brian Fawcett prescribed Naprosyn and advised the employee to apply heat. The employee was released to work with restrictions, with a follow-up scheduled for September 17, 1999. During that follow-up examination, the employee reported that left-sided neck pain had been keeping him awake, and Dr. Fawcett prescribed Flexeril, to be taken in addition to the Naprosyn. During the next scheduled follow-up, on September 27, 1999, Dr. Fawcett indicated that, while the employee was still having Aepisodic@ discomfort on the left side of his neck, he was sleeping well through the night, and there had been Ano history of parethesias or weakness.@ Examination showed good range of cervical motion but some minimal discomfort in the mid left trapezius area. The employee was advised to complete his course of medication and to continue applying heat to the affected area, but Dr. Fawcett released him to work full duty with no restrictions.
On November 4, 1999, the employee was seen in the emergency room for complaints of chest pain. A treadmill stress test was negative. The records from this evaluation reflect no complaints of left arm symptoms, and the employee testified that he could not recall being asked about left arm complaints at that time. However, a month later, on December 4, 1999, the employee sought treatment for complaints of throbbing pain in his upper left arm, indicating that he had had it Afor about 4 months but [that] it ha[d] been getting worse.@ Noting that the employee reported a Apins and needles@ sensation in the fingers of his left hand, the examining physician referred him to neurology for further evaluation, and the employee came under the care of Dr. Michael Sethna.
The record from the employee=s first evaluation by Dr. Sethna indicates that the employee had noticed Aabout four months of progressive discomfort involving the left arm@ and that he recalled having experienced left-sided neck pain after being struck in the head at work. Subsequent notes by several providers consistently reflect reports by the employee of a several-month history of left arm symptoms. The employee later testified that he had begun experiencing left arm pain and numbness about six weeks after his September 9, 1999, accident with the backhoe.
Diagnostic tests eventually revealed a small disc herniation at C5-6, on the left, impinging on the nerve root, and, on January 31, 2000, the employee underwent a left C5-6 microdiscectomy, performed by Dr. Edward Hames. The surgery seemed to relieve the employee=s arm symptoms, at least initially. However, within about two months of the procedure, the employee began complaining of recurrent severe left arm pain and dyesthesias. The employee=s relationship with Dr. Hames deteriorated over allegations of prescription pain medication abuse, and the employee returned to treatment with Dr. Sethna. In his April 17, 2000, treatment notes, Dr. Sethna indicated that the employee was holding his left arm Anearly immobile, almost the way a person with RSD holds the limb.@ In the late summer of 2000, Dr. Sethna referred the employee to Dr. Barbara Seizert, a physiatrist at the Sister Kenny Institute. After various diagnostic tests and treatment, including a triple phase bone scan, stellate ganglion blocks, and insertion of an epidural catheter, Dr. Seizert concluded that the employee was suffering from complex regional pain disorder, or reflex sympathetic dystrophy [RSD], affecting his left upper extremity.
The employer and insurer accepted liability for the employee=s September 9, 1999, injury and paid various benefits, including medical expenses relating to the employee=s January 2000 cervical surgery and wage loss benefits for the employee=s subsequent disability. However, in October of 2000, the employer and insurer commenced a series of proceedings to discontinue benefits, contending that, pursuant to the opinions of their independent examiners, the employee=s cervical surgery and subsequent treatment and disability were not related to the September 1999 work injury. Attempts to discontinue benefits through two NOIDs were unsuccessful. Finally, on April 9, 2001, the employer and insurer filed a petition to discontinue benefits, again disputing medical causation and alleging that the employee had reached maximum medical improvement [MMI] from the effects of his injury.
Hearing on the petition to discontinue benefits was held before a compensation judge on June 29, 2001. Evidence included the employee=s medical records, the report of Dr. David Boxall, the reports and deposition testimony of Drs. Sethna and Seizert, and the report and deposition testimony of Dr. Joel Gedan. In her decision, issued on August 3, 2001, the compensation judge listed the issues as whether the employee=s cervical spine condition was causally related to the September 9, 1999, work injury; whether the employee had RSD or complex regional pain disorder and, if so, whether that condition was related to the work injury; whether the employee had reached MMI; and whether the employee was able to return to work. As to these issues, the judge determined, in her AConclusions of Law,@ that the employee=s herniated C5-6 disc was not causally related to the employee=s work injury; that the employee did not have RSD or complex regional pain disorder; that Athe work injury was not a substantial contributing cause of the condition diagnosed as RSD or [complex regional pain disorder]@; that the employee had reached MMI on September 27, 1999, effective with service of an MMI opinion attached to one of the NOIDs; and that Athe employee was released to return to work on September 27, 1999.@ The employer and insurer were therefore allowed to discontinue temporary total disability benefits. 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. Causation - Cervical Herniation
The employee contends that substantial evidence does not support the compensation judge=s conclusion that the employee=s cervical herniation was not causally related to the employee=s September 9, 1999, accident at work. In making this argument, the employee notes in part that, while it is difficult to ascertain the basis of the judge=s decision, the judge must have been persuaded by the expert opinion of Dr. Boxall and/or Dr. Gedan, the employer and insurer=s independent examiners, who concluded that the employee=s cervical herniation was not a consequence of the work injury. The employee contends that the judge erred in accepting those opinions. He also contends that there is no substantial evidence in the record to support the judge=s implicit conclusion that the employee suffered a spontaneous herniation in December of 1999.
We note initially that the compensation judge=s decision is not entirely satisfactory for appellate review purposes. The statements designated by the judge as AFindings of Fact@ merely summarize the evidence presented at hearing, with virtually no factual conclusions or explanation as to which evidence the judge found persuasive. As we have indicated on several occasions in the past, a mere recitation of the evidence does not constitute findings of fact and is not helpful in ascertaining a judge=s reasoning. See, e.g., Olson v. Menasha Corp., slip op. (W.C.C.A. Dec. 21, 1999); Johnson v. Northern Pride, slip op. (W.C.C.A. July 15, 1995). Moreover, while the judge described the expert opinions in some detail, she never expressly adopted any particular expert opinion on the issue of causation of the employee=s herniated C5-6 disc. However, after careful review of the evidence in light of the judge=s decision, we conclude that that decision provides a minimally adequate basis for review of the issues on appeal. As such, in this particular case, a remand is not required.
In her memorandum, the compensation judge wrote as follows on the issue of causation for the employee=s herniated cervical disc:
The medical records of the employee=s care soon after the injury do not support his contention that he had neck and arm symptoms starting after September 9, 1999 and gradually worsening. He did not complain of neck pain based on the complaints recorded in the contemporaneous medical record of September 9, 1999 at Unity Hospital. He reported left neck discomfort on September 17 and 27, 1999 and minimal discomfort in his mid left trapezius. He denied paresthesias on September 17 and 27, 1999. By September 27, 1999, the employee had occasional neck pain and minimal discomfort in his left trapezius but good range of motion and no spasm. The employee returned to work in his regular job for the months of October and November, until the seasonal lay off on November 28, 1999. The employee sought medical attention on November 4, 1999 and did not mention any neck or arm complaints. I find it probable that the employee would have been questioned about left arm symptoms when he presented with complaints of chest pain. There are no complaints of arm symptoms noted in November 1999. When the employee saw Dr. Zachel on December 4 1999 he said he had pain in his left arm for four months. He told Dr. Sethna he had symptoms for four months when he saw the doctor on December 16, 1999. Mr. Demorrett mentioned the work injury though Dr. Sethna thought this incident might or might not be relevant to the cervical spine problem at the time. When the employee saw Dr. Hames on January 25, 2000, he exaggerated the force of the injury and said he had been rendered unconscious by the blow. In summary, the employee=s history in September 1999 when he first treated for the September 9, 1999 injury is consistent with a laceration and mild concussion.
The expert opinions vary on whether the work injury was a substantial contributing cause of the employee=s cervical spine condition. Drs. Boxall and Gedan opine that the employee sustained a temporary cervical spine strain. Dr. Sethna concluded that the work injury caused the herniated disc at C5-6 even if there was a less severe blow than had previously been described. Dr. Sethna noted that it was possible that Mr. Demorrett had a spontaneous herniation but found it more probable that the herniation was due to the work injury. Dr. Seizert found the work injury caused the cervical disc herniation.
The compensation judge=s explanation for her denial of the employee=s claim is consistent with the opinions of both Dr. Boxall and Dr. Gedan, who cited the lapse in time between the employee=s work injury and his radicular symptoms as grounds for their theories of causation. We acknowledge that Dr. Gedan complicated the issue, in his deposition testimony, when he indicated that the employee=s January 3, 2000, EMG results were consistent with old nerve injury -- six months or even years prior to the test date. However, he went on to explain that, while the employee may have had some nerve irritation in the past, it was still his opinion that the left-sided herniation at C5-6 most likely occurred spontaneously in December of 1999. As for the employee=s allegation that Dr. Boxall lacked foundation for his opinion because he did not have the bone scan results, it is evident that the bone scan was relevant solely to the issue of whether the employee has RSD, not to the issue of whether the work injury caused the cervical disc injury. As such, we see no significant defect in the basis for Dr. Boxall=s opinion as to causation of the employee=s cervical condition. Finally, while it may be true, as the employee alleges, that the employee=s medical records after December 4, 1999, contain consistent references to arm symptoms of several months duration, most of those references are inconsistent with the employee=s hearing testimony that his arm symptoms began six weeks after the September 9, 1999, work injury.
Given the nature of the employee=s work injury, the timing of his symptoms, and the testimony of Drs. Sethna and Seizert, we might very well have reached a different conclusion had we been in the factfinder=s place. In the end, however, we find no grounds to reverse the compensation judge=s implicit decision to rely on the opinions of Drs. Gedan and Boxall on this issue. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). As such, we are compelled, under our standard of review, to affirm the judge=s conclusion that the employee=s September 9, 1999, work injury did not substantially contribute to the employee=s C5-6 disc herniation, need for surgery, and resulting disability. Id.
2. RSD/Left Arm Symptoms/Continuing Disability
Expressly accepting the opinion of Dr. Gedan, the compensation judge concluded that the employee does not have RSD or regional complex pain disorder. The employee does not dispute this determination on appeal. He contends, however, as he contended at hearing, that his entitlement to ongoing benefits is not dependent on a finding that he has RSD, and he argues that the judge failed to resolve this issue as well as the issue of whether he has reached MMI from the effects of his ongoing left upper extremity condition. We conclude, however, that the compensation judge=s findings adequately dispose of all issues bearing on the employee=s entitlement to ongoing benefits.
In addition to finding that the employee does not have RSD or complex regional pain disorder, the compensation judge specifically found that the employee=s work injury Awas not a substantial contributing cause of the condition diagnosed as RSD or [complex regional pain disorder].@ AThe condition diagnosed as RSD,@ referenced by the judge, is the condition causing the employee=s alleged left arm symptoms. In other words, the judge specifically concluded that the employee=s left upper extremity condition is not related to the work injury. The judge=s finding on this issue is supported by substantial evidence in the record as a whole.
Under the employee=s theory of the case, causation for his left arm complaints follows from causation for his herniated disc; according to Dr. Seizert, the left upper extremity pain, which she attributes to RSD or complex regional pain disorder, was caused by an abnormal reaction to the employee=s C5-6 nerve injury/herniation. The compensation judge, however, found that the employee=s C5-6 herniation is not related to his work injury, and we have affirmed that finding on appeal. As such, the employee=s left upper extremity condition is similarly nonwork-related, whether diagnosed as RSD or otherwise. And, given this lack of causation, no MMI finding as to the employee=s left upper extremity condition was warranted.
Because the record adequately supports the conclusion that the employee=s cervical herniation and ongoing left upper extremity condition are not causally related to the employee=s work injury, the compensation judge properly allowed the employer and insurer to discontinue benefits. The judge=s decision is therefore affirmed in its entirety.
 Dr. Seizert testified that the preferred diagnostic term is complex regional pain disorder. However, the physicians involved in this case used the terms RSD and complex regional pain disorder essentially interchangeably.
 An extension was granted for issuance of the findings and order.
 In his report, Dr. Boxall explained his opinion as follows:
It is my opinion the injury at work September 9, 1999, was also temporary to the cervical spine based on the ensuing medical records of September 27 which indicated that he had episodic left-sided neck discomfort, full range of motion of the neck, no spasm and was released to return to work regular duty at a very physical heavy job. He then worked in that capacity for two months prior to developing recurrent symptoms. I am, therefore, of the opinion that the duration of the temporary injury of September 9, 1999, was until the end of September 1999. Had he sustained a cervical disc herniation on September 9, 1999, he would not have been able to return to the heavy physical manual labor job and do well for several months without a return to the clinic.
It is my opinion that he then sustained a disc herniation spontaneously in December of 1999 as he had complaints of a radiculopathy at that time for the first time consisting of throbbing pain in the left arm and pins and needles in the fingers.