DOUGLAS HENDRICKS, Employee, v. ROOF DEPOT and WESTERN NAT=L MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS' COMPENSATION COURT OF APPEALS
DECEMBER 11, 2002
PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION. Where the facts material to an expert medical opinion were consistent with those found by the compensation judge, the possibility that the expert may not have been fully informed about facts he did not consider material to his opinion does not constitute a foundational defect warranting reversal. In addition, the issue of causation for the employee=s permanency was one of fact entrusted to the compensation judge, and the employee=s testimony, the medical records including an MRI scan report, and other evidence in the case also provided substantial evidence for the judge=s findings.
Determined by Wilson, J., Pederson, J., and Stofferahn, J.
Compensation Judge: William R. Johnson
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from an award of permanent partial disability. We affirm.
The employee, Douglas Hendricks, sustained an admitted work injury to the low back on May 12, 1999 while lifting a heavy piece of rubber roofing material.
Prior to the date of this injury, the employee had treated chiropractically for low back pain in the late 1980s or early 1990s, and again in July and August 1998 following crashes on his dirt bike and mountain bike on July 12 and 14, 1998. There was a hiatus in treatment from August to December 1998. He resumed chiropractic treatment with Dr. Burke Mays on December 14, 1998, reporting that he had continued to experience dull numbing pain in the low back since his bike crashes. The employee was still treating periodically for mild intermittent low back pain with Dr. Mays up to the date of his May 12, 1999 work injury. He saw Dr. Mays on May 13, 1999, the day following the work injury, and reported that he had experienced an acute onset of pain while trying to lift a large piece of rubber roof covering at work. Dr. Mays noted that the employee=s left L5 junction was painful, and that the employee reported burning pain down his left buttock and the back of his left leg into the bottom of his left foot.
The employee underwent several sessions of chiropractic treatment over the next few days. Dr. Mays then ordered an MRI scan of the employee=s low back, which was performed on May 25, 1999. It showed multilevel degenerative disc disease of the lumbar spine with a large extruded and possibly free fragment disc herniation at L5-S1 on the left, with severe compression of the left S1 nerve root. There was also grade I lytic spondylolisthesis at L4-5 with moderate stenosis.
Dr. Mays continued to treat the employee chiropractically but also referred him to Dr. David Holte, an orthopedic spine surgeon, for a consultation. Dr. Holte saw the employee on June 9, 1999. The employee gave a history of one prior significant episode of low back pain in 1991, which had improved over time. The employee stated that his current problem had begun on May 12, 1999 after lifting at work, after which the employee became very sore by the end of the day and by the following day had significant symptoms into his left leg. Dr. Holte noted that the employee exhibited decreased light touch sensation, absent ankle reflex and positive tension signs. He believed that the employee might be a candidate for decompression surgery, but since his symptoms had improved somewhat, suggested that he could continue non-operative treatment for a while and see if he improved.
Dr. Holte saw the employee again about one week later, on June 15, 1999. The employee stated that he believed his improvement had plateaued. Dr. Holte=s examination showed increased weakness with single leg toe raises on the left, and a decreased light touch sensation on the lateral calf and the lateral border and sole of the foot. Reflexes were absent at the left ankle. He recommended surgery.
The employee had a few more chiropractic treatments with Dr. Mays in late June and early July 1999. Thereafter the medical records do not show further treatment until August 17, 2000, when the employee returned to Dr. Holte for reevaluation. The employee told Dr. Holte that in about July 2000 his left leg pain had completely resolved, and, although he still had a little bit of low back pain off and on, his symptoms had recovered about to his pre-injury status. Dr. Holte noted that prior to the 1999 work injury, the employee never had any sciatica or any radiation down his leg, although he had some intermittent low back pain at times. The employee had a full range of back motion and straight leg raising was negative. However, reflexes were absent at the left ankle and 1+ on the right and at the knees bilaterally with reinforcement. Dr. Holte=s assessment was of good improvement from an L5-S1 disc herniation. He concluded that the employee had reached maximum medical improvement about July 15, 2000.
In a letter dated August 21, 2000, Dr. Holte stated that, in his opinion, the employee had sustained a left L5-S1 disc herniation as a result of a work-related injury on May 12, 1999, with the employee=s work being a substantial contributing factor to the injury. He again noted that although the employee had a prior history of intermittent low back pain, it was not until he lifted the heavy material at work that he had any sciatica. Dr. Holte rated the employee=s permanent partial disability from the work injury at 9 percent, pursuant to Minn. R. 5223.0390, subp. 4D.
The employee was seen by Dr. Paul T. Wicklund, M.D., on April 5, 2001 for a medical examination on behalf of the employer and insurer. Dr. Wicklund opined that the employee=s 1999 injury was a temporary aggravation of his pre-existing condition which would have lasted at most three months. In his view, the employee=s disc herniation was not attributable to the work injury. He rated the employee with no permanent partial disability attributable to the 1999 work injury.
On November 21, 2000, the employee filed a claim petition seeking permanent partial disability compensation and payment of certain medical expenses. A hearing on these claims was held on March 22, 2002 before a compensation judge of the Office of Administrative Hearings. Following the hearing, the judge determined that the employee had sustained a nine percent permanent partial disability as a result of the work injury and that the employee=s claimed medical expenses were reasonable and necessary. The employer and insurer appeal solely from the award of permanent partial disability compensation.
The sole argument raised in the appellants= brief is that Athe employee failed to meet his burden of proving that Dr. Holte=s opinion was based on adequate foundation.@ Specifically, the appellants contend that Dr. Holte was not shown to have been fully aware of the nature, duration and extent of the employee=s prior low back symptoms and treatment.
The compensation judge relied, in part, on Dr. Holte=s opinion on two issues: first, whether the employee=s disc herniation warranted a permanent partial disability rating, and in what percentage; and second, whether the employee=s disc herniation was causally related to the May 12, 1999 work injury. The appellants= brief fails to disclose whether they dispute the foundation of the opinion with respect to both issues, or only with respect to causation.
The employee=s prior medical history is not particularly relevant to the question of what rating is applicable to the employee=s permanent partial disability. Accordingly, we see no basis in the appellants= brief for reversal of the findings as to the extent of the employee=s permanent partial disability.
Accordingly, we consider the appellants= arguments on appeal as solely applicable to the question of causation. Dr. Holte=s medical opinion discloses that in his view, the material factual distinction bearing on the issue of causation was the employee=s development of radicular symptoms into the left leg only after the work injury, as contrasted with a prior history of Aintermittent low back pain@ without sciatica. The compensation judge=s memorandum discloses that the judge found credible the employee=s testimony that he had never experienced radicular or sciatic pain into his leg and foot prior to the work injury on May 12, 1999. We note, further, that nothing in the medical records in evidence for periods prior to May 12, 1999 references any radicular symptoms into the left leg or foot. While it is unclear whether Dr. Holte knew how often or for how long the employee had treated chiropractically for intermittent back pain, there is nothing in Dr. Holte=s notes and letters to suggest that the number of times the employee previously treated chiropractically for intermittent back pain was material to his opinion, where that opinion was based on the development of a new symptom not present prior to the work injury. We conclude that the facts upon which Dr. Holte relied in rendering his opinion on causation were in accord with the facts as determined by the compensation judge. Accordingly, we see no foundational defect sufficient to warrant reversal.
In addition, we note that the compensation judge=s findings on causation were well supported by the other evidence in the case, including the medical records prior to and subsequent to the work injury, the MRI scan results and the employee=s testimony, in addition to the expert medical opinion of Dr. Holte. Questions of medical causation, including the causation for and extent of any permanent partial disability, are questions of fact for the compensation judge. See, e.g., Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994); Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987). We therefore affirm.