DEAN LAMPPA, Employee/Appellant, v. UTILITY SYS. OF AM., SELF-INSURED/BERKLEY ADM=RS, Employer-Insurer, ST. PAUL UTILITY SYS. and STATE FARM INS. CO., Employer/Cross-Appellants, and OPERATING ENG=RS LOCAL 49 H & W FUND and MN DEP=T OF ECONOMIC SEC., Intervenors, and SPECIAL COMPENSATION FUND.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 17, 2002
CAUSATION - GILLETTE INJURY. Because the compensation judge erred in apparently analyzing the employee=s Gillette injury claim without reference to the medical evidence, including four expert opinions, and in focusing on other factors not particularly relevant to the claim, remand was necessary for reconsideration and additional findings.
PRACTICE & PROCEDURE - REMAND. Where the compensation judge did not even address the employee=s theory of medical causation, which had the support of several medical experts, remand was required for reconsideration and further findings.
Reversed and remanded.
Determined by Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Donald C. Erickson.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s denial of various benefits allegedly due as a result of a January 23, 1995, cervical injury, during the employee=s employment with Utility Systems of America, and/or an alleged June 17, 1998, Gillette-type cervical injury during the employee=s employment with St. Paul Utilities Company. We reverse and remand for reconsideration and further findings.
In February of 1991, the employee sustained a neck injury in a motor vehicle accident in Florida. Six months later, on August 21, 1991, he underwent a discectomy at C6-7 to treat a herniated disc that had been producing left-sided symptomology. The surgery relieved his symptoms substantially, and he was eventually able to return to his usual job duties. However, he apparently continued to experience some neck pain and some numbness and pain into his left arm.
On January 23, 1995, the employee sustained a work-related lifting injury in the course of his employment with Utility Systems of America [Utility Systems]. This injury produced neck pain and primarily right-sided arm symptoms, and, on February 6, 1995, the employee underwent a discectomy with fusion at C5-6 to treat those complaints.
After a stint as a sales person in Florida, the employee decided to return to construction work, and he started a job as a foreman for St. Paul Utilities Company [St. Paul Utilities] in about February of 1997. His work for this employer was largely supervisory, but he was at times required to lift material and operate equipment. There is conflicting evidence as to the amount of physical labor required by this position.
Medical records indicate that the employee developed a problem with narcotic pain medication, and alcohol, and he was essentially terminated by St. Paul Utilities, due to narcotic abuse, on June 17, 1998. About six weeks later, on July 31, 1998, the employee underwent a discectomy with fusion at C6-7, the cervical level originally affected by the 1991 Florida motor vehicle accident. He was ultimately released by his physician to light work in October of 2000 and obtained a part-time job as a security guard in December of 2000. By this time, he had been declared eligible for social security disability benefits, retroactive to June of 1998. In addition to his longstanding cervical problems, the employee has received a substantial amount of treatment for low back complaints, which are apparently not work-related.
The matter came on for hearing before a compensation judge on March 27, 2001, for resolution of the employee=s claim for various benefits due to the employee=s 1995 cervical injury at Utility Systems and a Gillette-type injury allegedly culminating on June 17, 1998, in the course of the employee=s employment with St. Paul Utilities. Utility Systems contended that the employee=s 1995 work injury was not a substantial contributing cause of the employee=s disability or need for medical care, including the 1998 surgery, or of any increased permanent partial disability resulting from that procedure. St. Paul Utilities denied liability for the claimed Gillette injury. Other potential issues included whether the employee had given adequate notice of the alleged Gillette injury; maximum medical improvement [MMI]; job search/withdrawal from the labor market; whether the employee had any compensable permanent partial disability beyond the 11% impairment for which he had already received benefits due to the 1995 injury; apportionment; and whether the employee=s disability was due to his nonwork-related degenerative low back condition as opposed to any work-related neck condition. Evidence included the testimony of the employee and representatives of St. Paul Utilities, the employee=s voluminous medical records, reports of Drs. John Dowdle, Kassamali Jamal, and Richard Golden, and the report and deposition testimony of Dr. Paul Wicklund.
In a decision issued on May 29, 2001, the compensation judge concluded that the employee had not sustained a Gillette injury in the course of his employment with St. Paul Utilities and that Utility Systems was not liable for any of the claimed wage loss, medical expenses, or permanency, either. The judge therefore denied the employee=s claims in their entirety. 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. Gillette Injury
In factual findings relevant to his Gillette injury determination, the compensation judge briefly described the employee=s work activities for St. Paul Utilities and noted that the employee did not at the time think that his work activities were aggravating his symptoms. The judge also observed that the employee had been abusing narcotic pain medications and that he had not advised the employer, at the time of his termination, that he had been experiencing increased symptoms due to his work activities. In his memorandum, the judge explained his denial of the employee=s Gillette injury claim as follows:
The Compensation Judge does not find the employee=s claim to be credible that his symptoms increased while he was employed by St. Paul Utilities. He could define no work activities that increased his symptoms. While it is not legally necessary that he do so, he did not even advise the employer prior to his layoff that he had a general increase in his symptoms while being employed. Rather the evidence reflects that the employee had left sided symptoms from his 1991 injury that were present immediately before his employment persisted throughout his employment and resulted in a third surgery after his employment. The Compensation Judge finds Dr. Person=s history, as contained in his June 30, 1998 office note to be far more credible than the employee=s current rendition of his symptoms at that time. The blunt fact is that the employee was laid off for chemical dependency, and did not sustain a new Gillette injury from his work activities at St. Paul Utilities. This fact appears to have been recognized by Dr. Person who refused to prescribe medication for the employee.
On appeal, the employee contends in part that the compensation judge improperly ignored the medical evidence and expert opinions in reaching his conclusion on this issue. We find this argument persuasive.
The record might perhaps support the conclusion that the employee=s unemployment immediately after June 17, 1998, was due primarily to the employee=s prescription narcotic abuse; even the employee=s own testimony could be read to indicate that he went off work, on that date, for that reason. However, the employee=s apparent prescription medication problems have virtually no bearing on whether the employee=s work activities for St. Paul Utilities through June 17, 1998, substantially contributed to the employee=s need for a discectomy and fusion at C6-7 on July 31, 1998, the following month. Similarly, the fact that increasing left-sided symptoms may have precipitated the need for that surgery does not necessarily mean that the employee=s 1991 Florida injury, which had produced left-sided symptoms, was the sole legal cause of the employee=s treatment and subsequent disability.
A[T]he question of a Gillette injury depends primarily on the medical evidence.@ Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). The employee=s failure to notice a connection between his symptoms and his work activities is not determinative, id., especially where, as here, the employee had at least two prior serious cervical injuries and surgeries. Most importantly, at least three physicians offered opinions as to whether the employee=s work for St. Paul Utilities contributed to his need for the July 1998 fusion at C6-7, yet the compensation judge did not even mention any of those opinions in his decision. The only medical record cited by the judge with respect to this issue, Dr. Person=s June 30, 1998, treatment note, has no apparent relevance to the employee=s Gillette injury claim.
In view of the fact that the compensation judge evidently failed to analyze the employee=s Gillette injury claim in accordance with Steffen, the fact that he inappropriately focused on the fact that the 1998 surgery was apparently performed to treat left-sided complaints, and the fact that he seemingly based his decision largely on the fact that the employee himself did not tie his symptoms to his work, we reverse the judge=s decision on this issue and remand for reconsideration, in light of the medical evidence. On remand, the judge should take care to explain the basis for his decision.
2. Medical Causation - 1995 Injury
The compensation judge also concluded that the employee=s January 1995 work injury with Utility Systems was not a substantial contributing factor in the employee=s disability after the employee=s June 17, 1998, termination. In the only finding obviously pertinent to this issue, the compensation judge wrote as follows:
21. The employee=s injury of January 23, 1995 is not a substantial contributing cause of the employee not working from and after June 17, 1998. Rather, the primary cause was the employee=s abuse of pain medication used to relieve the ongoing symptoms from the employee=s 1991 Florida injury.
In his memorandum, the judge concluded,
The employee=s previous injury of January 23, 1995 was likewise, not a substantial contributing factor in the employee=s inability to work. He seldom had right-sided symptoms, even by his own testimony. Such symptoms did not cause him to discontinue working.
As far as we can ascertain from these brief conclusions, the compensation judge misunderstood the employee=s claim. As indicated above, the employee=s probable abuse of pain medication as of June 1998 has no particular relevance to liability for the employee=s neck surgery the following month. Furthermore, the fact that the 1995 work injury may have produced primarily right-sided symptoms in the past simply has nothing to do with the question of St. Paul Utilities= liability for the 1998 fusion surgery and the employee=s subsequent disability. It was the employee=s contention that the 1995 fusion surgery at C5-6, necessitated by the 1995 work injury, caused additional deterioration at C6-7, substantially contributing to the employee=s need for the 1998 fusion procedure. At least two experts found the 1995 injury substantially responsible, and Dr. Wicklund explained the causation theory in some detail in his deposition. Not only did the compensation judge fail to discuss the medical opinions on this issue, but his decision fails to address the employee=s theory of the case. We therefore reverse and remand for reconsideration of this issue as well.
3. Miscellaneous Issues
We are remanding the matter for reconsideration, further findings, and explanation on the issue of medical causation, both as to the 1995 work injury with Utility Systems and the employee=s work activities with St. Paul Utilities (the Gillette injury claim). Depending on the compensation judge=s decision on these issues, further findings may be necessary in accordance with the parties= positions and defenses at the hearing. For example, if the judge finds that a Gillette injury occurred in the course and scope of the employee=s employment with St. Paul Utilities, a finding as to notice of injury will be required. If that hurdle is satisfied, other necessary findings may include decisions as to MMI and job search and/or withdrawal from the labor market. Permanent partial disability will also be at issue, together with medical expenses. If the judge on remand determines that the 1995 work injury substantially contributed to the employee=s need for surgery, many of the same issues must be considered with respect to that injury, and apportionment of liability may also be a question.
The considerations raised above are not exhaustive, and we are mindful that the medical evidence in this case is extremely extensive. Because of the complexity of the case, the compensation judge may in his discretion require the parties to submit memorandum, detailing the issues, the parties= positions on the issues, the evidence supporting their positions, and any relevant case law prior to rendering his decision. No party may raise a claim or defense not raised at the initial hearing before this compensation judge.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 St. Paul Utilities and its insurer also filed a cross-appeal on the issue of notice of injury. The compensation judge made no finding on this issue, and, in actuality, the cross appeal is merely an argument proposing an alternative basis -- lack of notice -- for the compensation judge=s denial of benefits.
 This case has been extensively litigated over the past five years, and additional background information may be found in this court=s prior decisions dated August 15, 1997, and December 16, 1998.
 This injury was evidently handled under Florida workers= compensation law.
 Liability for this injury was eventually established through litigation.
 The parties are in apparent agreement that this employer=s name is in fact ASt. Paul Utilities Company,@ as opposed to St. Paul Utility Systems, contrary to the caption used by the compensation judge. The caption of this case is therefore modified accordingly.
 On June 17, 1998, the employee was told by the employer to take a few weeks off Ato get his act together,@ coworkers having reported slurred speech and other behavior suggestive of narcotic abuse. The employee never returned to that job.
 Wage loss benefits after June 17, 1998, medical expenses, and permanent partial disability benefits.
 Dr. Person=s June 30, 1998, office note reads as follows:
His MRI shows a lot of difficulty back in his cervical spine area with some spinal stenosis and degenerative disc disease, possible nerve or even spinal cord compression. Two weeks ago he had much increased pain in his neck, and then had pain and numbness in both arms. It didn=t last, but it was there, and it scared him. He was working construction, but he had to quit because of the neck and arm symptoms. He is now at home. So I guess with the two surgical procedures he has had, one done in Florida, and the second by Dr. Himango, and with these findings, we should have him seen by a neurosurgeon again. We will write to Dr. Himango for an appointment for him, at least for an opinion just to see what he might recommend. In the meantime he needs some medication for pain. I gave him some Tylenol 4, but I told him he should try to cut back on the use of it. He said he needs it Ato get along.@
 Dr. Person=s refusal to prescribe additional medication occurred later. We saw nothing in Dr. Person=s reports specifically indicating any opinion about the occurrence of a Gillette injury.
 As previously indicated, the judge made no finding on this issue in his original decision. While St. Paul Utilities argues on appeal that statutory notice was not given, it is not our role to make factual findings in the first instance.
 The medical evidence relating to the employee=s neck condition was by itself extensive, and considerable evidence regarding the employee=s low back problems was also submitted, as well as evidence relating to other, seemingly irrelevant treatment, such as the employee=s treatment for anemia as an infant. We see little indication of any attempt by the parties to avoid duplication in the four-inch stack of medical records submitted to the judge.