ALLAN LUNDEBREK, Employee/Appellant, v. TOM=S MOBIL SERV. and WESTERN NAT=L MUT. GROUP, Employer-Insurer, and GLACIAL RIDGE HOSP. DIST., PRINCIPAL LIFE INS. CO./HRI, INC., and BLUE CROSS/BLUE SHIELD, BLUE PLUS OF MINN., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 27, 2002
CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION. Substantial evidence, including adequately founded expert medical opinion, supported the compensation judge=s conclusion that the employee=s work injury in late July 1994 was not causally related to his continuing symptoms, disability and need for treatment from and after August 8, 1994.
Determined by Rykken, J., Wilson, J., and Pederson, J.
Compensation Judge: Jennifer Patterson.
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge=s finding that the employee=s work injury in late July 1994 was not causally related to his continuing symptoms, disability and need for treatment from and after August 8, 1994. We affirm.
In July 1994, Mr. Allan Lundebrek, the employee, was employed as a mechanic for Tom=s Mobil Service, the employer, who was insured for workers= compensation liability at that time by Western National Mutual Group, the insurer. The employee claims to have sustained an injury to his left leg which arose out of and in the course and scope of his employment with the employer in late July 1994. The employee was 40 years old at the time of his injury and earned a weekly wage of $596.58.
The employee testified that, while performing repair work in the employer=s garage, he was working near a hoist used for aligning vehicle wheels. The employee accidentally walked into the sharp metal edge at the base of the side of this hoist. He hit the metal edge with the middle front part of his left lower leg, approximately three inches above his ankle joint. The employee testified that his leg hurt as if he had been hit by a sharp instrument. The employee completed his work shift that day and apparently did not report this incident to the employer=s owner or his co-worker on the date of the incident. The employee worked his regularly scheduled days during the following week. He testified that he noted pain after his work shifts and that his pain increased to the point that it interfered with his sleep and he had difficulty descending stairs.
According to the first report of injury, the nature of the injury is described as: Astress fracture above left ankle bone.@ The description of the employee=s activities when the injury occurred indicates Arepairing on a car and caught sharp corner of new hoist above ankle.@ At unappealed Finding No. 16, the compensation judge accepted the employee=s testimony that about one week before August 8, 1994, he had walked directly into the metal edge of the hoist and hit the middle of his left lower leg about three inches above his ankle joint, thus there is no dispute that the incident occurred while the employee was working for the employer in late July 1994. The employer and insurer initially admitted primary liability for a stress fracture.
Prior to July 1994, the employee played recreational volleyball in community leagues, on both indoor courts and outdoor sand courts. On or about July 31, 1994, while playing volleyball in a recreational league, the employee noticed a pulling sensation in the back of his left leg in the Achilles tendon area. He testified that, to the best of his recollection, this injury occurred when he attempted to go forward on the sand volleyball court and that when he dug in his foot to go forward, he Aprobably pulled something in the back.@ The employee testified that this volleyball injury resulted in a pulling sensation in the back of his left leg, whereas the earlier work incident resulted in a pain deep in his left leg.
The employee reported his work injury to the employer=s owner on August 8, 1994. The employee first received medical treatment for his left leg injury that same day, from Dr. Richard Horecka, for symptoms resulting from both his work and volleyball incidents. Dr. Horecka=s chart note from August 8, 1994, states as follows:
Al is here today with pain in his leg. He said this started about one week ago when he was playing volleyball. It was good the first couple of days, but by the end of the week it was quite painful. He notices if he sits for a long period of time he has discomfort in his lower leg. This is the left leg. . . . On exam, there is one area of contusion and ecchymoses in the foot itself. This is lateral to the Achilles tendon. ROM [range of motion] of the ankle is normal. There is no pain along the Achilles tendon itself at all. No pain on grasping it. There is some pain on the lateral body of the gastruc on that side as well. X-ray of the foot reveals no abnormalities of the bone. There is no occult fracture of the fibula, etc.
ASSESSMENT: I believe this is a muscle tear of the foot with a hematoma -- the hematoma swelling causing his pain when he sits.
Dr. Horecka spoke to the employee by telephone on August 18, 1994. His chart note states that the employee=s Aankle was better until he played volleyball last Sunday. He developed some swelling medially and posteriorly to the medical malleolus, as well as a little red spot on the top of his leg.@ The employee was examined by Dr. Horecka on August 25, 1994. On that date, another x-ray was taken, and was interpreted to Asuggest a periosteal reaction suggesting a stress fracture -- this is certainly a good possibility of causing the problem.@ Dr. Horecka consulted with Dr. Paul Iverson, an orthopedic surgeon, who recommended placement of a cast on the employee=s left leg to treat the possible stress fracture. Dr. Horecka concluded that the employee Aprobably has a stress fracture of his distal fibula which is the cause of his problem.@
On August 25, 1994, a cast was placed on the employee=s left lower leg, but on September 9, 1994, the cast was removed because it rubbed on the back of his knee area and caused a lot of pain in his quadriceps muscle area. The employee testified that he noticed blood under his skin near the inside of his left ankle. On September 22, 1994, the employee consulted an orthopedic surgeon, Dr. D. R. Krabill, reporting difficulties with his left ankle for the past several weeks. According to Dr. Krabill=s notes, the employee had remained off work for one week following the removal of his left leg cast, and had returned to work on September 21, reporting that the activities and standing around working on his feet caused his ankle to start swelling again. Dr. Krabill stated that this condition might represent a deep venous thrombosis, recommended that the employee not work, and recommended that he rest his leg and keep it elevated. The employer and insurer paid temporary total disability benefits for September 6-20, 1994.
At Dr. Horecka=s referral, the employee consulted with Dr. Iverson on September 26, 1994. Dr. Iverson=s chart note refers to the history, provided by the employee, that he sustained a contusion at work. Dr. Iverson diagnosed a Afluctuance palpable over the subcutaneous border of the tibia medially and distally. I think this represents resolving hematoma. He does have some resolving swelling and ecchymoses.@ The employee received follow-up medical care at the Affiliated Medical Center in Willmar. The history provided by the employee to his doctors was that he sustained blunt trauma to his lower leg in July and had experienced pain and swelling since then. The employee=s symptoms persisted, and the employee consulted a physician with Orthopedic Associates in Fargo, North Dakota, on November 16, 1995. The history provided by the employee on that date again referred to a work-related incident, noted in the doctor=s chart as follows:
He struck the anterior aspect of the left ankle about a year and a half ago on a sharp edge. Because of continued pain in that area, he was subsequently placed in a cast for a question of a stress fracture. He had some swelling in the ankle and foot prior to the cast, but certainly after the cast was taken off he has had even more swelling.
The doctor diagnosed Aa venous insufficiency problem in the leg@ and noted a Adependent edema from the mid tibia distally. He also has some brownish discoloration in the areas of the swelling and especially some very dark discoloration on the medial aspect of the ankle.@
Although the employee has received ongoing medical treatment for his left leg since removal of his cast in 1994, he was first diagnosed with a possible blood clot or phlebitis on January 26, 1996. The employee consulted with Dr. Patricia D=Aquila on that date, concerning his swollen left leg and also concerning conditions unrelated to his left leg injury. Dr. D=Aquila referred the employee for a Doppler ultrasound to rule out deep vein thrombosis. An ultrasound taken on that day was interpreted to show thrombosis with partial obstruction of the left superficial femoral and popliteal vein, otherwise described as a blood clot in his upper left thigh. Dr. D=Aquila prescribed Coumadin to alleviate the phlebitis. By September 13, 1996, Dr. D=Aquila diagnosed chronic deep vein thrombosis and opined that the employee would need life-long anticoagulation to reduce the risk of pulmonary emboli.
Upon Dr. D=Aquila=s referral, the employee was evaluated at Mayo Clinic on January 27, 1998, where he was hospitalized between January 27-30, 1998. The employee=s history, as reported by Dr. Wayne Miller in his chart note of January 27, 1998, states as follows:
Mr. Lundebrek is a 43-year old male who describes a history dating back to approximately 1995 of left lower extremity discomfort secondary to an injury at work where apparently a metal sheet struck the left anterior shin of the left lower extremity. The patient had discomfort and was seen by a local physician with no apparent specific findings. Subsequently the patient had a walking cast placed because of a possible stress fracture and this was in place approximately one month. Subsequently the patient describes the development of edema.
Dr. Miller diagnosed chronic deep venous incompetence with postphlebitic syndrome in the left lower extremity. An ultrasound performed at Mayo Clinic showed that the previous clot in the employee=s thigh had resolved; Dr. Miller therefore discontinued the employee=s Coumadin prescription.
The employee consulted Dr. Mark Johnson from May 18, 1999 through at least March 2001, reporting increased pain and symptoms during the previous month. Dr. Johnson diagnosed popliteal deep vein thrombosis and stasis dermatitis with secondary infection, and prescribed a resumption of Coumadin for anticoagulation therapy. The employee was hospitalized from May 18-24, 1999, for treatment of his thrombosis.
On May 19, 2000, the employee filed a claim petition, alleging entitlement to temporary total disability benefits from January 27-30, 1998, and May 18-24, 1999, underpayment of temporary total disability benefits paid in 1994, payment of medical expenses, and permanent partial disability. In its answer to the employee=s claim petition, the employer and insurer denied liability for the claimed benefits, and alleged that the employee sustained an injury in the nature of a stress fracture of the left ankle on August 8, 1994, temporary in nature, with no permanent partial disability resulting from that injury.
At the request of the employer and insurer, the employee was examined by Dr. James Finnell on October 6, 2000. In his report, Dr. Finnell diagnosed recurrent deep venous thrombophlebitis with venous insufficiency syndrome, venous insufficiency with stasis dermatitis and stasis ulcer involving the left leg, and a questionable history of AV malformation. Dr. Finnell stated that he believed the cast placement on the employee=s left leg caused his initial episode of venous thrombophlebitis and venous insufficiency. In his report, Dr. Finnell stated the following:
Mr. Lundebrek states the cast was placed due to an ankle injury sustained at work. However, there is some question of whether or not this may have been related to volleyball. I believe that the treatment of that injury, cast placement, caused his initial venous thrombophlebitis which was not diagnosed in 1994, but is responsible for his recurrent episodes.
Dr. Finnell further states that,
If one accepts the record of August 8, 1994, which states, Ahe said this started a week ago when he was playing volleyball,@ then in my opinion, the left leg condition is related to volleyball and not to his work activities of August 8, 1994.
(ER Ex. 4.) At deposition, Dr. Finnell testified that ankle injuries resulting from playing volleyball are quite common and that the location of contusion indicated in Dr. Horecka=s chart note of August 8, 1994, is consistent with a stress fracture in the fibula. Dr. Finnell concluded that the employee had reached maximum medical improvement for his left leg condition, that he had sustained a total of 6% permanent partial disability of the whole body, relative to vascular disease and skin disorder, pursuant to Minn. R. 5223.0580, subp. 3B, and 5223.0630, subp. 2B. However, Dr. Finnell stated that the permanency is not related to work activities of August 8, 1994. Dr. Finnell also concluded that the employee was temporarily totally disabled from employment between January 27-30, 1998, and from May 18-24, 1999. He also concluded that the employee=s treatment to date has been reasonable and necessary, and recommended chronic Coumadin monitoring with monthly INR, Jobst (compressive) stockings, elevation of his leg as much as possible, and skin cream to maintain moisture of the skin to prevent further skin breakdown.
By report dated July 13, 2001, Dr. Horecka provided an explanation regarding the history in his chart note of August 8, 1994, as alluded to by Dr. Finnell. Dr. Horecka=s letter states, in part, as follows:
The injury report filed at that time suggests an injury to his ankle when he struck a piece of metal on a hoist and had an injury to his ankle. My note talks about a volleyball injury. It appears that the reason that Allan was seen relates to the injury of that date and not to any kind of athletic injury. . . .
The length of time which has passed makes independent recall in this incident impossible. Reviewing the records in hindsight though does suggest that my statement regarding volleyball on the note of 8/8/94 is probably incorrect. My exam is more consistent with the history provided on the Afirst date of injury form@. As to the health care provider report filed by my office on September 14, 1994, the diagnosis number two comes straight from the dictation and so would explain the confusion provided by that. With hindsight I would suggest that the injury of 8/8/94 with resultant hematoma and eventually vascular involvement were a more likely diagnosis in this situation.
The employee=s claims were addressed at hearing on August 7, 2001. In Findings and Order served and filed on September 27, 2001, the compensation judge found that the employee=s bumping his left leg on the hoist while at work in late July, 1994, did not cause the symptoms in the employee=s lower left leg for which he received treatment since August 8, 1994, and that the bumping incident was not a substantial contributing factor of the need for the cast placed on the employee=s leg on August 26, 1994. The compensation judge found that the employee=s stress fracture was consistent with a repetitive stress injury caused by volleyball. Accordingly, the compensation judge denied the employee=s claim that he sustained an injury to his left leg at work in late July 1994, and awarded the employer=s petition to retroactively deny liability for this claim. 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.
The compensation judge concluded that the work incident of late July 1994, when the employee bumped into the metal edge of the automotive hoist, did not substantially contribute to the employee=s left leg symptoms treated since August 8, 1994, nor to his need for the cast applied on August 26, 1994. Instead, the compensation judge found that the employee=s stress fracture, for which the cast was applied, was consistent with a repetitive stress injury caused by volleyball. The employee appeals, arguing that the compensation judge erred in finding that the employee gave inconsistent descriptions of his work injury, erred in relying on Dr. Finnell=s opinion concerning causation, asserting that his opinion lacked foundation, and erred in concluding that the employee=s need for the leg cast applied in August 1994 was not causally related to the employee=s work injury. The issue before this court, therefore, is whether the compensation judge=s findings are supported by substantial evidence and are not clearly erroneous.
In her memorandum, the compensation judge outlined the basis for her denial of employee=s claim, as follows:
The basis for the denial of the claim is that the employee=s initial symptoms and findings on examination as set out in Dr. Horecka=s August 8, 1994 notes are not consistent with the symptoms and findings that would be caused by walking forward into a metal edge. The employee had a bruise on his left foot and not three inches above his ankle. He was tender along the outside edge of his calf muscle -- that is, in the back of his leg and not along the front of his leg. Walking into a piece of metal and hitting the front of his ankle is not the kind of injury that would cause pain in his calf muscle. Walking into a piece of metal with an impact site three inches above the ankle would not cause a bruise on the foot.
Whatever lower ankle symptoms the employee had after walking into the metal, they were not sufficient to keep him from performing his regular job and playing his regularly scheduled volleyball games. The Sunday before August 18, 1994, he played volleyball again and injured his left lower leg. That is when the swelling in his ankle first appeared. When it appeared, it did not appear on the front of his ankle in the same location where he had walked into the hoist. It appeared to the side and behind his outside left ankle bone.
Dr. Finnell=s testimony that the employee=s symptoms and findings on examination from August 8, 1994, including the stress fracture diagnosed by x-ray, are consistent with a minute trauma injury from the jumping, turning and twisting of volleyball was accepted. Dr. Finnell=s testimony that walking into a metal edge does not generate enough mechanical force to cause a stress fracture in an otherwise healthy 40-year-old man was persuasive.
The record contains conflicting opinions concerning the causation of the employee=s initial left leg symptoms which led up to his need for a cast in August 1994, which in turn led to the employee=s diagnosed thrombophlebitis. The compensation judge found that those doctors who expressed an opinion concerning the employee=s phlebitis agree that the cast the employee wore for about two weeks after August 26, 1994, to treat a probable stress fracture, led to the development of phlebitis in his leg. However, the medical opinions conflicted as to the cause of the need for that leg cast. Dr. Finnell concluded that the employee=s stress fracture, for which the cast was applied, was consistent with a repetitive stress injury caused by playing volleyball. Relying on Dr. Finnell=s opinion, as set forth in his report and deposition testimony, the compensation judge found that Awalking into a metal edge does not generate enough mechanical force to cause a stress fracture in an otherwise healthy 40-year-old man.@ (Finding 17.) The compensation judge found that:
As supported by the opinion of Dr. Finnell, ankle injuries from playing volleyball, including stress fractures from the twisting, turning and jumping involved, are common. As supported by the opinion of Dr. Finnell, the employee=s initial findings on examination by Dr. Horecka in August 1994, and his later-diagnosed stress fracture are consistent with a repetitive stress injury caused by volleyball.
(Finding No. 20.)
The employee argues that the compensation judge erroneously relied upon Dr. Finnell=s opinion, as his opinion is based on inaccurate and erroneous foundation. The employee argues that Dr. Finnell=s report lacks foundation for two reasons: (1) Dr. Finnell believed that the employee=s stress fracture was on the fibula and not the tibia, and (2) Dr. Finnell presented conflicting testimony in his response to direct and cross examination, as he had agreed that if the employee had struck his left leg on the tibial side while working, then the volleyball injury, which was a muscle-type injury to the back of the leg, could have caused the work injury to become more symptomatic. The employee outlines references in the medical records concerning an injury to the tibia, arguing that Dr. Finnell=s reference to a fibula injury is erroneous.
Adequate foundation is necessary for a medical opinion to be afforded evidentiary value. Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991). To be of evidentiary value, a medical opinion must rest on a factual basis. Zappa v. Charles Mfg. Co., 260 Minn. 217, 224, 109 N.W.2d 420, 424, 21 W.C.D. 459, 467 (1961). Furthermore, the facts upon which the expert relies for his or her opinions must be supported by the evidence. McDonald v MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff=d (Minn. July 13, 1990).
Following his examination of the employee on October 6, 2000, Dr. Finnell prepared a report in which he expressed his opinion concerning the causation of the employee=s condition, outlining the history that he obtained from the employee concerning the location and severity of his pain and referring to the medical reports he had reviewed. That history, as described by Dr. Finnell, is relatively consistent with the testimony presented by the employee at the hearing, testimony that the compensation judge expressly accepted, and we defer to the judge=s unique discretion to credit that evidence. The compensation judge had all medical records available for her review, as did Dr. Finnell, including the various references to the diagnoses related to the employee=s tibia and fibula. At his deposition, Dr. Finnell addressed these various references. Dr. Finnell=s opinion concerning causation appears to relate to whether the nature of the work incident or volleyball incident caused the employee=s ongoing symptoms, not whether or not the specific location of the employee=s injury was at his tibia or fibula bone. Dr. Finnell concluded that the work incident did not relate to the employee=s probable stress fracture, and the compensation judge found his opinion to be persuasive.
As the information contained in Dr. Finnell=s report is consistent with the employee=s hearing testimony and evidence of record, his opinion therefore is adequately founded. As adequate foundation existed for Dr. Finnell=s opinion, the compensation judge did not clearly err in accepting his opinion over that of Dr. Johnson or Dr. Horecka, as a compensation judge has considerable discretion in choosing among conflicting expert opinions. See Nord v. City of Cook, 360 N.W.2d 337, 342-343, 37 W.C.D. 364, 372-73 (Minn. 1985). Dr. Finnell reviewed the employee=s various medical records and expressed his opinion on causation of the employee=s left leg condition. His overview of the medical records is consistent with the record as a whole.
Even though a medical opinion does not have to express absolute certainty, the employee must still sustain his or her burden of proving causal relationship by a preponderance of the evidence. See Schopf v. Red Owl Stores, Inc., 323 N.W.2d 801, 803, 35 W.C.D. 216, 220 (Minn. 1982). 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). We note that it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). As the compensation judge=s conclusion is supported by substantial evidence, including the employee=s medical records, and since that conclusion is not clearly erroneous, we therefore affirm.
 The first report of injury lists August 8, 1994, as the date of injury, and this injury date is listed in court documents and medical records. However, August 8, 1994, is the first day on which the employee sought medical treatment for his left leg condition. The employee testified that the work incident actually occurred in late July 1994, one to two weeks prior to August 8, 1994.
 The first report of injury is dated September 6, 1994, and was completed in part by the employee and in part by a representative of the employer,
 In his letter dated July 13, 2001, Dr. Horecka stated that A[p]ain was noted to be along the medial malleolus which would be the tibia and not the fibula, an obvious error in my dictation.@
 The physician=s name is not identified in the medical record.
 See also Ruether v. State of Minnesota, 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1122-23 (Minn. 1990), citing Fryhling v. Acrometal Products, Inc., 269 N.W.2d 744, 31 W.C.D. 85 (Minn. 1978) and Golob v. Buckingham Hotel, 244 Minn. 301, 304-305, 69 N.W.2d 636, 639, 18 W.C.D.
275, 278 (Minn. 1955).