MARK PRICE, Employee, v. LISTUL ERECTION, SELF-INSURED, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 30, 2002
EVIDENCE - CREDIBILITY; EVIDENCE - EXPERT MEDICAL OPINION; MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Where the compensation judge had ample opportunity to observe the employee testifying, where Ainconsistencies@ between the employee=s testimony and the medical and rehabilitation records were minor, and where the judge=s conclusion was supported by expert medical opinion that was also not unreasonably reliant on the employee=s testimony, the compensation judge=s conclusion crediting the employee=s claim that late-reported low back and leg symptoms were related to the employee=s work injury, and that he was therefore not yet at MMI with regard to all conditions related to that injury, was not clearly erroneous and unsupported by substantial evidence.
Determined by Pederson, J., Johnson, C. J. and Wilson, J.
Compensation Judge: Donald C. Erickson
WILLIAM R. PEDERSON, Judge
The self-insured employer appeals from the compensation judge's conclusion that the employee=s left leg symptoms are related to the employee=s work injury and that the employee is therefore not yet at maximum medical improvement with regard to all conditions related to that injury. We affirm.
On August 27, 1999, Mark Price was injured at work when he fell ten to twenty feet from a steel beam down onto a concrete slab while carrying a heavy load of tools and rivets, in the course of his employment as an ironworker with Listul Erection [the employer]. Mr. Price [the employee] was forty years old on the date of the injury and was earning a weekly wage to be determined by later litigation. Immediately following his injury, the employee was treated in a hospital emergency department, where x-rays revealed a comminuted left heel fracture. Emergency room records indicate that the employee had experienced Ainstant left ankle pain@ at the time of his injury but had sustained A[n]o head injury, loss of consciousness or back pain.@ On examination the employee=s back was found to be Anontender.@ A CT scan revealed several hairline fractures in the left heel but minimal displacement. The employee was discharged from the emergency room in a splint and on crutches, and he was referred for surgery to orthopedic surgeon Dr. Kenneth Kaylor, whom the employee saw on September 3, 1999. A pre-operative physical performed by Dr. Larry Plummer, also on September 3, 1999, revealed A[n]o new problems,@ and on September 10, 1999, Dr. Kaylor performed an open reduction of the heel fracture entailing insertion of a plate and several screws. On September 20, 1999, the employee was fitted with a nonweight-bearing cast, which he wore until December 3, 1999, when he was fitted with a partially weight-bearing ankle boot. On January 4, 2000, the employee was referred to begin a six-week work-hardening program.
On April 11, 2000, the employee reported to Dr. Kaylor that he had been experiencing some Awhole leg numbness,@ which Dr. Kaylor indicated was inconsistent with a calcaneal fracture. Dr. Kaylor took no new x-rays and offered no suggestion as to the cause of the symptoms. Three months later, on July 10, 2000, Dr. Kaylor reported that the employee had Aactually healed up very nicely, but he continues with pain and difficulty walking.@ Nevertheless, Dr. Kaylor concluded that the employee had reached maximum medical improvement [MMI] with regard to what the doctor diagnosed as a A[h]ealed calcaneal fracture with residual symptomatology,@ concluding that the employee was incapable of returning to high steel work. On August 28, 2000, Dr. Kaylor=s report to that effect was served on the employee.
On October 30, 2000, the employee saw his primary care physician, Dr. Jean Hoyer, with complaints of continuing painful left leg numbness at night and occasional sensations of Asharp heat@ during the day, particularly after prolonged walking or standing or unilateral weight bearing on the left leg, although weight bearing on the heel itself did not cause pain. Dr. Hoyer=s records for that date indicate that A[t]his has been an ongoing problem since his date of injury.@ Noting that the employee had Asome distinct loss of sensation in the left leg along what appears to be the peroneal nerve distribution,@ Dr. Hoyer ordered an EMG. The EMG, conducted on November 21, 2000, revealed no sign of any damage to the larger nerves, and Dr. Hoyer indicated to the employee on December 2, 2000, that she suspected Athat the sensations that you are experiencing are occurring because of some damage to the smallest nerves that occurred during your fall.@ On January 30, 2001, Dr. Hindle reiterated that the employee=s AEMG showed no sign of radiculopathy,@ noting that the employee=s symptomology Abegins at the heel and goes up the leg posteriorly to the S1 joint.@ Nevertheless, noting that the employee=s symptoms had been persistent Asince [the employee=s] injury dated 8/27/99,@ Dr. Hoyer ordered a lumbar MRI scan. The MRI, conducted on February 4, 2001, was read to reveal A[n]o significant spinal canal or neuroforaminal findings.@
On February 12, 2001, the employee commenced treatment with physical medicine specialist Dr. Peter Hindle, on referral from Dr. Hoyer. Dr. Hindle=s history indicates that the employee was complaining of chronic lower back symptoms that he related to his fall at work on August 27, 1999, in the context of which A[h]e landed on his left heel and his buttock.@ Dr. Hindle reported that the employee complained of discomfort in the left leg Athat will gradually work its way up the left leg into the buttocks@ but also of Adiscomfort in the left buttock radiating down the back of the leg into the foot.@ Upon examination, Dr. Hindle found some tenderness at about S1 in the left sacral area, and he diagnosed lumbosacral strain/contusion with left sacroiliitis and sciatica and piriformis spasm, indicating that he saw no evidence of radiculopathy, neuropathy, or myopathy and that the employee=s left leg symptoms were due to the sciatica and piriformis spasm, Aprobably due to a contusion of the sciatic nerve when he hit on his buttock.@
The employer filed a Notice of Intention to Discontinue Benefits on March 12, 2001, in part on the ground that the employee=s work-injured condition was ninety days post service of MMI, and the matter was heard at an administrative conference on April 10, 2001, before Compensation Judge Jerome G. Arnold. On April 12, 2001, Dr. Hindle concluded that the employee=s low back condition was Alikely a permanent injury,@ and on April 17, 2001, Judge Arnold denied the employer=s request to discontinue, in part on grounds that the employee was Anot at MMI as to all conditions flowing from the work injury.@ On May 14, 2001, the employer filed a petition to discontinue benefits. On June 29, 2001, finding the employee=s condition essentially unchanged, Dr. Hindle recommended a ninety-day conditioning and strengthening program, to Atry to get up to maximum medical improvement which I feel he is starting to approach.@
On August 17, 2001, the employee was examined for the employer by orthopedic surgeon Dr. Jack Drogt, who disagreed with Dr. Hindle=s conclusion that the employee had sustained a low back injury on August 27, 1999. Dr. Drogt diagnosed a comminuted fracture of the left heel and concluded that there was no objective basis to substantiate the employee=s subjective complaints of leg numbness, noting in particular the employee=s normal MRI and EMG. Dr. Drogt acknowledged that a fall like that sustained by the employee might have resulted in a back injury, but he concluded that such an occurrence was unlikely in this case, given the employee=s Avery clear@ assertion that his symptoms started in his foot and radiated upward and the fact that the employee had Acategorically@ denied the reverse. Dr. Drogt noted that there appeared to be Aa >disconnect= in the timing of the onset of [the employee=s] low back symptoms with respect to the work-related injury,@ and he suggested that any leg numbness was more likely to be related to the employee=s foot injury than to any back injury. It was Dr. Drogt=s opinion that the employee had reasonably reached MMI by July 10, 2000, as concluded by Dr. Kaylor.
On September 6, 2001, Dr. Hindle rated the employee=s left leg-related permanent partial disability at 2.5% of the whole body, reiterating his conclusion that the employee=s symptoms were Asecondary to a fall that had left him with chronic left sacroiliitis and sciatica and chronic neurogenic pain in the left leg and foot.@
After bifurcation of certain issues for separate later litigation, the employer=s petition to discontinue benefits came on for hearing on September 28, 2001, before Compensation Judge Donald C. Erickson. Issues at hearing included whether the employee=s August 27, 1999, work injury included a compensable injury to his back, such as would entitle him to temporary total disability benefits from and after March 12, 2001, until expiration of 104 weeks of such benefits. At hearing, the employee testified in part that he first began experiencing pain and numbness in his left leg about the time he was transferred from a nonweight-bearing to a weight-bearing cast, a little over three months after his work injury. He testified that he experiences the leg symptoms only while lying in bed at night, the pain sometimes being so severe that it awakens him from sleep. He testified that, prior to discussing it with Dr. Hoyer, he discussed the problem with Dr. Kaylor and with both of his QRCs, Dan Murphy and Jean Anderson, none of whom was able to offer any explanation.
By findings and order filed October 30, 2001, the compensation judge concluded in part that the employee Awas not at maximum medical improvement prior to the expiration of 104 weeks of temporary total disability benefits@ and that therefore A[t]he self-insured employer is not entitled to a credit against future benefits based on the employee being 90 days post-service of Notice of MMI as of November 28, 200.@ In support of this conclusion, the judge indicated in a separate finding that he had
found the employee to be a most credible witness. It is very credible that his left leg numbness would not be experienced until several months after his fall when he started walking on his left leg. The employee described this to his treating doctors before they chose to document it in their records.
The judge indicated also that, A[a]s the Compensation Judge finds the employee to be credible, Dr. Hindle=s opinion is also found to be more persuasive than Dr. Drogt=s.@ The employer 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 found that the employee=s August 27, 1999, work injury entailed a back injury as well as a heel injury, apparently basing that conclusion in large part on his finding that the employee was Aa most credible witness@ and that Dr. Hindle=s opinion was more persuasive than Dr. Drogt=s. The employer contends that the judge=s finding of a work-related back injury is unsupported by substantial evidence, primarily because the employee=s credibility, and so the credibility of Dr. Hindle=s opinion, is diminished by numerous inconsistencies between the employee=s testimony and contemporaneous medical records. We are not persuaded.
The earliest medical record of a complaint by the employee of left leg symptoms is a treatment note by Dr. Kaylor in April of 2000, about three months after the employee shed the last of his heel casts. The employee subsequently reported the same or similar symptoms also to Drs. Hoyer, Hindle, and Drogt, apparently indicating to Dr. Hoyer that these leg symptoms had been an ongoing problem ever since his work injury. Dr. Kaylor=s records indicate no conclusion on that doctor=s part relating the leg symptoms to the employee=s work injury, and the employee himself suggested in his testimony that, at the time of his reporting of the symptoms to Dr. Kaylor, he had not yet inferred any causal relationship either. Dr. Hoyer=s records, however, do suggest a conclusion by that doctor that the leg symptoms were probably a result of damage to small nerves sustained Aduring [the employee=s] fall,@ and Dr. Hindle=s records imply an acceptance of that conclusion by both Dr. Hindle and the employee. Dr. Hindle=s records also suggest that the employee apparently related to that doctor a history of coming down onto his left buttock in the course of his fall at work on August 27, 1999.
The employer makes much of the fact that upper leg or back problems were neither complained of by the employee nor diagnosed by his doctors immediately after the August 27, 1999, injury. In Finding 20, however, the compensation judge expressly emphasized not only that he found the employee Aa most credible witness@ but also that he found it Avery credible that [the employee=s] left leg numbness would not be experienced until several months after his fall when he started walking on his left leg@ again. The employer generally contests the judge=s finding of the employee=s credibility on Aconsistency,@ grounds, but nowhere in its brief does the employer directly address this very reasonable inference by the judge as to why the employee may have delayed in recognizing and reporting any leg or possible back injury in addition to his heel injury. We concede that the employee=s credibility does become an issue in the case to the extent that there are no indications in the record that he may have indicated to any doctor prior to his treatment with Dr. Hoyer that he did not remain standing at the end of his heel-fracturing fall onto the concrete from about fifteen feet in the air. We conclude, however, that such a continuation of his fall from that height would have been nearly inevitable and that it would have been quite reasonable for both Dr. Hoyer and the compensation judge to credit the occurrence of it, notwithstanding the fact that earlier medical records may not have expressly mentioned it.
Perhaps more essential than the employee=s credibility is the persuasiveness of Dr. Hindle=s medical opinion over that of Dr. Drogt. The employer argues that Dr. Hindle=s opinion, upon which the compensation judge relied, Ais only valid if the employee provided an accurate medical history.@ There is no evidence that the employee did not provide, or that Dr. Hindle did not otherwise have access to, an accurate medical history, and it would not have been at all unreasonable for Dr. Hindle to credit a personal history by the employee of a fall down onto his hip after his initial impact on his heel.
The Ainconsistencies@ upon which the employer bases its challenge to the employee=s credibility center around the absence of mention of back or leg problems in early rehabilitational, physical therapy, and medical records, while focus was still primarily on the employee=s severely fractured left heel. As suggested above, the compensation judge=s address of this delay in Finding 20 was not unreasonable and was not rebutted or even otherwise addressed by the employer.
It is well established that assessment of a witness's credibility is the unique function of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989), citing Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978). The compensation judge in this case had ample opportunity to observe the employee testifying and was entitled to find the employee=s testimony credible, nor are the Ainconsistencies@ noted by the employer sufficient to render the judge=s credence of the employee=s testimony unreasonable. Moreover, a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985). Particularly given the judge=s own express finding as to the employee=s credibility, we will not conclude that the facts assumed by Dr. HindleBessentially the same facts as those to which the employee testifiedBwere unsupported by substantial evidence. Because it was not unreasonable in light of the testimony, medical opinion, and medical records in evidence, we affirm the compensation judge=s conclusion that the employee was not yet, on the date of hearing, at MMI with regard to all conditions related to his work injury of August 27, 1999. Therefore we affirm the judge=s denial of the employer=s petition to discontinue benefits to the extent of those matters addressed at hearing. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.