ARTHUR J. AMO, Employee/Appellant, v. CURRAN=S FAMILY RESTAURANT and HIGHLANDS INS. GROUP, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 17, 2003
CAUSATION - TEMPORARY AGGRAVATION. Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s December 30, 2001, work injury was merely a temporary aggravation of the employee=s preexisting condition.
Determined by Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Paul D. Vallant
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s decision allowing discontinuance of temporary total disability benefits on grounds that the employee=s ongoing disability was not causally related to the employee=s December 30, 2001, work injury. We affirm.
The employee has a history of low back and left leg symptoms dating back to at least 1972, when, as a teenager, he was diagnosed with lumbar disc syndrome or a nerve root compression syndrome. In the early 1980s, after an injury carrying sacks of potatoes, the employee evidently underwent a discectomy and fusion at L4-5.
In April of 1992, the employee sustained another low back injury while working for an employer not involved in the current proceedings. Not long thereafter, he underwent a discectomy to treat a disc herniation at L5-S1, and, when his symptoms nevertheless worsened, he underwent a third surgery -- a repeat discectomy and fusion with instrumentation at L5-S1 -- performed in the fall of 1992. He subsequently underwent at least one more low back surgery, in April of 1994, to remove the hardware implanted in connection with the 1992 fusion. Medical records indicate that the employee continued to receive periodic treatment for low back and left leg pain thereafter, including chronic pain treatment. Physicians have suggested that the employee=s continuing low back and leg symptoms may be related to nerve root scarring or arachnoiditis. Records also contain references to pain behavior, symptom magnification, and functional overlay. The employee=s employer at the time of the 1992 injury apparently accepted liability and paid substantial wage loss and medical expense benefits.
The employee also has a history of intermittent treatment for neck and left upper extremity pain dating back to at least the early 1990s. Some medical records indicate that the employee related the start of his neck and left arm symptoms to a motor vehicle accident occurring in December of 1993; in other records, the employee apparently reported having begun experiencing neck and arm symptoms after his lumbar fusion surgery. In any event, according to a December 15, 1993, report from Dr. Irfan Altafullah, a cervical MRI scan had revealed a broad-based bulging disc at C5-6, with spurring. Another cervical CT scan, performed on April 8, 1994, confirmed the presence of Aminimal posterior central disc bulging@ at C5-6. The employee underwent physical therapy for increased neck and left arm symptoms after a fall at a casino in February of 1999. Yet another cervical MRI scan, performed on February 12, 1999, disclosed multilevel disc space narrowing with annular disc bulges at C5-6 and to a lesser extent C6-7.
In the summer of 1999, the employee entered into a settlement agreement with the employer liable for his 1992 work injury, settling all claims regarding that injury, except medical expense claims, on a full, final, and complete basis. The stipulation indicates that the parties agreed that the employee was permanently and totally disabled as a result of that injury. An award on stipulation was issued on July 28, 1999, and, according to a Notice of Benefit Payment [NOBP] submitted into evidence at hearing, the employee received a lump sum payment of $168,826.34 as a result of the agreement. The employee had apparently not worked to any extent since the 1992 work injury, and he was eventually approved for social security disability benefits retroactive to October of 1992.
The employee reentered the workforce in early August of 2001, when he began a job as a cook for Curran=s Family Restaurant [the employer]. The employee testified that he was still experiencing constant low back and left leg pain at the time but that he was controlling the symptoms through pain management techniques and exercise. He further testified that he was able to do the job very well and that the employer was pleased with his performance.
On December 30, 2001, the employee slipped on some water at work and fell down several steps, striking his back, hip, and left arm on the way down and twisting his left arm awkwardly behind him as he fell. He was seen at the emergency room of Fairview Hospital that same day. Records from that evaluation indicate that the employee was complaining of Aleft sided back pain, flank pain, buttock pain, leg pain and elbow pain@ and that he had denied Ahitting his head or having headache or neck pain.@ The examining physician noted A[n]o cervical tenderness@ but indicated that the employee had abrasions and tenderness along the left posterolateral neck Aas well as a large area of abrasion and swelling down almost the entire left side of his back with bruising as well into the left buttocks.@ Spinal and other x-rays were negative for fracture, and the employee was released with medication, an arm sling, and instructions to follow up with his usual physician.
The employee was seen again, the following day, by Dr. Crispin Semakula at Southside Community Clinic. Treatment notes from this consultation contain no references to neck pain; however, when seen at the clinic in follow-up on January 3, 2002, the employee was complaining not only of back pain but Aalso neck pain radiating to the left shoulder and left arm.@ Subsequent medical records reflect consultations and/or treatment for low back, left leg, neck, and left arm pain, from several different providers. In February of 2002, Dr. Thomas Reiser diagnosed myofascial sprain/strain of the thoracic and lumbar spine with mild aggravation of the underlying degenerative changes in the level above the employee=s fusion.
In early April of 2002, the employee underwent CT scans of the cervical, thoracic, and lumbar spine. The cervical CT scan, performed in connection with complaints of Aleft neck and arm pain,@ disclosed a right-sided disc herniation at C5-6, without significant displacement or compression of the spinal cord, no evidence of herniation or significant disc bulges at other levels, and mild to moderate narrowing of the nerve root canals at C5-6 and C6-7. The thoracic scan disclosed a soft tissue mass at T3 and T4, for which the employee subsequently had surgery. Most if not all of the lumbar MRI scan results described findings related to the employee=s previous back surgeries and/or findings disclosed on earlier scans pre-dating the employee=s December 2001 fall at work.
In late April of 2002, after receiving the MRI scan results, one of the employee=s physicians, Dr. Vanda Niemi, recommended EMGs of the left upper and lower extremities, to investigate the employee=s continued complaints of weakness, noting that the employee=s recent fall Adid aggravate [the employee=s] previous chronic pain condition.@ The EMGs were read as normal.
On July 18, 2002, the employee returned to see Dr. Niemi, who wrote in part as follows with regard to this office visit:
He comes back to me with a very specific complaint today. He indicates that he has pain in his neck and right arm pit accompanied by tingling in his right arm. He volunteers that it is specifically in digits one through three. He is unaware of any new injury. He indicates that his pain and tingling is quite bothersome and it is keeping him from sleeping. He is treating it with ice.
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Mr. Amo has previously had pain throughout his back. As they look back at his drawing from his previous appointment it is nearly identical to the one he draws today, most specifically he has pain throughout his neck extending towards both shoulders. In the past he has complained about pain in his left arm and leg. Today he focuses on his right arm. The MRI of the cervical spine that was done recently does show a right sided disc herniation at C5-6. There is mild to moderate bony narrowing of nerve root canals bilaterally at C5-6 and there is probable mild narrowing of the nerve root canal at least on the right at C6-7. The pain and tingling that he is having might possibly be related to this disc herniation and a C6 radiculopathy. I have, therefore, recommended that he have an EMG of the right upper extremity.
A few days later, on July 22, 2002, the employee returned to the Southside Community Clinic to see Dr. Semakula. Dr. Semakula also noted the apparent change in the employee=s neck and upper extremity symptoms, writing in part as follows:
The patient is a 47-year-old male known to me with chronic upper and lower back pain secondary to degenerative disease involving the C-spine, thoracic spine and lumbar spine, status post multiple surgeries, who has had symptoms recently exacerbated by a work-related injury. He also has symptoms suggestive of radiculopathy primarily involving the upper extremity . . . . He complains of neck pain primarily. The pain also involves his right shoulder and radiates down to his right upper extremity and into the hand involving the dorsum and medial aspect of three fingers associated with some numbness. He still also has back pain and muscle stiffness. Of note, initially with his upper spine pain it was mostly involving the left upper extremity. However, recently there has been a shift of the symptoms which now primarily involve his right neck and right shoulder.
On examination, Dr. Semakula noted Aareas of local tenderness in the right neck associated with right paraspinous muscle spasm.@
In August of 2002, the employee was evaluated by Dr. Eric Flores. According to Dr. Flores=s record of August 19, 2002, the employee reported having developed Aneck pain immediately somewhat more on the right@ after his December 30, 2001, fall at work, A[t]hereafter [noting] pain on his right upper extremity radiating to his right thumb, index, and middle finger,@ as well as bilateral weakness of the upper extremities. A subsequent CT myelogram showed disc protrusion on the right at C5-6 with some impingement of the nerve root, for which Dr. Flores recommended anterior cervical discectomy and fusion at that level.
The employer and insurer accepted liability for the employee=s December 30, 2001, work injury and paid various benefits. However, on September 3, 2002, the employer and insurer filed a petition to discontinue benefits, alleging, in part, that the employee=s December 30, 2001, injury was merely a temporary aggravation of his preexisting condition and that his continued disability was not related to that incident. When the matter came on for hearing before a compensation judge on October 10, 2002, the primary issue was causation for the employee=s ongoing disability. Evidence submitted at hearing included the employee=s extensive treatment records and the report of Dr. Joel Gedan, the employer and insurer=s independent examiner.
In a decision issued on November 7, 2002, the compensation judge concluded the employee had temporarily aggravated his preexisting low back and left leg pain in the December 30, 2001, work-related fall, that the temporary aggravation had resolved, and that the employee=s present disability was not related to his work injury. Accordingly, the judge granted the employer and insurer=s petition to discontinue 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.
The employee contends that substantial evidence does not support the compensation judge=s conclusion that the employee=s disability, as of the date of hearing, was unrelated to his December 30, 2001, fall at work. In support of this argument, the employee cites evidence concerning the seriousness of the fall, including his complaints during emergency room treatment on the date of injury, the examining physician=s notations of bruising and abrasions during the emergency room evaluation, and the consistency of the employee=s subsequent complaints of neck, arm, and low back and left leg pain. In addition, while acknowledging his significant history of low back symptoms and treatment, the employee contends that his prior neck treatment was related to Aminor incidents,@ also pointing out that he received only limited Amedical management@ for his preexisting condition in the year prior to the injury and in fact felt well enough to return to work. We concede that some of the evidence would reasonably support the conclusion that the employee=s December 30, 2001, fall at work caused more than a temporary aggravation of the employee=s underlying condition. However, after review of the record, we cannot conclude that the judge=s decision to the contrary is unsupported by evidence that a reasonable mind might accept as adequate.
We note initially that the compensation judge expressly found the employee=s testimony regarding his post-injury symptoms to be lacking in credibility. As the compensation judge noted, the employee testified that he experienced right-sided neck pain and right arm pain immediately after the accident and that he reported this symptom to all of his physicians, yet medical records reflect few if any such complaints by the employee until June of 2002, six months after his fall at work. Credibility assessments are for the compensation judge, Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989), and the medical records reasonably call the employee=s testimony into question.
More importantly, the compensation judge expressly relied on the opinion of Dr. Joel Gedan in making his determination as to the extent and nature of the injuries resulting from the employee=s December 30, 2001, fall at work. In his September 19, 2002, report, Dr. Gedan wrote, in part, as follows:
My diagnosis for the [December 30, 2001, injury] is a temporary exacerbation of low back and left leg pain. Mr. Amo has persistent complaints of low back and left leg pain which he feels are increased following that accident. There is no change in the lumbar MRI studies to indicate any structural changes relating to that fall. There is no change in Mr. Amo=s clinical examination before and after the fall of December 30, 2001. Mr. Amo has a longstanding pre-existing chronic pain syndrome with regard to low back and left leg pain. Mr. Amo demonstrates evidence of symptom magnification on examination, which is frequently seen in patients with chronic pain syndrome. Other than his subjective report of back and leg pain, which is chronic and pre-existing, there is no evidence on physical examination, radiographic studies, or my examination today of any change in Mr. Amo=s condition referable to the lumbar spine relating to the December 30, 2001 injury.
Mr. Amo did not injure his neck or develop a right cervical radiculopathy relating to the incident of December 30, 2001. There are multiple clinic visits without any report of neck pain or right upper extremity symptoms on many of the visits following the incident of December 30, 2001. Mr. Amo did complain of left upper extremity symptoms following the fall and a cervical MRI obtained on April 9, 2002 showed no evidence of a left-sided lesion that would reasonably explain the symptoms. A small right-sided disc herniation at the C5-6 level was noted.
Mr. Amo presented with a new complaint of right arm pain in July 2002. In my opinion, the complaint of pain in the right arm is unrelated to the fall of December 30, 2001.
Dr. Gedan also wrote that the employee=s temporary exacerbation had returned to baseline at least by the date of his examination of the employee, that the employee had in fact reached maximum medical improvement from the effects of the work injury by June 13, 2001, the date on which the employee had normal left upper and left lower extremity EMGs, and that the employee had no residual effects from the work accident.
A compensation judge=s choice between conflicting expert opinions is usually upheld unless the facts assumed by the expert are not supported by substantial evidence. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employee has pointed to no facts which call Dr. Gedan=s opinion into serious question, and, as the compensation judge noted, Dr. Gedan reviewed the employee=s extensive medical records, interviewed the employee, and examined the employee prior to rendering his opinion. We would also note that there is no medical opinion explicitly tying the employee=s need for additional surgery to the work injury. Under these circumstances, we find no basis to conclude that the compensation judge erred in accepting Dr. Gedan=s opinion.
Because substantial evidence, including expert opinion, supports the compensation judge=s decision that the employee=s continuing disability, as of the hearing date, is unrelated to the employee=s December 30, 2001, fall at work, we affirm his decision in its entirety.