BRENT GORA, Employee, v. WINONA HEATING & VENTILATION and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 27, 2003
CAUSATION - CONSEQUENTIAL INJURY; CAUSATION - INTERVENING CAUSE; CAUSATION - MEDICAL EXPENSES; CAUSATION - PRE-EXISTING CONDITION; CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE. Where it was supported by expert medical opinion and the expressly credited testimony of the employee, the compensation judge=s conclusion that the employee=s knee condition and related medical treatment and proposed surgery were not entirely due either to a preexisting condition or to a superseding, intervening cause, but rather to a consequential injury, was not clearly erroneous and unsupported by substantial evidence.
Determined by Pederson, J., Johnson, C. J. and Rykken, J.
Compensation Judge: Bradley J. Behr
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's conclusion that the employee=s work injury was a substantial contributing cause of a consequential injury and of the employee=s need for reconstructive knee surgery and a derotation knee brace. We affirm.
Prior to 1997, Brent Gora sustained several injuries to his left knee, including an injury playing football in about 1994, an injury skiing in 1995, and injury playing basketball in 1996, and an injury playing ping-pong also in 1996. The latter injury resulted in removal of a portion of the medial meniscus in the knee in November of 1996 and then reconstruction of the anterior cruciate ligament [ACL] in January of 1997, the latter surgery involving a graft from Mr. Gora=s hamstring. Both of these surgeries were performed by Dr. Debra Zillmer, whose post-operative diagnosis following the latter surgery included notation of a A[h]ealed medial meniscus tear.@ In August of 1997, Mr. Gora commenced employment as a sheet metal worker with Winona Heating and Ventilation, a job that involved ladder climbing, walking on uneven ground, and carrying tools and equipment. Mr. Gora continued to treat with Dr. Zillmer until at least October of 1997, when Dr. Zillmer released him to work with restrictions against more than infrequent lifting of seventy-five to one hundred pounds and against working without a knee brace at knee-stressing activities including heavy lifting or walking across uneven ground. Mr. Gora was able to continue performing the duties of his job, and he was evidently able also to participate regularly in various sports activities including softball, bowling, volleyball, and football. There is no evidence that Mr. Gora sought any treatment for any knee-related symptoms between October 1997 and January of 2001.
On January 11, 2001, Mr. Gora [the employee] sustained a work-related traumatic tear of the remaining portion of his left medial meniscus when he slipped on some ice in the course of his employment with Winona Heating & Ventilation [the employer]. The employee=s doctor at the time, Dr. Richard Romeyn, noted on January 12, 2001, that, although this injury was to the same meniscus that had been injured and repaired three years earlier, there was
no indication that the current symptoms represent an extension of that problem. It is quite clear from the history that the [employee] had no symptoms referable to that knee for a significant period of time and that he had a specific trauma which has re-injured his knee. . . . Certainly a previous tear can be construed as a predisposing factor but there is no specific continuum.
The 2001 injury required removal of most of the remaining meniscus, and surgery to accomplish that was performed arthroscopically on January 15, 2001. The injury did not apparently damage the employee=s repaired ACL, although, in his post-surgical report, Dr. Romeyn noted that the employee=s ACL graft had Aevidenced no suggestion of vascularization now 3 years after the index surgery@ and had Aless th[a]n physiologic integrity.@ The employee was twenty-two years old on the date of this injury and was earning a weekly wage that is not in dispute. The employer accepted liability for the injury and commenced payment of various workers= compensation benefits, including treatment expenses and wage replacement benefits.
On January 23, 2001, the employee was released to return to work at light duty, and upon follow-up on January 29, 2001, Dr. Romeyn stated as follows:
I reviewed with [the employee] the findings at surgery. Specifically I mentioned the finding that he has not revascularized his interarticular graft and is far from his index surgery. It is unrealistic to expect that he will do so. We discussed the ramifications of his losing essentially 85% of medial meniscus. He understands that this increases the risk of degenerative joint disease. I talked to [the employee] about using Sorbathine in his shoes to absorb impact and also mentioned the possibility of medial meniscus reconstruction although I certainly [did] not recommend that be done any time soon. Only if he came to develop signs and symptoms of an unloaded medial compartment should that be considered. Because this will inevitably be a workman=s compensation issue, the long time use of Sorbathine and the possibility of further surgery should be considered in final settlement.
On February 12, 2001, with the agreement of the employee, Dr. Romeyn released the employee to return to all aspects of his job with the employer without restrictions. In his treatment notes on that same date, however, Dr. Romeyn advised the employee that testing had revealed laxity in his ACL graft that had not been evident on previous tests. Dr. Romeyn indicated that the employee
is certainly at increased risk of developing [degenerative joint disease] because of his ACL deficiency . . . and loss of medial meniscus. That is a bad combination and the risk is much greater than if he had normal ligamentous integrity. . . . If there is any suggestion at all regarding degenerative change in the medial compartment, then I think that serious consideration should be given to medial meniscus transplantation.
On March 15, 2001, Dr. Romeyn completed a Health Care Provider Report, on which he indicated that the employee was subject to a permanent impairment of ten percent of his whole body consequent to his January 11, 2001, work injury, from which he had reached maximum medical improvement on February 22, 2001. Dr. Romeyn indicated that there was no evidence of any preexisting or other conditions that affected this disability, that Aprevious meniscus repair does not affect this issue.@
In medical conference notes dated April 20, 2001, orthopedic surgeon Dr. John Dowdle, in an assessment for the employer and insurer apparently without personal interview with or examination of the employee, concluded that the employee was subject to a 3% rather than a 10% whole body permanent impairment related to his left knee and that this permanency was due entirely to a preexisting conditionBa repaired meniscal tear that had never healed. The employer and insurer subsequently denied the employee=s permanent partial disability claim, and in a letter to the insurer dated May 10, 2001, Dr. Romeyn reiterated his opinion that the January 11, 2001, injury was a new injury, perhaps predisposed by but nevertheless separate from any preexisting condition, indicating that he had Athe pictures taken at surgery to prove it.@
On about September 22, 2001, while bracing himself with his left leg as he performed Awheelies@ on a dirt bike, the employee felt a Apop@ in his left knee, pursuant to which, on September 27, 2001, he consulted Dr. Romeyn again. On that date, Dr. Romeyn noted, AWe had documented both at exam and at arthroscopy, that when I removed his bucket handle tear medial meniscus a number of months ago, that he had significant increase in anterolateral rotary instability. His current situation is merely a manifestation of that problem.@ Dr. Romeyn went on to state,
I had specifically told [the employee] that . . . a revision anterior cruciate ligament procedure was in his future, but he was at that time not particularly interested in considering any more interventional care, especially something that would require a lengthy recovery. I think his current reinjury is specifically related to his loss of the medial meniscus and lack of perfect integrity of his anterior cruciate ligament graft. That injury was filed as [a] work[ers=] compensation issue and I believe his current status stems directly from that and is attributable to that. His ACL reconstruction was borderline at best previously. Once he loses the Ashock block@ beneficial effect of his medial meniscus his knee is now rendered quite vulnerable.
With that, Dr. Romeyn went on to recommend that the employee undergo both reconstruction of his ACL and transplantation of a medial meniscal allograft, indicating that Aas long as [the employee] is reasonably careful there is no reason why he needs to rush.@ Dr. Romeyn also indicated that he Awould strongly recommend we obtain for [the employee] a derotation brace to try to keep him out of trouble to the extent possible. It may be very important that he wear that while working.@
On November 13, 2001, Dr. Romeyn addressed a letter to AWhom It May Concern,@ affirming the medical necessity of the derotation brace, which the employee was already using, and indicating that the employee Awill require revision and reconstruction of both the ACL and his medial meniscus.@ The employer and insurer apparently denied the employee=s request for coverage, and on December 20, 2001, Dr. Romeyn wrote to the insurer, disagreeing with that conclusion. Dr. Romeyn explained that, although the employee=s previously placed ACL graft had not been injured at the time of the employee=s January 2001 work injury and surgery, Aat [the January 15, 2001, arthroscopy, [it] was noted to be of borderline integrity.@ He went on to state that it was Aoverwhelmingly likely that the reason why [the employee] now experiences left knee instability is that . . . there is increased laxity secondary to the loss of the medial meniscus.@ Dr. Romeyn indicated that reconstruction of both the ACL and the medial meniscus in the same operation was the only practical solution to the employee=s condition and that he considered the employee=s request for that surgery Aentirely justified.@
On January 25, 2002, the employee filed a medical request, alleging entitlement to payment for the recommended reconstructive knee surgery and for the recommended knee brace, already being used by the employee, both consequent to the employee=s work injury on January 11, 2001. On January 28, 2002, the employer and insurer refused to pay for either the surgery or the brace, on grounds that the employee=s current condition was not related to his work injury. Their denial was based on the employee=s medical history of preexisting left knee problems and on the April 2001 report of Dr. Dowdle. The employee had also by that time, on January 22, 2002, been examined for the employer and insurer by orthopedic surgeon Dr. Steven Moen. In his report on March 6, 2002, Dr. Moen concluded that the proposed surgery was reasonable treatment for the employee=s condition but that that condition was not substantially related to the January 2001 work injury. Dr. Moen concluded that the condition was due instead to the employee=s September 2001 dirt bike accident. In support of that conclusion the doctor noted that the employee=s ACL reconstruction had apparently been entirely Afunctional@ prior to the accident, as demonstrated by the employee=s regular participation in Acutting, pivoting, and twisting sports like playing third base on a softball team on a weekly basis without a brace and without any difficulty.@
On April 5, 2002, in a letter to the employee=s attorney responding to Dr. Moen=s report, Dr. Romeyn acknowledged that there was not Amuch doubt that the dirt bike accident of September 27th finished off [the employee=s] ACL graft.@ The doctor went on to emphasize, however, that
the ability of the graft to tolerate stress was significantly and permanently negatively affected by the loss of the medial meniscus secondary to the work-related exposure of January 11th. That ACL graft was somewhat borderline even at the time of that injury. . . . The combination of this much laxity, an avascular graft, and loss of the vital secondary stabilizing benefits of the medial meniscus make it only a matter of time before some stress finishes off the knee. In [the employee=s] case that was his dirt bike injury; it could have been any number of things, but it was virtually preordained. That is why I started talking to [the employee] about medial meniscus replacement surgery as a possibility as early as 1/29/01, shortly after his menis[c]ectomy, and of course well before he hurt his knee again in September.
I do continue to feel very strongly that it was the work-related loss of the medial meniscus that was the break point.
The matter came on for hearing on June 18, 2002. Issues at hearing included the nature and extent of the employee=s January 11, 2001 work injury, whether or not that work injury substantially contributed to the employee=s need for the recommended left knee medial meniscus transplant and ACL repair, and whether or not a derotation knee brace was reasonable and necessary and causally related treatment for that injury. At the hearing, the employee testified in part that, throughout the spring and summer following the surgery for his January 2001 work injury, he experienced regular symptoms of instability such as swelling, popping, and locking in his left knee but that he did not seek treatment for these symptoms. He testified further that he was not surprised that his left knee Apopped@ in the process of his performing Awheelies@ on the dirt bike in September 2001, because he had Abeen advised [by Dr. Romeyn] that it is going to happen at some point in time, and that=s when it happened.@
Concluding that the employee had had no significant left knee symptoms or treatment between October 1997 and his work injury in January 2001, and expressly finding the employee to be a credible witness, the compensation judge concluded by findings and order filed July 8, 2002, that the employee=s January 11, 2001, work injury and consequent surgery had substantially contributed to subsequent chronic instability in the employee=s left knee. This instability, the judge concluded, had in turn contributed to the knee injury sustained by employee on his dirt bike ride on September 22, 2001, which the judge expressly concluded was not dangerous or reckless activity. On those findings, the judge further concluded that the employee=s work injury was a substantial contributing cause of the employee=s current need for the reconstructive surgery at issue. In amended findings and order filed July 18, 2002, the compensation judge also concluded that the derotation knee brace at issue at hearing was reasonable and necessary and that the need for it was also causally related to the employee=s January 11, 2001, work injury. The employer and insurer appeal.
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 in material part (1) that the employee=s left knee was essentially symptom free and stable for over three years prior to the employee=s January 2001 work injury and consequent meniscectomy, (2) that the latter injury and excision destabilized the knee sufficiently to be a substantially contributing factor in the employee=s September 2001 knee injury riding his dirt bike, and (3) that the January 2001 meniscal work injury is therefore a substantially contributing factor in the ACL and medial meniscal conditions that have proceeded from the dirt bike incident and that now require surgical treatment. The employer and insurer contend on appeal that the employee=s current need for ACL and meniscal surgery is due to injuries preexisting the January 2001 work injury and/or entirely to the nonwork-related September 2001 dirt bike injury, which they would classify as a superseding, intervening injury. In support of the preexisting condition argument, they note the employee=s left knee injuries playing football in about 1994, skiing in 1995, playing basketball in 1996, and playing ping-pong in 1996, together with the surgeries consequent to the latter in November of 1996 and January of 1997. In support of their argument that the dirt bike incident constituted a superseding, intervening cause, they note that, following his January 2001 work injury and right up until the dirt bike incident, the employee returned to work without any restrictions and participated in various knee-stressing activities, including weekly softball, without complaint to or treatment by a doctor. They argue that A[p]opping wheelies on a motorcycle, in and of itself, poses a high risk of injury to even the healthiest of persons.@ We are not persuaded.
In his memorandum, the compensation judge indicated that his conclusion that the employee=s need for the treatment at issue was not due to a condition preexisting the January 2001 work injury was based primarily on the employee=s medical record, supported by the employee=s testimony. The judge cited the fact that the employee was able to return to apparently all of the duties of his job with the employer following his 1997 surgery and that there was no record of any medical complaint or treatment for over three years thereafter, right up to the January 2001 work injury. In addition to this evidence, the judge cites the employee=s testimony that, during that three-year period, he was able to climb ladders, walk on uneven ground, carry his tools and equipment, and even participate in various knee-stressing sports such as softball, bowling, volleyball, and football. In contrast to the employee=s evidently symptom-free condition during this three-year period immediately preceding the January 2001 work injury, the judge cites the employee=s condition during the eight month period immediately following that work injury. The judge notes that, while the employee was eventually released to work without restrictions following that 2001 work injury, the employee=s doctor nevertheless expressly recorded at the same time (1) that the employee would eventually require further surgery, (2) that the employee was at increased risk of developing degenerative joint disease due to his additional loss of meniscal tissue, and (3) that Aserious consideration should be given to medial meniscus transplant@ should such degenerative changes become documented. In addition to these medical records, the judge cites the employee=s own testimony, which the judge expressly credits, that, following his January 2001 work injury, he never again regained the level of left knee stability that he had known prior to that injury and he continued to experience symptoms of increased instability two or three times a week in the months that followed.
We conclude that it was not unreasonable for the compensation judge to rely on such evidence in concluding that the employee=s post-September 2001 left knee condition was not entirely consequent to his pre-January 2001 condition. See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978). Because it was not unreasonable, we affirm that conclusion of the judge. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
The compensation judge also addresses in his memorandum the employer and insurer=s alternate argument, that the employee=s dirt bike accident in September 2001 constitutes a superseding, intervening cause of the employee=s need for the treatment at issue. The judge bases his conclusion in this regard primarily on the opinion of Dr. Romeyn. The judge notes that Dr. Romeyn indicated following the employee=s post-work injury surgery that he had removed all but fifteen percent of the employee=s medial meniscus and that the ACL had appeared to him not to have vascularized and to be of Aborderline integrity.@ The judge then subsequently quotes Dr. Romeyn to the effect that Athe ability of the graft to tolerate stress was significantly and permanently negatively affected by the loss of the medial meniscus secondary to the work-related exposure of January 11th,@ supporting the doctor=s opinion that breakdown of the knee in the context of the dirt bike incident, resulting in reinjury of both the ACL and the medial meniscus, was inevitable. In support of this opinion, the judge cites the testimony of the employee to the effect that his dirt bike activity in September 2001 was not particularly dangerous and that the Apopping@ that he experienced at that time was similar to that that he had experienced several times over the previous several months, noting that the employee did not seek any treatment subsequent to the dirt bike incident until five days thereafter, apparently pursuant to a previously scheduled appointment.
On the basis of such evidence, the compensation judge concluded, as stated in his memorandum, that the dirt bike incident Adid not break the chain of causation between the employee=s 1/11/01 injury, the resultant medial meniscectomy, the subsequent instability and the current need for reconstructive surgery to the medial meniscus and left ACL.@ We conclude that it was not unreasonable for the judge to so conclude on the basis of Dr. Romeyn=s medical opinion as supported by the employee=s testimony. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (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). Because it was not unreasonable with regard either to the employee=s condition prior to his January 2001 work injury or to the significance and nature of the employee=s September 2001 dirt bike accident, we affirm the compensation judge=s conclusion that the employee=s January 2001 work injury was a substantial contributing cause of his post-September 2001 left knee condition and of his need for the surgery and the knee brace here at issue. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.