FLOYD KORHONEN, Employee, v. UNIVERSITY OF MINN.BDULUTH, SELF-INSURED, Employer/Appellant, and ST. MARY=S/DULUTH CLINIC/POLINSKY REHAB. and MN DEP=T OF LABOR & INDUS./VRU, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 16, 2003
ARISING OUT OF AND IN THE COURSE OF - SUBSTANTIAL EVIDENCE. Where the employee had rolled his ankle in the process of stepping off a curb in the employer=s parking lot en route to retrieving an apple from his car while on paid break from his work, the compensation judge=s conclusion that the employee=s injury arose out of and in the course of his employment was not clearly erroneous and unsupported by substantial evidence.
CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE. Where the employee testified to having experienced knee pain at the time that he sustained a work-related injury to his ankle and calf, and where at least six medical or rehabilitation experts had, to varying degrees, related the employee=s subsequently developing knee problems to that injury, the compensation judge=s conclusion that the employee=s work injury was a substantial contributing factor also in the employee=s knee disability and consequent need for knee surgery was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that there was little evidence in the medical records of any knee injury for over three weeks after the date of the more immediately documented ankle and calf injury.
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 knee condition and need for surgery arose out of and in the course of his employment activities. We affirm.
On October 4, 1991, Floyd Korhonen consulted Dr. Larry Lemaster regarding in part a Acrunching noise@ in one of his knees, and Dr. Lemaster diagnosed moderate obesity and recommended an exercise and weight loss program. About two months later, on December 6, 1991, while enrolled in a downhill ski course at the University of Minnesota Duluth [UMD], Mr. Korhonen began to feel pain in both of his knees. He saw Dr. J. Munger, whose treatment notes indicate that Mr. Korhonen was complaining of Aan injury to the medial aspect of the knee@ apparently sustained when A[h]e twisted his knee while downhill skiing on 11/30/91." Without indicating which knee was primarily at issue, Dr. Munger diagnosed a A[m]ild to moderate sprain of the medial collateral ligament,@ noting that he doubted that Mr. Korhonen had sustained a cartilage injury but that Athis can=t be totally excluded.@ Dr. Munger issued Mr. Korhonen a knee brace, and two weeks later Mr. Korhonen requested another knee brace, specifically for his left knee, having evidently been wearing the other brace on his right knee Awith considerable improvement when he is skiing.@ Dr. Munger evidently recommended that Mr. Korhonen withdraw from the ski course, which Mr. Korhonen evidently did, and his knee pain apparently resolved without surgery or any further treatment, apparently without recurrence for many years.
About ten years later, in April of 2001, Mr. Korhonen [the employee] became employed as a student custodian at UMD [the employer], where his duties included emptying trash, sweeping and mopping floors, cleaning and sanitizing bathrooms, and, during summer Aproject time,@ more physically strenuous tasks such as stripping, scrubbing, and waxing floors and wet-scrubbing or Aextracting@ carpets. On Thursday July 5, 2001, the employee had a particularly stressful day at his job, operating for about an hour and a half or two a carpet Aextracting@ machine that weighed over four hundred pounds water-loaded. Operation of the machine evidently puts severe strain on the quadriceps and hamstrings of the operator, who must drag it across the floor as he works. The employee evidently finished the extracting work about mid evening and went home exhausted at about 10:30 p.m., sleeping only restlessly that night, due to muscle cramping in his hamstrings and calves.
In the afternoon of the following day, Friday July 6, 2001, on paid work time, the employee took a break from his tasks and walked out to retrieve an apple from the vehicle that he had driven to work, which was parked on the employer=s premises. On his way to the vehicle, the employee evidently stepped off a curb and twisted his left ankle. His leg collapsed in the process, and he fell to the ground, feeling sharp pain in his ankle and leg. After retrieving the apple, he returned to his job, which that day entailed cleaning bathrooms, a job that required frequent squatting. Within about three hours, however, his left calf Amuscles knotted up like an intense charlie horse,@ and he informed his supervisor that he needed to go home. On that date, the employer was self-insured against workers= compensation liability, and the employee was forty-one years old and earning a stipulated weekly wage of $270.40.
The employee evidently cancelled a road trip that he had planned for that weekend and instead stayed home and rested, going to church on Sunday but otherwise staying off his feet and massaging his leg. On Monday July 9, 2001, the employee sought medical treatment for pain in his left calf and ankle at the Duluth Clinic, where he was examined by occupational medicine Nurse Practitioner Terry Granlund. Nurse Granlund reported that the employee had denied having any problem with his left knee locking or buckling, and she found no tenderness over the knee ligaments. Finding tenderness at the origin and inserting point of the medial head of the gastrocnemius (calf) muscle and over the insertion point of the hamstring muscles into the knee, Nurse Granlund diagnosed a strain of the calf muscle of the left leg and a mild sprain of the left ankle and referred the employee for physical therapy.
On that same date, July 9, 2001, the employee reported his injury to his supervisor, Doug Greenwood, and completed an Employee Incident Report, on which he indicated that he had injured his Aleft calf muscle@ when he Astepped off curb & rolled ankleBpulling calf muscle@ while Awalking from library to parking lot.@ Also on that date, Mr. Greenwood completed a Supervisor Incident Investigation Report, on which he noted that Aextracting carpet strained calf muscle.@ The employee was released to return to sedentary work on July 18, 2001, under a diagnosis of a work-related strain of the calf muscle of the left leg, and a Facilities Management Lost Time Injury Investigation report filed the following day, July 19, 2001, corroborated the mechanism of injury earlier reported. On that same date, however, July 19, 2001, the employer denied primary liability, on grounds that there was A[n]ot enough information relating injury to work activities@ and that the Ainjury appears idiopathic in nature.@
The employee was off work for about three weeks, and on July 30, 2001, he returned to work, where he experienced knee pain upon squatting and kneeling to clean elevators. The following day, July 31, 2001, the employee was examined by occupational medicine specialist Dr. Lynn Quenemoen, Afor re-evaluation of his left calf and knee pain,@ although there is no mention of any knee pain in the July 18 and July 27, 2001, records of Nurse Granlund. Dr. Quenemoen noted that this A[k]nee pain has worsened somewhat with return to work activities.@ Upon examination, Dr. Quenemoen found the employee to be Aquite tender to palpation over the medial joint line of the left knee,@ to have Amild discomfort and some crepitus with compression of the left patella against the femoral condyles,@ and to exhibit some Amild tenderness over the musculotendinous portion of the medial head of the gastrocnemius.@ Upon these findings, Dr. Quenemoen diagnosed post-traumatic left knee and hamstring strain and left ankle sprain, ordered x-rays of the knee, and referred the employee for more physical therapy.
On August 1, 2001, the employee=s physical therapist noted that the employee=s calf was improving but that there was Asome clicking@ in his knee. On August 2, 2001, the employee saw family practitioner Dr. John Ryden, for Apain in the left knee region,@ which Dr. Ryden assessed to be Alikely secondary to meniscus injury,@ referencing Aa work-related injury detailed in a note of July 9, 2001, by Terry Granlund.@ On August 10, 2001, the employee filed a claim petition, alleging entitlement to temporary total disability benefits from July 9, 2001, through July 29, 2001, and continuing from July 31, 2001, consequent to an alleged work injury on July 5, 2001, and July 6, 2001.
On August 13, 2001, the employee was seen by occupational medicine specialist Dr. Jed Downs, who diagnosed knee pain, MCL strain, and bursitis and ordered an MRI scan of the employee=s knee. The scan, conducted on August 17, 2001, was read to reveal in part a A[p]robable medial collateral ligament strain@ and a A[s]mall Baker=s cyst@ between the medial head of the calf muscle and the semimembranous tendon.@ There appeared to be Asome mildly increased (type II) signal within the posterior horn of the medial meniscus,@ but Ano evidence of this signal surfacing@ was identified, and the radiologist doubted the presence of a tear. On August 21, 2001, Nurse Granlund modified her diagnosis to A[p]ain, left knee with Baker=s cyst and small effusion@ together with A[p]robable medial collateral ligament strain.@ On August 29, 2001, Dr. Downs completed a Health Care Provider Report, on which he diagnosed the employee=s July 6, 2001, work injury as a Aknee sprain [with] effusion & bakers cyst@ and an Ainversion ankle sprain.@
On September 6, 2001, the employee saw orthopedist Dr. Stephen Harrington, who interpreted the employee=s August 17, 2001, MRI as revealing in part Aa probable degenerative posterior horn medial meniscal tear.@ Dr. Harrington administered corticosteroid injections, and the employee was instructed to avoid any unnecessary walking or deep squatting. Although Nurse Granlund found no evidence of edema or effusion when she saw the employee on September 12, 2001, Afor followup of left knee pain,@ Dr. Harrington, when he saw the employee again on September 27, 2001, found A[l]eft knee effusion associated with a Baker=s cyst@ and likely Apatellofemoral dysfunction and degenerative medial meniscus.@ On October 8, 2001, Dr. Harrington reported that the employee=s knee pain had returned after initial improvement with the injections, and he requested a surgical consultation. On October 11, 2001, the employee saw orthopedic surgeon Dr. Kenneth Kaylor, who noted in his history that the employee had Astarted having pain in his knee on July 5, 2001.@ Dr. Kaylor recommended arthroscopic surgery if the employee=s knee continued to be painful, and on October 25, 2001, the employee requested that the surgery be scheduled.
On November 5, 2001, the employee underwent a diagnostic arthroscopy, performed by Kaylor, who found a small tear in the posterior horn of the medial meniscus and performed a partial meniscectomy and plicectomy. Dr. Kaylor referred the employee for physical therapy, and on November 13, 2001, therapist Dave Skansberg, in his subjective summary, recorded that the employee had twisted his left ankle on July 6, 2001, Aalso twisting his left knee,@ and that A[e]ver since this time his knee has locked and buckled and he has noticed a lot of popping noises@ in it.
On January 22, 2002, the employee was examined for the employer by orthopedic surgeon Dr. Nolan Segal, who concluded in part that the employee, Aif anything, sustained a mild left calf strain and mild left ankle sprain on July 6, 2001,@Aa temporary injury [that] would have resolved by the time he completed his physical therapy on July 25, 2001.@ Dr. Segal concluded further that, in light of the employee=s Aobvious history of a significant knee injury@ in 1991, the employee=s knee symptoms beginning on July 30, 2001, Awould be considered a continuation of a pre-existing condition.@ He concluded also, therefore, that the employee=s knee surgery had not been reasonable and necessary treatment for a work injury and that the employee was not in need of any further medical treatment of any kind related to any work injury on either July 6, 2001, or July 30, 2001.
On December 4, 2002, Dr. Quenemoen wrote to the employee=s attorney in response to various queries. In his letter, Dr. Quenemoen diagnosed in part a calf muscle strain and a tear of the posterior horn of the medial meniscus, opining that the employee=s Awork activities on July 5th and/or July 6th, caused or substantially contributed to the onset of the calf strain and knee injury.@ Dr. Quenemoen indicated that he had Ano information@ as to whether the employee=s injuries were idiopathic or personal in nature. He concluded that the employee=s medical treatment subsequent to July 5 and 6, 2001, had been reasonable and necessary to cure and/or relieve his injuries on those dates, and he rated the employee=s related permanent partial disability at 2% of the whole body.
On December 16, 2002, Dr. Harrington also wrote to the employee=s attorney, in response to the same queries. In his letter, Dr. Harrington stated in part his opinion that the employee=s injury on July 6, 2001, Aeither caused or substantially contributed to the diagnosis@ of the Aposterior horn medial meniscal tear@ that Dr. Kaylor had surgically repaired on November 5, 2001. Dr. Harrington suggested also that, while the employee=s Ainjury while skiing in 1991 may have contributed to his medial meniscal injury in his left knee,@Ahis mechanical symptoms began after his work-related injury on July 6, 2001,@ and his Awork-related injury significantly contributed to [the employee=s] medial meniscal injury.@ As had Dr. Quenemoen, Dr. Harrington concluded that the employee=s post-injury medical treatment had been reasonable and necessary, and he rated the employee=s work-injury-related permanent partial disability to 2% of the whole body, based on the partial medial meniscectomy performed on his left knee.
The matter came on for hearing on December 20, 2002. Issues at hearing included (1) whether the employee=s injury on July 6, 2001, was an injury arising out of and in the course of employment and, if so, (2) whether the employee=s left knee condition was in fact causally related to that July 6, 2001, incident and injury. By findings and order filed February 27, 2003, the compensation judge concluded that the employer had primary liability for the employee=s July 6, 2001, injury in general and for his left knee condition in particular. On that basis, the judge found the employer liable for all wage replacement benefits claimed, for reimbursement to intervenor Department of Labor and Industry/Vocational Rehabilitation Unit for rehabilitation services provided, and for all of the employee=s medical expenses between July 9, 2001, and November 26, 2001. 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.
1. AArising out of@ Employment
Citing Bohlin v. St. Louis County/Nopeming Nursing Home, slip op. (W.C.C.A. Sept. 20, 2000), the self-insured employer contends first that substantial evidence in the record fails to support the judge=s determination that the employee=s injury of July 6, 2001, arose out of his employment activities at the employer. They contend that the evidence does not support a conclusion that, due to his employment activities, the employee was exposed to the required Aincreased risk@ addressed in Bohlin, arguing that the only connection between the employee=s employment and his July 6, 2001, injury was the fact that the incident occurred on the employer=s premises. They contend that all of the employee=s injuries on that date were injuries stemming from pre-existing conditions personal to the employee and not ones Aarising out of@ his employment, the calf and ankle injuries stemming from a long personal history of weak ankles and pronation and the knee problems stemming from the condition already manifested at the time of his 1991 skiing difficulties. We are not persuaded.
The supreme court has established the following guideline for use in determining whether an injury Aarises out of@ employment:
The phrase Aarising out of@ the employment is expressive of the requirement that there must be a causal connection between the conditions which the employer puts about the employee and the employee's resulting injury. The requisite causal connection--which need not embrace direct and proximate causation as for a tort--exists if the employment, by reason of its nature, obligations or incidents may reasonably be found to be the source of the injury producing hazard. The causal connection of source is supplied if the employment exposes the employee to a hazard which originates on the premises as a part of the working environment, or if the employment, as a part of the working environment, particularly exposes the employee to an external hazard whereby he is subjected to a different and greater risk than if he had been pursuing his ordinary personal affairs. In other words, if the injury has its origin with a hazard or risk connected with the employment, and flows therefrom as a natural incident of the exposure occasioned by the nature of the work, it arises out of employment.
Nelson v. City of St. Paul, 249 Minn. 53, 55-56, 81 N.W.2d 272, 275-76, 19 W.C.D. 120, 123 (1957) (footnotes omitted). Further, it is Awell established that acts of an employee necessary to life, comfort, or convenience while at work, although personal to him and not technically acts of service, are incidental to the service, and injury arising while in the performance of such acts is compensable.@ Hill v. Terrazzo Machine & Supply Co., 279 Minn. 428, 433, 157 N.W.2d 374, 377, 24 W.C.D. 511, 517 (1968) (citations omitted).
The circumstances in the present case are clearly distinguishable from those in the Bohlin case. In Bohlin, the employee had arrived in her vehicle onto the premises of the employer, but she had literally not yet set foot on those premises when she experienced the onset of her back problems. The court in Bohlin emphasized at least twice, in two separate paragraphs, that A[t]here is no evidence the parking lot was the cause of or contributed in any manner to the employee=s injury,@ that Athe parking lot was not the source of the injury-producing risk,@ there being Ano evidence the employee even set foot on the parking lot before her injury.@ In the present case, contrary to the case in Bohlin, the employee, when he rolled his ankle in the process of stepping off the curb in the employer=s parking lot while on paid break from his work, was very reasonably engaged in an act Anecessary to . . . comfort, or convenience while at work, although personal to him,@ Hill, 279 Minn. at 433, 157 N.W.2d at 377, 24 W.C.D. at 517, and he was acting within the Anature, obligations or incidents@ of his employment. Nelson, 249 Minn. at 55, 81 N.W.2d at 275, 19 W.C.D. at 123. Moreover, as the judge reasonably found at Finding 28, the employee=s work activities the day before, on July 5, 2001, had unusually Afatigued [the employee=s] left leg calf and knee muscles@ to the extent that they also had contributed substantially to the collapse of his leg on the injury date alleged.
Because it was not unreasonable, we affirm the compensation judge=s conclusion that the employee=s injury in the employer=s parking lot on July 6, 2001, was an injury arising out of the employee=s employment with the employer. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
2. Left Knee Problems: Medical Causation
The employer argues also that, even granting that the employee may have sustained a compensable injury to his calf and ankle on July 6, 2001, the employee=s personal reports of left knee symptoms immediately consequent to that injury Aare factually unsupported not only in the Employee=s [own] initial reporting of the 7/6/01 injury, but also in the weeks of treatment and therapy notes which follow.@ Therefore, the employer contends, the employee=s claim for specifically knee disability compensation and repair should have failed, and all compensation for a knee injury should be reversed. Again we are not persuaded.
We acknowledge that there is very little evidence in the medical records until July 31, 2001, over three weeks after his July 6, 2001, calf and ankle injuries, that the employee had sustained any injury to his knee at the time of those other two injuries. The employee did testify to having experienced knee pain at the time of those other injuries, however, and the compensation judge was entitled to credit this testimony. 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). Nor was it unreasonable for the compensation judge to suggest, at Finding 28, that the employee=s work activities on July 5, 2001, the day prior to his work injury, fatigued the employee=s knee muscles and thereby contributed to his July 6, 2001, injury, ultimately resulting also, together with work activities on July 30, 2001, in the employee=s eventual need for knee surgery. Moreover, at least six medical or rehabilitation experts have to varying degrees related the employee=s knee problems to his July 6, 2001, work injuryBDr. Ryden in August 2001, Dr. Downs in August 2001, Dr. Kaylor in October 2001, therapist Skansberg in November 2001, and, more formally, Drs. Quenemoen and Harrington in December 2002. The compensation judge made reference in his findings to the records of Drs. Quenemoen, Downs, Harrington, Kaylor, and Segal, and it is apparent that his conclusions were in keeping with the conclusions of the first four of those experts rather than with the conclusions of Dr. Segal.
While a compensation judge is not obligated to accept even unopposed expert medical opinion, so long as the judge does not ignore that opinion, see Tuomela v. Reserve Mining Co., 299 Minn. 203, 204, 216 N.W.2d 638, 639, 27 W.C.D. 312, 313 (1974), this court has long held that a compensation judge=s decision made in accordance with well founded expert opinion is normally upheld. 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). Concluding that it was supported by expert medical opinion and was not otherwise unreasonable, we affirm the compensation judge=s decision that the employee=s work activities on or about July 6, 2001, were a substantial contributing cause of his subsequent left knee disability and need for knee surgery. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.