JIM A. LAVALLEY, Employer/Appellant, v. ERIE MINING, SELF-INSURED (BANKRUPT), Employer, and MN DEP=T OF ECON. SEC., Intervenor, and SPECIAL COMPENSATION FUND.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 24, 2003
CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE. Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s 1979 work injury did not substantially contribute to the employee=s claimed wage loss, permanent partial disability, or need for rehabilitation assistance.
Determined by Wilson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: Gregory A. Bonovetz.
Attorneys: Thomas R. Longfellow, Sieben, Polk, LaVerdiere & Dusich, St. Paul, MN, for Appellant. John R. Baumgarth, Special Compensation Fund, St. Paul, MN, for Respondent.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s determination that the employee=s August 6, 1979, injury was not a substantial contributing cause of the employee=s claimed wage loss, permanent partial disability, or need for rehabilitation. We affirm.
The employee began working for Erie Mining Company [the employer] in 1975. On August 6, 1979, he developed low back pain while operating heavy equipment in his job. The employee subsequently received chiropractic care from Dr. Michael Skorich, who diagnosed lumbo sacral strain, and the employee was apparently allowed by his supervisor to work in a light-duty capacity despite the absence of any specific restrictions. By June of 1980, the employee=s symptoms had increased to the point that Dr. Skorich took him off work, and the self-insured employer paid the employee temporary total disability benefits for about nine weeks. A physician=s report by Dr. Donald Warner, dated September 22, 1980, indicates that the employee had returned to work on September 9, 1980, that his Arecurrent lumbo sacral strain@ had Ahealed well,@ and that the employee had no Apermanent disabilities@ as a result of the work injury.
In May of 1981, Dr. Skorich wrote to the employer, indicating that the employee=s Achronic intermittent lower thoracic and upper lumbar pain@ had been severely exacerbated due to the jarring effects of operating a caterpillar tractor with a Aripper blade.@ Accordingly, Dr. Skorich advised that the employee should be restricted from operating that particular equipment for two to three months but that this recommendation did Anot constitute a permanent restriction.@
Also sometime in 1981, the employee was laid off by the employer, and he remained on layoff status until 1988, when he was recalled to work by LTV, which had taken over the employer=s operations. In the meantime, between his layoff and recall, the employee was first self-employed as a truck driver and then drove a truck for a different employer. The employee testified that he was unable to make some kinds of trips as a truck driver because of continued low back symptoms. However, he received no medical or chiropractic care for low back symptoms between the spring of 1981 and March of 1988.
In March of 1988, after his return to employment for LTV, the employee was seen for radiating low back pain following an incident at work. Emergency room notes from March 12, 1988, relate the employee=s earlier history of low back pain but indicate that the employee had Abeen well since.@ The physician=s diagnosis was back strain. Subsequent medical records reflect additional treatment for low back and leg pain after a work incident in which the employee stepped from a train into a hole in the ground in 1990 or 1991. A lumbar CT scan performed in March of 1991 disclosed a bulging disc at L5-S1. A subsequent lumbar MRI scan, performed in April of 1991, was read to reveal Amoderate central L5-S1 herniated disc with mild displacement of the nerve rootlets.@ Yet another work incident affecting the employee=s low back apparently occurred in May of 1993, and in September of 1996, the employee sought treatment again when he experienced increased back pain after Amore railroad switching@ at work in the previous two weeks.
The employee was laid off by LTV in February of 2001, in what he characterized as forced retirement. He testified that his low back condition has worsened since his layoff and that he has had to modify his household and leisure activities. He has not worked since his layoff by LTV.
The matter came on for hearing before a compensation judge on February 21, 2003, for resolution of the employee=s claim for permanent partial disability benefits, rehabilitation benefits, and temporary total disability benefits for the period commencing with his layoff from LTV. The claim was made with respect to the employee=s 1979 injury alone. In a decision issued on May 20, 2003, the compensation judge concluded that the employee=s claimed total disability, permanent partial disability, and need for rehabilitation assistance were not causally related to the 1979 work injury. Accordingly, the judge denied the employee=s claim in its entirety. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
Two medical experts offered opinions regarding the cause of the employee=s current low back condition. Dr. D. F. Person, the employee=s independent examiner, concluded as follows:
Mr. LaValley has the following diagnosis:
1. Herniated intervertebral disc at L5-S1, and multilevel degenerative arthritis of the lumbar spine.
Mr. LaValley=s lumbar spine condition was caused by his August 6, 1979, injury, which occurred at work at Erie Mining Company. He has had many exacerbations since that time, having approximately four or five flare ups a year. When he has these flare ups, his symptoms are considerably more severe than he usually has. The flare ups go back to the beginning of this problem in August of 1979. He has had a number of exacerbations which followed work injuries at Erie Mining Company or at LTV, and they can be attributable primarily to his initial condition, which began in 1979.
In contrast, Dr. Richard Strand, the Special Compensation Fund=s examiner, concluded that the 1979 injury was merely temporary, Abased on the fact that [the employee] returned to work and worked for many years basically without restrictions in spite of further temporary aggravations of his low back.@
In explaining his decision on this issue, the judge noted the employee=s lack of treatment between 1981 and 1988 and a 1991 treatment note indicating that the employee=s symptoms had gradually improved after the 1979 injury and that he had been Apretty good until last August [of 1990].@ The compensation judge then went on to conclude,
Similarly, Dr. Richard Strand . . . opined that the August 1979 injury was at most a temporary injury. Unlike Dr. Person, Dr. Strand rather specifically reviewed the various low back Aevents@ beginning with that of August 6, 1979. Based on this review of all of the medical information provided to him along with the history provided by the employee and based on his examination Dr. Strand opined that the August 1979 injury was a temporary injury which resolved. As he indicated, based on the fact the employee was able to return to work and was in fact able to work many years without limitations and based on the fact that the employee found no need to obtain any medical or chiropractic care or treatment for a substantial period of time after the resolution of the August 1979 injury, the August 1979 injury was not a substantial cause of any temporary total or permanent partial disability.
On appeal, the employee=s sole argument is that the compensation judge erred in deciding the causation issue without reference to the employee=s testimony about his continuing symptoms and limitations following the 1979 injury. This argument has no merit. It is evident from his decision that the judge was unpersuaded by the employee=s testimony in this regard, and the fact that he failed to specifically comment on this testimony, or to make a specific finding as to credibility, provides no grounds for reversal. See Wickham v. Metropolitan Transit Comm=n., slip op. (W.C.C.A. Oct. 10, 1997); Rothwell v. State, Dep=t of Natural Resources, slip op. (W.C.C.A. Dec. 6, 1993). Similarly, the fact that evidence was not cited by the judge does not establish that the evidence was overlooked. Id.
This case involves a very straightforward question of medical causation. The record, including the opinion of Dr. Strand, easily supports the judge=s decision that the 1979 injury was not a substantial contributing cause of the employee=s claimed wage loss, permanent partial disability, or need for rehabilitation assistance. We therefore affirm the judge=s decision in its entirety.