KRISTINE K. LIGUORI, Employee/Appellant, v. UPS and LIBERTY MUT. INS. COS., Employer-Insurer, and METROPOLITAN NEUROSURGERY, LANDMARK SURGERY CTR., MEDICAL ADVANCED PAIN SPECIALISTS and MEDICA/HRI, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 6, 2003
CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE. Substantial evidence, including expert opinion, supported the compensation judge=s finding that the employee=s disability and need for treatment were not causally related to her work injury.
Determined by Wilson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Paul V. Rieke.
DEBRA A. WILSON, Judge
The employee pro se appeals from the compensation judge=s decision that the employee=s conditions and related medical treatment expenses subsequent to August of 1995 are not related to the employee=s work injury of July 10, 1995. We affirm.
The employee was employed by United Parcel Service [the employer] as a training assistant, working from 6:00 p.m. to 10:00 p.m., Monday through Friday. On July 10, 1995, she sustained an injury to her neck, head, and low back when a package weighing twenty-seven pounds fell thirty feet, landing on her head. The employee was temporarily knocked unconscious and was taken by ambulance to Fairview Ridges Hospital, where she complained of headache and neck soreness. Cervical spine x-rays were interpreted as normal. The employee was told to wear a soft cervical collar for Aa few days as needed@ and restricted from physical labor for the next day. She returned to work for the employer on July 11, 1995, performing light-duty work.
On July 12, 1995, the employee was treated at the Airport Medical Clinic for complaints of neck and low back pain. Assessment at that time was closed head injury and cervical and lumbar sprains. The employee began physical therapy on July 17, 1995, at which time her major complaint was neck problems. At her physical therapy appointment on August 4, 1995, the employee reported 100% improvement of low back pain and 90% improvement of neck pain. She also stated that her headaches were much better. When seen at the Airport Medical Clinic that same day, she reported experiencing only occasional soreness in her neck and indicated that her headaches had resolved. At that time, Dr. Kevin O=Connell released the employee to return to work at full duty.
The employee returned to full duty on August 4, 1995, and asked to be reassigned to a more physically demanding job as a loader, a position she had performed pre-injury. She was assigned to that job but worked in an area that was not as busy as her pre-injury position.
The employee left her employment with the employer in April of 1996. An employee separation form prepared by the employer indicated that the employee=s reason for leaving was Aneeded to be home w/kids.@ Shortly thereafter, the employee began work in a dental clinic, working full-time days at a higher hourly wage than she had earned on the date of injury.
In April of 1997, the employee was seen at Fairview Ridges Clinic, complaining of right neck pain, with pain and numbness radiating down her right arm. At that time, the employee gave a history of having experienced intermittent neck discomfort since July 12, 1995, increasing over the past seven months, with an incident the previous Sunday when she had an onset of pain when turning her head. Doctors ordered a cervical MRI scan, which was normal, and an EMG, which was mildly abnormal.
In December of 1997, the employee began treating with Dr. Ingrid Abols of Minneapolis Clinic of Neurology. On March 2, 1998, Dr. Abols reported Ano objective pathology on examinations with significant subjective complaints@ and recommended that the employee be seen in pain management. The employee then began treatment at Noran Neurological Clinic with Dr. George Adams. By that time, the employee was complaining of persistent headaches and neck, right-sided shoulder, and arm symptoms. The employee received trigger point injections from Dr. Lon Lutz while also receiving physical therapy. The employee=s reported symptoms did not improve, although a repeat EMG done in June 1998 was interpreted as normal. Dr. Adams ultimately referred the employee to Dr. Mary Jane Chiasson, D.O., of the same clinic, when the employee=s symptoms were resistant to treatment. Dr. Chiasson has been the employee=s treating doctor since June 24, 1998, treating the employee with trigger point injections, medications, physical therapy, home exercise, passive stretching, muscle energy, and manipulation with high velocity. The employee has been seen by Dr. Chiasson approximately twice a month since June of 1998.
In September of 1998, the employee slipped in her garage, fell backwards, landing on her buttocks, and rolled onto her back. Dr. Chiasson=s records reflect that the employee also fell onto her neck and head. In April of 1999, the employee reported having felt a popping sensation in her neck while sitting. An MRI of the cervical spine performed on April 21, 1999, showed a small central to left-sided disc herniation at C5-6, without evidence of nerve root irritation. An MRI scan of the right shoulder in April of 2000 was read as normal. An MRI of the thoracic spine performed on July 16, 2000, was interpreted as showing minimal posterior disc bulging at the T2-3 level causing a slight effacement to the ventral aspect of the thoracic cord.
The employee underwent a four-level cervical discography in December 2000, performed by Dr. Lutz, which was interpreted as showing concordant 10 out of 10 pain at the C5-6 level. The employee was then referred to Dr. Gregg Dyste, who performed an anterior fusion with a BAK procedure at C5-6 on February 2, 2001. The employee experienced a slight improvement in her neck pain after the surgery as well as significant improvement of the pain and numbness in the right arm.
The employee returned to work at the dental clinic after her surgery. In April of 2001, after sleeping in an awkward position, the employee awoke with her left arm feeling dead from her elbow to her left hand, a condition diagnosed as a left radial nerve palsy. The employee left her job with the dental clinic in May of 2001 and has not worked since.
The employee underwent another series of MRI scans of her cervical, thoracic, and lumbar spine on May 8, 2001. The cervical scan revealed the C5-6 fusion; the thoracic scan revealed a slight disc bulge at T2-3 with some Schmorl=s nodes at the junction of the bottom of the thoracic spine and the top of the lumbar spine; the lumbar scan was normal.
On July 30, 2001, the employee filed a claim petition seeking temporary total disability benefits from February 2, 2001, to February 22, 2001, and continuing from May 9, 2001, permanent partial disability benefits, and numerous medical expenses. She claimed that her disability was related to injuries to her cervical and thoracic spine and left upper extremity, depression, and chronic pain resulting from her July 10, 1995, injury. The employer admitted an injury to the neck, in the nature of a temporary strain, but denied injury involving the thoracic spine, the left upper extremity, depression, or chronic pain, and denied the extent of the employee=s disability and liability for the medical expenses.
In December of 2001, Dr. Lutz performed a four-level thoracic discography. His conclusion was Aabnormal disc morphology with concordant reproduction of symptoms at T4-5, T5-6 and T6-7.@ In April of 2002, Dr. Lutz performed a percutaneous insertion of an epidural spinal cord stimulation electrode at the T8-9 level.
The matter proceeded to hearing on October 30, 2002. In findings and order filed on November 8, 2002, the compensation judge found that the employee=s work-related injury of July 10, 1995, was not a substantial contributing cause of the employee=s physical conditions after August of 1995, nor a substantial contributing factor to the claimed periods of temporary total disability, the claimed permanent partial disability, or the claimed medical expenses. 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 first contends that the compensation judge erred in determining that the employee=s failure to seek medical treatment from August 4, 1995, to April 23, 1997, indicated that the employee had no disability during that period. The employee suggests that her high pain tolerance was a reason that she did not see a doctor during this period. We are not persuaded that the judge erred.
Medical records clearly indicate that the employee did not seek medical treatment for her neck between August 4, 1995, and April 23, 1997. In his memorandum, the compensation judge listed the absence of treatment as just one of many reasons why he concluded that the employee=s work injury was not a substantial contributing cause of her physical conditions after August of 1995. The compensation judge could perhaps have drawn the inference that the employee did not treat during the period in question because she had a high tolerance for pain; however, where more than one inference may reasonably be drawn from the evidence, the judge=s findings are to be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54,60, 37 W.C.D. 235, 240 (Minn. 1984).
The employee=s second contention is that the judge erred in determining that she left her employment with the employer because she desired to be home with her children. Again, substantial evidence supports the judge=s finding, and, again, this was just one of many factors that the compensation judge considered in ultimately concluding that the employee=s medical conditions after August of 1995 were not related to the July 10, 1995, work injury.
The employee also contends that the compensation judge made Aan error in determining that a September, 1998, incident in which I slipped on some water in my garage and landed on my buttocks, shared or exceeded causation for my neck, and right arm pain, thereby disqualifying me from permanent partial disability.@ However, the judge did not make such a finding. Rather, in Finding 18, the judge outlined the September 1998 incident and concluded,
[T]his incident must have involved a sudden backward and forward motion of the employee=s head and neck. The employee noticed an increase in her symptoms of her neck and arm. She testified that she did not have any new symptoms, that the increased symptoms were temporary, and that her condition returned to the status that existed prior to the fall in the garage.
While the judge referenced the fall in the garage in his memorandum, that reference was made with regard to the fact that the employee did not have positive cervical MRI findings until after that slip and fall. The medical records bear that out.
Finally, the employee contends that her deposition was illegally used by the respondent=s attorney to impeach her testimony at trial, that Athe seriousness of my injury could not be established,@  and that A[t]he amount of time I was unconscious was also never confirmed.@ We find no evidence of reversible error.
This case is based largely on the judge=s choice between expert opinions. The employee=s treating doctor, Dr. Chiasson, opined that the employee=s physical conditions (except for the palsy condition) are all a result of her work injury on July 10, 1995. However, the independent medical examiner, Dr. Bruce Van Dyne, found that the July 10, 1995, work injury was temporary and had resolved by August of 1995. The compensation judge specifically found the opinions of Dr. Van Dyne to be more convincing. A trier of fact=s choice between experts whose opinions conflict 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, 37 W.C.D. 364 (Minn. 1985). While the employee appealed from the judge=s finding adopting the opinion of Dr. Van Dyne over that of Dr. Chiasson, she did not brief that issue. Moreover, we see no error in the judge=s decision to accept the opinion of Dr. Van Dyne.
Because substantial evidence, in the form of medical records and the reports and deposition of Dr. Van Dyne, supports the compensation judge=s findings, we affirm the findings and order in their entirety.
 The employee states that she treated for neck pain on January 4, 1996. However, the referenced undated medical record would indicate that the notation regarding neck pain was made on July 10, 1995, and not January of 1996.
 Specifically, the judge found that the employee left her employment Aat least in part@ because she desired to be home with her children. The employee=s own testimony at hearing was that, at about the time she left employment with the employer, her husband=s work situation had changed such that he could not be home with the children at night as frequently as before. When asked whether that was one of the reasons she left the employer, the employee responded, AIt=s not necessary the main reason I left but that definitely was becoming an issue.@ That testimony, coupled with the employee obtaining a full-time job during daytime hours within one week of leaving the employer, substantially supports the judge=s finding.
 The employee attached to her brief a letter from a professor at the University of Minnesota, calculating the Aactual kinetic energy@ developed by a falling object. That letter was not submitted into evidence at hearing and therefore may not be considered by this court on appeal. See Gollop v. Shale H. Gollop, D.D.S., 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986).
 The employee also contends that the employee separation form was admitted into evidence without any foundation, and she denies telling anyone that she was leaving because she wanted to be home with her children. The compensation judge did not err in receiving that form as an exhibit as no objection was made at the time. In addition, the judge acknowledged in his findings that the employee testified that she left her job with the employer because she was having difficulty doing the work.
 We assume that Finding 28 contains a typographical error, in that it reads, A[t]he employee finds the opinions of Dr. Van Dyne to be more convincing . . . .@
 Issues not addressed in the appellant=s brief are generally deemed waived. Minn. R. 9800.0900, subp. 1.