DENNIS SCHLEMMER, Employee, v. LEHMANN WOODWORKS and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants, LEHMANN WOODWORKS and TRAVELERS INS. CO., Employer-Insurer, and LEHMANN WOODWORKS and MINN. ARP/BERKLEY RISK ADM=RS, Employer-Insurer, and ST. PAUL RADIOLOGY, PHYSICIAN=S NECK & BACK CLINIC, MEDICAL ADVANCED PAIN SPECIALISTS, LANDMARK SURGERY CTR., TILLGES CERTIFIED ORTHOTICS & PROSTHESIS, BLUE CROSS/BLUE SHIELD OF MINN., and MINN. SURGICAL ASSOCS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 3, 2003
APPORTIONMENT - EQUITABLE APPORTIONMENT. Substantial evidence, including medical records and expert medical opinion, supported the compensation judge=s denial of equitable apportionment against prior work injuries in 1993 and 1996. The compensation judge did not clearly err in affording less weight to the employee=s testimony of the extent and seriousness of his ongoing symptoms prior to his third injury in March 2000 than she gave to the contemporary medical records and other factors, including the employee=s ability to work without restrictions without lost time from work prior to March 2000.
Affirmed as modified.
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Carol A. Eckersen
DAVID A. STOFFERAHN, Judge
The employer and its insurer, State Fund Mutual Insurance Company, appeal from the compensation judge=s denial of apportionment against prior low back injuries in 1996 and 1998 for the employee=s disability and medical treatment following his most recent low back injury in March 2000. We affirm.
The employee, Dennis Schlemmer, began working for the employer, Lehmann Woodworks, in 1989. He sustained the first of three admitted work injuries to his low back in December 1993 when he was lifting a heavy reinforcing bar while installing custom cabinetry at the Memorial Blood Center. At the time of this injury the employer was insured by the Minnesota Workers= Compensation Assigned Risk Plan.
The employee began treating for this injury on December 29, 1993 with his family physician, Dr. Anthony Ferrara at the Inver Grove Heights Family Practice Clinic. The employee told Dr. Ferrara that he had previously had intermittent low back pain over the past few years but not as severe. There was no pain radiating into the employee=s legs. X-rays and a straight leg-raising test were negative. Dr. Ferrara diagnosed a low back strain. He prescribed medications, took the employee off work and advised him to return for reevaluation in four or five days.
The employee returned to see Dr. Ferrara on January 3, 1994 and reported that he felt much better, although he still had some pain in the low back and into the left buttock. Dr. Ferrara again noted that the employee had no pain radiating into his legs, although he still had some spasm in the paralumbar region. He authorized the employee to return to work on a light-duty basis and advised him to return for reevaluation in one week. When the employee returned to see Dr. Ferrara on January 13, 1994, he was feeling much better. He had no pain in the buttocks and only minimal back pain. Dr. Ferrara opined that the employee=s low back strain had resolved with no permanent partial disability. He released the employee to return to work with no restrictions the next morning. The employee continued to work without restrictions from January 1994 until January 25, 1996, and missed no time from work. He did not seek further medical care.
On January 25, 1996, the employee sustained a second admitted personal injury to the low back when his back Asnapped@ while he was assisting in unloading 4' x 8' sheets of particle board at the employer=s shop. As of this date, the employer was insured by Travelers Insurance Company. The employee was seen the next day by Dr. Seltz at the Inver Grove Heights Family Practice Clinic. The employee told Dr. Seltz that he had experienced intermittent low back pain over the past year and had now reinjured his back. He was also experiencing some numbness in both legs above the knee. Dr. Seltz diagnosed chronic low back pain with acute exacerbation. He restricted the employee to light-duty work until his next medical recheck, scheduled in one week.
On February 2, 1996, the employee returned to Dr. Seltz reporting that he continued to have significant pain in his posterior thigh and calf, especially on the left, and in the lower back. There was moderate paralumbar tenderness and straight leg-raising was difficult beyond 45 degrees. Dr. Seltz noted hamstring tightness but no true radicular symptoms. He restricted the employee to sedentary work for the next week and prescribed physical therapy.
When the employee next returned to Dr. Seltz on February 12, 1996, he stated he was significantly better and had awakened that morning without pain, although he had experienced some stiffness and pain as the day had progressed. Dr. Seltz again noted the absence of radicular symptoms. He continued the employee on light-duty work pending a reexamination in two weeks. On February 26, 1996 the employee reported that he was 70-80 percent back to normal. Dr. Seltz noted that the employee still had two sessions of physical therapy left. He authorized the employee to return to full activity the following morning and advised him to return on a per need basis.
The employee returned to work for the employer without restrictions and lost no further time from work due to his back condition prior to March 2000. On March 11, 1997, the employee was promoted to a working foreman position, which entailed less on-site installation work, although the employee continued to perform many of the same shop activities in addition to supervisory duties.
In 1997 the employee was seen once by Dr. Seltz for mid back pain. He characterized this as different from his prior chronic low back pain. Dr. Seltz diagnosed a thoracic strain with spasm. The records of the Inver Grove Heights Family Practice Clinic for July 2, 1998, show that the employee telephoned the clinic on that date reporting that he had a back problem involving a Aknot@ or Alump@ in his back. He stated that he had been treated for this before. A prescription for pain medication was apparently authorized by telephone. Other than these two entries, there is no medical record in evidence of any low back complaints or treatment from late February 1997 until March 2000.
On March 4, 2000, the employee sustained his third admitted low back injury when he was carrying sheets of Aslatwall@ into the employer=s building. While lifting this material onto the employer=s loading dock, the employee experienced a burning sensation in his back. The employee continued to work but his back pain got progressively worse. By the end of the day, the employee was having what he characterized as Aextreme@ back pain and leg pain. As of this date, the employer was insured by State Fund Mutual Insurance Company (AState Fund@).
The employee testified that he took some vacation time off hoping that his back would improve, as he did not want to make a workers= compensation claim. However, his symptoms continued to worsen. On March 30, 2000, the employee returned to the Inver Grove Heights Family Practice Clinic, where he was seen by Dr. Grace Peterson. He reported recurrent low back pain radiating down to his left buttock and proximal thigh. Dr. Peterson diagnosed acute sciatica with a lumbar strain, prescribed medications, and placed the employee on light duty for two weeks.
The employee was treated with physical therapy and was taken off work for a short period of time. When the employee had failed to show any improvement by May 30, 2000, Dr. Peterson scheduled the employee for a lumbar MRI scan. The scan was performed on June 9, 2000, and showed an L5-S1 broad-based left paracentral disc protrusion with slight posterior displacement of the traversing left S1 nerve root.
Dr. Peterson referred the employee to Summit Orthopedics, where he was seen by Dr. Dowdle on July 15, 2000. The employee told Dr. Dowdle that his symptoms were 60 percent low back pain and 40 percent posterior thigh pain, which did not reach below the knee. Straight leg raising produced posterior thigh pain on the left at 90 degrees. Dr. Dowdle diagnosed a herniated disc at L5-S1 and recommended an epidural steroid injection.
On August 2, 2000, Dr. Dowdle again examined the employee and noted that the epidural injection had not produced improvement. The employee continued to have substantial back pain. He again took the employee off work and noted that the employee might be a candidate for a lumbar laminectomy. The employee subsequently underwent an anterior/posterior interbody fusion at L5-S1 on December 11, 2000. The employee thereafter was off work until March 29, 2001, when he was released to return to light-duty work with the employer. On July 20, 2001, the employee was authorized to continue working full time with moderate-duty restrictions. He continued to work for the employer through the date of the hearing below.
The employee=s claim petition was filed on October 6, 2000, and sought temporary total and temporary partial disability benefits and medical reimbursement from the employer and State Fund. State Fund answered, denying primary liability on the basis that the employee=s symptoms were the result of a pre-existing condition. Because the employee was not receiving workers= compensation benefits, the employer paid the employee various amounts from December 27, 2000 through March 7, 2001 as Awage continuation@ for a period during which the employee was medically off work following his surgery. The employee filed an amended claim petition on June 18, 2001, adding the 1993 and 1996 dates of injury and their respective insurers.
Following a hearing on May 24, 2002, a compensation judge of the Office of Administrative Hearings found, among other things, that the employee=s 1993 and 1996 injuries were temporary in nature and that the March 2000 work injury was the sole cause of the employee=s disability and need for medical treatment after that date. Accordingly, the judge found that equitable apportionment of liability was not appropriate. The employer and insurer State Fund appeal from the compensation judge=s findings relating to the denial of apportionment. The compensation judge awarded the employer and State Fund a credit in the amount of $1,800.00 for wage continuation payments made by the employer. The employer and State Fund also appeal from the dollar amount of this credit.
1. Equitable Apportionment
Equitable apportionment is not purely a medical question but is ultimately a question of fact for the compensation judge. Ringena v. Ramsey Action Programs, 40 W.C.D. 880 (W.C.C.A. 1987), summarily aff=d (Minn. Mar. 28, 1988). Equitable apportionment is not a finding based on a precise formula but instead is based on all the facts and circumstances of a case. Factors to be considered in reaching an apportionment decision include, but are not limited to, the nature and severity of the initial injury, the employee=s symptoms following the initial injury up to the occurrence of the subsequent injury, and the nature and severity of the subsequent injury. Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 226 N.W.2d 888, 27 W.C.D. 797 (1975). Where the record would support almost any number of apportionment determinations, we will not substitute our judgment for that of the compensation judge. Giem v. Robert Giem Trucking, 46 W.C.D. 409, 418 (W.C.C.A. 1992).
Medical examinations on behalf of each of the three employers-insurers were conducted by Dr. Mark Engasser, Dr. Paul Cederberg, and Dr. Paul Yellin. Although all three physicians agreed that the employee had sustained a 14 percent permanent partial disability, each offered a different opinion on the issue of apportionment. Dr. Engasser, who examined the employee on March 27, 2001 for State Fund, considered all three injuries to be equally responsible for the employee=s current disability, medical treatment and restrictions. He based his view on a history given to him by the employee of ongoing problems with his low back since the first injury in 1993.
Dr. Cederberg, who examined the employee on September 20, 2001 on behalf of Travelers, apportioned 50 percent of the liability to the 1993 injury, none to the 1996 injury, and 50 percent to the injury in March 2000. He based his opinion on an account by the employee of persistent back and left leg pain since the injury in 1993.
Finally, Dr. Yellin, who examined the employee on November 12, 2001 for Berkley, expressed the view that the employee=s disability and need for treatment after March 2000 was solely attributable to the injury on that date. In his view, the 1993 injury was a temporary aggravation of a preexisting condition and had fully resolved by January 13, 1994 without permanent disability. Similarly, he believed that the 1996 work injury was another temporary aggravation which had resolved by February 26, 1996, when the employee was released to return to work without restrictions.
The employee was questioned repeatedly about his symptoms following each of the three work injuries during extensive direct and cross-examination testimony. With respect to his symptoms between 1993 and 1996, he testified variously that his pain level remained constant during this period at about five or six on a one-to-ten pain scale, with occasional flare-up to seven or eight; that his pain was not constant but would come and go; and that his physician had accurately recorded that, as of January 1994, his low back pain had become minimal and he no longer had pain in the leg or buttocks. (T. 32, 57-59, 86-89.) With respect to the period from 1996 to 2000, the employee stated that he had left leg pain as well as back pain and that it was worse than before the 1996 injury with more frequent flare-ups. He variously testified that his pain between 1996 and 2000 was not constant, and he did not have low back pain at all times during the period; and that his pain was always at least a constant Atwo@ during this period, with flare-up to the Aseven to nine@ pain level. (T. 38, 58, 67-69, 91, 94, 100.) The employee testified that the injury in 2000 had caused extreme back pain and extreme leg pain, and that his pain level had remained at a Aten@ after this injury for an extended period of time.
Although the compensation judge found that the employee had continued to experience some low back pain after his 1993 and 1996 injuries, her memorandum reveals that she gave more weight to the employee=s ability to work without restrictions or time loss from work and without ongoing medical treatment for long periods following each of the two initial work injuries. She adopted the expert medical opinion of Dr. Yellin over that of Dr. Engasser for the express reason that Dr. Engasser=s opinion was heavily based on the employee=s history of severe ongoing symptoms after each injury, while Dr. Yellin=s opinion was based on factual assumptions more consistent with the employee=s medical records and work history. The compensation judge rejected the opinion of Dr. Cederberg on the basis that Dr. Cederberg had assumed the presence of significant leg symptoms following the 1993 injury, which were not demonstrated in either the employee=s testimony or the medical records. In accordance with Dr. Yellin=s opinion, the compensation judge found that the 1993 and 1996 work injuries were temporary aggravations to the employee=s pre-existing back condition and that the March 2000 injury was solely responsible for the employee=s disability and need for medical treatment after that date.
The appellants first argue that the compensation judge Afailed to take into consideration the employee=s testimony@ regarding the extent of his ongoing symptoms following each of the first two work injuries. We see no indication that the compensation judge failed to consider the evidence of the employee=s testimony. She specifically found that the employee did in fact continue to experience some symptoms between 1993 and 1996 and between 1996 and 2000. However, the compensation judge gave the employee=s testimony as to the extent of his continuing symptoms less weight than she gave other factors, including his ability to work without restrictions and the absence of continuing medical treatment during the greater part of these periods. We cannot say that the compensation judge clearly erred by failing to give greater weight to the employee=s testimony in this case.
It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. The compensation judge=s choice between conflicting medical opinions will not be reversed so long as there is adequate foundation for the expert=s opinion. See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). The appellants contend that the compensation judge=s reliance on Dr. Yellin=s opinion was error because that opinion was not based on a factual foundation reflecting the employee=s testimony, but was instead merely consistent with the medical records. As we have noted, the compensation judge afforded less weight to the employee=s testimony as to the seriousness and extent of his ongoing symptoms prior to the March 2000 work injury than she did to the contemporary medical records and other factors. The causation opinion expressed by Dr. Yellin was thus based on a history consistent with the facts as found by the compensation judge. It is therefore supported by adequate foundation. We accordingly affirm.
2. Credit for Wage Continuation
In her opening statement, counsel for the employer and State Fund stated that the wage continuation payments made by the employer from December 27, 2000 through March 7, 2001 totaled $1,800.00.
During his hearing testimony, the employee was asked if he agreed that he had received alleged wage continuation payments during this period:
Q.In addition to facilitating time off for you and getting some help in the shop, [the employer] also paid you some wage continuation when you needed it. Do you recall him issuing some checks to you starting on December 29, 2000?
Q. For the sum of $600?
A. . . . It was $600 before taxes and all that stuff was taken out . . .
* * *
Q.The records show he paid you on 12/29/2000; 1/26/3002 another $600; February 27th, 2001, $300; and March 7th, 2001, $300 gross. Do you have any reason to dispute that?
(T. 77-78.) The total of the payments thus acknowledged by the employee is $1,800.00.
Subsequently, the employer=s owner offered testimony as to the wage continuation payments made. He agreed with the same dates and amounts previously acknowledged by the employee=s testimony, with one exception:
Q.And then this is the change: The week ending March 7th, 2001, you didn=t pay $300 you paid $400?
1.Correct. I have check number 12049 for $400.
(See T. 122-123.) According to this testimony, the payments thus totaled $1,900.00 rather than $1,800.00. No documentary evidence was submitted to substantiate the payments, and the employee was not asked whether he agreed with the testimony of the employer=s owner amending the amount of the wage replacement payment made on March 7, 2001.
The compensation judge found that the employer had paid wage replacement in the amount of A$1,800.00 for which they seek a credit.@ (Finding 8.) She awarded a credit in that amount. (Order 1.)
The appellants contend on appeal that the undisputed evidence established that $1,900.00 was paid by the employer as wage replacement and that the compensation judge erred in awarding only $1,800.00. They request that we modify the judge=s Findings and Order to award a credit in that amount. None of the other parties have responded, either agreeing or disagreeing with the appellants= position on this issue.
The question before us is really one of whether the compensation judge inadvertently overlooked the testimony of the employer=s owner, or whether the judge considered the additional $100 payment alleged by the employer to be unproven. It may be that the employee would have given further testimony acknowledging that the additional $100 was paid but we cannot be sure as he was not asked to do so; nor has the employee addressed this issue in any submission to this court on appeal.
We are thus presented with a record in which two witnesses gave conflicting testimony. It is not the role of this court to make findings of fact where the facts are in dispute. To amend the judge=s findings to show a $1,900.00 rather than an $1,800.00 credit would be, in effect, to make such a finding of fact.
On the other hand, it is clear that the compensation judge intended to award a credit for the full amount of any wage replacement made by the employer and insurer. It also seems distinctly possible here that the judge may simply have inadvertently overlooked the employer=s testimony.
We therefore modify Finding 8 to omit the specific dollar amount of the wage replacement and modify Order 1 to award a credit not for a specified amount but for Athe amount of the wage replacement payments made by the employer.@ If this amount is not genuinely in dispute, there is no reason that the proper amount should not be credited without need of a remand. If, on the other hand, there is a genuine dispute over whether the payments totaled $1,800.00 or totaled $1,900.00, the parties remain free to relitigate that issue.