THOMAS N. TOLLEFSON, Employee/Appellant, v. SCHWICKERTS, SELF-INSURED/BERKLEY RISK ADM=RS, Employer, and MAYO FOUND., ROOFERS UNION LOCAL 96 and MN DEP=T OF LABOR & INDUS./VRU, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 14, 2003
CAUSATION - CONSEQUENTIAL INJURY. Where the employee had a pre-existing low back condition at the time of his work injury in 1999 but was able to return to work as a roofer, and later sustained another injury to his low back while not at work in 2001, substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee did not establish medical causation between his 1999 work injury and his disability in 2001 or his need for three-level fusion surgery in 2002.
Determined by Johnson, C.J., Pederson, J., and Stofferahn, J.
Compensation Judge: Paul V. Rieke.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s finding that he failed to prove his disability after August 9, 2001 was a direct and natural consequence of his admitted April 28, 1999 personal injury. We affirm.
Thomas N. Tollefson, the employee, sustained a work-related low back injury in 1987 while working for Merit Contracting. The employee testified he obtained medical care and missed a few days of work but was able to return to work without restrictions. On August 19, 1991, the employee sustained a second work injury while working for Merit Contracting. The employee was working on the roof of a building when he was struck by a hoist and thrown off the roof. The employee testified he fell approximately 10 to 15 feet before his safety harness stopped him. The employee saw Dr. Thomas Miller at the Olmsted Medical Center who diagnosed an acute back strain. A bone scan showed an old anterior compression fracture at L1 but was otherwise normal. By September 6, 1991, Dr. Miller noted the employee=s back strain was resolving slowly and the doctor continued the employee=s work restrictions. On October 18, 1991, the doctor allowed the employee to resume his full duties as a roofer.
The employee returned to the Olmsted Clinic on July 30, 1992, complaining of low back pain. On examination, Dr. Richard Christiana found bilateral muscle spasm and a limited range of motion. An x-ray showed mild anterior wedging of L1 and mild discspace narrowing at L4. Physical therapy was prescribed. The employee returned to the clinic in April 1993 with complaints of recurrent low back pain, numbness and paresthesias in his legs since 1991. A lumbar CT scan showed diffuse mild degenerative changes without evidence of nerve root compression. Dr. Larry Grubbs prescribed physical therapy. After the first session of traction at physical therapy, the employee experienced a flare-up and treated with Dr. Grubbs. Dr. Grubbs took the employee off work on May 5, 1993. By May 20, 1993, Dr. Grubbs concluded the employee=s low back strain had satisfactorily resolved and he released the employee to return to full duty work.
The employee sustained a personal injury to his low back on April 28, 1999, while working as a roofer for Schwickerts, then self-insured for workers= compensation liability, with claims administered by Berkley Risk Administrators. The self-insured employer admitted liability for the employee=s personal injury.
The employee returned to see Dr. Grubbs on April 29, 1999, and gave a history of a work injury the day before while repairing a roof. Dr. Grubbs diagnosed an acute low back strain and took the employee off work. A lumbar CT scan showed degenerative changes, osteophyte formation and diffuse disc bulging at the three lower disc spaces which was new since the 1993 scan. On May 27, 1999, Dr. Grubbs released the employee to return to sedentary work with a 10-pound lifting restriction. Dr. James Smith, a neurologist at the Olmsted Clinic, examined the employee and ordered EMGs of both legs, which were normal. Dr. Smith diagnosed musculoskeletal low back pain without evidence of lumbosacral radiculopathy and recommended the employee continue with his current work restrictions. In July 1999, Dr. Grubbs diagnosed persistent low back pain and prescribed further physical therapy. An MRI scan in August 1999 showed degenerative disc disease at L3 through L5, with some degree of stenosis of the foramina at L5, with slight impingement on the L5 nerve roots. Dr. Grubbs diagnosed persistent low back pain with right sciatica and referred the employee to the Mayo Clinic.
The employee saw Dr. Ronald K. Reeves in the physical medicine department of the Mayo Clinic on August 31, 1999. The doctor diagnosed right-sided back, buttock and thigh pain of uncertain etiology. He referred the employee to Dr. Steven Sabers who injected the employee=s right sacroiliac joint. The employee returned to see Dr. Reeves, reported no relief from the joint injection and stated his symptoms were essentially unchanged. The doctor obtained a copy of the August 1999 MRI scan which he read as showing degenerative disc disease at L4-5 and L5-S1 and an L5 annular tear. Dr. Reeves allowed the employee to return to work four hours a day with limited lifting and sitting. In November 1999, Dr. Sabers performed an epidural steroid injection. The employee returned to see Dr. Reeves and reported no improvement from the steroid injection. The doctor continued the employee=s work restrictions and recommended an orthopedic consultation. In February 2000, Dr. Michael J. Yaszemski examined the employee and concluded surgery was not appropriate. Dr. Reeves then recommended a work hardening program.
In March 2000, the employee commenced a work hardening program at the Work Rehabilitation Center. The employee was then also working four hours a day at the employer. The goal of the program was to increase the employee=s functional level. By April 3, 2000, Dr. Reeves reported the employee was making excellent progress. An R-33 form prepared at the Mayo Clinic on May 5, 2000, stated the employee could, on a continuous basis, bend/stoop, squat, crawl, climb ladders, climb stairs, perform overhead work, kneel, balance and crouch. The R-33 limited the employee=s lifting to 100 pounds occasionally, 55 pounds frequently and 30 pounds continuously.
The employee returned to work with the employer on a full time basis on April 24, 2000. Initially, the employee=s duties were modified but after approximately two weeks, he resumed his normal duties as a roofer. The employee testified that when he returned to full time work he had occasional symptoms in his low back. He stated his back would flare up approximately once a week. The employee also testified he might go a week or two without pain and then experience two or three days where his back bothered him. In the mornings, the employee stated his back was stiff until he did his exercises. Approximately once a week, his back would hurt at the end of the day and he would take a hot shower or use a heating pad to relieve some of the pain.
The employee returned to see Dr. Reeves on August 11, 2000. Dr. Reeves= diagnosis was multi-level lumbar degenerative disc disease with an L5 annular tear and chronic low back pain due to the disc disease. The doctor rated a 10 percent whole body disability, concluded the employee had reached maximum medical improvement and released the employee to return to work subject to restrictions. The doctor noted, however, the employee=s work as a roofer does not Alend itself to accurate estimation nor ergonomic principles of good lifting.@ Accordingly, the doctor stated Ait is likely that he is at much higher risk for recurrent injury by the nature of his current work in roofing.@ The doctor advised the employee and his QRC to work with the employer to identify an alternative job that would be less physically taxing. (Pet. Ex. A.)
On or about August 9, 2001, the employee was on vacation in Idaho when he bent over to pick up a case of pop and suddenly felt a sharp pain in his low back. The employee drove home and went to the Urgent Care Center at the Mayo Clinic on August 13, 2001, complaining of low back pain and numbness in his left hip. On examination, the doctor noted mild tenderness over the paraspinal muscles, diagnosed low back pain and recommended the employee take some time off from work. The employee returned to the Urgent Care Center on August 21, 2001, complaining of continuing low back pain with radiation into both legs. The diagnosis was low back pain with radicular features. The doctor took the employee off work. On August 29, 2001, the employee saw Dr. Toni Hanson at the Mayo Clinic. On examination, Dr. Hanson found positive straight leg raising and limited range of motion. The doctor diagnosed Aacute superimposed on chronic low back pain and lumbar degenerative disc disease with an L5 annular tear.@ Physical therapy was prescribed. An MRI scan in September 2001 showed a broad-based disc bulge eccentric to the left at L4-5 which indented and narrowed the left lateral recess and deviated the left L5 nerve root. Dr. Reeves compared the recent MRI scan with the 1999 MRI scan and concluded it revealed Aessentially no change.@ Dr. Reeves stated that, given Athe similar nature of Mr. Tollefson=s symptoms, his physical examination, and the lack of significant change in his spinal imaging over time, I suspect his current episode of pain represents an exacerbation of his prior work-related injury.@ (Pet. Ex. A.) Dr. S. A. Schreiner, a radiologist, also compared the two MRI scans and concluded the broad-based disc bulge/protrusion at L4-5 was more prominent on the 2001 study as compared to the 1999 study. Dr. Schreiner stated the remainder of the scan was essentially unchanged.
In November 2001, the employee was examined by Dr. Rafael Sierra, an orthopedist, on referral from Dr. Reeves. The doctor diagnosed degenerative disc disease at L4-5 and L5-S1 and discogenic pain. In December 2001, a three-level discography was performed at L3, L4 and L5. The L3 and L4 levels were considered essentially negative with inconsistent reproduction of concordant pain at L5. In January 2002, Dr. Paul Huddleston discussed surgery with the employee. The doctor stated that because the employee had degenerative discs up to L3, he would require a fusion from L3 to the sacrum. In February 2002, the employee underwent a transforamial interbody fusion at L3-4, L4-5 and L5-S1, a hemilaminectomy and facetomy at L3 to L5 on the left, and a posterior spinal fusion from L3 to S1 with instrumentation and an iliac crest bone graft.
Dr. Daniel Randa, a neurologist, examined the employee on December 12, 2001, at the request of the employer, and his deposition was taken in July 2002. The doctor obtained a history of the employee=s prior work injuries and reviewed the employee=s medical records. The employee told the doctor he was on vacation in August 2001 when he bent over to pick up a case of pop and had a sudden onset of low back pain with radiation into both legs, somewhat greater on the right. Dr. Randa reviewed the MRI scans and stated the September 2001 MRI scan demonstrated a conspicuous change from the August 1999 MRI scan. The doctor concluded the 2001 scan showed a central and left-sided L4-5 lumbar disc protrusion with encroachment on the thecal sac and left lateral recess which was not present on the prior scan. This disc protrusion, the doctor stated, would cause right and left leg pain. Dr. Randa opined the employee had achieved a very high functional status by August 2000 and was working essentially without restrictions. The doctor opined the employee sustained an acute lumbar disc syndrome with an L4-5 disc protrusion and L5-S1 radiculopathy on August 9, 2001. Dr. Randa stated the employee sustained a new and distinct injury to the L4-5 disc on August 9, 2001, which was unrelated to the 1999 personal injury. Accordingly, the doctor concluded the April 1999 work injury was not a substantial contributing cause of the employee=s disability after August 9, 2001, or his need for surgery in February 2002.
Dr. Reeves was deposed in July 2002. The doctor testified the employee=s left sided L4-5 disc bulge/protrusion was not contributing significantly to the employee=s symptoms since most of the employee=s pain was in the low back and right leg. The doctor testified that, in general, a multi-level lumbar fusion is performed for severe lumbar disc disease and not for a single-level herniated disc. Dr. Reeves opined the employee=s April 1999 work injury was a substantial contributing cause of the employee=s multi-level degenerative disc disease and the L5 annular tear. The doctor further opined the employee=s disability and need for the 2002 fusion surgery was substantially caused by the employee=s work injury.
The employee filed a claim petition seeking temporary total disability benefits and medical expenses. The case was heard before a compensation judge at the Office of Administrative Hearings on July 17, 2002. In a Findings and Order served and filed July 22, 2002, the compensation judge found the employee=s activity of lifting a case of pop on August 9, 2001, was a reasonable and customary activity. However, the judge further found the employee failed to establish his physical condition after August 9, 2001 was a direct and natural consequence of his previous compensable work injury. Accordingly, the compensation judge denied the employee=s claim for benefits. The employee appeals.
The employee contends the compensation judge misapplied the law regarding compensable consequences of an admitted personal injury and the law of superseding intervening cause. There is no dispute the employee=s April 1999 injury resulted in a ten percent whole body disability and permanent work restrictions. Since the employee did not fully recover from the effects of the 1999 injury, the employee contends his disability after August 2001 and the need for surgery must be compensable unless the vacation incident was a superseding intervening cause. The compensation judge found that lifting a case of pop was a reasonable and customary activity; therefore, the employee argues that the incident cannot be a superseding intervening event. The employee argues the compensation judge=s misapplication of the law requires a reversal of the denial of benefits. We disagree.
The employee contends his disability after August 8, 2001, is a compensable consequence of the admitted 1999 personal injury. In deciding the compensability of a claimed consequence of a personal injury, the court utilizes the direct and natural consequence rule. Where a permanently weakened physical condition caused by a personal injury is aggravated by an employee=s subsequent normal physical activities to the extent of requiring additional medical treatment, such treatment is compensable so long as the additional care was a natural consequence flowing from the primary injury and not the result of unreasonable, negligent, dangerous or abnormal activity on the part of the employee. Eide v. Whirlpool Seeger Corp., 260 Minn. 98, 101-02, 109 N.W.2d 47, 49-50, 21 W.C.D. 437, 441 (1961). Where, however, the Aoriginal injury is aggravated by or the injured person sustains a new injury as the result of an occurrence that has no causal relation to the original injury, it must be said that the injury is not a consequence of the first; hence, that no liability exists.@ Wallace v. Judd Brown Constr. Co., 269 Minn. 455, 460, 131 N.W.2d 540, 544, 23 W.C.D. 362, 368-69 (1964). To establish a consequential injury, causation must be established between the primary injury and the claimed compensable consequence. In most cases, the employee must establish medical causation between the injury and claimed compensable consequence. Heinemann v. Independent Sch. Dist. #279, slip op. (W.C.C.A. Apr. 23, 2003). Whether there exists the requisite medical causation is generally a factual question for a compensation judge and one which this court reviews under the Hengemuhle standard. Accordingly, the compensation judge did not err in his application of the law, and the issue on appeal is whether substantial evidence supports the judge=s decision.
The compensation judge concluded the causation opinions of Dr. Randa were more persuasive than the opinions of Dr. Reeves. The employee argues Dr. Randa lacked foundation for his opinions and the compensation judge improperly relied upon them. We disagree. Dr. Randa is a board certified neurologist. The doctor was provided a thorough history of the employee=s injuries, reviewed the relevant medical records and conducted a physical examination. As a general rule, this level of medical expertise and practical experience establishes competency to render an expert medical opinion. See Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983). The appellant further argues, however, Dr. Randa=s opinions are unsupported by the evidence. Specifically, Dr. Randa concluded the 2001 MRI scan was dramatically different than the 1999 scan, a conclusion with which Dr. Reeves and a radiologist at the Mayo Clinic disagreed. We find no lack of foundation. Rather, this case involves primarily a dispute between expert witnesses. Resolution of such a dispute is the function of the compensation judge. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The employee next argues the compensation judge=s decision is unsupported by substantial evidence and lists the evidence which could support a contrary conclusion. The employee had a significant injury in 1999 which aggravated his underlying degenerative disc disease at L4-5 and L5-S1 and caused or aggravated an L5 annular tear. As a result of this injury, the employee sustained a ten percent whole body disability and had continuing work restrictions. The compensation judge found the August 9, 2001, event was not an abnormal activity. Two doctors at the Mayo Clinic opined there was little significant difference between the 1999 and 2001 MRI scans. In any event, Dr. Reeves testified the employee=s symptoms in 2001 were in the low back and right leg which would not be caused by a left-sided disc herniation as diagnosed after the 2001 injury. Finally, a three-level fusion is, as Dr. Reeves testified, not a surgery performed simply because of a single-level disc protrusion. Those facts, the employee argues, compel a contrary result. We disagree. On appeal, the question is not whether the evidence would support a different result but whether substantial evidence supports the compensation judge=s decision. Minn. Stat. ' 176.421, subd. 1(3).
By April 2000, the employee had returned to his regular job as a roofer, albeit with restrictions. The compensation judge found that prior to the nonwork incident, the employee=s back generally felt pretty good although he experienced stiffness and pain in the morning. The employee=s testimony supports this finding. Dr. Randa agreed the employee had responded very well to conservative measures and was able to work in an unrestricted fashion subject to his 55-pound lifting restriction. In addition, the employee was able to work without medical care for a year prior to August 2001. Dr. Randa concluded the employee sustained a new and distinct injury on August 9, 2001. Dr. Randa opined the August 9, 2001 incident caused an acute L4-5 lumbar disc protrusion which irritated the L5-S1 nerve roots causing bilateral leg pain. The doctor opined the 1999 work injury was not a substantial contributing cause of the employee=s disability after August 9, 2001, and the compensation judge adopted this opinion. Substantial evidence supports the compensation judge=s decision that the employee=s disability and need for surgery were not causally related to the employee=s 1999 work injury. We must, therefore, affirm that decision.