LESLIE L. VOIGT, Employee/Appellant, v. CITY OF LITTLE FALLS POLICE DEP=T, SELF-INSURED/BERKLEY RISK ADMIN=RS CO., Employer.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 17, 2003
CAUSATION. Where the employee, a police officer, sustained a heart attack that the compensation judge found to be causally related to his employment, and where the compensation judge found that the employee=s later disability and condition were caused solely by smoking and obesity and not by his cardiac condition, we conclude that the medical evidence of record supports that finding and accordingly affirm the denial of claimed temporary total and temporary partial disability benefits.
PERMANENT PARTIAL DISABILITY. Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee had not met the criteria for a 25% permanent partial disability rating under Minn. R. 5223.0570, subp. 3.C.
Determined by Rykken, J., Wilson, J., and Stofferahn, J.
Compensation Judge: Paul D. Vallant
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge=s denial of his claim for temporary total and temporary partial disability benefits from and after January 1, 2001, and from the denial of his claim for an additional 20% permanent partial disability of the whole body. We affirm.
Mr. Leslie L. Voigt, the employee, was employed full-time as a police officer by the City of Little Falls Police Department, the employer, between July 1988 and December 31, 2000. He was promoted to sergeant in 1992 and held that position thereafter. As a police sergeant, the employee reported directly to the police chief, supervised police officers, and worked in the field, investigating felonies and answering calls involving bar fights, alcohol and drug use, and domestic assaults. He also taught schoolchildren in the Drug Abuse Resistance Education (DARE) program. In addition, the employee underwent special training in sex crime cases, so handled a large share of that type of case for the police department.
In March 1998, the employee consulted his family physician, Dr. Michael Johnson, expressing concerns about his weight gain and family history of heart attacks, including his mother=s and brother=s deaths at age 44 due to heart attacks. The employee testified that he had not felt well and had experienced fatigue in early 1998 and was unable to exercise his usual amount. Dr. Johnson assessed the employee as having a significant family history of cardiovascular disease, smoking, mild to moderate obesity, and labile hypertension. On late August 10, 1998, the employee noted pain in his chest while answering a call for medical assistance and was hospitalized where tests confirmed that he had sustained a myocardial infarction resulting from an occlusion of his mid-left anterior descending artery. He was treated with an angioplasty, an arterial stent and cardiac rehabilitation, and remained off work as a result of his heart condition. The employee noticed a loss of his Awind@ after his first heart attack. He underwent a Bruce protocol exercise stress test on October 2, 1998, which Dr. Erickson interpreted as showing excellent exercise tolerance, no arrhythmias, no ST (sinus tachycardia) changes, and no symptoms. Dr. Erickson concluded that the employee was Astable enough to return to work with his duties as a police officer.@ However, on October 15, 1998, after attending a training session with co-workers, the employee reported to the emergency room with chest pain. Although he did not remain hospitalized that day, he returned again to the emergency room on October 16, for further testing, where he was diagnosed with a second myocardial infarction as a result of an occlusion of his left anterior descending artery. He was then hospitalized and again was treated with angioplasty and arterial stent placement. The employee claimed that both injuries were work-related; the employer denied primary liability for both incidents.
By November 15, 1998, Dr. Erickson released the employee to return to work, at full duty, and he returned to work as a full-time police officer. On behalf of the self-insured employer, Dr. David Berman examined the employee on February 24, 1999. He concluded that the employee=s cardiac condition was not causally related to his employment but instead was related to other risk factors such as smoking, positive family history, hyperlipidemia and intermittent hypertension. Dr. Berman concluded that the employee had Aonly average amounts of stress in his police work@ and that he found no evidence Athat there was stress of such a degree that it could have caused a significant coronary problem.@ Dr. Berman further concluded that the above risk factors Ado, in fact, rebut the statutory presumption that his heart condition was related to his police work.@
In letters dated June 15 and 29, 1999, Dr. Erickson reported that when he last examined the employee on November 19, 1998, the employee was feeling relatively well without chest pain, had occasional shortness of breath, and had returned to smoking. He concluded that the employee was not disabled from a cardiac standpoint. Dr. Erickson concluded that, based on the employee=s earlier stress test, he had a normal exercise capacity for his age, and assigned a permanency rating of 5% permanent partial disability of the whole body. However, Dr. Erickson also stated that the AMinnesota state schedules go by VO 2 max testing, which we do not routinely perform when we perform treadmill exercise testing,@ and offered to perform that test to aid in the determination of the employee=s disability.
On June 29, 1999, the employee was examined by Dr. D. M. Van Nostrand, who concluded that the employee had reached maximum medical improvement Afrom his current condition@ but that his prognosis was Aguarded because he sustained damage to his myocardium as evidenced by reduction of his ejection fraction and also abnormal motion of his ventricular wall.@ Dr. Van Nostrand recommended no additional physical restrictions as long as the employee was able to continue his cardiac rehabilitation program. He assigned a permanency rating of 5% percent permanent partial disability of the body as a whole, based on the employee=s angiograms and his shortness of breath on exertion.
The employee received additional medical treatment in 1999, for symptoms of fluid retention, weight gain and right leg pain. On September 15, 1999, the employee underwent another cardiopulmonary exercise stress test, which was interpreted to show essentially normal results, and after which Dr. Olsen, Central Minnesota Heart Care, concluded that the employee could perform eight hours of mild to moderate work per day.
On March 7, 2000, the employee and employer entered into a stipulation for settlement in which the employee=s claims related to his August 11, 1998, injury were settled on a full, final and complete basis, with the exception of non-chiropractic medical expenses. The self-insured employer maintained its denial of primary liability for the employee=s alleged injury of August 11, 1998, and there was no mention of the employee=s claimed October 16, 1998, injury in the stipulation for settlement. The settlement agreement was approved by an award on stipulation, served and filed March 8, 2000.
The employee had difficulty performing his job after his second heart attack in October 1998. For example, he felt very winded during stressful calls such as breaking up bar fights and on one occasion he became very winded or short of breath after chasing a suspect for one block, and could not continue the chase. He testified that this incident Areally made me decide maybe I=m doing the wrong thing here. . . . I got to the point where I felt I couldn=t help my [o]fficers anymore.@ He testified that he continued to perform his regular duties and that the police department never modified his job nor tried to assign him lighter job functions to accommodate his condition. He continued to work as a police officer until he resigned for health reasons, as of December 31, 2000. At the time of his resignation, the employee applied for and was granted medical disability status through the Public Employees= Retirement Association (PERA). Dr. William Paule, medical consultant for the State Board of Health, issued a report dated October 25, 2000, which supported the employee=s disability designation. Dr. Paul concluded that the employee was disabled as a result of his coronary condition and that he had incurred this disability in the line of duty. He based his conclusions on Dr. Van Nostrand=s opinion that the employee suffered from coronary artery disease, had a history of two myocardial infarctions treated with angioplasty, and that he had anginal pain and considerable exertional dyspnea, disabling him from continuing to work as a police officer.
The employee testified that he believed he was under no cardiac restrictions at the time of his resignation in 2000. However, at the hearing in 2002 he also testified he felt that he could not safely return to full-time work as a police officer in his present condition due to his physical limitations resulting from his heart attacks.
The employee remained off work between January 1 and May 11, 2001. In a report dated January 10, 2001, Dr. Van Nostrand opined that the employee=s second heart attack in October, 1998, substantially contributed to his current disability. The employee later sought alternative work and on May 12, 2001, began working for Pinkerton=s Security as a security guard, working 32 to 40 hours per week and earning between $11.10 and $11.64 per hour. He testified that the City of Little Falls did not provide him with rehabilitation assistance after his injuries, that he did not immediately start looking for work after his resignation because he did not feel well, but instead Aspent a lot of time at the Police Department asking my Chief what I should do,@ and that he did not apply for any positions other than the Pinkerton=s job.
In February 2002, the employee was not feeling well and so reported to the Minneapolis Heart Institute where he underwent a Cardiolite cardiac stress test and myocardial perfusion scanning which showed two areas compatible with myocardial ischemia and a calculated ejection fraction of 47 percent. Dr. Casey Lawler reported that:
The patient was exercised according to the Bruce protocol. The patient exercised for a total time of 8 minutes into Stage 3. The reason for stopping the test was due to the patient=s shortness of breath and fatigue. The patient had no complaints of chest discomfort during the study.
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Electrocardiogram during exercise reveals an appropriate increase in the patient=s heart rate response. No exercise induced arrhythmias are noted and no ST [sinus tachycardia] segment changes indicative of an ischemic response are present.
Dr. Lawler diagnosed AStable CAD@ (coronary artery disease), recommended continued medical therapy, and advised the employee on diet, exercise and curtailing his tobacco use.
Based on this stress test, Dr. Van Nostrand assigned a permanency rating of 25% permanent partial disability of the body as a whole, pursuant to Minn. R. 5223.0570, subp. 3C. Dr. Van Nostrand testified that the employee=s increased disability was attributable to his second heart attack in October 1998, as the employee was in much better physical condition after his first heart attack than after his second one. Dr. Van Nostrand also concluded that the employee=s breathing difficulty and fatigue that he experienced during the stress test in 2002 was related to his coronary artery disease.
In a report dated May 3, 2002, Dr. Berman asserted that the employee=s current symptoms were not related to his coronary disease but instead were related to his obesity and smoking, and concluded that the employee=s permanency rating remained at the previously-assigned level of 5% permanent partial disability of the whole body.
A hearing was held on this matter on April 11, 2002, to address claims related to the employee=s claimed injury of October 16, 1998. In the Findings and Order, served and filed July 12, 2002, the compensation judge found that the employee=s myocardial infarction of October 16, 1998, is presumed to be an occupational disease as defined by Minn. Stat. ' 176.011, subd. 15(b), due to the nature of the employee=s employment as a police officer. The compensation judge found that although the employee had preexisting recognized causative risk factors for myocardial infarction unrelated to his employment, including his family history, smoking, obesity, hyperlipidemia, and intermittent hypertension, the employer did not overcome the statutory presumption that employee, as an active duty police officer, sustained a myocardial infarction due to the nature of his employment. The compensation judge based this, in part, on the employee=s uncontroverted testimony that the stress of his duties as a police sergeant were beyond the ordinary day-to-day stress which all employees experience. He also found that the deposition testimony of Dr. Van Nostrand established that the stress of being a police officer was a significant contributing factor in the employee=s development of coronary artery disease. The employer did not appeal from that portion of the findings and order.
The compensation judge found that the employee=s claims for benefits relative to his October 16, 1998, incident were not foreclosed by the 2000 stipulation for settlement and award on stipulation. The compensation judge found that the employee=s prescriptions and outstanding medical expenses were reasonable, necessary and causally related medical expenses, and therefore ordered payment for such expenses. However, relying upon Dr. Berman=s opinion, the compensation judge concluded that the employee has been neither temporarily totally nor temporarily partially disabled from and after January 1, 2001, as a result of his October 16, 1998, work injury, and denied his claims for disability benefits. The compensation judge concluded that the employee=s present symptoms and disability are not related to his coronary artery disease, but instead are related to his obesity and smoking. He also found that the employee did not make a reasonable and diligent search for employment from January 1, 2001, to May 12, 2001, as he applied for no jobs other than the one he commenced at Pinkerton=s. The compensation judge therefore denied the employee=s claim for temporary disability benefits from and after January 1, 2001.
In addition, the compensation judge found that the employee has sustained no more than a 5% permanent partial disability of the whole body as a result of his August 11 and October 16, 1998, myocardial infarctions, and that this level of permanency benefits was paid for and closed out through the March 8, 2000, award on stipulation. The compensation judge therefore denied the employee=s claim for any additional permanent partial disability benefits. The employee appeals from the denial of temporary partial, temporary total and permanent partial disability benefits.
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. 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).
The employee appeals from the compensation judge=s finding that the employee=s October 16, 1998, myocardial infarction does not represent a substantial contributing factor of the employee=s temporary total or temporary partial disability after his resignation from the Little Falls Police Department on December 31, 2000. Relying on Dr. Berman=s opinion, the compensation judge found that the employee=s present symptoms and disability are not related to his coronary artery disease, but instead to his obesity and smoking. The judge specifically cited to the employee=s 38-pound weight gain between August 1998 and March 4, 2002. He also cited to the employee=s smoking history, which included one and one-half to two packs of cigarettes per day for nine - ten years before his first heart attack in August 1998 as well his cessation of smoking between August and October 1998, and his resumption of smoking one half pack of cigarettes per day since October 1998. The employee argues that the compensation judge=s denial of the employee=s ongoing disability is unsupported by substantial evidence and is premised upon a misunderstanding of the applicable rules of causation.
A[I]n order to recover workers= compensation benefits, the employee must establish that his work-related injury is a substantial contributing factor to his current disability.@ Steinhaus v. F.B. Clements, 47 W.C.D. 22, 30 (W.C.C.A. 1992). An employee need not prove that the employment was the sole cause, only a substantial contributing cause of the disability for which benefits are sought. Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989); Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 498 (Minn. 1987); Millington v. North Central Terminal Operators, 42 W.C.D. 96, 102 (W.C.C.A. 1989), summarily aff=d. (Minn., Aug. 16, 1989). The employee argues that the evidence does not support a finding that his current disability is due solely to his smoking and weight condition and that the compensation judge erroneously concluded that the employee=s heart attack did not substantially contribute to his ongoing disability.
The employee also argues that there is nothing in the record to suggest that, if he had not developed the work-related cardiac condition, the employee=s weight and smoking alone would have prevented the employee from continuing to work as a police officer. In support of this argument, the employee points out that he gained weight between his first and second heart attack, but thereafter maintained his weight at approximately his pre-heart attack level and nevertheless suffered from shortness of breath symptoms that ultimately led to his resignation. The employee further argues that Dr. Berman was unaware that he limited his smoking following his heart attacks, and that the evidence compels the conclusion that, although smoking and obesity may have contributed to the employee=s condition following his heart attacks, his heart attacks and work-related cardiac condition played a substantially contributing role as well. We are not persuaded.
According to the employee=s testimony, he was under no work restrictions at the time he resigned on December 31, 2000, although he noted shortness of breath after performing certain duties. On May 3, 2002, Dr. Berman stated that:
I do not believe that he has significant symptoms from coronary disease but rather his symptoms are related to obesity and smoking. He has a mildly reduced ejection fraction as the result of his previous two heart attacks, but this is not causing him any significant disability at this time.
Even Dr. Van Nostrand expressed concern about the employee=s weight and smoking, and testified that it Awould be beneficial for him, I think to lose weight, smoke less. . . And if he were to do that, then he would be able to have fewer restrictions, I would think.@
We recognize that the record contains conflicting medical opinions as to the level and cause of the employee=s disability, and there is medical evidence that the employee is unable to continue working at his regular duties as a police officer. However, while there is evidence in the record that could support a conclusion opposite that of the compensation judge=s, our role as a reviewing court requires us to determine whether the record supports the compensation judge=s findings. The compensation judge specifically relied upon Dr. Berman=s opinion concerning the cause of the employee=s disability after December 31, 2000. It is his responsibility, as trier of fact, to resolve conflicts in expert testimony, Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985), and we cannot conclude that his reliance on that opinion is clearly erroneous.
Based on the record as a whole, we conclude that the record minimally supports the compensation judge=s conclusion that it was the employee=s smoking and weight that caused his disability after December 31, 2000, and not his cardiac condition, and therefore affirm. As we have affirmed the compensation judge=s findings on the causation of the employee=s disability, we affirm the denial of the employee=s claims for temporary total and temporary partial disability benefits, based on a lack of causal connection to the employee=s work-related heart attacks.
Permanent Partial Disability Benefits
The compensation judge concluded that the employee sustained a 5% permanent partial disability of the whole body as a result of his two heart attacks, and found that since the employee was earlier compensated for that level of permanency by the award on stipulation, no additional benefits were due. The employee appeals from the compensation judge=s denial of his claim for additional benefits based upon 25% permanent partial disability of the body as a whole. We are not persuaded that the judge erred in his determination.
In his memorandum, the compensation judge outlined the basis for his findings relative to the claimed permanency benefits. He did not limit the basis for his findings to the issue of a causal relation between the employee=s injuries and his current condition. Instead, he addressed the conflicting medical evidence that exists concerning the employee=s level of permanent partial disability. Dr. Van Nostrand reviewed the results from the exercise stress test taken on February 4, 2002, and concluded that the appropriate permanency rating was 25% whole body permanency, pursuant to Minn. R. 5223.0570, subp. 3.C. He based this conclusion on the employee=s cessation of the test due to shortness of breath and his decrease in the ejection fraction. By contrast, Dr. Berman concluded that the employee has sustained 5% whole body permanency. In his report of May 3, 2002, Dr. Berman concluded that although the employee=s stress test in February 2000 showed that he had a mildly reduced ejection fraction as the result of his previous two heart attacks, that factor did not cause him any significant disability, and therefore Dr. Berman supported the 5% disability rating.
The compensation judge explained that he adopted Dr. Berman=s opinion relative to the employee=s permanent partial disability. He determined that the report from the exercise stress test did not include the specific criteria required for a 25% percent rating pursuant to Minn. R. 5223.0570, subp. 3.C.
To obtain a permanent partial disability rating, the employee must show that each element set forth in the relevant schedule is met. Lohman v. Pillsbury Co., 40 W.C.D. 45, 51 (W.C.C.A. 1987); Knudson v. Twin City Hide, Inc., 40 W.C.D. 336, 338 (W.C.C.A. 1987); see also
Kump v. Hillcrest Healthcare Ctr., slip op. (W.C.C.A. Nov. 9, 1999). We conclude that the compensation judge could reasonably rely upon Dr. Berman=s opinion, that the employee sustained a total of 5% permanent partial disability of the whole body and that the employee did not have the requisite objective findings set forth in the permanency schedule for a 25% rating, despite Dr. Norstrand=s opinion to the contrary. Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). It is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord, 360 N.W.2d at 342, 37 W.C.D. at 372. Based upon our review of the medical records, we conclude that the compensation judge could reasonably determine that the employee has not satisfied the requisite criteria for a 25% rating. Substantial evidence supports the compensation judge=s finding that the employee sustained 5% permanent partial disability of the whole body, as a result of his August 11, 1998, and October 16, 1998, myocardial infarctions, and we therefore affirm the denial of additional permanent partial disability benefits.
 The employee reported to the emergency room late on August 10, 1998, at 11:29 p.m.; in pleadings and medical records, the injury date is identified as August 11. Since there is no dispute concerning the date of the incident, we refer to that injury date.
 Dr. Berman=s reference to the statutory presumption relates to Minn. Stat. ' 176.011, subd. 15(b), which states, in part, as follows:
Subd. 15. Occupational disease.
(a) If immediately preceding the date of disablement or death, an employee was employed on active duty with an organized fire or police department of any municipality, . . . and the disease is that of myocarditis, coronary sclerosis, pneumonia or its sequel, and at the time of employment such employee was given a thorough physical examination by a licensed doctor or medicine, and a written report thereof has been made and filed with such organized fire or police department, . . .which examination and report negatived any evidence of myocarditis, coronary sclerosis, pneumonia or its sequel, the disease is presumptively an occupational disease and shall be presumed to have been due to the nature of employment. (Emphasis added.)
 This rating was made pursuant to Minn. R. 5223.0570, subp. 2B, which provides a rating of 5% permanent partial disability of the whole body, as follows:
Subp. 2. Organic heart disease. Signs or symptoms of organic heart disease are documented, there is anatomic loss or alteration as demonstrated by angiography or nuclear medicine study. Objective evidence of myocardial infarction is documented, that is, cardiac enzymes or EKG changes:
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B. with persistent abnormal cardiac function, the rating is as provided in subpart 3 [which outlines exercise limitations] and combined as described in part 5223.0300, subpart 3, item E, [calculation of ratings from combined multiple injuries] with five percent.
 The employee=s letter of resignation stated that he was taking a Amedical retirement@ effective January 1, 2001, and that this would be a permanent leave. (Pet. Ex. N.)
 Since January 1, 2001, the employee has received disability benefits pursuant to Minn. Stat. ' 353.656 of the public employees police and fire fund.
 Minn. R. 5223.0570, subp. 3C, states as follows:
Subp. 3. Exercise limitation. Signs or symptoms of organic heart disease are documented, there is anatomic loss or alteration as demonstrated on angiography or nuclear medicine study. The percentage of disability is determined by the loss of functional exercise capacity as measured by Bruce protocol exercise stress test or nuclear isotope exercise study.
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C. Exercise stress test or exercise study stopped at or before VO2 max of 22 milliliters per kilogram each minute but after 19 milliliters per kilogram each minute due to development of diagnostic ischemic changes, arrhythmia, pathological change in blood pressure or blood pressure-heart rate product, or the development of objective clinical signs or cardiac dysfunction, or dyspnea with rales on auscultation, or chest pain relieved by nitroglycerin, 25 percent.
 We note that the compensation judge did not rely on Dr. Berman=s conclusions entirely. Although the judge relied on Dr. Berman=s opinion concerning the cause of the employee=s disability since December 31, 2000, the judge did find that the employee=s heart attacks were causally related to his work, contrary to Dr. Berman=s conclusion on that issue. However, the Acompensation judge is free to select all or any portion of any expert opinion, so long as that opinion has adequate foundation.@ Klasen v. American Linen, 52 W.C.D. 284, 292 (W.C.C.A. 1994). AA compensation judge generally is free to accept a portion of an expert=s opinion while rejecting other portions.@ Johnson v. L.S. Black Constr., Inc., slip op. (W.C.C.A. Aug. 18, 1994) (citing City of Minnetonka v. Carlson, 298 N.W. 2d 763, 767 (Minn. 1980) (a factfinder generally Amay accept all or only part of any witness= testimony@).