CLINT M. WEBB, Employee, v. HERCULES, INC.,/BURNS PHILIP, INC., and KEMPER INS. COS., Employer-Insurer/Appellants, and HERCULES, INC.,/BURNS PHILIP, INC., and ACE USA, Employer-Insurer, and HERCULES, INC.,/BURNS PHILIP, INC., and ZENITH NAT=L INS. GROUP, Employer-Insurer, and TWIN CITIES BAKERY DRIVERS HEALTH & WELFARE FUND, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 16, 2004
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including adequately founded expert medical opinions, supports the compensation judge=s determination that the employee=s work-related injury of January 30, 2002, substantially contributed to the employee=s cervical condition and headaches, and related temporary total disability and need for rehabilitation assistance.
PRACTICE AND PROCEDURE. Where the compensation judge advised at the evidentiary hearing that the issue of the reasonableness and necessity of the employee=s surgery would not be addressed at the hearing, the compensation judge erred by ordering payment of medical and surgical expenses to the intervenor, and the related order must be vacated.
Affirmed in part and vacated in part.
Determined by: Rykken, J, Johnson, C.J., and Stofferahn, J.
Compensation Judge: Ronald E. Erickson
Attorneys: Krista L. Twesme, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for the Appellants. David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employer and Broadspire, f/k/a Kemper Services, appeal the compensation judge=s finding that the employee sustained a work-related injury to his cervical spine on January 30, 2002. The employer and insurer also assert that the compensation judge erred by relying on unfounded medical opinions and by awarding payment for a cervical fusion surgery when that issue was not properly before the judge. We affirm in part and vacate in part.
Clint Webb, the employee, began working for Hercules, Inc./Burns Philip Inc., the employer, in April 1979. He initially worked in the warehouse at the employer=s yeast processing plant in Hutchinson, Minnesota, then later worked as a dryer/operator and as a worker and lead person in the maintenance department. Although the employee has sustained at least three admitted work-related injuries while working for the employer, this claim involves the injury he sustained on January 30, 2002, at which time the employer was insured for workers= compensation liability by Broadspire (f/k/a Kemper Services).
By way of background, the employee has received extensive treatment for his right shoulder and neck. The employee sustained an admitted injury to his neck and right shoulder on November 28, 1988, when the wrench he was holding slipped, causing his neck and shoulders to jerk. On November 27, 1991, he sustained a work-related injury to his neck, while opening a valve. According to his medical records, he was released from further medical treatment in December 1991 and was released to return to work on a light-duty basis by January 10, 1992. The last reference to neck symptoms during that time period is listed in an April 30, 1992, examination report.
On September 21, 2000, the employee sustained an admitted right shoulder injury when a wrench he was wielding broke and his right shoulder was thrust into a pipe the employee was working on. As a result of the employee=s September 2000 injury, he underwent arthroscopic surgery to his right shoulder in December 2000, including a subacromial decompression, bursectomy and debridement of labral fraying. The employee apparently made a good recovery following the arthroscopic procedure and returned to work for the employer in February 2001. There is a reference in the employee=s medical records to a rollover motor vehicle accident on March 8, 2001, following which the employee was restricted from work until June 2001, but the employee later reported that this accident did not result in any significant aggravation of his shoulder symptoms.
On January 30, 2002, the employee again sustained an injury to his right shoulder, for which primary liability was admitted by the employer and Broadspire, the insurer. According to the employee=s testimony, he and three co-workers lifted a pipe measuring approximately four inches in diameter and 16 feet long, and weighing approximately 250-500 pounds. As he lifted the pipe, he Afelt and heard something pop.@ Later in the day, he noted a loss of feeling in his right arm and fingers. He continued to work throughout that day, and first sought medical treatment on January 31, 2002, consulting Dr. James Allen at the Hutchinson Medical Center. He advised Dr. Allen of his 2000 work-related injury and the injury of January 30, 2002. Dr. Allen diagnosed a right shoulder injury, and restricted him from work with his right arm. The employee continued to work for the employer, and sought further medical treatment for his right shoulder symptoms. An MRI of the right shoulder taken on February 25, 2002, noted mild impingement at the level of the distal supraspinatous muscle, but no rotator cuff tear. That MRI was interpreted as being unchanged from a prior MRI taken following the employee=s 2000 right shoulder injury.
Following his injury in January 2002, the employee continued to work until he was removed from work on March 6, 2002, in part because he could not operate machinery while taking prescribed narcotic pain medication. On March 11, 2002, the employee consulted Dr. Frank Norberg, the orthopedic surgeon who performed the employee=s right shoulder surgery in 2001. At that time, the employee reported some loss of sensation in his index, long and ring fingers, some pain with an impingement test, and crepitation in the right shoulder, along with pain radiating into his shoulder. Dr. Norberg examined the employee=s neck and right shoulder, and diagnosed the employee as having a re-injury of his right shoulder and a questionable bronchial plexus irritation or some sort of cervical abnormality. Due to the employee=s radiating pain and numbness into his hand, Dr. Norberg scheduled the employee for an MRI of his cervical spine and an EMG of his right shoulder and arm, and prescribed pain medication, Vicodin.
However, before the MRI and EMG were conducted, the employee was involved in a motor vehicle accident on March 14, 2002, when the automobile he was driving AT-boned@ the side of a pickup truck. He was transported by ambulance to the hospital, where he was hospitalized overnight for observation, and was treated with narcotic medication, including Vicodin and Valium. The hospital discharge summary states that the employee sustained two rib fractures, a chest wall contusion and multiple abrasions as a result of his accident. Other medical records state that the employee sustained a concussion when his head hit the windshield or side window, and that he temporarily lost consciousness after the accident. The employee reported complaints of head pain, muscle spasm, and right shoulder pain after this accident, and received follow-up medical treatment, including physical therapy.
On March 20, the employee underwent an EMG of his right arm which showed mildly prolonged right median motor and sensory responses, and which was interpreted as showing Amild right median neuropathy at the wrist as in the carpal tunnel syndrome. No evidence of radiculopathy or plexopathy.@ On March 25, the employee underwent an MRI of the cervical spine, which indicated a broad-based disc protrusion at the C5-6 level with some extension bilaterally into the neural foramina, and a left-sided paracentral posterior disc protrusion at the C6-7 level. On May 6, 2002, Dr. Norberg examined the employee who reported continued severe pain in his shoulder, his neck and Anow severe headaches@ which are unresponsive to the prescription medication. Dr. Norberg assessed the employee as having Acontinued neck problems and now headache problems.@
On May 9, 2002, the employee underwent a neurological consultation with Dr. Steven Stein by referral from Dr. Norberg. A CT scan done of his head was negative. Dr. Stein prescribed an epidural steroid injection, performed on May 16, 2002, which did not alleviate his neck symptoms. Dr. Stein later prescribed Depakote and a limited prescription of Percocet, and restricted the employee from returning to work. In his chart note of June 27, 2002, Dr. Stein stated that the employee reported that his headaches began after his January 2002 injury, and that he was Astill a little confused as to the precise mechanism of the headaches since [the employee=s] neck really doesn=t seem to bother him. . .@ In a chart note, Dr. Stein also expressed his opinion that the changes on the MRI scan post-automobile accident were not enough to explain the employee=s right arm symptoms.
On June 5, 2002, the employee was seen by Dr. Bryan Lynn for an orthopedic consultation. The employee provided a history of his January 2002 injury, and advised Dr. Lynn that he had numbness in his right ulnar fingers, pain in his right shoulder and right lateral neck pain following that injury, and that he developed severe headaches by early February. He also advised Dr. Lynn of his motor vehicle accident on March 14, 2002, and that the accident had increased the intensity of his symptoms but that he did not notice any new symptoms or other changes following that accident. The employee also reported to Dr. Lynn that physical therapy and traction had worsened his pain, that his cervical epidural steroid injection had not changed his symptoms, and that his headaches presented the most significant pain.
Dr. Lynn recommended a CT scan of the brain due to concerns that the employee=s head hit his car window during his accident in March 2002; the CT scan was negative. By June 2002, Dr. Lynn diagnosed the employee as having headaches of an unknown etiology, cervical pain perhaps related to degenerative disc disease, minimal evidence of right upper extremity radiculitis and bilateral C5-6 neural foraminal stenosis. Dr. Lynn concluded that the employee=s Apresent discomfort is multi-factorial in etiology@ and recommended an EMG and nerve conduction study of this right upper extremity. If those tests were negative for evidence of radiculopathy, he then would recommend physical therapy and anti-inflammatory medications and recommended against a cervical fusion surgery.
The employee later reported to Dr. Stein that the Depakote seemed to improve the headaches. Although Dr. Stein recommended an MRI scan of the brain to rule out aneurysm or another cause of the headaches, the employee apparently advised Dr. Stein that he was quite certain that his headache problems came on when his shoulder and neck problems started, and deferred an MRI scan. Dr. Stein also suggested a referral to a headache specialist to further evaluate the employee=s headaches.
By July 2002, the employee was working on a part-time basis, and in September 2002, Dr. Stein released the employee to return to full-time work within restrictions. In January 2003, however, due to the employee=s worsened symptoms, Dr. Stein restricted him from work, and recommended that the employee seek another neurosurgical consultation. In February and March 2003, Dr. Daryll Dykes, orthopedist, examined the employee for a surgical consultation. Dr. Dykes recommended cervical spine surgery, due to the employee=s symptoms and disc herniations.
On April 7, 2003, the employee underwent an independent medical examination with Dr. Joel Gedan, at the request of the employer and Zenith Insurance Company. Dr. Gedan noted that the first mention of the employee=s severe headaches is found in a May 6, 2002, chart note by Dr. Norberg, although the employee reported to Dr. Gedan that his headaches and neck pain increased as a result of his motor vehicle accident in March 2002, and never returned to his pre-accident condition. Dr. Gedan concluded that the employee=s current headaches were unrelated to his work injury of January 30, 2002, and that the employee had fully recovered from his injury of January 30, 2002, and he attributed to the entire responsibility for the employee=s ongoing headaches to the motor vehicle accident in March 2002. Dr. Gedan also expressed his opinion that there was insufficient medical evidence, from a clinical perspective, to support the need for a cervical spine fusion.
On July 22, 2003, the employee underwent an independent medical examination with Dr. Mark Larkins, at the request of the employer and Broadspire. Dr. Larkins concluded that the employee sustained a sprain/strain of the right shoulder as a result of his January 2002 injury, which had resolved by May 6, 2002, and that the employee had reached maximum medical improvement (MMI) from his shoulder injury by May 6, 2002. Dr. Larkins concluded that the employee=s neck pain and headaches were unrelated to his work injury of January 30, 2002, and also advised that he did not find any specific etiology or substantial contributing cause for the employee=s headaches. He also concluded that any further medical care treatment to the employee=s neck or headaches was not causally related to the employee=s January 2002 work injury, and agreed with Dr. Gedan=s opinion that cervical fusion was not recommended, due to the absence of objective findings. Instead, Dr. Larkins recommended a very aggressive work-up at a headache clinic or more aggressive treatment with Dr. Stein to treat the employee=s headaches.
The employer and insurer provided rehabilitation assistance to the employee between May 2002 and July 2003. According to an R-8 form and closure report prepared by the employee=s qualified rehabilitation consultant on July 11, 2003, rehabilitation assistance was discontinued while the employee awaited surgery.
On August 4, 2003, the employee underwent surgery in the nature of an anterior cervical discectomy and fusion at the C5-6 and C6-7 levels, as well as a decompression at those levels; the surgery was performed by Dr. Dykes. In his narrative reports dated September 18 and October 31, 2003, Dr. Dykes concluded that the employee=s spinal condition, symptoms, need for treatment and long-standing related disability was attributable, in part, to his Anatural degenerative process in his spine, rather than to any specific injury or accident@ and to his work injury of January 30, 2002. Dr. Dykes referred to the employee=s history that he had no symptoms of neck pain, stiffness or headaches prior to his work injury on January 30, 2002, @but that he has had persistent and worsening symptoms, since that time. Assuming these statements to be true, it does appear this injury is partially related to the symptomatic nature of his condition.@ Dr. Dykes also explained that there was no reference to the employee=s motor vehicle accident of March 14, 2002, in his examination notes or in the questionnaire completed by the employee at the initial consultation, and therefore confirmed his opinion of the causal connection between the employee=s cervical spine condition and the January 30, 2002, work injury. Dr. Dykes concluded that
Given the sequence of events outlined in Mr. Webb=s medical record, it appears that his motor vehicle collision of March 25, 2002 did not substantially contribute to his symptoms or need for subsequent treatment. Finally, while Mr. Webb does have clear evidence of natural disc and facet degenerative changes in his neck, he was apparently asymptomatic prior to January 30, 2002, and the events of that date do appear to have aggravated or accelerated this pre-existing condition.
On November 20, 2003, the employee underwent an independent medical examination with Dr. Jack Drogt, at the request of the employer and Ace USA. Dr. Drogt concluded that the employee=s pre-2002 work injuries did not contribute to the employee=s current condition and disability, and determined that his work injury in January 2002 represents a substantial contributing cause to the employee=s current disability from work, need for medical care and rehabilitation assistance. He concluded that the employee had reached MMI from his shoulder injury, but that he remained totally disabled from employment post-surgery and had not yet reached MMI from his cervical spine injury.
On July 24, 2003, the employee filed a claim petition, alleging entitlement to temporary disability benefits, payment of medical expenses and provision of rehabilitation assistance. The employer and Broadspire denied the employee=s claim, contending that the employee=s right shoulder strain/sprain, resulting from his January 2002 injury, had completely resolved, and that any cervical spine or headache problem the employee suffers from was caused by his significant automobile accident on March 14, 2002. On December 17, 2003, the employee=s claim petition was addressed at hearing before a compensation judge. In his Findings and Order, served and filed January 13, 2004, the compensation judge concluded that the employee sustained a cervical injury that arose out of and in the course of his employment with the employer on January 30, 2002, and awarded payment of temporary total disability benefits dating from July 8, 2003. The compensation judge also concluded that the employee=s cervical spine surgery conducted in August 2003 was causally related to the employee=s work injury, and therefore awarded payment for that surgery as well as reimbursement to the intervenor for medical expenses and disability benefits paid behalf of the employee. The compensation judge also awarded rehabilitation assistance to the employee. The employer and insurer appeal.
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 (2004). 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 employer and insurer argue on appeal that Drs. Stein=s, Dykes=s and Drogt=s opinions lack foundation, and therefore that the compensation judge erred by relying on those opinions in determining that the employee=s cervical condition was related to his January 2002 work injury. Foundation is an admissibility standard which determines a witness=s ability to testify on matters.AThe competency of a witness to provide expert medical testimony depends upon both the degree of the witness=s scientific knowledge and the extent of the witness=s practical experience with the matter which is the subject of the offered testimony.@ Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).
Dr. Drogt, who conducted an independent examination of the employee on November 20, 2003, concluded that the employee=s January 30, 2002, injury substantially contributed to the employee=s current condition and disability. In his report, he stated that, in his opinion, the employee=s January 30, 2002, injury Ainitiated symptoms, which, in my orthopedic opinion, are the substantial contributing factors to his current claims for wage loss, medical care and rehabilitation assistance.@ The employer and insurer argue that Dr. Drogt does not point to medical records indicating neck and/or headache complaints between the work injury and the March 25, 2002, motor vehicle accident and that he also acknowledges that AIt appears there is some overlap in the right upper extremity symptomatology caused by the January 30, 2002 injury and the motor vehicle accident of March 2002. It is difficult to distinguish between the two injuries, causally.@ However, Dr. Drogt reviewed the employee=s medical records, including Dr. Norberg=s records of a March 11, 2002, evaluation which indicated that the employee had symptoms of a cervical problem, including numbness into the right hand and discomfort in the neck and that an EMG and an MRI of the neck were scheduled by Dr. Norberg to more closely evaluate and diagnose the employee=s condition. Dr. Drogt=s opinion had adequate foundation, and the compensation judge could reasonably rely upon that opinion.
The employer and insurer also argue that Dr. Dykes=s opinion is without foundation since he was not told of the motor vehicle accident at the time he first evaluated the employee. An expert=s alleged lack of information goes to the weight of his or her opinion, rather than to its foundation. Crosby v. University of Minnesota, slip op. (W.C.C.A. Mar. 2, 1995); see also Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994) (while adequate foundation is necessary for a medical opinion to be afforded evidentiary value, the expert need not be made aware of every relevant fact). Further, after being informed of the accident, Dr. Dykes=s opinion remained that the employee=s neck pain, radicular pain, and need for treatment are substantially related to the employee=s January 30, 2002, work injury.
Finally, the employer and insurer assert that Dr. Stein=s opinion is of Alittle weight@ since it wasn=t clear that he reviewed the employee=s medical records from January 20, 2002, through May 9, 2002. Failure to review all of the employee=s treatment records does not render a doctor=s opinion without foundation. Drews v. Kohl=s, 55 W.C.D. 33, 39 (W.C.C.A. 1996). The determination of how much Aweight@ an opinion has is a fact question for the compensation judge. The compensation judge did not err by relying on Dr. Stein=s opinion.
The employer and insurer appeal the compensation judge=s finding that the employee sustained a work-related injury to his cervical spine on January 30, 2002. The determination of whether the employee sustained a compensable personal injury is a question of fact for the compensation judge. See Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D.181 (Minn.1994); Jacobowitch v. Bell & Howell, 404 N.W.2d, 270, 274, 39 W.C.D. 771, 778 (Minn. 1987). Different conclusions could be drawn from the evidence in this case, in view of the employee=s testimony concerning the development of his neck symptoms and headaches, and given the medical records in evidence and the medical opinions provided by Dr. Gedan and Dr. Larkins, who both concluded that the employee=s headaches did not develop until after the March 2002 motor vehicle accident and that the employee=s headaches and cervical condition were not causally related to the employee=s January 2002 work injury. Where, however, the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the compensation judge=s findings must be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984).
The compensation judge noted that the employee=s examination with Dr. Norberg on March 11, 2002, indicated that the employee had symptoms of a cervical problem, including numbness into the first, second and third fingers of the right hand and discomfort in the neck. Dr. Norberg stated in his assessment after this examination that there was a possible cervical abnormality because of the radiation of pain and the numbness into his hand. Based on these symptoms, Dr. Norberg scheduled an EMG of the right shoulder and arm and an MRI of the cervical spine. Before the MRI and EMG were conducted, however, the employee was involved in the motor vehicle accident of March 14, 2002. The EMG was performed on March 20, 2002, and was interpreted as showing mild right median neuropathy but no radiculopathy or plexopathy. The MRI, conducted on March 25, 2002, showed cervical disc protrusion at two levels. The compensation judge concluded that Dr. Norberg=s report indicated that the employee exhibited symptoms of cervical problems before the motor vehicle accident.
In addition, Drs. Stein's and Drogt's opinions are adequately founded, and therefore the compensation judge could reasonably rely on those opinions in determining that the employee's cervical condition was related to his January 2002 work injury. It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 64 (Minn. l985) In this case, the compensation judge=s determination that the employee=s cervical condition is causally related to the employee=s January 30, 2002, work injury is supported by substantial evidence, and we affirm.
The compensation judge awarded reimbursement of medical expenses for the cervical fusion surgery paid by the intervenor. The employer and insurer argue on appeal that the issue at hearing was limited to whether the employee=s cervical spine injury was causally related to the employee=s January 30, 2002, work injury, and that the issue of reasonableness and necessity of the surgery was not before the judge at the hearing.
The employee argues that the employer and insurer did not appeal the proper finding regarding the surgery. Finding 17, which was not appealed, lists the amount of medical expenses incurred for the cervical surgery and the amount claimed by the intervenor for reimbursement. The finding does not include a statement that the intervenor is entitled to reimbursement for its payment of medical expenses. By contrast, Order 3, which was appealed, awarded reimbursement of the medical expenses. The appeal of this order gives adequate notice to this court and to the employee of the issue being appealed by the employer and insurer, and sufficiently raises the issue in the notice of appeal, as required by Minn. R. 9800.0900. This court, therefore, has jurisdiction to review the compensation judge=s award of reimbursement of medical expenses for the fusion surgery to the intervenor.
At the hearing, the parties disputed whether the employee=s claim for medical expenses related to the cervical fusion surgery was properly before the compensation judge. The hearing transcript documents the discussions held between counsel for the parties and the compensation judge. At the hearing, the employer and insurer asserted that the causation issue was before the judge, but that the issue of reasonableness and necessity of the surgery was not. The compensation judge reviewed his notes from the pre-trial hearing and prior proceedings and indicated that fusion surgery was not claimed at that time, and therefore decided to only address the causation issue at the hearing. The compensation judge erred by awarding reimbursement of the medical expenses for the fusion surgery to the intervenor after advising counsel and the parties at the hearing that the issue of reasonableness and necessity of the fusion surgery would not be addressed. We therefore vacate Order 3. Remand is inappropriate since this issue was not before the compensation judge at the hearing.
 There are various references to the approximate weight of the pipe, varying from 250-400 pounds listed in the medical records and 500 pounds, as testified to by the employee.
 Radiculopathy is defined as Aa disease of the nerve roots.@ Dorland=s Illustrated Medical Dictionary, 1511 (29th Ed. 2000). Plexopathy is defined as Aany disorder of a plexus, especially of nerves.@ Plexus is defined as a Ageneral term for a network of lymphatic vessels, nerves, or veins.@ Dorland=s, Id. at 1404.
 Prior to the hearing in this matter, the employers and insurers at the time of the employee=s 1988 and 2000 work-related injuries, Hercules, Inc., and Ace USA, and Burns/Philip and Zenith Insurance Company, were joined to this claim. At the hearing, those parties were dismissed without prejudice based on the lack of any medical opinion that attributed to them liability for the employee=s current condition and claims.