CHARLES WILLIAMS, Employee/Appellant, v. SPECIAL SCH. DIST. #1, SELF-INSURED, adm=d by SEDGWICK CLAIMS MGMT. SERVS., INC., Employer, and FAIRVIEW HEALTH SERVS., MN DEP=T OF LABOR & INDUS./VRU, TWIN CITIES ORTHOPEDICS, NORTH MEM. HEALTH CARE, and MEDICA/HEALTHCARE RECOVERIES, INC., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 9, 2004
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the expert opinion of Dr. Wicklund and a lengthy pre-existing history of injuries and treatment for lumbar degenerative disc disease, supports the compensation judge=s determination that an incident at work on November 19, 2001, was not a substantial contributing cause of the employee=s current disability or need for medical or rehabilitation services.
Determined by: Johnson, C.J., Rykken, J. and Stofferahn, J.
Compensation Judge: Carol A. Eckersen
Attorneys: Duane E. Arndt, Arndt & Benton, Minneapolis, MN, for the Appellant. Barbara B. Bloom and Jessica L. Weltman, Rider Bennett, Minneapolis, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s determination that an incident at work on November 19, 2001, was not a substantial contributing cause of the employee=s disability or need for medical or rehabilitation services. We affirm.
Charles Williams, the employee, has a long history of low back injuries and treatment for low back problems. On December 17, 1982, the employee injured his low back when he slipped on ice. He reinjured his low back in a lifting incident at work on April 1, 1983. The employee=s diagnosis was lumbar disc syndrome. He was involved in a motor vehicle accident on December 26, 1983, followed by a second motor vehicle accident on January 27, 1984. A reduced left knee jerk was noted following the first accident; the right knee jerk was less active following the second accident. The employee was injured in another motor vehicle accident on December 29, 1985. Dr. Shapiro noted residual low back pain since the 1984 accident with marked aggravation of low back pain and bilateral leg pain. A lumbar spine CT scan on September 2, 1986, showed bilateral foraminal stenosis at L5-S1, left greater than right, and moderate bulging of the disc at L4-5. The employee was eventually released to return to work with light-duty restrictions of no lifting over 30 pounds and no prolonged bending, standing or sitting. A five percent permanent disability was rated for the spine.
The employee was involved in another motor vehicle accident on February 15, 1987. He again experienced severe back pain with bilateral leg pain, left greater than right. A CT scan on May 11, 1987, revealed mild bilateral foraminal stenosis at L5-S1; an EMG on May 12, 1987, suggested minimal L5-S1 nerve root irritability. The employee was released to return to work with light-duty restrictions and assigned an additional three percent permanency. He reinjured his back in another motor vehicle accident on January 2, 1988. A lumbar spine CT scan on March 15, 1990, showed broad-based posterior disc bulging at L5-S1 with bony spurring causing moderate bilateral foraminal stenosis surrounding the L5 nerve roots and a right-sided disc herniation at L4-5 possibly compressing the L5 nerve root. An EMG performed that same day again suggested L5-S1 radicular involvement. By report dated May 8, 1990, Dr. Crispin See diagnosed chronic low back pain, rated additional permanency, and continued the employee=s light-duty restrictions. Dr. See further observed the employee was prone to degenerative changes and arthritis in the spine and to reinjury of the back.
In approximately December 1993, the employee slipped and fell in a bathtub. He sought intermittent treatment in 1994 and 1995 at his primary care clinic, University Family Physicians - North Memorial Clinic, for chronic low back pain and occasional leg symptoms. On January 5, 1996, the employee was involved in a single truck rollover accident. Following this accident, the employee received treatment primarily from Ralph DeJarlais, D.C., for an acute traumatic sprain/strain to the spine. An MRI scan on March 11, 1996, revealed disc bulging at L4-5 and L5-S1, with possible L5 nerve root irritation at L5-S1 and moderate foraminal stenosis bilaterally at L4-5 and L5-S1. The employee was taken off work until August 5, 1996, when he was released to return to work with the same light-duty restrictions previously imposed. The employee was involved in another motor vehicle accident on October 11, 1996, re-aggravating his chronic low back and leg pain. The employee continued to treat, on a fairly regular basis, with Dr. DeJarlais through November 7, 1997.
The employee began working as a janitorial engineer for Special School District #1, the self-insured employer, on October 27, 1997. On November 14, 1997, Dr. DeJarlais released the employee to return to work with no limitations, indicating the employee could perform heavy work with frequent bending, squatting and climbing. In August and September 1998, the employee was seen by Dr. Perry Malcolm at University Family Physicians reporting a flare-up of his chronic low back pain, but had no other treatment for his back until May 2000.
On May 9, 2000, the employee was injured again when he rear-ended a bus that pulled out in front of him. The employee sought treatment from Yiannis Polydorou, D.C., and at University Family Physicians where he was followed primarily by Dr. Malcolm. The employee complained of worsening low back pain with radiating pain into the buttocks and down both legs to the knee, worse on the left, with occasional weakness, numbness and tingling in the legs. An MRI scan on August 7, 2000, revealed a left lateral disc protrusion at L5-S1 impinging on the left L5 nerve root, a small disc protrusion on the right at L4-5, possibly irritating the L4 nerve, and moderate bilateral foraminal narrowing at L4-5 and L5-S1 due to broad-based disc bulging at these levels. He was off work following the accident until released to return to work as of March 5, 2001, by Dr. Polydorou, without restrictions. He seen once more, at University Family Physicians, on March 15, 2001, reporting intermittent back pain with numbness and occasional shooting pain down the left leg.
On November 19, 2001, in the course of his employment with the school district, the employee was removing wood scraps from the shop at Northeast Middle School. The wood was in a plastic barrel about four feet high on wheels. The employee pushed the barrel out to a dumpster behind the school. He removed some of the wood pieces to lighten the barrel, then lifted the partially filled barrel to dump the remaining contents into the dumpster. The employee felt a twinge in his left lower back as he lifted the barrel up over the lip of the dumpster. He went back into the school and continued working. The employee testified that during break, about an hour later, he mentioned to Larry Hesse, an assistant engineer, that he Amay have pulled a muscle or something@ but no accident report was filled out at that time. (T. 39-40.)
The employee was seen by Dr. Malcolm, on December 3, 2001, reporting an exacerbation of low back pain over the previous two weeks Afor no clear reason,@ with occasional numbness in the left leg. Dr. Malcolm noted the employee had chronic back problems for a number of years and concluded the employee=s low back pain was a Asimple exacerbation of his preexisting condition.@ (Pet. Ex. D, 12/3/01.) The employee was treated with a prednisone steroid burst, pain medication, physical therapy and epidural steroid injections. He did not improve and complained of worsening pain in his legs, left greater than right.
On April 8, 2002, the employee was seen by an orthopedic surgeon, Dr. Paul Crowe, upon referral by Dr. Malcolm. The employee gave a history of a work injury on November 19, 2001, while lifting trash into a dumpster. Dr. Crowe requested another MRI scan, taken April 10, 2002, which showed severe bilateral foraminal stenosis at L5-S1, more prominent than the prior study, with a left lateral disc protrusion displacing the L5 nerve root as before, no change in the small right foraminal disc bulge at L4-5, and moderate to severe stenosis with neural compromise at L4-5, progressed since the prior study. The radiologist concluded the employee had multi-level disc disease with Asome progression@ since the 2000 study.
The employee notified the employer, and a First Report of Injury was completed on April 16, 2002. The report indicated the employee injured his back on November 19, 2001, A[d]umping trash into dumpster when he felt a pull in his back.@ (Er. Ex. 1.) The employee requested a leave of absence beginning on April 9, 2002, and had not returned to work as of the date of hearing.
On May 22, 2002, the employee was seen by Dr. Kirkham Wood, an orthopedic surgeon, for a second opinion at the request of Dr. Malcolm. The employee described low back pain and left leg pain that resolved following a previous motor vehicle accident. The chart note indicates the employee reinjured his back in November 2001 at work lifting a 50 pound Abell,@ with progression to radicular lower extremity pain. Dr. Wood reviewed the April 2002 MRI scan, interpreting the scan as showing degeneration at L4-5 and L5-S1 with moderate neural foraminal compromise at these levels. The doctor diagnosed mechanical low back pain with associated radicular-type symptoms. The employee underwent a series of epidural steroid injections that provided temporary relief. Dr. Wood discussed other treatment options with the employee, including a decompression and fusion surgery.
Beginning in August 2002, the employee was seen in follow-up by Dr. Nathan Markell at University Family Physicians. By report dated September 23, 2002, Dr. Markell noted the employee had a medical history remarkable for chronic low back pain related to multiple levels of nerve root impingement in his lumbar spine. The doctor indicated recently the employee had been seen for steadily progressing low back pain and increasing referred pain down the left leg, and was in the process of considering surgical intervention. Dr. Markell stated the most recent MRI study showed progression of both right and left neural foraminal narrowing indicating greater amounts of impingement on the nerves and the employee=s neurologic exam included focal findings consistent with the imaging findings. The doctor opined a return to any occupation requiring moderate to heaving lifting and bending was not advisable.
The employee was examined by Dr. Paul Wicklund, an orthopedist, on October 9, 2002, at the request of the self-insured employer. The employee gave Dr. Wicklund a history of taking out a trash barrel with wood from the shop at work on November 19, 2001. He stated he had to lift the barrel up about five feet to dump the wood into the dumpster and, as he lifted up the barrel, he felt a twinge in his low back. Dr. Wicklund noted the employee=s past medical history was significant for a number of previous back problems. He compared the MRI studies of August 8, 2000, and April 10, 2002, concluding the only thing that had changed was some progression of the employee=s multi-level degenerative disc disease. Noting the employee=s longstanding history of low back problems as well as a longstanding history of abnormalities seen on MRI scan, Dr. Wicklund opined the November 2001 incident had no bearing on the employee=s current low back problems and was not a substantial contributing cause of the employee=s disability and need for medical treatment.
On April 29, 2003, the employee was examined by Dr. Robert Wengler. Dr. Wengler noted the employee sustained a low back injury on November 19, 2001, while lifting a barrel of wood into a dumpster. Dr. Wengler diagnosed discogenic back pain with radicular phenomena bilaterally, documented disc herniations at L4-5 and L5-S1, and MRI scan evidence of bilateral lateral stenosis. While acknowledging the employee=s twenty-plus year history of low back problems, Dr. Wengler opined the lifting incident of November 19, 2001, had resulted in a significant aggravation of the employee=s underlying back problems and was a substantial contributing cause of the employee=s current condition and need for medical treatment.
The employee filed a claim petition on June 10, 2002, seeking temporary total disability benefits from March 28, 2002, payment of medical and vocational rehabilitation expenses, and approval of a discogram. The self-insured employer denied primary liability. Following a hearing on October 9, 2003, a compensation judge found the November 19, 2001, work incident was not a substantial contributing cause or aggravation of the employee=s current low back condition, disability or need for medical treatment. The employee appeals.
The appellant asserts the compensation judge=s findings are clearly erroneous and unsupported by the record as a whole. The employee points to inconsistencies between the record and the compensation judge=s findings and seeks a remand for reconsideration of the case. While we do not agree in every detail with the compensation judge=s findings, we cannot conclude the judge committed reversible error on the determinative issue of causation.
The primary issue in this case was whether the November 19, 2001, lifting incident was a substantial contributing cause of the employee=s current disability and need for medical treatment. The compensation judge found Dr. Wicklund=s opinion persuasive, and concluded the employee=s low back condition was the result of his long history of accidents and injuries and was not causally related to the November 19, 2001, incident. The appellant argues the treatment records and reports of the employee=s physicians clearly establish the employee suffered a significant aggravation of his low back condition on November 19, 2001, and the compensation judge=s reliance on Dr. Wicklund=s contrary opinion is not reasonable. It is the province of the compensation judge to determine the weight and credibility to be given to expert testimony. Therefore, a trier of fact=s choice between medical experts whose testimony conflicts must be upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The employee=s medical records reflect a diagnosis of lumbar disc disease as early as 1983 and complaints of bilateral leg pain and symptoms after 1984. A CT scan in September 2, 1986, revealed bilateral foraminal stenosis at L5-S1 and disc bulging at L4-5. An EMG in 1987 suggested possible L5-S1 nerve root irritation. A second EMG in 1990 and series of CT and MRI scans through 2000 reveal worsening degenerative disc disease with bilateral foraminal stenosis at L4-5 and L5-S1 and nerve root impingement at L5 and possibly L4. On December 3, 2001, Dr. Malcolm, the employee=s treating physician, observed the employee had chronic low back problems and concluded the new complaints appeared to be a simple exacerbation of his preexisting condition. On February 8, 2002, Dr. Malcolm concluded the employee=s presenting symptoms and findings were consistent with the lateral disc protrusion at L5-S1 noted on the MRI scan of August 7, 2000.
Dr. Wicklund reviewed the employee=s extensive medical records, obtained a history from the employee, reviewed the employee=s deposition, and performed a physical examination. As a general rule, this level of medical expertise and practical experience establishes competency to render an expert medical opinion. Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983). The doctor compared the 2000 and 2002 MRI scans, concluding the only thing that changed was some progression of the employee=s underlying multilevel degenerative disc disease. Dr. Wicklund concluded the November 19, 2001, incident had no bearing on the employee=s current low back condition, and that his symptoms and need for treatment instead resulted from his longstanding, pre-existing degenerative disc disease. While different conclusions and inferences could be drawn, we cannot conclude the facts assumed by Dr. Wicklund in rendering his opinion are contrary to the evidence.
Having carefully reviewed the record in this case, we conclude the compensation judge did not improperly rely upon the expert opinion of Dr. Wicklund, and must, therefore, affirm.
 On appeal, the self-insured employer does not dispute the occurrence of the November 19, 2001, incident. (See finding 9.)
 We note that, although not included in the typewritten portion of the December 3, 2001, chart note, there is a handwritten entry on the top of the second page (containing the doctor=s discussion of the employee=s low back problems) stating AReinjured 11/19/01 @ work.@
 Dr. Malcolm was the primary treating physician for the employee=s back pain. However, the employee was seen on three occasions by different physicians at the University Family Physicians clinic for medication refills. There is no mention of the November 19, 2001, incident in any of the chart notes for these particular visits.
 A Leave of Absence Request was signed by the employee on May 8, 2002, and by Mike Meyer, Plant Operations, on May 13, 2002, seeking a leave of absence for an undisclosed purpose from April 9 to June 3, 2002. A second Leave of Absence Request, for an extension of medical leave to August 26, 2002, was signed by the employee on July 22, 2002, and Mr. Meyer on July 25, 2002. The employee also completed on May 10, 2002, an AEmployee=s Workers Compensation Report@ form, provided by Sedgwick Claims Management Services, stating a work injury occurred on November 19, 2001, reported to the employer on November 20, 2001, to Larry Hesse, assistant engineer. In the report the employee stated he was removing trash from the building and dumping trash into the dumpster when he felt a pull in his lower back.