JOHN W. WINKEL, Employee/Appellant, v. JACOBSON TRANSPORT, and GREAT WEST CASUALTY CO., Employer-Insurer, and WELLMARK/BLUE CROSS & BLUE SHIELD OF S.D., and PHOENIX MANAGEMENT SYSTEMS, INC., and CENTER FOR DIAGNOSTIC IMAGING, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 12, 2004
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the opinions of several experts, supported the compensation judge=s decision that the employee=s left knee condition was not a compensable consequence of the employee=s work-related right knee injury.
Determined by Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: William R. Johnson
Attorneys: Ronald Drewski, Attorney at Law, Sauk Rapids, MN, for the Appellant. Mark A. Kleinschmidt, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s finding that the employee did not sustain a consequential injury to his left leg as a result of a 1983 work injury to his right leg. We affirm.
The employee sustained an admitted injury to his right knee on December 24, 1983, while employed by Jacobson Transport [the employer] as a truck driver. The employee sought medical treatment for the first time on December 28, 1983, with Dr. Roger J. Bauer, who diagnosed a lateral collateral ligament strain of the right knee. The employee=s right knee did not improve, and arthroscopic surgeries were performed by Dr. Raymond L. Struck on February 2, 1984, and June 12, 1985. In addition, the employee=s knee was drained several times and injected with cortisone. On March 31, 1998, the employee underwent an additional arthroscopic procedure on his right knee, performed by Dr. Edwin D. Harrington.
The employee returned to work as a truck driver for a while after the injury, was out of work between December 1985 and March of 1986, and then returned to work for the employer, in a non-driving position, in 1986. The employee described this as light-duty work in which he spent part of his time working from his home and part of his time calling on customers. The employee has worked part time in that capacity since 1986 and was working 25 hours per week as of the date of hearing.
There is no record that the employee received treatment for his left knee until May 15, 2000. On that date, during a recheck of his right knee, the employee told Dr. Bauer that he had noticed over the last couple of years that he was starting to get some pain in the medial aspect of his left knee. According to the doctor=s notes, A[the employee] is wondering if favoring the right knee has resulted in this pain in the left knee and that if favoring his right knee as a result of injury, if any problem with the left knee might be related to the injury.@ In an office note of October 23, 2000, Dr. Bauer=s assessment was Achronic osteoarthritis of the left knee which has probably slowly been developing since his original injury to the right knee back in December of 1983. It would also seem feasible to me that he could have had an injury including the ACL of the left knee at that time.@ Dr. Bauer also opined, AI do feel it is certainly true and consistent with him that he has favored the right knee and leg all these years, therefore putting extra stress on the left knee.@
The employee treated with Dr. Harrington on June 26, 2000. Dr. Harrington=s office notes reflect that Athe patient is insistent that the left knee is related to both the functional capacity evaluation that he did for his right knee, as well as four years of favoring it because of his right knee condition. I 100% disagree with these statements and do not feel this is work-related.@ The employee then wrote to Dr. Harrington, again outlining his theory of a relationship between his left knee problems and his right knee injury. On July 7, 2000, Dr. Harrington wrote to the employee, again stating, AI do not feel the left knee is a Workman=s Comp related knee condition.@
On July 5, 2000, the employee was seen by Dr. Mark E. Friedland Afor a second opinion regarding his left knee.@ Dr. Friedland assessed left knee moderate arthrosis with possible degenerative meniscal tears. He noted, AI have told the patient that I would agree with Dr. Harrington that there [is] in my opinion no direct casual relationship between his right knee problems and his subsequent left knee arthrosis.@
On August 1, 2000, the employee was seen by Dr. Roderick Brown, complaining of bilateral knee pain. Dr. Brown noted that the employee was a moderately obese man Awho has a slightly antalgic gait,@ and he referred the employee to orthopedic surgeon Dr. Paul A. Dale.
On August 9, 2000, the employee was seen by Dr. Dale, who assessed progressive left knee discomfort secondary to advanced osteoarthritis as well as chronic ACL insufficiency and a probable chronic medial meniscus tear. At that time, it was Dr. Dale=s opinion that the 1983 injury was the inciting factor leading to the condition. Dr. Dale theorized that Athe left knee . . . likely suffered the ACL disruption at the time of his original injury@ and that:
[t]he resulting osteoarthritic changes . . . are a typical sequella of the chronic ACL instability and thus would be a direct result of his original injury. Compounding this is the fact that the right knee has been quite symptomatic over the past 17 years and as a result he has almost assuredly been overloading the left lower extremity.
The employee continued to treat with Dr. Dale until January 31, 2002, receiving injections in both knees during that period. In February of 2002, Dr. Dale changed his opinion as to the cause of the employee=s left knee problem.
The employee treated with Dr. Michael Holte for the first time on May 17, 2002. Dr. Holte=s office notes reflect that the employee presented that day with Aa several hundred page medical history that he would like to have reviewed as well as issues regarding litigation concerning his knees.@ Dr. Holte diagnosed left knee arthritis. In office notes from a return visit on June 7, 2002, Dr. Holte indicated that employee had injured both knees in 1983. Dr. Holte subsequently issued a report, on July 22, 2002, in which he opined that the employee had sustained a suspected ACL injury to his left knee at the time of the 1983 injury and that the injury had resulted in ACL laxity, which, when combined with his large body size Aand over-dependence of his left leg,@ subsequently resulted in the arthritic condition of the employee=s left knee.
The employee was examined by Dr. David W. Boxall, on behalf of the employer and insurer, on February 27, 2001. In his report of that date, Dr. Boxall opined that there was no evidence to support any injury to the left knee in December of 1983. Dr. Boxall was supplied with additional medical records in July of 2002. In his deposition taken on January 13, 2004, Dr. Boxall testified that there was no indication of a left knee injury in December of 1983 and that favoring the right knee did not substantially contribute to the employee=s left knee condition.
On December 4, 2002, the employee filed a claim petition seeking benefits for a 35% permanent partial disability to the left knee, along with medical expenses. The matter proceeded to hearing on January 6, 2004, and, in findings and order filed on March 15, 2004, the compensation judge found that the employee did not sustain a work-related left knee injury in 1983 and that the employee=s left knee condition was not a compensable consequence of his 1983 work-related right knee injury. The employee appeals.
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 employee contends that the compensation judge made several errors in his findings that demonstrate that the findings were Ahastily and somewhat carelessly prepared@ and that the judge=s decision to accept the opinion of Dr. Boxall was based upon Aa fundamentally erroneous understanding of what evidence was contained in the record.@ We are not persuaded.
The compensation judge, in both his findings and memorandum, did make some mistakes, attributing Dr. Dale=s opinions to Dr. Bauer and referring to Dr. Bauer=s deposition when in fact it was Dr. Dale who was deposed. However, the ultimate question on appeal is whether substantial evidence supports the judge=s decision in view of the entire record as submitted. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). We find that there is substantial evidence to support the judge=s findings.
The compensation judge adopted the opinion of Dr. Boxall that the employee=s left knee condition was not causally related to the 1983 work injury to the right knee. In his deposition of January 13, 2004, Dr. Boxall rejected the theory that the employee=s altered gait (due to the right knee injury) had put additional stress on the opposite leg, leading to arthritis of the left knee. In explaining his opinion on this issue, Dr. Boxall pointed to the fact that there are no formal studies to support that theory of injury and that the employee was not active after 1983.
Dr. Dale, in his deposition of December 29, 2003, agreed that there is no support in scientific literature for the theory that an altered gait may cause an accelerated degeneration by overloading the opposite side. While Dr. Dale had earlier opined that the employee=s left knee condition was causally related to the injury to the right knee, he testified that his earlier opinion had been based on the employee=s statement that he had injured his left knee back in 1983.
In addition to Drs. Boxall and Dale, Drs. Friedland and Harrington opined that the employee=s left knee condition was not causally related to his right knee injury. A trier of fact=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employee does not point to any facts assumed by Dr. Boxall that were not supported by the evidence but rather disputes Dr. Boxall=s Atheory@ of the left knee injury. However, as stated above, Dr. Boxall=s opinion was shared by Dr. Dale.
The employee=s testimony that he severely limited his physical activity after 1983 also provides substantial evidence to support the judge=s finding that the employee=s favoring of his right leg did not lead to the left knee condition. The employee testified that he has done virtually nothing at home since 1984 and that his work since 1986 has involved a minimal amount of time on his feet.
The employee contends that the judge=s decision to accept the opinion of Dr. Boxall was based upon the erroneous belief that Athe only medical opinion submitted on the employee=s behalf was the inconsistent opinion of Dr. Dale which he mistakenly attributed to Dr. Bauer,@ when in fact Drs. Holte, Brown and Bauer provided opinions that support the employee=s theory of causation. We note initially that the compensation judge did not state that Dr. Bauer was the only doctor to support the employee=s claim. Rather, in Finding 2, the judge stated, A[t]he compensation judge is faced with various medical opinions from Dr. Boxall . . . to Dr. Bauer . . . .@ The employee further contends that the judge=s failure to mention the opinions of Dr. Holte and Dr. Brown suggests that the judge was Aunaware that such opinions had been submitted.@ However, a compensation judge need not mention every piece of evidence in his decision. See, e.g., Rothwell v. Minnesota Dep=t of Natural Resources, slip op. (W.C.C.A. Dec. 6, 1993); Braun v. St. John=s Univ., slip op. (W.C.C.A. July 20, 1992).
We also note that the opinion of Dr. Holte was premised on his belief that the employee sustained an injury to his left knee at the time of the injury in December of 1983. That is, Dr. Holte stated, AI feel he stretched or tore his ACL ligament during that fall,@ and the doctor further stated that injury to the ACL with ligamentous laxity can result in post traumatic arthritis. Moreover, the August 2, 2000, causation opinion of Dr. Brown was Abased on the history provided by this patient,@ and part of that history was that the employee had injured his left knee in December of 1983.
Because the medical opinions of Drs. Boxall, Dale, Friedland, and Harrington and the testimony of the employee all provide substantial evidence to support the judge=s causation determinations, we affirm the judge=s decision in its entirety.
 The employee is 6 feet 2 inches tall and has weighed between 260 and 350 pounds over the past 20 years.
 While the employee appealed from the finding that he did not sustain a specific injury to his left knee in 1983, the employee did not specifically address that issue in his brief on appeal. Issues raised in the notice of appeal but not addressed in the brief will be deemed waived. Minn. R. 9800.0900, subp. 1.