HUMBERTO ALARCON, Employee, v. COCA-COLA ENTERS., SELF-INSURED, adm=d by NATIONAL LOSS CONTROL SERVS., Employer/Appellant, and CAPITAL ORTHOPEDICS, INGENIX/UCARE MINN., and MN DEP=T OF EMPLOYMENT and ECON. DEV., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 23, 2005
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence of record, including extensive medical treatment records and expert medical testimony, does not support the compensation judge=s determination that the employee sustained a personal injury to his right foot and his right knee on July 17, 2000, and the judge=s award of benefits is reversed.
Determined by: Johnson, C.J., Wilson, J. and Pederson, J.
Compensation Judge: Jennifer Patterson
Attorneys: Michelle Barone Osterbauer and Kirsten M. Tate, Osterbauer Law Firm, Minneapolis, MN, for the Respondent. David J. Klaiman, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellant.
THOMAS L. JOHNSON, Judge
The self-insured employer appeals the compensation judge=s findings regarding the nature and extent of the employee=s July 17, 2000, personal injury. We reverse.
On July 17, 2000, Humberto Alarcon, the employee, was working for Coca-Cola Enterprises, the employer, then self-insured for workers= compensation liability, with claims administered by National Loss Control Services. On that date, the employee claimed he sustained a personal injury affecting his right knee and right foot. The self-insured employer denied the employee sustained a personal injury. The employee=s wage on the date of injury was $1,183.40. The employee did not return to work for the employer following his injury.
On the day of the claimed injury, the employee was working as a picker, a job that included moving boxes of Coca-Cola product to fill orders placed by stores. The employee testified he climbed onto a pile of boxes and reached up to pull down a box from a 12-foot high stack. As he did so, the boxes fell landing on his feet, legs, body and head and he fell to the ground covered with boxes. The employee testified the boxes contained 24 one or two liter bottles of Coca-Cola products. Following the incident, the employee stated he experienced terrible pain in his right foot, was unable to walk, and had to be helped to his car by two co-employees. He stated the foot was so painful he was unable to start his car because he could not push down the accelerator. He described getting out of the car and shaking the accelerator with his hand to try to start the car. A co-worker then drove the employee home. The employee stated he was unable to sleep that night because of the pain. He later spoke to a company nurse by telephone who told him to go to any doctor and his medical care would be covered. The employee testified he did not immediately go to the doctor because he had no transportation. Prior to seeking medical attention, the employee testified he noticed nothing different about his right foot and saw no bruising or bleeding from the right toe or toenail.
On July 19, 2000, Dr. Sue Ann VerSteeg, a physician at the Boynton Health Services at the University of Minnesota examined the employee. The doctor=s office note states the employee Apresents for evaluation of right calf injury sustained on July 17th when he was pushing his car and felt a pop noise and felt as though someone had hit his right calf but no other trauma.@ (Pet. Ex. A.) The doctor noted the employee walked with a slight limp because of right calf pain but could easily flex and extend his ankle. Dr. VerSteeg diagnosed a partial muscle tear of the lateral head of the right gastrocnemius muscle. Dr. Stanley Woolner at Boynton Health Services saw the employee on July 21, noting the employee reported an increase in pain and swelling in the right calf and ankle since his last visit. An ultrasound of the employee=s right leg was normal. The doctor diagnosed a contusion of the right calf, instructed the employee to avoid weight bearing and to take Tylenol for pain. On July 27, 2000, the employee returned to Dr. Woolner complaining of pain in his lower leg and behind the right knee. The doctor noted the employee Ahas had symptoms since the 18th when he injured the leg pushing against a garage door.@ (Pet. Ex. A.) The doctor prescribed physical therapy and the employee was instructed to limit walking at work.
The employee sought treatment from Eric Barth, a physician=s assistant at Health Partners, on August 3, 2000. P.A. Barth recorded the employee stated he was Aworking in the warehouse when he had some boxes that weighed approximately 25 pounds fall and strike him in the lower foot and on the great toe and another box came down and struck him on the medial aspect on the right calf. He did have some pain in the foot and toe, but did not inspect the area until near the end of the shift.@ The employee reported his foot was then swollen and bruised. P.A. Barth further recorded the employee stated the following day he was Aattempting to push the car when he felt a popping sensation in the posterior aspect of his right knee.@ (Pet. Ex. B.) An x-ray showed a transverse open fracture through the distal toe, displaced 7 or 8 millimeters, and a diagonal fracture through the proximal lateral aspect of the first distal phalanx involving five to 10 percent of the articular surface of the interphalangeal joint. On examination, P.A. Barth noted ecchymosis in the medial aspect of the foot, a draining hematoma around the nail of the right great toe, significant tenderness on palpation and swelling with erythema from the great toe up into the medial and dorsal aspect of the foot. Two fractures of the first distal phalanx were diagnosed, along with a subungual hematoma of the right first toe and cellulitis of the right toe and the medial and dorsal foot. Examination of the right leg revealed tenderness in the calf muscles; evaluation of the knee was unrevealing. A right calf strain was diagnosed. P.A. Barth referred the employee to Dr. Richard Ivance for treatment of the right foot.
Dr. Ivance, an orthopedic surgeon with Capitol Orthopedics, Ltd., examined the employee on August 3, 2000. The employee reported he injured his right great toe at work when he dropped a large box on it. An x-ray showed a fracture of the distal phalanx of the right great toe. On examination, Dr. Ivance noted a lot of swelling and ecchymosis around the right great toe. The doctor took the employee off work and prescribed medication. X-rays on September 11, 2000, at Capitol Orthopedics demonstrated incomplete healing of the distal phalanx fractures and Dr. Thomas Comfort kept the employee off work. On November 3, 2000, Dr. Ivance noted the great toe fracture was healing and he kept the employee off work until November 20, 2000.
The employee did not return to see Dr. Ivance until September 5, 2001, when he complained of persistent pain in the metatarsal area. The doctor ordered an MRI scan which showed non-specific edema along the plantar aspects of the 2nd and 3rd MTP joints bilaterally and the 5th MTP joint. Dr. Ivance injected the 2nd and 3rd metatarsal bursas with Celestone. By February 2002, the employee stated his foot was no longer hurting, but he complained of pain in the right calf which Dr. Ivance felt was mild tendinitis. In March 2002, the employee again complained of right foot pain. Dr. Ivance diagnosed metatarsalgia and bursitis in the metatarsal pad and gave the employee an injection of cortisone.
By report dated November 30, 2001, Dr. Ivance stated the employee=s persistent metatarsalgia and edema in the metatarsal pad was the direct result of his right foot injury of July 17, 2000. The doctor opined the employee could be on his feet for no more than four hours a day and should limit climbing. On January 28, 2002, Dr. Ivance responded to a letter from the appellant=s attorney stating,
This is in answer to your letter of January 23, 2002 regarding Humberto Alarcon vs. Coca Cola Employees. I first saw Mr. Alarcon in my office on August 3, 2000. The history that he gave me at that time was that he was working at Coca Cola in the warehouse and on the 17th of July he dropped a large box on his toe. His toe was swollen. There was ecchymosis around the great toe. X-rays showed a fracture of the tuft of the great toe.
In answer to your question; of course, if he injured his foot in another manner other than at work, then my opinion would not be that this was a work related injury.
(Pet. Ex. C.)
Dr. Scott R. McGarvey, an orthopedic surgeon, examined the employee on January 25, 2001, at the request of the employer and his deposition was taken in December 2001. The doctor diagnosed post-fracture arthrofibrosis of the right great toe interphalangeal joint. Based, however, upon the medical records, the doctor opined it was unlikely the employee fractured his great toe on July 17, 2000. Had the employee had a fractured great toe on that day, Dr. McGarvey stated it would have been impossible that Dr. Woolner=s examination would have been completely negative. Further, the employee sustained an open fracture of the toe which Dr. McGarvey stated is a laceration in the skin leading to the site of the fracture. There was no evidence of any of these conditions in the records of Boynton Health Services.
The employee returned to see Dr. Woolner on May 7, 2002, complaining of continued right knee pain and then saw Dr. Comfort on May 16th complaining of significant knee pain. Following an MRI scan, Dr. Comfort concluded the employee=s complaints and his examination were consistent with a medial meniscus tear. The doctor recommended an arthroscopic meniscectomy.
Dr. Thomas Raih, an orthopedic surgeon, examined the employee on November 20, 2003, at the request of the employer. The doctor stated the employee=s subjective symptoms were not supported by any objective findings on examination, in the medical records or in the x-ray reports. He noted the employee had an injury to his right great toe, second toe and a fracture of the distal phalanx and a calf contusion all of which had resolved. Based on the employee=s history, the doctor opined these conditions were secondary to the personal injury of July 17, 2000. Dr. Raih opined the employee had reached maximum medical improvement, required no further medical care, sustained no permanent disability and required no restrictions by reasons of his personal injury.
By report dated February 11, 2004, Dr. Comfort stated:
He [the employee] gave a history of being involved in a work-related accident on July 17, 2000, sustaining a crushing injury to his right foot and apparent twisting injury to his right knee. It was my opinion, within a reasonable degree of medical certainty, that the injury to his right knee was a substantial contributing factor of his right knee symptoms and need for arthroscopy.
(Pet. Ex. C.)
The employee filed a claim petition seeking wage loss benefits and approval for right knee arthroscopic surgery. In a findings and order, the compensation judge found the employee sustained an injury to his right foot, right knee and right great toe on July 17, 2000, and awarded wage loss and medical benefits. The self-insured employer appeals.
The appellant contends the compensation judge=s findings that the employee injured his right foot and right knee on July 17, 2000, are unsupported by substantial evidence. These findings, the appellant asserts, are totally contrary to the Boynton Health Service medical records and the opinions of Dr. McGarvey. The appellant further argues the employee=s testimony is unreliable and unsupported by any corroborating medical evidence. Based upon the medical records and the testimony of Dr. McGarvey, the appellant contends the evidence compels a conclusion that the employee=s claimed injuries did not result from the July 17, 2000, incident at work. Rather, the only logical conclusion to be drawn from the medical records, the appellant argues, is that the employee sustained the toe fractures and knee problem sometime after July 17th and subsequent to his treatment at Boynton Health Center in July 2000. There is merit to the appellant=s arguments.
In the Findings and Order, the compensation judge found:
The employee speaks English as a second language. As shown during his testimony on July 27, 2004, he tends to give long rambling answers to direct questions that sometimes do not answer the direct questions. At times during the hearing, it took the efforts of the employee=s own attorney, the defense attorney, and the Compensation Judge together to help the employee understand the question he was being asked. After examining the employee on May 23, 2002, Carole L. Selig[sic], Ph.D., a Licensed Psychologist, noted that the employee had a garrulous demeanor and that he Aspoke with pressured speech.@ The employee admitted that he had trouble understanding some of the questions his doctors asked him. Because of the employee=s digressive, not-quite-on-point speech pattern, more weight has been put on the examination findings made by the employee=s treating doctors than on the histories set out in doctors office notes that have been assumed to be short summaries of what were probably long, rambling answers.
In a memorandum, the compensation judge again observed that at the hearing, the employee Arepeatedly gave long involved answers that did not address the question he had been asked. It has been assumed that his speech pattern, exhibited in the courtroom and to Dr. Selig, was his habitual speech pattern, and very likely to be the way he spoke to his initial doctors.@ (Mem. at 10.) The compensation judge concluded that due to a failure of communication, Dr. VerSteeg and Dr. Woolner both thought the employee=s primary complaint was calf pain and did not realize the employee also had significant pain in his right foot and great toe. The compensation judge then explained:
This is a long way of saying that Dr. McGarvey=s opinion that a thorough clinical examination, probably including x-rays of the foot, performed on July 19, 2000 would have resulted in a diagnosis of right great toe fracture if it had existed at that point, lacks merit because most treating doctors do not perform examinations of body parts beyond those a patient says are causing symptoms. Had Dr. VerSteeg and Dr. Woolner realized the employee had significant right foot symptoms, they probably would have examined the right foot. Because of miscommunication, they did not.
(Mem. at 11.)
When the employee saw Dr. VerSteeg on July 19, 2000, he complained only of right calf pain which he attributed to pushing his car. Except for some swelling and tenderness in the right calf, the doctor=s examination was normal, including flexion and extension of the ankle. When he saw Dr. Woolner on July 21, the employee complained of upper calf pain and swelling around the ankle but denied any other complaints. The employee returned to see Dr. Woolner on July 27, who recorded a history of injury to the lower leg pushing against a garage door on July 18. On examination, the doctor noted no bruising, erythema or warmth and the ankle swelling had gone down considerably. Motion was intact in the ankle. These examinations, Dr. McGarvey testified, would have been performed with the employee=s shoe and sock removed. On both July 21 and 27, Dr. Woolner performed a Homan=s test which Dr. McGarvey described as squeezing the foot and forcing it into a dorsiflex position.
On August 3, 2000, when the employee was examined by P.A. Barth, he had a bloody discharge coming from the great toenail, significant tenderness on palpation of the toe and swelling with erythema from the first toe spreading up into the foot. An x-ray showed an open fracture through the tip of the great toe and a fracture of the distal phalanx of the toe.
Dr. McGarvey testified that, based upon the medical history and records, the employee did not fracture his toe on July 17, 2000. The doctor stated that when Dr. Woolner examined the employee on July 21, 2000, he took a distal pulse that required an examination of the mid- and forefoot. Had the employee had a fractured toe on July 21, 2000, Dr. McGarvey maintained, Dr. Woolner would have seen signs of the fracture such as swelling, bruising, tenderness to palpation or deformity, but none of those conditions are evidenced in the Boynton Health Center records. Moreover, had the employee=s toe been broken, Dr. McGarvey stated the Homan=s test would have been painful, and there is no reflection in Dr. Woolner=s records of any such pain. The employee sustained an open fracture of the toe in which there is an external wound leading to the fracture site. Dr. McGarvey stated A[i]t would be almost impossible to have sustained a fracture to his great toe on July 17 and to have a completely negative exam with something that obvious on July 21.@ (Resp. Ex. 1 at 20.) On August 3, 2000, the employee=s toe was bleeding in the area of the fracture site. An x-ray showed an open fracture of the great toe. Dr. McGarvey stated it was Avery unlikely that a three-week old fracture would still have an open laceration. It would have healed.@ (Resp. Ex. 1 at 48.) Furthermore, the employee testified his right foot appeared normal prior to August 3, 2000. (T. 58-59.)
It is this court=s function to determine whether the compensation judge=s findings of fact and order are clearly erroneous and unsupported by substantial evidence in view of the entire record. Minn. Stat. ' 176.421, subd. 1 (2004). In applying this standard, the court must look Anot only at the evidence which supports the judge=s findings, but also at the opposing evidence and the evidence from which conflicting inferences might be drawn. The evidence, in a sense, is weighed to determine its substantiality.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). The substantial evidence standard Ais an admonition to the reviewing court not to treat the findings of the fact finder lightly, while at the same time the reviewing court remains cognizant of its own responsibility to exercise good judgment in reviewing what the evidence will reasonably sustain.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Finally, this court must give Adue weight to the opportunity of the compensation judge to evaluate the credibility of witnesses appearing before the compensation judge.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
The employee testified he told Dr. VerSteeg and Dr. Woolner he had right foot and toe pain after a number of boxes fell on his right leg and foot. The compensation judge found this testimony persuasive and concluded, the medical records notwithstanding, that the employee injured his right foot on July 17, 2000. We cannot agree. There is no evidence in any of the medical records prior to August 3, 2000, to corroborate the employee=s claim that he injured his right toe on July 17. Despite the employee=s language difficulties, it is simply contrary to human experience to conclude the employee would not ask the doctors at Boynton Health Center to examine his right toe which, he claimed, was causing him so much pain. Further, it is highly improbable that Dr. VerSteeg and Dr. Woolner would not have seen some evidence of an open fracture of the toe had it been present. The employee denied his toe was bruised or bleeding or abnormal in any manner before August 3, 2000. On August 3, an x-ray documented an open fracture and the employee=s toe was swollen and bleeding in the area of the fracture site. These facts are simply inconsistent with the compensation judge=s inference that, due to a communication failure, Drs. VerSteeg and Woolner did not realize the employee had an open fracture of the great toe. Based upon this record, we find no substantial evidence to support the conclusion that the employee injured his right great toe on July 17, 2000.
With respect to the claimed knee injury, we also conclude substantial evidence does not support the compensation judge=s finding that the employee=s need for right knee arthroscopic surgery was caused by a personal injury on July 17, 2000. Between July 19, 2000, and May 16, 2002, the employee had multiple examinations with different doctors. At none of these visits was the employee diagnosed with or treated for any knee problems. It was not until May 16, 2002, that the employee complained to Dr. Comfort of progressive knee problems which were diagnosed as a medial meniscus tear.
The compensation judge relied upon the opinions of Dr. Ivance and Dr. Comfort in concluding the employee sustained a torn meniscus of the right knee on July 17, 2000. Although Dr. Comfort=s February 11, 2004, report refers to an Aapparent twisting injury to his right knee@ (Pet. Ex. C), we find no such history in the contemporaneous medical records. Nor does the employee=s testimony at the hearing include any reference to a right knee injury at work on July 17, 2000. Both Dr. Ivance and Dr. Comfort=s causation opinions are based entirely on the assumption that the employee somehow injured his right knee at work on July 17, 2000. There is no evidence of record to support this assumption. The causation opinions of Drs. Ivance and Comfort therefore lack foundation.
We find no evidence providing a causal relationship between the July 17, 2000, incident and the employee=s disability or the need for arthroscopic surgery. The most logical inference to be drawn from the evidence is that both the right toe and right knee conditions arose subsequent to the July 17, 2000, incident. We acknowledge that a credibility determination is the province of the compensation judge. In this case, however, the employee=s testimony is simply not sufficient to overcome the lack of physical findings or documentary evidence of such injuries. The compensation judge=s award of benefits is, therefore, reversed.