CATHERINE A. ENGELS, Employee/Appellant, v. CITY OF DELANO and LMC/BERKLEY RISK ADM'RS, Employer-Insurer, and INGENIX SUBROGATION SERVS., ALLINA HOSP. & CLINICS, CENTER FOR DIAGNOSTIC IMAGING, EXCEL PHYSICAL THERAPY, NORAN NEUROLOGICAL CLINIC, TWIN CITIES SPINE CTR., PARK NICOLLET CLINIC, METHODIST HOSP., and CONSULTING RADIOLOGISTS, LTD., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 9, 2005
CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY. Where inconsistencies in the histories given by the employee to her many providers were neither few nor minor, where the judge=s decision was based primarily and reasonably on her assessment of the employee=s credibility, and where the judge=s determination did not imply a requirement that the employee prove that work activities were the sole cause of her low back condition, the compensation judge=s conclusion that the employee did not prove that her work activities were a substantial contributing factor in her low back condition was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, C.J., and Rykken, J.
Compensation Judge: Jennifer Patterson
Attorneys: Jerry J. Lindberg, Drewski & Lindberg, Sauk Rapids, MN, for the Appellant. Thomas Peterson, St. Paul, MN, for Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s determination that the employee did not prove that she sustained a specific work injury to her low back on July 29, 2000, and from the judge=s determination of the extent of permanent partial disability. We affirm the judge=s denial of a work injury.
The employee, Catherine Engels, was born in 1960 and graduated from high school in 1978. She has a long history of health care treatment for many different medical conditions. While working for Land O=Lakes in Wisconsin in 1989, the employee sustained a work injury to her thoracic spine for which she was paid five percent permanent partial disability under Wisconsin law. In 1998 the employee was seen at the Buffalo Clinic for treatment of low back pain. In a medical history provided in April 2000, the employee mentioned that she had had low back pain.
In October 1998, the employee began working part-time for the City of Delano [the employer] as an off-sale clerk at its municipal liquor store. Her job duties for the employer included waiting on customers, operating the cash register, getting stock from the back room, and occasionally moving kegs of beer. On Saturday, July 29, 2000, the employee alleges that she sustained an injury to her low back when she lifted a keg of beer in the employer=s cooler while working unsupervised with her husband, who was also employed part-time with the liquor store. The following day, the employee and her husband were out for a walk and stopped at the home of Janet and Ron Berzins, who were in the process of laying patio blocks in their backyard. The employee and her husband evidently assisted the Berzins in this activity and, several hours later, after having dinner there, walked home together. When they arrived at home, the employee and/or her husband scrubbed their deck with bleach.
The employee first sought treatment for her alleged injury with chiropractor Dr. Scott Meyer on Monday, July 31, 2000. She reported to Dr. Meyer that her pain had started on Saturday, Alifting kegs of beer, cases and boxes.@ She reported that she was injured at work while lifting an object from the floor weighing greater than twenty-five pounds. She told the doctor that she was bent at the waist and experienced a sharp focal pain and a radiation of symptoms. The employee described lumbar pain affecting both sides of her low back that had been constant since Saturday night. Dr. Meyer noted that the employee had filed a written report of the incident with her employer.
After several treatments by Dr. Meyer, on August 3, 2000, the employee visited her primary care physician at the Buffalo Clinic, Dr. Cynthia Larson. Dr. Larson reported that the employee was being seen for low back pain that had started on Sunday July 30, which Anow . . . has gone into her right buttock area and is stabbing. She has never had anything quite like this before.@ X-rays of the lumbar spine were obtained and interpreted as normal. Dr. Larson prescribed anti-inflammatories and a course of physical therapy.
The employee was seen for a physical therapy evaluation on that same date at Excel Physical Therapy. In the initial evaluation history that she provided to the therapist, the employee Areported that last Sunday, 7/30/00, she noticed an onset of low back pain. She reported that she was moving patio brick.@ In therapy progress notes for August 3, 2000, the employee was said to have related that she believed that moving patio bricks Amay have contributed to her condition.@
The employee returned to see Dr. Larson for evaluation of her low back pain and right sciatic pain on August 9, 2000. On that date, Dr. Larson obtained a lumbar MRI that was interpreted as showing a small focal herniated disc left of the midline with deformity of the left S1 nerve root. Dr. Larson therefore recommended an orthopedic consultation.
On August 16, 2000, the employee was examined by orthopedist Dr. David Edwards. In a history provided to Dr. Edwards, the employee reported that her symptoms had been present for two weeks. Dr. Edwards noted that A[s]he does not recall any specific injury, but she had a very busy weekend--she lifted a keg, laid some patio block, and then scrubbed her deck.@ Dr. Edwards diagnosed a very small disc herniation at L5-S1, but he did not think that the employee was a surgical candidate. He recommended that she resume physical therapy and consider an epidural steroid injection if she did not improve.
On August 22, 2000, the employee returned to the Buffalo Clinic and was seen by Dr. Glen Deutsch, to whom she complained of constant low back pain radiating down the right lateral upper leg. The employee reported to Dr. Deutsch that
she felt the pain when she was lifting an 8 gallon keg. She said she lifted and twisted and noticed pain the next day. She was lifting some paving stones the next day and said that her back locked up. The initial injury the day before lifting the 8 gallon keg was not associated with any pain.
Dr. Deutsch diagnosed an iliolumbar ligament strain on the right side, with no evidence of either a clinical or anatomical herniated disc. He recommended an appointment with Dr. David Schultz at Medical Advanced Pain Specialists [MAPS].
Dr. Schultz examined the employee and administered an L5-S1 epidural injection on August 28, 2000. The employee advised Dr. Schultz that she related her low back pain to moving a keg of liquid on July 29, 2000, and to helping to lay a stone patio at her home the following day. She reported that she subsequently began experiencing rather acute back pain. The employee reported no change in her pain following the epidural injection.
On August 31, 2000, the employee was seen for an orthopedic consultation by Dr. Stephen Barron. The employee told Dr. Barron that Aabout one month ago she lifted a keg on a Saturday, and the next day she laid patio block and scrubbed her deck. On that day she started developing lower back pain with associated right leg pain.@ Dr. Barron noted that the employee=s symptoms of right leg pain were inconsistent with her MRI scan, which showed a left side disc herniation. He therefore recommended that the employee see a neurologist.
The employee was examined by neurologist Dr. Mark Bryer on September 13, 2000. Dr. Bryer recorded that, Aon July 29, 2000, following a day of laying patio blocks, as well as lifting a keg, [the employee] began to experience severe lower back pain such that she was unable to get out of bed in the morning.@ He concluded that, while the employee did have a disc herniation on the left of the midline at the L5-S1 level, her examination was entirely Anonfocal,@ with no suggestion of any weakness, numbness, or reflex deficit. An EMG administered by Dr. Bryer on September 15, 2000, was interpreted as normal.
The employee=s pain complaints persisted, and she did not respond favorably to the epidural steroid injections or facet injections administered at MAPS. On January 8, 2001, a lumbar discogram was conducted. Challenge of the L5-S1 disc produced concordant back, right buttock, and leg pain. The L4-5 disc appeared to be of abnormal morphology but produced non-concordant pain.
The employee did not respond to further conservative management, and on March 22, 2001, she was seen at Twin Cities Spine Center by Dr. James Schwender. On May 14, 2001, Dr. Schwender performed a right transforaminal interbody fusion from L4 to S1, together with a posterior fusion with instrumentation at the same level. Foraminotomies were also done at L4-5 and L5-S1 on the right side.
The employee did reasonably well until the spring of 2003, when she developed recurrent back pain with pain radiating into the left lower extremity. On March 17, 2003, she filed a claim petition alleging entitlement to temporary total and temporary partial disability benefits continuing from July 29, 2000, as well as related medical expenses, as a result of a work-related injury to her low back on July 29, 2000. The self-insured employer denied liability for the employee=s low back disability and affirmatively asserted that the employee=s condition was the result of a nonwork-related injury or condition. The employer also alleged that the employee had failed to give proper notice of her alleged July 29, 2000, injury. On June 4, 2003, the employee returned to Dr. Schwender, who recommended a CT scan and an epidural injection at L5-S1.
On July 30, 2003, the employee was examined at the request of the self-insured employer by orthopedist Dr. Nolan Segal. In his report of September 4, 2003, Dr. Segal indicated that he had reviewed extensive medical records, including records of those providers that had provided treatment in the month to six weeks following the alleged work injury. Dr. Segal concluded that the alleged work injury of July 29, 2000, would Anot be considered a substantial contributing factor to [the employee=s] continuing claimed disability.@ In subsequent deposition testimony, taken May 27, 2004, and referring to varying histories in the employee=s records, Dr. Segal opined that he could not, with any degree of medical certainty, state that Aan isolated incident occurring on July 29, 2000 would be a substantial contributing factor to her chronic back problems.@
On January 8, 2004, the employee underwent instrumentation removal and decompression at L4-5 and L5-S1 on the left side. The employee evidently improved for a short period of time after the surgery, but when she returned to work her pain returned, persisting in her lower back and radiating into her left lower extremity.
The employee=s claims came on for a hearing before a compensation judge on May 25, 2004. At trial, the employee testified that she had had no significant history of low back problems and had been working without low back restrictions prior to July 29, 2000. She testified that the incident at the liquor store occurred when she went to the cooler to get an eight-gallon keg for a customer. She stated that, as she picked up the keg and turned, she felt something pop in her back and instant pain down her right leg. She stated that she then carried the keg about six feet and placed it on a two-wheel hand truck but did not wheel it out to the customer because she was in too much pain. She stated that she immediately notified her husband, who was also working at the liquor store that evening, and that he finished handling the keg for the customer. She said that she was able to complete her shift on that Saturday but that she only worked as a cashier. She testified further that, in assisting the Berzins with their patio project the following day, she sat in the sand for only about five or ten minutes, positioning only a few blocks, before her back became too painful to continue. She testified that her husband had to help her up because she couldn=t get up by herself. She stated that she and Mrs. Berzins then went up and sat on the deck while their husbands finished the job. The employee denied that she injured or aggravated her back laying patio blocks. The employee testified also that, after spending the afternoon at the Berzins, she and her husband walked home, where her husband proceeded to scrub their deck with bleach while she merely watched. The employee=s husband, Martin Engels, also testified at trial, corroborating his wife=s testimony in all regards.
Also testifying, by deposition, was Janet Berzins, who stated that the employee had advised her on Sunday that she had hurt her back at work the day before. She testified that she was not aware of any injury to the employee at her home that afternoon, that she and the employee spent only about five to ten minutes with the blocks, and that no real lifting was involved. Dr. Schwender also testified by prior deposition. Asked to assume a history essentially consistent with the employee=s testimony, Dr. Schwender opined that the employee=s lifting of the eight-gallon keg at work was a significant contributing factor in the employee=s low back condition.
In a Findings and Order issued July 26, 2004, the compensation judge determined that the employee had not carried her burden of proving that she sustained a specific work injury to her low back on July 29, 2000. The judge found that there were significant inconsistencies between the employee=s testimony at hearing and the histories of symptoms and their onsets that she gave to her health care providers in July, August, and September 2000. Concluding that the employee=s explanation for the onset of her low back symptoms was not credible or reliable, the judge denied the employee=s claim. 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).
On appeal, the employee contends that the compensation judge=s findings are clearly erroneous and unsupported by substantial evidence. She argues that the judge=s rejection of her claim was improperly based solely on certain inconsistencies in the medical histories and was completely unwarranted based upon the record as a whole. Specifically, the employee contends (1) that the judge completely ignored the testimony of witnesses other than the employee who corroborated her version of the events; (2) that the alleged inconsistencies in the medical record were minor, such as tend to appear in most cases when medical histories are recorded by various medical providers, particularly in light of very substantial and consistent portions of the medical testimony, ignored by the judge, that compel a finding of causation; (3) that the judge drew several illogical inferences from the evidence; and (4) that the judge disregarded certain legal principles that govern the issue of causation, in particular the principle that an employee need not prove that his work was the sole cause of his disability, only that it was a Asubstantial contributing@ cause. See Roman v. Minneapolis St. Ry. Co., 268 Minn. 367, 380, 129 N.W.2d 550, 558, 23 W.C.D. 573, 592 (1964); Salmon v. Wheelbrator Frye, 409 N.W.2d 495, 497-98, 40 W.C.D. 117, 122 (Minn. 1987). When one takes into account the entirety of the evidence, the employee argues, the judge=s findings must be reversed. We are not persuaded.
This case hinges primarily on matters of credibility, and, notwithstanding the employee=s argument to the contrary, the inconsistencies in the medical record are neither few nor minor nor insufficient basis for the judge=s denial of the employee=s claim. Credibility determinations are for the compensation judge, see Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness=s credibility is the unique function of the trier of fact), and a judge generally Amay accept all or only part of any witness= testimony,@ Proffit v. Minn. Harvest Apple Orchard, 48 W.C.D. 215, 219-20 (W.C.C.A. 1992), quoting City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980). The compensation judge clearly based her decision in this case on an assessment of the employee=s credibility. We concede that there may well be, as the employee has asserted, substantial evidence, both medical and testimonial, supportive of her claim that she injured her back at work on July 29, 2000. The existence of such evidence supportive of a decision contrary to that reached by the compensation judge does not, however, render insubstantial the evidence that might also be found to support the decision actually reached by the judge; it is the substantiality of the latter evidence that our standard of review requires us to assess. See Land v. Washington County, Sheriff=s Dept., slip op. (W.C.C.A. Dec. 23, 2003); Ludford v. Honeywell, Inc., slip op. (W.C.C.A. Mar. 17, 2004); Moe v. Dr. Matthew A. Gahn, slip op. (W.C.C.A. Dec. 31, 2003); see also Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).
At Finding 13, the compensation judge determined that the employee had not carried her burden of proving by a preponderance of the evidence that she sustained a specific work injury to her low back on July 29, 2000. At Finding 11, the judge listed, in great detail, what she viewed as significant inconsistencies between the employee=s testimony at hearing and the histories of symptoms and their onsets that she gave to her health care providers in July, August, and September 2000. And at Finding 12, the judge specifically concluded that she did not find the employee to be a reliable source of information about the onset of her low back and leg symptoms and the activities that caused those symptoms.
In the memorandum accompanying her findings and order, the compensation judge stated the following:
The multiple significant inconsistencies between the employee=s testimony, the hypothetical set of facts Dr. Schwender was asked to assume when rendering his medical - legal opinions, and her initial health care treatment records support the conclusion that the employee has not carried the burden of proving that lifting a keg at work on July 29, 2000 was a substantial contributing factor to the development of low back and leg symptoms requiring treatment from July 31, 2000 on. The argument of the employee=s attorney that the fact that she mentioned lifting the keg to most of initial health care providers shows that the incident must have been a substantial contributing factor to the development of serious low back and leg symptoms was not persuasive.
Although in many, if not most, cases there are minor inconsistencies in descriptions of the events that brought on symptoms in the records of different doctors, here those inconsistencies and descriptions of events is accompanied by inconsistent descriptions of exactly what those symptoms were, when they began, and whether or not they were constant or intermittent. Two days after July 29, the employee told her chiropractor that she had had constant low back pain since lifting the keg. On August 23, 2000, she told Dr. Larson, her first treating medical doctor, that lifting the keg was not associated with any pain but rather that the severe pain came on the next day when she was lifting some paving stones and her low back Alocked up@. Physical therapy notes for August 3, 2000 (less than one week after July 29), set out an initial history of the onset of low back pain on July 30, 2000 moving patio blocks and do not document the keg incident at all.
The employee=s testimony at hearing that she did not move any patio blocks but rather sat around and watched other people move patio blocks and may have, at most, pushed some sand between blocks, was given no weight at all. It seems highly unlikely that someone who sat around watching other people work would tell her first treating medical doctor, her physical therapist, two orthopedic surgeons, and her neurologist that lifting patio blocks was one of the causes of her symptoms.
* * * *
The inconsistencies and discrepancies in descriptions of the onset and nature and extent of symptoms together support Dr. Segal=s opinion that it is not possible to conclude exactly what the significant precipitating events were. The employee has not carried the burden of proving that lifting a keg was a substantial contributing factor to the development of low back and leg symptoms treated from July 31, 2000 on.
While it appears that the compensation judge accepted the employee=s testimony that she lifted a keg of beer on the evening of July 29, 2000, the judge evidently did not believe that the employee sustained a specific work injury to her low back on that date. At trial, the employee specifically testified that when she lifted the keg at work she felt something pop in her back and she experienced immediate pain down her leg. She indicated that she was in so much pain that she could not wheel the keg out of the cooler and that she had to have her husband finish the job. However, in a history provided to Dr. Edwards on August 16, 2000, the employee reported that she did not recall any specific injury. On August 22, 2000, she advised Dr. Deutsch that lifting the keg Awas not associated with any pain.@ The histories provided to Drs. Edwards and Deutsch are clearly in express contradiction of the employee=s trial testimony. In addition, the employee=s testimony that her activity in the Berzins= home was minimal at best and that she did not participate in scrubbing her deck at home is also at odds with the medical records. On August 3, 2000, the employee advised Dr. Larson that her low back pain began on Sunday, and on that same date she reported to her physical therapist as well that she noticed the onset of her low back pain on Sunday, associated with moving patio brick. Finally, as the judge noted in her memorandum, Ait seems highly unlikely that someone who sat around watching other people work,@ as the employee testified that she did, Awould tell her first treating medical doctor, her physical therapist, two orthopedic surgeons, and her neurologist that lifting patio blocks was one of the causes of her symptoms.@
We acknowledge that the compensation judge did not specifically reference in her decision the testimony of the employee=s husband or Janet Berzins. However, as this court has frequently reiterated in the past, a compensation judge does not have to mention every piece of evidence in his or her decision. Rothwell v. Minn. Dept. of Natural Resources, slip op. (W.C.C.A. Dec. 6, 2003). It is apparent from the judge=s decision that she thoroughly reviewed the record.
The compensation judge listened to the testimony of the employee and had the opportunity to observe her demeanor when she testified. The judge did not find the testimony of the employee as to her alleged injury to be credible or persuasive. The assessment of a witness=s testimony is the unique province of the trier of fact, and this court will not disturb a finding based on credibility unless clearly contrary to the evidence. Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989). While inconsistencies in the medical histories might be attributed either to the employee=s being a poor historian or to the history-taking practices of her physicians, such inconsistencies may also form a basis for questioning the employee=s credibility. In this case, the judge may have chosen to believe the employee to be a poor historian rather than a noncredible witness. On appeal, however, we cannot conclude that the facts here compel a finding either way. There is no reason to substitute the judgment of this court for that of the compensation judge regarding the credibility of the employee. A finding of causation in this case depends upon the judge=s acceptance of the employee=s history, and we find nothing in the record compelling us to overturn the judge=s rejection of the employee=s claim on grounds that the judge erred in her credibility assessment.
The employee contends also that the compensation judge improperly applied the law in concluding that the employee was unable to prove which of several activities over the relevant two-day period was a substantial contributing cause of her back condition. The employee argues that the judge required her to prove that the work injury was the sole cause of her condition to the exclusion of other contributing causes. We do not agree.
The employee had the burden of proving, by a fair preponderance of the evidence, first that she sustained an injury, second that it was work related, and third that it was the cause of her disability. The judge did not require the employee to prove that her work injury was the only contributing cause of her condition. She did require, however, that the employee prove that the injury happened in the first place, whether alone or in conjunction with other causes of her disability. While another fact finder may have concluded that the nature of the work activities and sequence of events are such that it appears more probable than not that the work activities were a substantial contributing cause of the employee=s condition, we cannot say that the facts here compel such a conclusion. Here, the judge concluded that, based upon the employee=s testimony and the various inconsistencies in the medial records, the employee did not establish that she sustained an injury. Substantial evidence exists to support this conclusion by the compensation judge. Accordingly, the decision of the compensation judge is affirmed. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 The judge=s reference to an August 23, 2000, office visit with Dr. Larson is actually an August 22, 2000, visit with Dr. Larson=s associate, Dr. Deutsch.