DAVID HERSHKOVITZ, Employee, v. LAKEVILLE MOTOR EXPRESS, and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants, and NORTH MEM=L HEALTH CARE, MILLENNIUM NEUROSURGERY, MINNEAPOLIS RADIOLOGY, and CENTRAL STATES SE & SW AREA HEALTH & WELFARE & PENSION FUND., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 1, 2005
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee sustained an injury to his cervical spine as a result of his work-related injury on November 14, 2002.
NOTICE OF INJURY; STATUTES CONSTRUED - MINN. STAT. ' 176.141. The compensation judge reasonably concluded that, although the employee initially experienced low back symptoms but later developed neck symptoms, the employee=s eventual medical treatment and surgery to his cervical spine arose out of the employee=s work injury for which there was notice to the employer and insurer as required by Minn. Stat. ' 176.141.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Rolf G. Hagen
Attorneys: Joseph T. Herbulock, Hauer, Fargione, Love, Landy & McEllistrem, Minneapolis, MN, for the Respondent. Steven C. Gilmore, Law Offices of Powell and Robinson, St. Paul, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge=s finding that the employee sustained an injury to his cervical spine on November 14, 2002, and that he provided due and statutory notice of that injury. We affirm.
On November 14, 2002, the employee, David Hershkovitz, was employed by Lakeville Motor Express. On that date, the employee sustained an admitted injury to his lumbar spine, for which the employer and insurer paid temporary total disability benefits, temporary partial disability benefits and medical expenses.
In May 2001, the employee began working for Lakeville Motor Express as a loading dock worker. His primary duties consisted of moving freight from one dock to another. On an average day, the employee unloaded approximately 4 to 6 semi-tractor trailers, which required a great deal of bending, lifting, pushing and stacking of freight. On a daily basis, he handled materials weighing an approximate total of 15,000 to 25,000 pounds, and lifted materials both by hand and with the assistance of equipment. The employee testified that the heaviest item he manually moved was a drum weighing 475 to 500 pounds; appliances that he moved ranged in weight between 95 to 200 pounds, and that he had performed this type of work for approximately 15 years.
On or about November 14, 2002, while lifting a bundle of copper bars off the ground, weighing approximately 125 to 135 pounds, the employee experienced pain across his low back and extending into his right leg. At the employer=s referral, he sought treatment at Now Care, where he consulted with Michelle Roubinek, physician=s assistant, who diagnosed a low back strain. The employee remained off work for approximately two days with low back symptoms. On November 18, 2002, the employee consulted Dr. Michael Renier, D.O., at North Memorial Clinic - Golden Valley Family Physicians, whose chart note refers to a sudden onset of low back pain on November 14, 2002. Dr. Renier prescribed pain medication and physical therapy, as well as work restrictions. On November 19, 2002, the employee was again evaluated at Now Care by another physician=s assistant, April Fitzloff, who diagnosed a low back strain, and he followed up with Dr. Renier on December 2, 2002, for his low back pain. There is no mention of neck symptoms in the chart notes issued at Now Care nor in Dr. Renier=s chart notes of November 18 and December 2, 2002.
Although the employer and insurer admitted primary liability for the employee=s low back injury, they denied primary liability for a neck injury. They paid temporary total disability benefits based for one day, and then paid temporary partial disability benefits between November 17 through December 7, 2002. As of December 7, 2002, the employer and insurer discontinued benefits, contending that the employee no longer was restricted as a result of his low back injury and was able to return to work on a full-duty basis, and that the employee=s time loss from work after December 7 was related to his neck condition and was not causally related to his November 14, 2002, injury.
However, by December 11, 2002, the employee reported to Dr. Daniel Feely, at North Memorial Clinic, that although his low back pain had improved, he now was noticing neck pain and pain radiating into his right arm. The employee testified that his neck pain had begun a week before December 11, and that he first noticed neck pain Aas soon as my back felt a little better, [and that] my neck started hurting and my arm.@ The employee continued to work until December 13, 2002, performing light-duty work, but testified that he eventually left work after advising his employer that he was leaving due to his neck symptoms. On December 17, 2002, the employee again consulted Dr. Renier, who diagnosed a cervical strain and referred the employee for an MRI scan of the cervical spine.
On December 30, 2002, at Dr. Renier=s referral, the employee consulted Dr. Mathias Feldkamp, neurosurgeon. The employee provided a history to Dr. Feldkamp that following his work injury, he noted immediate pain in his lower back, but later reported neck symptoms to Dr. Renier. The employee reported pain radiating into his right arm, and that his pain was aggravated by the lifting and twisting he did in his work. The employee also reported to Dr. Feldkamp that he felt the neck pain began insidiously shortly after his injury on November 14, 2002, but that he really did not notice the severity of that neck pain until his back pain began improving. Following a neurological examination, Dr. Feldkamp diagnosed the employee with an acute C-7 radiculopathy, on the basis of the acute disc herniation on top of underlying spondylosis at multiple levels. He recommended an epidural injection and nerve root block at the C7 level, which alleviated the employee=s arm pain for several days.
Dr. Feldkamp later determined that the employee was a good surgical candidate, and recommended anterior cervical discectomy and fusion at the C5-6 and C6-7 level. The employee underwent that surgery on January 28, 2003. A donor graft was taken from the employee=s right iliac crest for the fusion surgery, but the employee developed a wound infection in that site and was later readmitted to the hospital in February 2003 for surgical treatment of the infection.
In a chart note dated January 7, 2003, Dr. Renier stated that the employee=s low back pain was due to a work-related injury Abut upon review, I cannot say neck pain is positively correlated with work activities.@ In a Health Care Provider Report dated February 28, 2003, Dr. Renier noted that the employee=s lumbar pain was related to his work injury of November 14, 2002, but that he was Auncertain if neck pain [is] work-related.@ He also determined that the employee had reached maximum medical improvement from his low back injury, as of December 17, 2002, but wrote that it was A[t]oo early to determine for neck pain; patient currently re-hospitalized@ and that it also was too early to determine whether the employee had sustained any permanent partial disability as a result of his neck injury or condition.
According to Dr. Feldkamp=s March 28, 2003, report, the employee had noted complete resolution of his arm pain and most of his neck pain following his surgery. In that report, Dr. Feldkamp outlined his opinion that the employee=s November 14, 2002, injury was a significant contributing factor to the disc herniation in his neck. He recommended work restrictions for the three months following surgery, including no lifting over 20 pounds and no overhead work for the three months post-surgery. Thereafter, Dr. Feldkamp recommended that the employee limit his lifting to no more than 50 pounds; by June 2003, he released the employee to return to work. By the time he returned to work on June 1, 2003, the employee was able to perform the same job duties that he had previously performed.
On May 16, 2003, the employee filed a claim petition, claiming that he had sustained an injury to both his neck and low back on November 14, 2002. He sought entitlement to temporary total disability benefits between December 13, 2002, and June 1, 2003; medical expenses and related medical milage; and payment of Roraff  attorney fees. The employee later filed an amended claim petition, again claiming an injury date of November 14, 2002, but also adding a claim for a Gillette injury to his neck on January 28, 2003, the date of his neck surgery. The employee later amended his claim to include a Gillette injury to his neck on December 13, 2002, the last day he worked for the employer prior to his neck surgery. Central States SE & SW Areas Health and Welfare and Pension Fund intervened for reimbursement of short-term disability benefits paid to the employee while he was off work between December 13, 2002, and June 2003.
On September 9, 2003, the employee was examined by Dr. Mark Larkins, neurosurgeon, at the request of the employer and insurer. In his report of September 29, 2003, Dr. Larkins concluded that the employee=s neck pain and related surgical procedure were unrelated to his November 14, 2002, work injury. He noted that the employee did not report any cervical complaints until one month after the injury, and that his complaints before then were completely focused on his lumbar spine. Dr. Larkins determined that the employee=s work injury of November 14, 2002, represented a temporary low back strain that had resolved, and that the work injury did not contribute to the employee=s disability from work nor need for medical treatment after December 8, 2002. In his opinion, the employee would have been fully capable of full-time gainful employment after December 8, 2002, when he no longer required physical work restrictions. Dr. Larkins further determined that the employee required no further care or medical treatment related to his November 2002 injury and that the employee had sustained no permanent partial disability as a result of that injury. Finally, he concluded that within three months of the injury, the employee would have reached maximum medical improvement from his work injury.
A hearing was held before a compensation judge on November 30, 2004, to address the employee=s claim petition. In his Findings and Order, served and filed December 20, 2004, the compensation judge determined that the employee sustained both a low back and a neck injury on or about November 14, 2002, as a result of his work-related injury. The compensation judge determined that the employee=s low back injury on November 14, 2002, was a temporary aggravation of his pre-existing low back condition, that had resolved no later than January 28, 2003. He also found that the employee=s neck injury was a substantial contributing cause of his need for cervical spine surgery on January 28, 2003, and his disability from work through June 1, 2003, and awarded payment of temporary total disability benefits between December 13, 2002, and June 1, 2003, based upon both his neck and low back injuries. The compensation judge also awarded reimbursement to the medical intervenors and disability insurer. The compensation judge based his conclusions upon the medical opinion of Dr. Feldkamp, the employee=s treating surgeon, and also accepted the employee=s testimony as highly credible.
The employer and insurer appeal from the compensation judge=s finding that the employee sustained an injury to his cervical spine on November 14, 2002, and that he provided due and statutory notice of that injury.
The employee claims that he sustained an injury to his cervical spine on November 14, 2002, but the employer and insurer have denied primary liability for that claimed injury, alleging that he did not injure his cervical spine as a result of his work injury nor did he provide proper notice to the employer and insurer of an injury to his cervical spine. The issues for determination on appeal are whether substantial evidence supports the compensation judge=s finding that the employee sustained an injury to his cervical spine on November 14, 2002, whether the employee provided due and statutory notice of that injury, and, if so, whether he is entitled to payment of temporary total disability benefits and medical expenses related to that claimed injury.
In support of their appeal, the employer and insurer rely upon the medical opinion of Dr. Larkins, that the employee=s neck pain and related surgical procedure were unrelated to his November 14, 2002, work injury.
The record contains opposing medical opinions on the issue of whether the employee sustained an injury to his neck as a result of his November 14, 2002, work injury. Dr. Feldkamp, the employee=s treating surgeon, concluded that the employee=s November 14, 2002, work injury substantially contributed to his neck condition and the herniated disc in his neck that was shown on the MRI scan, even though his neck symptoms did not manifest themselves immediately after the injury. In his report of March 28, 2003, when outlining his opinion on the causation of the employee=s neck symptoms, Dr. Feldkamp addressed the late manifestation of the employee=s neck symptoms. He stated that,
While the patient did not have neck pain immediately after the accident, this began shortly thereafter. He does not have a prior history of neck discomfort or previous injuries involving the neck. It is not unusual for patients to have injuries to both the neck as well as the lumbar spine, and one or the other may initially predominate, but end up not being the major disabling injury. All evidence would suggest that the incident at work was a significant contributing factor to the disc herniation in his neck.
By contrast, Dr. Larkins, the independent medical examiner, on whose opinion the employer and insurer base their appeal, concluded that the employee=s work injury of November 14, 2002, did not substantially contribute to his neck symptoms and his need for medical treatment for his neck. In his report dated September 29, 2003, Dr. Larkins stated that,
It is my opinion that his neck pain and following surgical procedure, was unrelated to his November 14, 2002, work injury. Mr. Hershkovitz did not report any cervical complaints until one month after the injury. His complaints were completely focused on his lumbar spine. In my opinion, individuals are capable of having more than one complaint at one time, and voicing those complaints, in contradiction to Dr. Feldkamp=s narrative report.
The employee=s family physician, Dr. Renier, who first examined him on November 18, 2002, expressed an equivocal opinion concerning the causal relationship between the employee=s work injury and his cervical spine condition. In a Health Care Provider Report that he completed on February 18, 2003, Dr. Renier stated that the employee=s lumbar spine condition was work-related but that he was Auncertain if neck pain [was] work-related.@
The judge relied upon the opinion of the employee=s treating surgeon, Dr. Feldkamp, when reaching his conclusion that the employee sustained an injury to his neck on November 14, 2002. The employer and insurer assert that the compensation judge should not have relied on Dr. Feldkamp=s opinion, as his opinion lacks foundation. Foundation is an admissibility question and if a medical opinion is based on personal knowledge of the case, testimony heard during trial, or facts in evidence presented in a hypothetical question, foundation is met. Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978). The employee=s medical records outline the onset and development of his neck symptoms to which Dr. Feldkamp referred, and we find no foundational defect in Dr. Feldkamp=s opinion. In addition, 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, 342-43, 37 W.C.D. 364, 372-373 (Minn. 1985). It was reasonable for the compensation judge to conclude that the medical evidence, including the expert medical opinion of Dr. Feldkamp, demonstrated a causal relationship between the employee=s work injury and his neck symptoms and need for medical treatment to his neck.
In addition to relying on Dr. Feldkamp=s opinion, the compensation judge also found the employee=s testimony concerning the progression of his symptoms to be highly credible. In his memorandum, he addressed the employee=s delayed reporting of neck symptoms, stating that,
Employee freely admits that on 11/14/2002 the pain and symptomatology was focused on the low back and treatment thereafter also to the low back. However, shortly thereafter (within a period of 2 weeks to one month) employee began to notice his low back improving, however, he began noticing more and more pain in his cervical spine together with upper extremity radiculopathy. This necessitated additional and further treatment relative to the cervical spine.
It is the trier of fact's responsibility to assess the credibility of a witness. Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)). It is not the role of this court to make an evaluation of the credibility and probative value of the witness testimony. Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 734, 40 W.C.D 948, 957 (Minn. 1988). Further, our review of the employee=s medical records and the hearing transcript shows that the employee=s testimony corroborated his medical records. His neck symptoms gradually increased to the point in December 2002 when he found it necessary to consult his physician about those symptoms, and that it was due to his neck symptoms that he was unable to continue working after December 13, 2002. This testimony further supports the compensation judge=s conclusions concerning the causation of the employee=s injury to his cervical spine. We affirm his finding that the employee=s injury to his cervical spine was causally related to his injury on November 14, 2002.
The employer and insurer also argue that the employee failed to provide due and statutory notice of his injury to his cervical spine, even though he provided adequate notice of his low back injury. The compensation judge concluded that, based upon the development of the employee=s neck symptoms shortly after the date of injury, and the progressive worsening of those symptoms to the point that extensive medical care was required for that condition, the employee provided adequate notice of his cervical spine injury.
Essential to proof of a claim under the Workers= Compensation Act is a showing that the employer had timely notice or knowledge of the employee=s injury within the statutory period. Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 40 W.C.D. 270 (Minn. 1987). Minn. Stat. ' 176.141 outlines the time requirements for providing notice to an employer of a work-related injury. The statute sets forth requirements for an employee to provide notice within 30 days of an injury, or, in certain mitigating circumstances, within 180 days of an injury. It has long been held that the purpose of the statutory notice requirement is Ato enable the employer to furnish immediate medical attention in the hope of minimizing the seriousness of the injury as well as to protect the employer by permitting him to investigate the claim soon after the injury.@ Kling v. St. Barnabas Hosp., 291 Minn. 257, 261, 190 N.W.2d 674, 677, 26 W.C.D. 53, 56 (1971), citing Pojanowski v. Hart, 288 Minn. 77, 178 N.W.2d 913, 25 W.C.D. 206 (1970). As a general rule, an employee need only give notice of the injury itself and not all of the body parts injured in one occurrence. Nelson v. Johnson Builders and Developers, Inc., slip op. (W.C.C.A. Aug. 27, 2002), citing Runkel v. University of Minn., slip op. (W.C.C.A. Mar. 8, 2002).
In this case, the employee provided proper notice to the employer of his injury on November 14, 2002. His medical treatment during the following month focused on his low back symptoms, and, within a month, the employee noted progressively worsening symptoms in his neck. The employee testified that he reported neck symptoms as soon as they manifested, and advised his supervisor that he was going to seek medical care for his neck. By December 11, 2002, the employee found that he no longer could work, due to his increased neck symptoms, and notified the employer that he was leaving work due to those symptoms. Even before the employee discontinued working due to his neck symptoms, the employer and insurer had discontinued payment of temporary partial disability benefits, contending that the employee no longer was temporarily partially disabled as a result of his low back condition, and that the employee=s disability from work and need for medical treatment to his neck were unrelated to his work injury.
The compensation judge determined that there was adequate notice of a cervical spine injury. He summarized the basis for that conclusion in his memorandum, stating that,
Review of the hearing testimony and of the records indicates that while the primary focus of medical care/treatment and symptomatology was to the low back immediately following the 11/14/2002 incident and injury, shortly thereafter, the employee began to experience difficulties with his neck which did progressively worsen resulting in the necessity of the fusion surgery. This history is supported in the medical records/reports and confirmed by the opinions of Dr. Feldkamp in his medical records wherein he references follow-up visits and onset of cervical/neck pain shortly after the 11/14/2002 incident and injury. The employee=s cervical symptoms and eventual care, treatment, and surgery all arise out of the 11/14/2002 incident and injury for which there was adequate notice.
Under the facts presented here, we conclude that the evidence establishes that the employee provided the employer with timely notice of his injury, and that the delay in development and reporting of cervical spine symptoms does not bar the employee=s claim for benefits related to his cervical spine condition and medical treatment. The employer and insurer had knowledge of the work-related injury on the day that it occurred, as they referred him to seek medical treatment at the Now Care clinic. This notice yielded them the opportunity to conduct an investigation, obtain the employee=s medical records, and monitor his medical care. The compensation judge=s conclusion that the employee provided the employer with timely notice is consistent with prior judicial interpretation of the intent and purpose of the notice statute. See Kling, 291 Minn. 157, 190 N.W.2d 674, 26 W.C.D. 53. We therefore affirm that finding, and affirm the related award of benefits.
 Roraff v. State of Minn., Dep=t of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980).
 The insurer on the risk on January 28, 2003, was dismissed from the claim because the employee was not working for the employer on that date.
 In 1990, the employee sustained a low back sprain or strain, but was later released to return to work with no restrictions or permanent disability. This information was provided by the employee; there are no medical records in evidence that document any injury or treatment to the employee=s low back in 1990.