MICHELLE JOHNSON, Employee/Appellant, v. ITASCA BEMIDJI, INC., and COMMERCE & INDUS., adm=d by AIG CLAIM SERVS., Employer-Insurer, and NORTH COUNTRY REG=L HOSP., MN DEP=T OF LABOR & INDUS./VRU, STEMBER CHIROPRACTIC, and NORTHLAND MED. CLINIC, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 24, 2005
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge=s decision regarding the nature and extent of the employee=s work injury.
Determined by: Wilson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Patricia J. Milun
Attorneys: Christopher M. Daniels and Matthew R. Zahn, Koepke & Daniels, Minneapolis, MN, for the Appellant. Nicole B. Surges, Erstad & Riemer, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s decision as to the nature and extent of the employee=s work injury and from the judge=s resulting denial of wage loss and rehabilitation benefits. We affirm.
The employee began working for Itasca Bemidji, Inc. [the employer], in August of 2001, assembling electrical harnesses used for ATVs and snowmobiles. The harnesses were assembled on large plywood boards, which were placed upright on easels; the assembly work, referred to as Arunning boards,@ was done by workers from a standing position. The employee typically ran boards for the first four hours of her shift. For the last four hours, she primarily wrapped the wires in the harnesses with electrical tape. Workers could perform the taping work while sitting.
On Friday, April 26, 2002, the employee was asked to show a new coworker how to run the boards. The employee testified that the particular board they were working on that day was too high for them and that the employee consequently had to stand on her tip toes to reach the wires on the top of the board. The employee further testified that, at one point, as she came down off her toes, she felt a strange pulling sensation in her low back. This incident occurred, according to the employee, shortly before the end of her initial four hours of work, and she then had lunch and continued her work day taping, as usual. Conflicting evidence was offered as to whether the employee reported the incident to her supervisor later that afternoon. In any event, the employee finished her shift.
The employee testified that she had increasing low back pain over the weekend. However, she reported for work on Monday, as usual, and completed her usual work day. Again, conflicting evidence was offered as to whether the employee told her supervisor, that day, about her symptoms or the incident the preceding Friday. The employee testified that her symptoms continued to increase over the course of her shift and that she was limping by the time she left work.
The next day, Tuesday, April 30, 2002, while being driven to work by her husband, who was also employed by the employer, the employee was involved in an accident when her car hit a deer. The employee testified that neither she nor her husband was injured and that her back was already painful before the accident occurred. Following her arrival at work, the employee had trouble performing her job, and, after talking to her supervisors about her condition, she went home.
The next day, Wednesday, May 1, 2002, the employee attended a medical appointment with Dr. Gordon Franklin, which had been previously scheduled to evaluate complaints of pain and numbness in the employee=s hands and wrists. Dr. Franklin=s office note of that date contains an account of the reaching incident at work but does not mention the employee=s collision with the deer the day before. Noting tenderness and tenseness in the employee=s back muscles, and positive straight leg raising on examination, Dr. Franklin diagnosed acute thoracolumbar strain Amostly left@ and took the employee off work.
On May 8, 2002, the employee continued to exhibit signs of pain on bending but evidently told Dr. Franklin that Aher back [was] much better.@ Dr. Franklin concluded that the employee was not ready to return to work and advised her to do light exercises at home. This treatment note also indicates that Dr. Franklin discussed the issue of diet with the employee, who is about 5' 4" tall and weighs about 240 pounds.
On May 15, 2002, Dr. Franklin noted that the employee=s back was Astill bothering her a great deal.@ Noting also, however, that the employee wanted to try going back to her job, Dr. Franklin released the employee to work with restrictions against standing for more than an hour and sitting for more than three hours.
According to notes from a follow-up appointment with Dr. Franklin on May 24, 2002, the employee was able to bend with only Aa little discomfort@ and stated that Atoday [her back] is quite a lot better.@ Dr. Franklin relaxed her restrictions and indicated that he would see her again in two weeks Aand hopefully she will be free of limitations by that time.@
The employee returned to Dr. Franklin for the two-week follow up on June 7, 2002. According to the treatment record from this appointment, the employee=s Alumbodorsal back strain@ had Agradually been improving and now she says it has improved to the point that she can do all of her work without problems.@ Under the section of the treatment note relating to objective findings, Dr. Franklin indicated that the employee had Ano problem with her back at the present time.@ No examination findings with respect to the employee=s low back were reported; other notations were made with respect to continuing hand and wrist complaints. Dr. Franklin assessed Ahealing of the lumbodorsal sprain or strain,@ tendinitis in the wrist, and probable carpal tunnel syndrome. The employee was released to Afull work as far as her back is concerned.@
On June 12, 2002, the employee returned to see Dr. Franklin for recurring low back pain. Dr. Franklin=s office note from that examination reads, in part, as follows:
S: Michelle is a 33-year-old lady who was at work yesterday morning when her back began to hurt and became so severe that she had to sit down, she was standing working and she tried working again today and she found it too painful to continue. The pain is located similarly to the pain she had on 5-1 through 5-24. She had been feeling up [sic] until yesterday morning and did not do anything special to bring it on.
Dr. Franklin considered the possibility of a herniated disc, but, because the employee had no health insurance, he decided to simply prescribe medication and have the employee rest for a week. On June 19, 2002, Dr. Franklin allowed the employee to return to sedentary work with restrictions on lifting, bending, squatting, and climbing. When the employee=s symptoms failed to improve, Dr. Franklin referred her for an MRI scan. That scan, performed on July 5, 2002, disclosed degenerative disc disease, including mild broad-based disc bulges at L3-4, L4-5, and L5-S1, and annular tears at L3-4 and L4-5.
In late July 2002, at the employee=s request, Dr. Franklin referred the employee for chiropractic care. The employee had received Amaintenance@ chiropractic treatment in the past as a perk of prior employment in chiropractic offices. She testified that the chiropractic treatment she received from Dr. Larry Stember beginning in July of 2002 at least did not aggravate her condition and perhaps Astabilized@ it.
The employee continued to work for the employer, with restrictions, for the next year. She also continued to see Dr. Franklin periodically during this period.
On August 14, 2003, while she was sitting performing taping work for the employer, the employee felt a cramp in the back of her right thigh, and her entire right leg went numb. A subsequent MRI scan, performed on August 22, 2003, showed, among other things, a Ahuge central and right pericentral [sic] disc herniation with effacement of the right side of the common thecal sac and lateral recess.@ The radiologist reported that it was Ahighly likely@ that the exiting nerve root on the right was compromised. Dr. Bruce Wilson, who had assumed the employee=s care when Dr. Franklin retired, attempted to refer the employee to a neurosurgeon for evaluation. However, because the employer and insurer denied liability for the employee=s condition, no evaluation was performed.
The matter came on for hearing on May 12, 2004, for resolution of the employee=s claim for various benefits allegedly due as a result of the employee=s alleged April 26, 2002, work injury. The employer and insurer continued to deny primary liability. Evidence included the employee=s treatment records; causation opinions from several physicians, including Dr. Julie Switzer, the employer and insurer=s independent examiner; and the testimony of the employee, the employee=s husband, and several coworkers.
In findings relevant to the current appeal, the compensation judge concluded that the employee had sustained a lumbar strain as a result of her work activities on April 26, 2002; that the employee had reached maximum medical improvement [MMI] from her work injury on June 7, 2002; that the employee had no permanent partial disability as a result of her work injury; that the employee=s symptoms on August 14, 2003, as well as the subsequently diagnosed L5-S1 disc herniation, were not work-related; and that the employee=s disability and need for treatment after June 7, 2002, were not related to her April 26, 2002, work injury. All benefits after that date were therefore denied. 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).
As the employee acknowledges in her brief, this entire case hinges on the issue of causation. Four physicians offered opinions on this issue. Drs. Franklin, Wilson, and Stember all concluded that the employee=s condition after June 7, 2002, was related to the employee=s April 26, 2002, work injury. Dr. Wilson explained his conclusion in this regard as follows:
2. You asked me to state my opinion with a reasonable degree of medical certainty as to whether Michelle Johnson=s employment duties at IBI were a substantial contributing factor to her low back problems. In answer, I would indicate that if one accepts that the MRI in 2002 was accurate and that the injury described in April of 2002 produced that picture, which I had no reason to doubt, then the worsening of her symptoms and the change in her MRI only represents a worsening of the disk bulge that was present in 2002, which was much worse in 2003. Therefore, it is part [and parcel] of the same process, not a new process, progression of these processes is not unusual or uncommon; therefore, I believe it is not unreasonable to believe this is all one process.
Dr. Stember, the employee=s chiropractor, explained that the employee=s bending and twisting at work had led to the lumbar annular tears and resulting symptoms and disability. However, Dr. Switzer, the employer=s independent examiner, found no causal connection between the April 2002 work injury and the employee=s disability after June 7, 2002. In her September 10, 2003, report, Dr. Switzer wrote as follows:
[I]t is my opinion, based on a reasonable degree of medical certainty, that Ms. Johnson may have sustained a mild lumbar sprain/strain secondary to a reaching injury that occurred sometime in April of 2002 at work. Symptoms related to an injury of this type would be expected to resolve within a month or two. The notes provided by Dr. Franklin, who saw her during this time, indicate that although she had a waxing and waning course, by June 7, 2002, Ms. Johnson=s back symptoms had improved. In fact, by June 7, 2002, Dr. Franklin remarks Ms. Johnson Ahas gradually been improving been and now she says it [her back] has improved to the point that she can do all of her work without problems. . .she has no problem with her back at present time.@ On June 7, 2002, Ms. Johnson was approximately five to six weeks following the reaching injury at work. It is, in my opinion, consistent with the natural history of this type of injury that resolution would have taken place by that time. On July 5, 2002, Ms. Johnson underwent a lumbar spine MRI and lumbar spine x-rays. These studies demonstrated degenerative changes at the L3-4, L4-5, and L5-S1 levels. These degenerative changes are, in my opinion, more likely the result of age than they are of any injuries she might have sustained at work. As well, these degenerative changes are more likely, within a relative degree of medical certainty, to be the result of her discomfort than is any reaching injury that may have resulted in transient low back pain in April of 2002. In light of this, it is my opinion that Ms. Johnson sustained no permanent partial disability to her back as a result of any work-related accident that occurred in April of 2002.
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Ms. Johnson reports that her low back symptoms over time have waxed and waned since April 2002. Although there is evidence in the medical record that Ms. Johnson has experienced back pain over time, in light of her obesity and demonstration of early degenerative changes in her lumbar spine not related to acute trauma, it is my opinion that Ms. Johnson=s symptoms, as early as mid-June of 2002, are more likely related to her early degenerative changes than any work-related injury, which occurred in April of 2002.
Dr. Switzer also expressly concluded that the large herniation revealed by the August 2003 MRI was not related to either the employee=s April 26, 2002, strain or to the work activities the employee was performing on August 14, 2003, when her right leg pain and numbness began. Dr. Switzer=s causation opinion with respect to the employee=s August 14, 2003, work activities was based on the fact that the employee was not performing any Aprovocative maneuvers@ at work when her right leg symptoms occurred. Finally, Dr. Switzer concluded that the employee had reached MMI as of the date of Dr. Franklin=s June 7, 2002, examination and that the employee had no need for any restrictions as a result of the April 2002 lumbar strain.
The compensation judge expressly accepted the opinion of Dr. Switzer over the opinions of Drs. Franklin, Wilson, and Stember. While the fact that the employee had experienced a recurrence of low back symptoms by June 12, 2002 -- only a few days after the date chosen by Dr. Switzer for resolution of the work injury -- might have led a different fact finder to reject Dr. Switzer=s opinions on persuasiveness grounds, it is not our place to simply substitute our judgment for that of the compensation judge. As a rule, a judge=s choice between conflicting expert opinions is generally upheld unless the facts relied on by the expert are not supported by substantial evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). In the present case, we see no significant defects in the factual basis for Dr. Switzer=s opinion, and we find no other grounds adequate to conclude that the compensation judge erred in relying on that opinion.
Because Dr. Switzer=s opinion provides substantial evidence to support the judge=s decision regarding causation of the employee=s low back condition after June 7, 2002, and the judge=s resulting denial of benefits, we affirm the judge=s decision in its entirety.
 The employee=s testimony as to the height of the board, and as to her ability to reach the top of the board, is disputed. Employer representatives also disputed the employee=s claim that the employee complained to her supervisor about the height of the board.
 In her brief, the employee refers repeatedly to the AAugust 14, 2003, injury.@ However, while the employee was at work when her symptoms occurred, there is no medical evidence in the record indicating that the symptoms were caused by her work activities on that date. Also, the employee admitted at hearing that she was simply sitting, taping, and that she was not bending, stooping, twisting, or reaching at the time. Contrary to the employee=s suggestion, the fact that the symptoms may have occurred at work does not automatically mean that the condition is work-related.