VERA PFINGSTEN, Employee/Appellant, v. JOSTENS, INC., and TRAVELERS PROP. & CAS. CO., Employer-Insurer, and J. W. HUTTON, INC., FAIRVIEW HEALTH SERVS., UNUM LIFE INS. CO. OF AM., and SUBURBAN RADIOLOGIC CONSULTANTS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 24, 2005
CAUSATION - GILLETTE INJURY; CAUSATION - PRE-EXISTING CONDITION. Where there was ample evidence in the medical record that the employee=s low back continued to trouble her subsequent to her lumbar fusion surgery in 1992, and where the judge=s conclusion was supported by expert medical opinion, the compensation judge=s conclusion that the employee did not prove that her pseudoarthrosis was due to a Gillette-type low back injury in 2003 was not clearly erroneous and unsupported by substantial evidence.
CAUSATION - AGGRAVATION; CAUSATION – SUBSTANTIAL EVIDENCE. Where there was ample evidence in the medical record that the employee=s low back continued to trouble her subsequent to her lumbar fusion surgery in 1992 and increased in severity right up until the date of her alleged 2003 work injury, and where the judge=s conclusion was supported by expert medical opinion, the compensation judge=s conclusion that the employee did not prove that her pseudoarthrosis was due to a new specific injury in 2003 was not clearly erroneous and unsupported by substantial evidence.
Determined By: Pederson, J., Johnson, C. J., and Stofferahn, J.
Compensation Judge: Danny P. Kelly
Attorneys: Lawrence C. Miller, Miller & Carlson, Minneapolis, MN, for Appellant. Gary M. Swanson, John G. Ness & Associates, St. Paul, MN, for Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge's conclusion that the employee did not prove that she sustained either a Gillette-type injury or a specific work injury. We affirm.
Vera Pfingsten has a history of low back problems dating back to at least 1976, when she injured herself in a fall in the course of her work making kitchen cabinets at Riviera Kitchens, some twenty-seven years prior to the date of the alleged injury here at issue. In April of 1982, Dr. Finz Choudhri reported that a CT scan and a myelogram had confirmed a herniated disc at L5-S1, and he predicted that the condition would eventually require surgery. In November of that same year, Dr. Stanley Fruchtman agreed that Ms. Pfingsten had Aa significant low back problem@ involving one to two herniated lumbar discs, that she had related permanent partial disability, and that he Acertainly d[id] not feel [that Ms. Pfingsten] should be engaged in anything that involves a great deal of physical work.@ In 1983, Ms. Pfingsten took a production job with Jostens, Inc., and subsequently she continued to complain of and to be treated for low back pain, as evident, for instance, in Interstate Medical Center and Physical Therapy records for 1989 and 1990, when her condition was attributed to A[l]ow back strain aggravated secondarily by congenital scoliosis.@ Epidural injections proved relatively ineffective, and, after some temporary improvement in January of 1991, her problems appeared to be getting worse. On January 23, 1992, Ms. Pfingsten underwent a lumbar MRI scan, which was read to reveal, in part, some spinal stenosis at L1-2 and L2-3 without disc herniation and some stenosis also at L4-5 as a result of some mild bulging at that level in combination with her small spinal canal. In March of 1992, orthopedic surgeon Dr. Nils Fauchald diagnosed Ms. Pfingsten=s condition as degenerative disc disease and degenerative joint disease, and on March 13, 1992, he performed a bilateral disc exploration at L4-5 of her spine, a discectomy at that level on the right, and a spinal fusion from L4 to the sacrum. Ms. Pfingsten=s radicular symptoms did not appear at first to be resolved by the surgery, but by August 4, 1992, Dr. Fauchald was able to release her to return to work with restrictions against prolonged standing in one position, against lifting over twenty pounds, and against prolonged sitting without opportunity to walk around periodically.
Following her surgery, Ms. Pfingsten had some good days and some bad days, and by September 22, 1992, she reported herself to be Agetting along really pretty well with her back though she has to watch what she does.@ Several years later, however, in January of 1999, Ms. Pfingsten returned to Dr. Fauchald with complaints of recurrent low back problems now radicular into her legs. Dr. Fauchald diagnosed recurrent radiculitis apparently generated just above the level of her fusion, and he prescribed six weeks of physical therapy, which apparently relieved most of her pain. About two years later, however, in April of 2001, Ms. Pfingsten evidently quit her job with Jostens, Inc., because of increasing low back pain, and she tried a job with a neighboring company. She quit that job after about a month, however, evidently out of concerns that the ergonomically incorrect furniture was putting her back at risk. She then applied for a production job with yet another company, as part of which application, on June 4, 2001, she underwent a pre-employment physical examination by chiropractor Dr. Donald Brown. As part of that examination, Ms. Pfingsten completed a questionnaire for Dr. Brown, on which she indicated that she was currently experiencing low back pain with numbness or tingling, burning, or a sleeping or prickling sensation in her left leg. Dr. Brown eventually concluded that Ms. Pfingsten was not physically qualified for the job with Federal Foam, and her application was rejected. In November of 2001, Ms. Pfingsten went back to work with Jostens, Inc.
From November of 2001 through March of 2003, Ms. Pfingsten noticed a worsening of her low back symptoms, which progressed until the pain was continuously present. In March of 2003, Ms. Pfingsten [the employee] was working at a station at Jostens, Inc. [the employer], processing orders for ten or fewer diplomas or certificates for schools or colleges, a job that required her to sit for long periods of time, occasionally twisting at the waist to load and unload materials into machines. On Monday March 31, 2003, while performing this job, she evidently twisted in her chair and felt a Asnap@ and a sharp pain in her low back that shot down into her leg. The employee was fifty years old on that date and was earning a weekly wage of $500.00.
Subsequent to this event, the employee worked for the rest of the work-week, evidently in continuous tailbone and leg pain, and on April 4, 2003, she was examined by orthopedic surgeon Dr. Everett Hughes. Noting on x-rays Asignificant degenerative changes of her lumbar spine@ and evidence of her previous decompression at L4-5 and L5-S1, Dr. Hughes diagnosed Aworsening problems with back pain as well as some leg troubles,@ ordered an MRI scan Ato evaluate for possible pseudoarthrosis,@ and restricted the employee from working. The MRI scan was conducted on April 7, 2003, and was read to reveal in part A[s]ignificant disc herniation slightly impressing on cord at the T12-L1 level with right lateral disc herniation and extension into the central canal at the L1-2 level,@ together with a A[p]osterior slip of L3 on L4 and L4 on L5 with foraminal stenosis . . . left greater than right.@ On April 11, 2003, having reviewed the MRI results, Dr. Hughes reported that the employee had Aseveral issues going on in her back. One is a large herniated disc up high, the other is stenosis in her back.@ Dr. Hughes administered an epidural steroid injection and referred the employee to a spine surgeon, Abecause I doubt that she will make complete improvements in her situation for the long haul.@ The employee remained off work through April 23, 2003, after which she was released to return to sedentary work four hours a day. She attempted a return to work on May 2, 2003, but she could not tolerate sitting for four hours a day and subsequently was taken back off work. Physical therapy was prescribed, which the employee commenced about May 13, 2003, pending her consultation with a surgeon. On May 30, 2003, in a letter replying to a query of the employee=s attorney, Dr. Hughes indicated that he thought that it was Amore likely than not@ that the degenerative changes in the lower regions of the employee=s spine Awere not directly caused by but they may have been aggravated substantially by [the employee=s] work.@ He indicated further that, A[i]n regard to the disc herniation at T12-L1, I think that i[t] is more likely than not that this could have been directly caused by her work activities.@
On June 3, 2003, the employee was examined by orthopedic surgeon Dr. James Schwender, who, in his report on that date, noted that it was not clear from a lumbar MRI scan whether or not the employee=s old fusion from L4 to the sacrum was solid. He indicated that the scan did reveal, however, some Aspondylosis throughout the lumbar spine as well as some thoracolumbar kyphos@ but A[n]o severe central stenosis.@ Based on the chronicity and severity of the employee=s symptoms, Dr. Schwender went on to order also both a lumbar CT scan and a thoracic MRI scan. The CT scan, conducted on June 5, 2003, was read to reveal in part that the A[p]osterolateral bony fusion at L4-5 does not appear solid on either side and is very complex and fragmented appearing,@ although Anone of the fragmentation appears acute@ and the posterior lateral bony fusion at L5-S1 appeared solid. The thoracic MRI scan, also conducted on June 5, 2003, was read to reveal degenerative changes at T11-12 and T12-L1, with a right-side disc protrusion at T11-12 and a central disc protrusion at T12-L1, but A[n]o lytic or destructive lesions.@
On June 18, 2003, the employee filed a claim petition, alleging entitlement to various benefits consequent to a work injury on March 31, 2003. On August 12, 2003, she was examined again by Dr. Schwender, who indicated that her thoracic MRI scan had revealed Aa juvenile diskogenic disease throughout@ and that her lumbar CT scan had revealed in part a Acomplex pseudoarthrosis posteriorly at the L4-5 level.@ Dr. Schwender suggested the possibility of an anterior lumbar fusion at that level, the employee opted to proceed with that treatment, and on October 31, 2003, Dr. Schwender performed the surgery.
On October 10, 2003, prior to her surgery, the employee had been examined for the employer and insurer by orthopedic surgeon Dr. Jeffrey Dick. In his report on November 4, 2003, Dr. Dick noted in part the following work history:
For the last two years [the employee=s] work involved sitting at a computer printing diplomas. Prior to that she did the same job but did it >the old fashioned way=: this involved lifting bundles of paper weighing 20 pounds from floor to chest height from 50 to 100 times per shift. Her back was actually more comfortable doing the more physical work because of the frequent change of positions.
Dr. Dick concluded in part that the employee=s Acurrent symptoms are mainly related to the coccygiodynia, a condition related to chronic irritation of the coccyx@ and that it was Aunlikely that the condition is related in any way to her employment@ with the employer. He indicated further that it was his opinion that the employee=s low back symptoms were Adue to a natural progression of her pre-existing lumbar degenerative disc disease and the pseudoarthrosis of attempted fusion at L4-S1,@ noting that the employee had smoked a pack of cigarettes a day for the past twenty-three years and that A[t]hese [degenerative] problems are well known to progress more quickly in patients who use nicotine.@ In support of his conclusion, he explained in part as follows:
Recurring symptoms are well documented in [the employee=s] records as early as 1997 and there are no acute findings on her subsequent radiographic studies. It is unlikely that the disc herniation at T12-L1 is contributing substantially to her symptoms, because she does not have any symptoms referable to the right L1 dermatome and the vast majority of her symptoms are in the low back (symptoms emanating from the T12-L1 disc would typically be felt in the mid back). In addition disc herniations in the thoracic spine are often asymptomatic.
Dr. Dick concluded also that the employee did have permanent restrictions related to her low back but that these restrictions were unrelated to her claimed injury at the employer and that they did not preclude her continuing to work full time.
Following her surgery, the employee was off work until released on March 16, 2004, to return to work at light duty, restricted from lifting more than twenty pounds and from doing more than minimal twisting and provided that she could take frequent breaks. The employee attempted a return to work on March 24, 2004, but she immediately experienced an increase in pain and went back off work. On March 26, 2004, she saw family practice specialist Dr. Michael Giorgi, a colleague of Dr. Hughes, who prescribed ice and heat and stretching, together with medications. On April 7, 2004, the employee returned to work at a data entry job with the employer, this time restricted also from working more than four hours a day, from sitting for more than thirty minutes at a time, and from doing any twisting or bending at all. In treatment notes dated April 19, 2004, Dr. Hughes reported that A[t]he terrible gnawing pain that [the employee] had prior to the surgery is substantially better@ and that Ashe is doing reasonably well in regards to [her surgery].@ By letter to the employee=s attorney dated June 15, 2004, about two months later, Dr. Schwender rendered the following opinions:
It is my opinion that [the employee=s] accident on March 31, 2003, as well as her repetitive work activities substantially have contributed to acceleration of her back condition not only her lumbar spondolysis but her pseudoarthrosis requiring surgical management. It is more likely than not that her pseudoarthrosis was aggravated and became symptomatic after the activities as mentioned above. To date, it is my professional opinion that her medical care including her fusion surgery have been reasonable and necessary to address her work related back injuries.
On June 16, 2004, Dr. Dick issued a supplemental report, responsive to additional medical records, including Dr. Schwender=s operative note of October 31, 2003. In his report, Dr. Dick noted in part that, in addition to accelerating degenerative disc disease, nicotine use increases substantially the likelihood that spinal fusions to which the user is subject will not heal properly. He indicated further that, A[w]hen a fusion is attempted, one year is typically allowed for it to heal. If healing does not occur within that time it is very unlikely to subsequently heal.@ Therefore, he went on, A[t]he sitting job that [the employee] performed between March 2001 and March 2003 did not have any bearing on her pseudoarthrosis as it [the pseudoarthrosis] was well established in March of 1993, one year after her surgery.@
The matter came on for hearing on June 17, 2004. Issues at hearing included the employee=s entitlement to various benefits stemming from a specific work-related injury to her low back on March 31, 2003, or from a Gillette-type injury to her low back culminating on that date. By findings and order filed September 13, 2004, the compensation judge concluded in part that the employee had failed to prove that she had sustained either a specific injury or a Gillette-type injury on March 31, 2004, as a result of her work activities at the employer. The employee appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.@ Id.
1. Gillette-type Injury
At Finding 24, the compensation judge found that the employee did not prove that she sustained a Gillette-type work injury on March 31, 2003, as claimed. The employee contends that that conclusion is not supported by substantial evidence. She acknowledges that A[t]here is no question that [she] has a significant pre-existing low back condition@ for which she underwent surgery eleven years ago, but she argues that her medical records reflect that she did extremely well following that March 1992 surgery and that she Ahad very little treatment for any low back symptoms right up until March 31, 2003.@ She argues that there is substantial evidence in the record to support the contention that her repetitive work activities at the employerBnamely, Asitting for long periods of time, twisting her torso in her chair to access the three sides of her workstation and bending to obtain paper stock - - all Asubstantially caused, aggravated or accelerated her pre-existing low back condition eventually culminating in disability on or about March 31, 2003.@ And this position is supported, she notes, in the opinions of her two treating doctors, Dr. Hughes and Dr. Schwender. This is not an easy issue, but we are not persuaded that the judge=s conclusion is unsupported by substantial evidence.
Initially, we concede that there may well be substantial evidence in the record to support a finding of a Gillette-type injury in this case. However, it is not the function of this court to assess whether substantial evidence might support a factual conclusion contrary to that reached by the compensation judge; this court=s function on factual review is only to assess whether substantial evidence exists to support the conclusion actually reached by the judge. Land v. Washington County Sheriff=s Dep=t, slip op. (W.C.C.A. Dec. 23, 2003); see also 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); Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (Awhether [the appellate court] might have viewed the evidence differently is not the point, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate@). In this case, there is also substantial evidence, in the form of both medical records and expert medical opinion, to support the conclusion of the compensation judge.
Contrary to the position of the employee, we find ample evidence in the medical record that the employee=s low back never did quite heal subsequent to her fusion surgery in 1992. As early as January of 1999, well before the date of her alleged work injury, the employee complained to her surgeon of low back pain radiating down into her legs, which her doctor traced to just above the level of her fusion and which was only relieved by six weeks of physical therapy. In April of 2001, nearly two years before the date of the alleged injury, she was apparently motivated to quit her job with the employer because of low back pain and then to quit the job she subsequently went to because of the risk of low back pain that it presented. She was then subsequently found medically unsuitable for yet another job that she applied for, based apparently on the condition of her low back, which she indicated at that time was causing her problems of numbness, tingling, burning, and prickling sensations. We grant that much of this symptomology became evident during the employee=s tenure with the employer, but it was symptomology that she continued to work through and that, given Dr. Fauchald=s initial tracing of it to just above the employee=s fusion, the compensation judge could quite reasonably have found related only to the employee=s surgery for a Ajuvenile@ discogenic disease, not to her work. Moreover, that conclusion was also the opinion of Dr. Dick, whose opinion the judge expressly adopted. Normally this court upholds a trier of fact=s choice among expert opinions, unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985). In this case, there is no evidence that Dr. Dick=s opinion was based on any false premises, notwithstanding the employee=s contention that the doctor=s foundation was inadequate for his identifying the employee=s work as, in the employee=s words, Asitting at a computer and typing on it.@ Clearly, Dr. Dick expressed awareness also that the employee had, prior to her sedentary work, done her job in a manner involving Alifting bundles of paper weighing 20 pounds from floor to chest height from 50 to 100 times per shift.@ We conclude that Dr. Dick=s opinion was not without sufficient foundation and that the compensation judge=s denial of a Gillette-type injury in reliance on that opinion was not, therefore, unreasonable or otherwise unsupported by substantial evidence. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
2. Specific Work Injury
The employee contended at hearing that her experience at the employer on March 31, 2003, qualified not only as a Gillette-type injury but also as a specific work injury. At Finding 25, the compensation judge found that the employee did not prove that she sustained a specific work injury either, and the employee contends that that conclusion also is unsupported by substantial evidence. The employee argues that it is undisputed that a specific twisting event on March 31, 2003, triggered an increase in her low back and left leg symptoms, that the employer=s First Report of Injury described the mechanism of that same specific event, that both Dr. Hughes and Dr. Schwender related the employee=s condition to that same specific work-related twisting incident, and that, notwithstanding Dr. Dick=s opinion that the incident did not involve enough force or stress to cause any permanent anatomic change in the employee=s back, the employee=s post-incident diagnostic scans do reveal objective findings new and different from those revealed on pre-incident scansBnamely, an Aapparent effusion@ identified on her April 4, 2003, x-rays at L4-5 and L5-S1. We are not persuaded.
We acknowledge that the development of the employee=s symptoms did appear to change and perhaps to increase on March 31, 2003. As suggested above, however, there is substantial evidence in the record that that development was established well in advance of March 31, 2003, and that it continued to worsen right up until the month of the alleged injury, until finally the symptoms were evidently continuous. Given this evidence, it would not have been unreasonable for the compensation judge to conclude, in reliance on the expert opinion of Dr. Dick, that, in the words of Dr. Dick, what happened was Adue to a natural progression of [the employee=s] pre-existing lumbar degenerative disc disease and the pseudoarthrosis of attempted fusion at L4-S1," complicated by the employee=s long-time heavy use of nicotine. Dr. Dick specifically diagnosed the source of the employee=s symptoms as Acoccygiodynia, a condition related to chronic irritation of the coccyx,@ which he expressly concluded was unlikely to be related Ain any way@ to the employee=s employment. Contrary to the employee=s argument as to Aapparent effusion,@ Dr. Dick expressly concluded that there were Ano acute findings@ in the employee=s post-March 31, 2003, radiographic studies - - i.e., no findings of injury recently generated. The employee has emphasized that the pseudoarthrosis at L4-5 revealed on the CT scan was reported specifically to appear Afragmented,@ but that same report indicated also that Anone of the fragmentation appears acute.@ Moreover, Dr. Dick indicated that it was unlikely that the disc herniation revealed at T12-L1 of the employee=s spine was contributing substantially to the employee=s symptoms, in that the employee=s symptoms were unrelated to the corresponding dermatome. Further, the radiologist reading the MRI scan on which that herniation was revealed noted that there were A[n]o lytic or destructive lesions@ associated with the disc bulges evident at T11-12 and T12-L1 We conclude again that the compensation judge=s reliance on the expert opinion of Dr. Dick was not unreasonable, and therefore we affirm the judge=s conclusion that the employee failed to prove that she sustained a specific work-related injury to her low back on March 31, 2003. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
Having concluded that substantial evidence supports the judge=s decisions that the employee failed to prove either the Gillette-type injury or the specific work-related injury that she has alleged, we affirm the compensation judge=s denial of benefits in its entirety.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).