GAIL M. POTTER, Employee/Appellant, v. VIRGINIA REG=L MED. CTR., SELF-INSURED, adm=d by BERKLEY RISK ADM=RS CO., Employer, and COMPREHENSIVE CARE SERVS., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 19, 2005
CAUSATION - TEMPORARY AGGRAVATION. Substantial evidence, including an adequately founded expert medical opinion, supports the compensation judge=s determination that the employee=s January 27, 1997, work-related injury was a temporary aggravation of a pre-existing low back condition.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Danny P. Kelly
Attorneys: Russell J. LaCourse, Duluth, MN, for the Appellant. Mark A. Kleinschmidt, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s finding that the January 25, 1997, personal injury was a temporary aggravation of a pre-existing low back condition and the judge=s denial of the employee=s claim for medical expenses. We affirm.
Gail M. Potter, the employee, sustained a personal injury on January 25, 1997, while working for Virginia Regional Medical Center, the employer. The self-insured employer admitted liability for the employee=s personal injury.
The employee had a history of low back problems prior to her personal injury. On September 28, 1994, the employee was seen at the Virginia Regional Medical Center. The employee stated she was picking clothes up off the floor when she suddenly developed pain across her lower back, her knees buckled and she fell to the floor and was unable to get up. Dr. H. W. Johnston diagnosed an acute lumbosacral strain and admitted the employee to the hospital. An MRI scan of the lumbar spine showed disc degeneration and a small herniation at L3-4 and degenerative disc disease at L4-5. The employee was readmitted to the hospital on October 22, 1994, with a recurrent acute lumbosacral strain/sprain syndrome. Physical therapy was prescribed and the employee continued with medication. In October 1995, the employee had prescriptions for Flexeril and Darvocet refilled following an episode in which she strained her low back while cleaning her bathroom.
The injury at issue occurred on January 25, 1997. On that date, the employee was seen at the Virginia Regional Medical Center complaining of low back pain. She stated the pain began after she bent down to pick up a tray at work and experienced a sharp pain in her low back with pain radiating down both legs. The doctor prescribed Flexeril and Tylenol. On January 27, 1997, the employee saw Dr. T. Scott Douglass at the East Range Clinic. The employee gave the doctor a history of her injury at work and reported a prior history of back pain which she related to an injury in 1988. Dr. Douglass took the employee off work and prescribed physical therapy. By February 10, the employee stated she was feeling better, about 90 percent back to normal, and was not having leg pain. The doctor released the employee to return to work with restrictions. The doctor=s diagnosis remained acute lumbar strain. By March 10, the doctor felt the employee was close to maximum medical improvement, but did not feel the employee could return to her current job without accommodation or a different job. On April 21, 1997, Dr. Douglass rated the employee with a 10 percent permanent partial disability secondary to multi-level disc disease and persistent lumbar spasm. The doctor apportioned 20 percent of that permanency to the 1997 personal injury.
On February 28, 1998, the employee was admitted to the Virginia Regional Medical Center for three days due to severe low back pain. Dr. Douglass reexamined the employee on March 3, 1998. The employee told the doctor she was currently working at a new job teaching independent living. She reported she bent over to pick up a shirt from the floor at home and felt a sudden sharp pain in her low back and was unable to move. Dr. Douglass diagnosed lumbar disc disease with a recent exacerbation with lumbar spasm. The doctor took the employee off work, prescribed muscle relaxants and ordered physical therapy. On March 13, the doctor released the employee to return to work subject to her previously established restrictions.
Dr. Nolan Segal examined the employee on September 22, 1998, at the request of the employer. The doctor obtained a history from the employee, reviewed her medical records, and performed a physical examination. Dr. Segal diagnosed multi-level degenerative disc disease with a small disc herniation at L4-5. The doctor stated this condition predated the work injury of January 1997, and opined the work injury was a temporary aggravation of that pre-existing condition. Dr. Segal opined the effects of the temporary aggravation ended by October 1, 1997. Dr. Segal rated no permanent partial disability as a result of the January 1997 work injury. The doctor opined the employee did require work restrictions, but stated these were due to the pre-existing condition, not the work injury.
The employee returned to see Dr. Douglass in December 1998, complaining of a recent exacerbation of her low back condition that occurred at work. The doctor diagnosed a recurrent lumbosacral strain, prescribed medication and back exercises. By January 1999, the doctor felt the employee was back to her baseline. The employee next saw Dr. Douglass in November 2000 for a flare up of her low back pain that occurred while she was bending over at home. The doctor diagnosed an acute exacerbation of low back pain. A lumbar MRI scan in October 2002 showed a moderate-sized, broad-based left dorsal paracentral disc protrusion at L3-4 with deformity of the dural sac and left proximal L-4 nerve root with annular bulging at L4-5. Dr. James Callahan, a neurosurgeon, examined the employee in January 2003 on referral from Dr. Douglass. The doctor noted the employee had significant degenerative disc changes at L3-4 and L4-5, but opined lumbar discectomy would not be of any benefit and was unwilling to offer a lumbar fusion. The employee followed with Dr. Douglass who continued her previous work restrictions. A lumbar MRI scan in November of 2003 showed near complete resolution of the disc protrusion at L3-4 with degenerative dehydration at L2-3 and L3-4.
Dr. Segal reexamined the employee in December 2003. On examination, the doctor concluded the employee=s physical findings were unchanged from his prior examination. He noted no difference in comparing the MRI studies from October 1994 to October 2002. The doctor again stated the January 27, 1997, personal injury was a temporary aggravation of the employee=s pre-existing condition. The doctor stated there was no evidence the employee sustained any new structural injury in 1997 and noted her symptoms were virtually identical before and after that injury. Dr. Segal opined the employee was not in need of any surgical procedure.
The employee filed a claim petition seeking payment of approximately $3,000.00 in medical expenses. Following a hearing, the compensation judge found the January 25, 1997, personal injury was a temporary aggravation of a pre-existing condition that resolved by October 1, 1997. The compensation judge further found the medical expenses incurred subsequent to October 1, 1997, were unrelated to the 1997 personal injury. The employee appeals.
The employee contends the compensation judge=s decision rests almost entirely on two basic facts to the exclusion of all other evidence: the fact that the employee had pre-existing degenerative disc disease and the absence of any objective permanent change in the employee=s low back condition after the January 1997 work injury. The employee argues the existence of a pre-existing condition does not, by itself, defeat an employee=s claim that she sustained a compensable work injury. See Millington v. North Central Terminal Operators, 42 W.C.D. 96 (W.C.C.A. 1989). Further, evidence of objective findings is not necessary to prove a personal injury. Brown v. State, Dep=t of Transp., 54 W.C.D. 60 (W.C.C.A. 1996). The employee asserts her testimony of continuing symptoms since January 1997 together with the opinion of Dr. Douglass are sufficient to prove she sustained a permanent personal injury. Despite this evidence, the employee contends the compensation judge did not conduct a thorough review of the medical records, the employee=s testimony or the conflicting medical opinions but, rather, focused on two elements of the evidence only. The employee asks this court to reverse the compensation judge=s denial of the claimed medical benefits. We decline to do so.
As the employee correctly notes, a pre-existing back condition does not bar a claim for benefits if the employment aggravated, accelerated, or combined with the pre-existing condition to produce disability. See, e.g., Wyatt v. Hancock Nelson Mercantile Co., 207 N.W.2d 342, 26 W.C.D. 673 (Minn. 1973). Whether the employment aggravated the pre-existing condition is a question of fact. Bender v. Dongo Tool Co., 509 N.W.2d 366, 367, 49 W.C.D. 511, 513 (Minn. 1993). Factors to consider in determining whether a work-related incident is a temporary or permanent aggravation of a pre-existing condition may include, but are not limited to (1) the nature and severity of the pre-existing condition and the extent of restrictions and disability resulting therefrom; (2) the nature of the symptoms and extent of medical treatment prior to the aggravating incident; (3) the nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom; (4) the nature of the symptoms and extent of medical treatment following the aggravating incident; (5) the nature and extent of the employee's work duties and non-work activities during the relevant period; and (6) medical opinions on the issue. Which of these factors are significant in a particular case and the weight to be given to any factor is generally a question of fact for the compensation judge. Wold v. Olinger Trucking, Inc., slip op. (W.C.C.A. Aug. 29, 1994).
The employee reported a back injury in 1988 while working at Arrowhead Care Center. She was hospitalized in September of 1994 with a diagnosis of acute lumbosacral strain/sprain syndrome. The employee reported two to three prior episodes of low back pain that required physical therapy and pain medication. An October 1994 MRI scan showed degenerative disc disease at L3-4 and L4-5 with annular tearing and small disc herniations at both levels. The employee was again hospitalized in October 1994 with a diagnosis of recurrent acute lumbosacral strain/sprain. In October 1995, the employee contacted Dr. Douglass and received prescriptions for muscle relaxants and pain medication due to another flare up of her low back pain while cleaning her bathroom. Clearly, the employee had a significant low back condition before she sustained her personal injury. The 1997 injury occurred when the employee bent down to lift a tray of coffee cups. Following that injury, the doctor=s findings on examination and the MRI scan document no significant objective change in the employee=s condition. Finally, Dr. Segal opined the January 1997 injury was a temporary aggravation of a pre-existing condition which resolved by October 1, 1997. These facts provide substantial evidentiary support for the compensation judge=s decision.
The employee acknowledges that a compensation judge=s choice between conflicting expert opinion must generally be affirmed by this court. See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985). In Nord, however, the supreme court cautioned that a choice between experts may not be upheld where the facts assumed by the expert in rendering his opinion are not supported by the evidence. This is such a case, the employee contends. The employee argues Dr. Segal failed to consider that before her personal injury the employee did not require active treatment, was able to work without restrictions and testified she had no ongoing low back pain and was able to work at full duty without low back problems in a job that involved repetitive bending and lifting. Since Dr. Segal failed to consider these facts, the employee contends, his opinions lack foundation. We disagree.
Dr. Segal obtained a history from the employee, reviewed her medical records and performed a physical examination. As a general rule, this level of scientific knowledge and practical experience with the matter which is the subject of the offered testimony adequately qualifies an expert to render an opinion. Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983). Minor facts may be unknown to a doctor without damaging the foundation for the medical opinion as long as the omissions do not mislead the fact finder. See Scott v. Southview Chevrolet, 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978). Dr. Segal was provided with and reviewed the employee=s medical records of her treatment prior to 1997. The doctor concluded the employee suffered from degenerative disc disease prior to her 1997 personal injury and opined the employee required restrictions on her employment activities due to that condition. While the employee=s evaluation of her ability to work prior to 1997 is relevant, Dr. Segal=s ignorance of that testimony does not render his opinion without foundation. The compensation judge=s decision is, therefore, affirmed.