SCOTT L. ULLERY, Employee/Appellant, v. AMERICOLD LOGISTICS and TRAVELERS INS. CO., Employer-Insurer, and MN DEP=T OF EMPLOYMENT & ECON. DEV., DAKOTA CLINIC, ST. JOSEPH=S AREA HEALTH SERVS., AND MN DEP=T OF HUMAN SERVS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 14, 2005
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the expert opinion of the employer and insurer=s independent medical examiner, supports the compensation judge=s finding that the employee=s December 10, 1997, work-related injury had resolved by February 5, 1999, and that the employee=s subsequent shoulder condition was not causally related to the temporary work injury.
Determined by: Johnson, C.J., Wilson, J. and Stofferahn, J.
Compensation Judge: Nancy Olson
Attorneys: Scott L. Ullery, pro se Appellant. Gary M. Swanson, John G. Ness & Associates, St. Paul, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The pro se employee appeals from the compensation judge=s findings that the employee=s admitted, work-related injury to the right knee had resolved by February 5, 1999, and that his right shoulder condition was not causally related to the work-related injury. We affirm.
Scott L. Ullery, the employee, began working as a warehouseman at Americold Logistics, the employer, in July 1997. The employer was insured for workers= compensation purposes by Travelers Insurance Company. On December 10, 1997, a pallet jack operated by another employee collided with the pallet jack the employee was driving. The steering arm of the employee=s pallet jack swung back striking his right thigh. The employee was thrown several feet from the jack, but did not fall.
The employee was seen by Dr. Carter Hedeen on December 12, 1997, complaining of pain in the right thigh. The employee was working, but reported he was unable to ride a pallet jack because he could not bend his right knee. On examination, the doctor noted tenderness and swelling in the thigh, limited ability to flex the knee, some swelling above the knee, and tenderness just above the patella. Dr. Hedeen diagnosed a contusion of the right thigh with hematoma, and released the employee to return to work with restrictions, including no prolonged standing or walking and limited stair climbing.
The employee returned to Dr. Hedeen on December 17, 1997, reporting significant knee discomfort. On examination, flexion was improved, extension was full and active, the knee was normal in terms of ligamentous damage and there was no evidence of a meniscus tear, but some swelling remained around the patella. Dr. Hedeen diagnosed a right knee strain/sprain and continued the employee=s work restrictions. On January 20, 1998, examination of the right knee was normal, although the employee continued to report soreness and an occasional sharp pain or burning sensation in the knee. On February 13, 1998, Dr. Hedeen released the employee to return to full-time work without restrictions.
On March 12, 1998, the employee returned to Dr. Hedeen complaining of ongoing knee pain and occasional swelling. On examination, the knee appeared normal with no instability in any of the knee ligaments, no evidence of cartilagenous tear and no crepitis. Dr. Hedeen referred the employee to physical therapy for strengthening. The employee was seen on April 13, 1998, with persistent knee pain, reporting the physical therapy seemed to make things worse. Except for some tenderness around the knee, the examination was again negative. Due to the chronicity of the employee=s pain, however, Dr. Hedeen referred the employee for an orthopedic evaluation.
The employee was seen by Dr. David Humphrey, an orthopedist, on May 4, 1998. The employee complained of a persistent ache, occasional swelling and a feeling of instability in the right knee. On examination, there was no atrophy or effusion, full extension and flexion, and a negative Lachman=s test. The doctor noted some tenderness around the knee and medial laxity compared to the left. Dr. Humphrey diagnosed valgus stress and a healed medial collateral injury with mild residuals and chronic pain. An MRI scan on May 18, 1998, was unremarkable except for a grade II signal in the posterior horn of the medial meniscus with no evidence of tearing.
The employee was seen by Dr. Hedeen on May 21, 1998, reporting persistent pain and giving out of the knee off and on. Dr. Hedeen=s examination was essentially normal with no evidence of ligamentous instability or signs of meniscus tear. On May 29, 1998, Dr. Humphrey reviewed the MRI scan stating, Ahe does not [appear to] have any evidence of specific injury,@ and the signal on the posterior horn was Anot unusual and is not likely to be a tear.@ (Ex. 2.) The employee returned to Dr. Hedeen on June 18, 1998, reporting persistent right knee pain. Examination revealed a normal range of motion, no swelling, very minimal laxity in the medial collateral ligament and a negative Lachman=s test. The doctor indicated there was no evidence of a meniscus tear and the MRI scan was essentially negative. Dr. Hedeen provided permanent work restrictions and opined the employee had reached maximum medical improvement (MMI) with a 0% permanent partial disability. The employee followed up with Dr. Humphrey on November 23, 1998. The employee=s examination was unremarkable; he was stable medial-laterally and had a negative Lachman=s test and negative McMurray=s test. The doctor diagnosed residual discomfort suggestive of some early chondromalacia of the patella and recommended quad and hamstring strengthening.
The employee was seen on February 5, 1999, by Dr. Gary Wyard at the request of the employer and insurer. On examination, Dr. Wyard noted full range of motion, no effusion, excellent stability, negative apprehension signs and a negative McMurray=s test. Dr. Wyard reviewed the employee=s MRI scan, agreeing with the radiologist=s interpretation of a grade II signal in the posterior horn of the medial meniscus, but an otherwise normal study. The doctor=s impression was a right knee contusion and sprain/strain on December 10, 1997, with a presently normal examination and essentially normal MRI scan. Dr. Wyard opined the employee=s injury was temporary and lasted no more than three months, that the employee had reached MMI and had a 0% permanency. He further concluded the employee was capable of working without restrictions, that the medical treatment to date had been reasonable and necessary, and that icing the knee if the employee had pain or discomfort was a reasonable approach.
The employee returned to Dr. Hedeen in March 1999. The doctor noted the employee had been very consistent in his description of his right knee problems, and continued to have problems sitting, standing or walking for prolonged periods of time. Dr. Hedeen remarked the employee=s knee examination remained the same, and did not seem to have alot of abnormality although there might be slight laxity on Lachman=s maneuver. The doctor maintained the employee was unable to engage in activities requiring repetitive or prolonged use of the knee, and continued the employee=s work restrictions. Dr. Hedeen retired shortly thereafter, and the employee began treating with Dr. David Benson. On March 1, 2000, he was seen for chronic pain and occasional buckling of the right knee. The exam was essentially unchanged and the employee=s restrictions were continued.
Dr. Wyard re-examined the employee on July 28, 2000. The doctor=s impression was right knee pain with a normal right knee examination. Dr. Wyard stated his opinions had not changed. The employee next returned to Dr. Benson on March 29, 2001, again complaining of pain and weakness/buckling in the right knee. Dr. Benson referred the employee to Dr. Martin Benoit for an orthopedic evaluation. The employee was seen by Dr. Benoit on May 2, 2001. The employee=s examination was unremarkable except for a slightly positive Lachman=s sign. Dr. Benoit diagnosed instability of the anterior cruciate ligament (ACL) and recommended a repeat MRI scan. The scan, taken May 7, 2001, was interpreted by the radiologist as showing a generalized decreased signal in the ACL, evidence of buckling of the posterior cruciate ligament (PCL), an increased signal in the posterior horns of the medial and lateral menisci likely reflecting degenerative change, and intact medial and collateral ligaments. The radiologist indicated further an intrasubstance tear without direct communication to the articular surfaces of the posterior horns of the medial and lateral menisci could not be excluded, and that the attenuation of signal within the ACL coupled with buckling of the PCL raised the possibility of a partial tear of the ACL along its insertional point with the lateral femoral condyle. On May 23, 2001, Dr. Benoit concluded the MRI scan, along with the employee=s clinic examination, indicated a major ACL tear as well as degenerative changes or tears of the posterior horn of the medial and lateral menisci. The doctor recommended arthroscopic surgery to determine the quality of the cartilage and investigate the meniscal tears, with a second arthroscopic surgery to repair the ACL if the employee did not respond to treatment with a brace.
Dr. Wyard performed a review of the May 7, 2001, MRI scan and the employee=s updated medical records at the request of the employer and insurer. By report dated August 8, 2001, Dr. Wyard agreed with the radiologist=s interpretation of the most recent MRI scan, but disagreed with Dr. Benoit=s conclusions, stating the scan and Dr. Benoit=s records did not change his opinions. Dr. Wyard believed the employee might have some ACL deficiency and some degenerative changes in the meniscus, but stated that was not unusual in a person of his age and was secondary to natural aging conditions. The doctor did not feel an arthroscopic ACL repair was reasonable or necessary. The insurer denied authorization for the surgery based on Dr. Wyard=s report.
The employee returned to Dr. Benoit on January 31, 2002, stating his knee continued to bother him and he wanted to proceed with the surgery. Examination of the knee was essentially normal with a slightly positive (+2) Lachman=s test. On February 1, 2002, the employee was seen by Dr. Kevin Walters, complaining of right shoulder pain since falling and landing on his shoulder on December 28, 2001. Dr. Walters referred the employee to Dr. Benoit who examined the employee on February 13, 2002. The employee gave a history of a fall on December 28, landing on his right shoulder, when his right knee buckled. Dr. Benoit diagnosed right shoulder tendinitis and injected the shoulder with cortisone. An MRI scan of the shoulder on February 18, 2002, revealed a central tear of the rotator cuff.
On February 21, 2002, Dr. Benoit performed a diagnostic arthroscopy of the right knee. The doctor=s pre-operative diagnosis was derangement of the right knee, possible chronic tear of the ACL, and possible tears of the posterior horns of the medial and lateral menisci. Clinical examination of the knees prior to proceeding with the arthroscopy was unremarkable. Arthroscopic examination of the suprapatellar pouch, patellofemoral joint, the medial compartment, cartilage and meniscus was totally normal. There was no evidence of a tear, any loose bodies or any instability of the meniscus. The ACL and PCL appeared completely normal with no evidence of any abnormality. The final diagnosis was normal right knee with normal examination and arthroscopy.
The employee sought a second opinion regarding his shoulder from Dr. Harry Miller, giving a history of falling on the ice due to his right knee giving out. Dr. Miller examined the employee on February 25, 2002, and diagnosed a partial tear of the right superspinatus tendon. The employee returned to Dr. Miller on April 29, 2002, for evaluation of both his shoulder and knee. The employee reported the recent arthroscopy gave him Aa clean bill of health,@ but he was Anot normal.@ (Ex. 2.) Examination of the knee revealed a quasi-positive McMurray sign with stress and compression of the medial meniscus. Pain and some decreased strength in internal-external rotation and abduction was noted in the shoulder. Dr. Miller diagnosed a probable medial meniscus tear in the posterior horn of the knee, and a small rotator cuff tear or chronic tendonitis of the rotator cuff in the shoulder.
A repeat MRI scan of the right knee on May 29, 2002, was interpreted as showing a general increased intrasubstance signal involving the posterior horn of the medial meniscus suggesting underlying degenerative change with no tearing. The ACL and PCLs appeared normal, as did the lateral meniscus. On June 27, 2002, Dr. Miller diagnosed degeneration of the medial mensicus with subjective instability. He advised the employee he was not a surgical candidate for the knee, but referred the employee for surgical evaluation of the shoulder.
The employee was seen by Dr. Bruce Piatt, an orthopedic surgeon, on July 5, 2002. The doctor recommended an arthroscopic subacromial decompression and possible rotator cuff repair. The surgery was performed on July 26, 2002. Arthroscopic examination revealed a nearly full thickness tear in the central portion of the rotator cuff, which was repaired. A type II acromion was identified and resected back. As of October 22, 2002, the employee was doing well, with some remaining achiness in the shoulder, negative impingement signs and full range of motion. He was advised to continue to work on range of motion and strengthening and was provided work restrictions limiting lifting and repetitive overhead motion.
Dr. Sebastian Mangiamele, a physical medicine and rehabilitation specialist, performed an independent medical examination on April 10, 2003, at the request of the employee. The employee described intermittent and persistent symptoms of pain, swelling and buckling of the right knee since the December 10, 1997, work injury. He also described an incident in which his right knee gave out when walking at his apartment and he fell on his shoulder. On examination of the right knee, Dr. Mangiamele noted subtle evidence of atrophy and subtle weakness in the right quadriceps, joint line tenderness laterally, mild crepitus with range of motion in the patella area, and a +2 Lachman=s test. The doctor noted no evidence of insufficiency in the medial and lateral collateral liagaments, and anterior/posterior drawer tests were unremarkable. Dr. Mangiamele diagnosed an intrasubstance tear within the medial and lateral meniscus without direct communication to the articular surface and evidence of a partial tear of the ACL along the insertional point. This diagnosis, Dr. Mangiamele maintained, was supported by the employee=s MRI studies. In addition, the doctor stated a positive Lachman=s test was noted by several of the treating doctors and is the most sensitive test for ACL insufficiency. Dr. Mangiamele noted an arthoscopy was apparently performed on the employee, however, the operative report was not available for his review. The doctor asserted, however, that an intrasubstance tear without direct communication to the articular surface would not be readily observable via arthroscopy, nor would tearing below the insertional point of the ACL. Thus, he maintained, the arthroscopic examination did not exclude the diagnosis. Dr. Mangiamele opined the employee=s current knee and shoulder conditions were substantially caused by the work-related injury on December 10, 1997. He disagreed with Dr. Wyard=s conclusions, asserting the employee=s medical records reflect persistent instability, swelling, pain and giving way or weakness, and do not suggest normal examinations.
Dr. Wyard conducted a re-examination of the employee on February 2, 2004. The employee reported he continued to have swelling, pain and buckling of the knee. Examination of the knee was unremarkable. Dr. Wyard stated his diagnosis and opinions had not changed. He maintained Dr. Benoit=s operative report clearly showed a normal knee arthroscopic examination. Further, in his opinion, the arthroscopy results were consistent with the employee=s MRI studies which in his view were also normal. Dr. Wyard continued to opine the employee had no pathology in his knee other than natural changes consistent with his age. He, accordingly, opined the employee=s shoulder condition was not causally related to the knee condition, as the knee examination was consistently normal. The doctor further opined the employee=s medical treatment to date had been reasonable, including the diagnostic arthroscopy given the employee=s persistent complaints, but was not causally related to the December 10, 1997, temporary work injury.
The employee=s claim for workers= compensation benefits was heard by a compensation judge on October 8, 2004. In a Findings and Order filed on December 23, 2004, the compensation judge accepted Dr. Wyard=s opinion that the employee=s right knee injury was temporary and had resolved by February 5, 1999, and that the right shoulder condition was not causally related to the work injury. The employee appeals.
The employee argues the compensation judge erred in accepting the opinions of Dr. Wyard over the opinions of Dr. Mangiamele and the clinical records of his treating physicians. The employee maintains his treating doctors have noted persistent pain and instability in the right knee since the date of injury. He points out his intial treating doctor following the injury, Dr. Hedeen, provided permanent work restrictions. He asserts that Dr. Mangiamele reviewed all the records, including Dr. Wyard=s reports, and examined the employee for 45 minutes to an hour, and argues Dr. Mangiamele=s diagnosis is consistent with that of his treating physicians. The employee points to Dr. Mangiamele=s explanation of why the injury was not visible during the arthroscopy, yet appeared in the MRI studies. The employee asserts Dr. Wyard spent minimal time examining the employee and did not address the evidence reflected in the records of his treating doctors.
On appeal, this court is constrained by the statutory standard of review that requires the court to affirm the decision of the compensation judge unless 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. Where the evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge must be upheld. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984). The point is not whether this court might have viewed the evidence differently, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate. Id. at 59, 37 W.C.D. at 239; Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).
In cases such as this one, involving a conflict of opinion between medical experts, the trier of fact must determine the weight and credibility to be given to the medical evidence, and the compensation judge=s choice between medical experts will be upheld by this court so long as there is sufficient foundation for the medical expert=s opinions. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D 364 (Minn. 1985); Dudovitz v. Shoppers City, Inc., 282 Minn. 322, 164 N.W.2d 873, 24 W.C.D. 735 (1969). The compensation judge specifically accepted the opinions of Dr. Wyard expressed in his reports of February 5, 1999, July 28, 2000, August 8, 2001, and February 2, 2004, and rejected Dr. Mangiamele=s opinions on causation. (Findings 1-3.) Dr. Wyard obtained a history from the employee, reviewed the employee=s treatment records, diagnostic studies and operative reports and the report of Dr. Mangiamele, and examined the employee on three occasions. This level of knowledge is sufficient to establish a doctor=s competence to render an expert opinion. See Grunst v. Immanuel-St. Joseph Hospital, 424 N.W.2d 66, 68, 40 W.C.D. 1130, 1132-33 (Minn. 1988). Nor is a trier of fact required to accept the treating doctors= diagnoses and impressions over the opinions of the employer and insurer=s medical expert. A decision on how to weigh conflicting medical evidence is generally left to the discretion of the compensation judge, and if the opinion relied upon by the compensation judge has adequate factual support, this court will not reverse the compensation judge on that issue. Wilson v. North Start Steel, slip op. (W.C.C.A. Dec. 7, 1993). As succinctly stated by the Minnesota Supreme Court in Golob v. Buckingham Hotel, 244 Minn. 301, 304, 69 N.W.2d 636, 639, 18 W.C.D. 275, 278 (1955):
[U]ntil the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining compensable injury or disease will have to remain in the province of the trier of fact. Where qualified medical witnesses differ as they do here, it ordinarily is not for us on appeal to say that one is so eminently right and the other so clearly wrong that the fact finder was obliged to accept the opinion of one and discard the opinion of the other.
Although the evidence might support a different inference, the decision of the compensation judge finding the employee=s right knee injury had resolved by February 5, 1999, and the employee=s shoulder condition was not causally related to the work injury, is supported by substantial, competant evidence, and must therefore be affirmed.