DENNIS A. VEGEL, Employee, v. KURT MFG., and SAFECO INS. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 30, 2005
CAUSATION - SUBSTANTIAL EVIDENCE. While the causation opinion of the employee=s treating surgeon was weak, other evidence, including the employee=s testimony and treatment notes from another treating physician, adequately supported the compensation judge=s decision that the employee aggravated his preexisting shoulder condition in a fall at work.
Determined by: Wilson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: William R. Johnson
Attorneys: Thomas D. Mottaz and David B. Kempston, Law Office of Thomas D. Mottaz, Anoka, MN, for the Respondent. Peter J. Williams, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge=s decision that the employee=s July 10, 2003, work injury is a substantial contributing cause of the employee=s need for proposed shoulder surgery. We affirm.
The employee has a history of left shoulder symptoms and treatment dating back to at least 1989, when he was injured in a motor vehicle accident. In 1990, the employee underwent left shoulder surgery, in the nature of an acromioplasty-type procedure, performed by Dr. Gary Sager. More than a decade later, in early 2003, the employee returned to Dr. Sager for complaints of left shoulder pain, of several months duration, that he had noticed with Aupward/outward reaching and lifting maneuvers.@ After diagnostic testing, Dr. Sager concluded that the employee had a glenoid labral tear, which Dr. Sager repaired in an arthroscopic procedure, identified as a ASLAP@ repair, on March 6, 2003. The operative report indicates that the employee had stage IV chondromalacia, in addition to the tear.
Following the surgery, the employee underwent physical therapy until about the middle of May, 2003. The final progress report from that therapy, dated May 19, 2003, indicates that the employee had good functional range of motion by that time but still had Amild impingement remaining at the end range of abduction [and] external rotation.@ The employee later testified that, by the time physical therapy ended, his left shoulder Afelt . . . like it was healed,@ and he was able to resume his usual activities, including golf, without restrictions or pain.
On July 10, 2003, the employee slipped and started to fall backward while descending some stairs at work. He testified that, as he fell, he Athrew [his] left arm out at the rail that was on [his] left side and caught the rail to prevent [himself] from actually impacting the ground.@ He further testified that, immediately after the incident, he experienced pain in his left shoulder, neck, and back.
Five days later, when the symptoms persisted, the employee sought treatment from Dr. Jeffrey Meyer. Dr. Meyer=s July 15, 2003, treatment note contains the following history of the incident and the employee=s complaints:
Dennis Vegel works in sales and marketing and comes in for evaluation of neck, upper and lower back pain. He tells me he was walking down the staircase [at] work, 7/10/03, when he slipped on the rug at the bottom of the stairs and started to fall. He grabbed the handrail with his left arm, jerking his left arm and upper back. He did not fall but caught himself, twisting and flexing at the waist. He felt an aching soreness across his bilateral low back and an aching soreness in his posterior neck and left upper back, medial to the shoulder blade. He thought the soreness would go away but it has persisted. At times he has sharp pain across his bilateral low back and his left upper back, posterior neck. His low back pain is increased by sitting. He feels most comfortable standing. His back pain is increased by bending forward and twisting at the waist. At night when he rolls over in bed he will sometimes feel a sharp pain in his bilateral low back that awakens him from sleep. His low back pain is increased by a bowel movement. He has not noticed any increase in his upper back or lower back pain with sneezing or coughing. His back feels best with standing and walking. He has had no radiating pain. No numbness, tingling or focal weakness in the arms or legs or radicular pain. No changes in bowel or bladder function. No abdominal pain, nausea, vomiting, melena, chest pain, dyspnea, wheezing. He has been taking ibuprofen which has helped and at bedtime he has been taking oxycodone that was left over from left shoulder surgery, 3/03. The oxycodone does help him sleep and lessens his pain.
Dr. Meyer diagnosed thoracic and lumbar pain without radiculopathy, recommended a walking program, prescribed medication, and indicated that the employee could return to work at his regular job.
The employee returned to see Dr. Meyer on August 4, 2003. At that time, the employee indicated that he had not noticed any improvement in his low back pain, and he also reported Aan aching soreness in his left posterior shoulder, also, since his fall down the stair case at work . . . He says that he had surgery for a left shoulder labral tear last winter [and] is concerned that he may have again torn the shoulder.@ On examination, Dr. Meyer noted mild tenderness over the posterior deltoid but no tenderness over the AC joint or the anterior shoulder, and the employee had full range of left shoulder motion and no left shoulder impingement on testing. The doctor diagnosed mild left shoulder strain and reassured the employee that he saw no evidence of a glenoid labral tear.
The employee became dissatisfied with Dr. Meyer=s care and was eventually seen by Dr. Orrin Mann. In a November 17, 2003, consultation report, Dr. Mann indicated that the employee had sustained an Aexacerbation of left shoulder injury with a work-related event of 7/10/2003 with probable retearing of the labrum and/or scar tissue.@ Dr. Mann then referred the employee back to Dr. Sager, for reevaluation of his shoulder condition. In treatment notes from his November 26, 2003, evaluation, Dr. Sager recorded the following history:
S: Patient was referred by Dr. Mann for evaluation of his left shoulder. I know him from previous shoulder problems where he had a degenerative labral tear, some chondroplasty and anchor suture fixation of the superior slap area in 3/6/03. He was doing fine and felt that he had fully recovered and then in July he had slipped off of some stairs at work, grabbed the railing and jerked his arm. Since then he has had an achiness in the arm. Most of it is on the superior part of the shoulder. Any time he reaches across his shoulder, chest area or lies on the left side with the arm underneath him causes pain and discomfort there. No numbness or tingling. He did hurt his lower back and is currently in therapy for that. He is afraid that he has reinjured the surgical area of his shoulder.
After x-rays and examination, Dr. Sager diagnosed an A[a]ggravation of AC joint arthritis.@
The employee continued to experience shoulder symptoms, despite conservative treatment, over the next several months. When the employee returned to see Dr. Sager on March 24, 2004, testing of his left shoulder showed impingement, and Dr. Sager recommended an MRI arthrogram with contrast to Arule out AC joint arthritis impingement of a work aggravated nature versus recurrent tear of the SLAP labral region.@ That test, performed on April 1, 2004, was read as being consistent with Apost operative change and degenerative change within the labrum.@ However, the radiologist could not exclude the possibility of a small recurrent tear. Dr. Sager then discussed with the employee the option of another arthroscopic procedure, which the employee elected to defer to the fall as he had just started a new job.
The employee eventually sought approval to undergo the arthroscopic procedure recommended by Dr. Sager, but the employer and insurer denied liability, contending that the employee=s need for the surgery was not causally related to the July 10, 2003, work incident. When the matter came on for hearing before a compensation judge on November 5, 2004, the employer and insurer essentially conceded that the proposed treatment was reasonable to address the employee=s left shoulder condition, but they continued to maintain, based on the report of Dr. Stephen Barron, their independent examiner, that the July 10, 2003, incident was not a substantial contributing cause of the employee=s ongoing shoulder symptoms and need for treatment.
In a decision issued on January 5, 2005, the compensation judge determined, in relevant part, that the employee=s July 10, 2003, injury was a substantial contributing cause of the employee=s left shoulder complaints and that the proposed arthroscopic surgery was reasonable and necessary diagnostic medical care. The employer and insurer appeal.
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).
The employer and insurer contend that the compensation judge erred as a matter of law in finding the employee=s need for arthroscopic surgery causally related to the employee=s July 10, 2003, fall at work, in that the opinion of Dr. Sager, expressly relied upon by the judge, is inadequate to establish causation.
The employer and insurer=s argument is not entirely without merit. In his October 27, 2004, report, Dr. Sager wrote as follows on the issue of causation:
At this point if symptoms have not abated there is that question on the last MR arthrogram if there could be reinjury to the labrum but not tear of a SLAP nature, and resolution of this matter would have to be an arthroscopic procedure to the shoulder for diagnosis and then presumptively surgical treatment. Certainly in my mind his fall at work with a jerking injury to the shoulder could have reinjured his labrum as well as aggravated the preexisting arthritis of the AC joint and arthritis of the glenohumeral joint. Typically traumatic flare-up of an arthritic basis usually can subside with conservative cares over 3-6 months. That he has ongoing symptoms makes one suspicious that the arthritis is not the presenting symptomatic origin but rather perhaps an occult reinjury of that labrum.
Subsequently, in response to a letter from the employee=s attorney, Dr. Sager further explained,
I have had an opportunity now to find notes from Dr. Meyer at Columbia Park Clinic and I do see that the visit on 07/15/2003 had no mention of shoulder, more scapular, oriented pain and then the visit of 08/04/2003 did have mention of left posterior shoulder pain.
My impression at this point is still that based on the history of the patient that was given to me, I cannot exclude a reinjury from his fall and jerking of the arm. He did complain of posterior scapular pain and that may well have been a component of his shoulder presentation.
Certainly Dr. Sager=s opinion can only be characterized as equivocal with regard to causation, and, generally, A[t]o sustain a finding of causal relation it is not enough that there is medical testimony that the injury might have caused the subsequent condition or could have caused that condition but there must be medical [opinion evidence] that the injury did cause that condition.@ Holmlund v. Standard Constr. Co., 307 Minn. 383, 389, 240 N.W.2d 521, 525, 28 W.C.D. 317, 324 (1976) (emphasis in original). However, in this particular case, there is other evidence that supports the compensation judge=s decision.
First, the employee testified that he was essentially symptom free, with no pain or restrictions on his activities, prior to his July 10, 2003, fall, and that he had continuous shoulder pain, which he reported to his doctors, thereafter. The compensation judge expressly accepted the employee=s testimony as credible, and credibility determinations are generally for the compensation judge. See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). The employee=s description of the nature of the incident, together with his testimony about his symptoms before, at the time of, and after the injury, strongly suggest a work connection. Perhaps more importantly, in his November 17, 2003, treatment note, Dr. Mann indicated that the employee had sustained an Aexacerbation of left shoulder injury with a work-related event of 7/10/2003 with probable retearing of the labrum and/or scar tissue.@ Dr. Mann=s treatment note to this effect would by itself adequately support a finding of causation.
As the compensation judge noted, physicians are not yet entirely certain exactly what is causing the employee=s ongoing shoulder symptoms and have recommended the arthroscopic procedure at least in part for diagnostic purposes. At this point, however, the employee=s testimony, together with the opinion of Dr. Mann, is adequate to support the conclusion that the employee likely aggravated his preexisting shoulder condition in the July 10, 2003, incident at work. On this basis, we affirm the compensation judge=s determination that the employer and insurer are liable to pay for the recommended surgery.
 The judge also resolved issues related to the employee=s neck and low back, but the judge=s decision as to those issues is not disputed on appeal.
 Dr. Barron, the employer and insurer=s examiner, concluded that the employee=s shoulder condition was not related to the July 10, 2003, fall based on the fact that treatment notes from the employee=s first post-injury treatment with Dr. Meyer do not refer to shoulder pain. However, the employee testified that he did in fact report shoulder pain at that time, and the compensation judge accepted his testimony in this regard. Certainly treatment notes from and after the employee=s next treatment on August 4, 2003, reflect ongoing shoulder symptoms.