JUDY DURKEE, Employee/Appellant, v. STARKEY LABS., INC., SELF-INSURED/GALLAGHER BASSETT SERVS., Employer, and INSTITUTE FOR LOW BACK CARE, MEDICA/HEALTHCARE RECOVERIES and RATTRAY REHAB. PHYSICAL THERAPY & MASSAGE, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 23, 2006
File No. WC05-211
CAUSATION - TEMPORARY AGGRAVATION; CAUSATION - PRE-EXISTING CONDITION. Where they were supported by the record as a whole, including expert medical opinion, the compensation judge=s conclusions that the employee=s current disability was due virtually entirely to her pre-existing multiple sclerosis and that her low back work injury had been temporary in nature and was not a substantial contributing factor in the employee=s current disability were not clearly erroneous and unsupported by substantial evidence, and there was no need to address any other bases for or defenses against the employee=s claim for permanent total disability benefits.
Determined by: Pederson, J., Johnson, C.J., and Rykken, J.
Compensation Judge: Gary M. Hall
Attorneys: Dean M. Salita, Brabbit & Salita, Minneapolis, MN, for the Appellant. George W. Kuehner, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s finding that the employee=s work injury was a temporary injury and not a substantial contributing cause of her alleged permanent total disability. We affirm.
Judy Durkee, the employee in this case, began working as a computer support technician for Starkey Laboratories, Inc., in November of 1997. Starkey Laboratories [the employer] is a manufacturer of hearing devices, and the employee worked at a help desk providing computer support for the employer=s customers. In 1996, the employee was diagnosed as having multiple sclerosis [MS] and received treatment for the disease from neurologist Dr. Randall Schapiro, a specialist in MS. By 1999, the employee had reduced her work hours and was walking with the assistance of a cane. On February 14, 2001, while leaving the employer=s premises, the employee slipped on some ice and fell forward onto her hands, left hip, and knees. The employer eventually admitted liability for the employee=s abrasions and contusions and for a temporary low back strain. On the date of her injury, the employee was forty-one years old and was earning a weekly wage of $518.89 for a thirty-hour work week.
On the day following her injury, the employee sought medical treatment at Now Care for complaints of left hip and back pain. The examining physician noted the employee=s MS diagnosis and that she walked with the assistance of a cane. On physical examination, the doctor noted no tenderness to palpation over the lumbar vertebrae but some mild tenderness in the left lumbosacral region. X-rays of the lumbar spine and pelvis were negative for fracture, and the doctor diagnosed a lumbar strain and contusion of the left pelvis. The employee was released to return to work without restrictions, and the doctor noted that A[i]t is not likely that there would be any disability resulting [from] this injury.@
The employee was seen in follow-up by Dr. Schapiro on April 11, 2001. She advised Dr. Schapiro of her fall on the ice in February, and she reported that she continued to have pain in her lower back. She complained also of increased weakness in her legs. The doctor tested her leg strength and noted that, compared to her last visit in October of 2000, she had lost over half the strength in both legs, in the right more evidently than in the left. Dr. Schapiro evidently referred the employee for therapy directed toward her gait and her back, and the employee continued working for the employer at her customary job and hours.
On May 21, 2001, the employee was admitted to Fairview-University Medical Center for a worsening of her MS and increasing problems with back pain. Dr. Schapiro ordered an MRI scan of the lumbar spine, which showed A[e]arly disk dehydration and degenerati[on] at L5-S1 with a small right inter-foraminal protrusion mildly narrowing the left L5 neural foramen below the exiting L5 nerve root.@ The employee was discharged on May 26, 2001, and Dr. Schapiro noted A[t]he [employee] was treated with high dose Decadron, occupational therapy, physical therapy, our counseling, education, and speech programs. She was given a wheeled walker. Her strength seemed to improve, and her ability to walk seemed to improve.@ Cognitive testing did reveal increased difficulty understanding new concepts.
On May 30, 2001, the employee was seen by physical therapist Nannette Washko at Twin Cities Physical Therapy on referral from Dr. Schapiro. The employee reported to Ms. Washko that no back exercises had been performed at the hospital once a diagnosis was made. Therapy had consisted mainly of lower extremity stretches, aerobic conditioning on a bicycle, and gait evaluation. The employee stated that she felt that her lower extremity strength and functional mobility had significantly declined since her hospital admission and that she was unable to attend work or to ambulate safely with a straight cane. On evaluation, the employee complained of Aonly mild low back achiness,@ but she attributed that to her medication and the fact that she had been inactive. Ms. Washko recommended continued assessment and appropriate treatment of the employee=s low back and a return to gait training and active exercises of her lower extremities.
On June 7, 2001, about a week after the employee=s assessment by Ms. Washko, the employee was seen by Dr. Schapiro=s partner, Dr. Crispin See. Dr. See noted that the employee=s lower back pain was not severe and that there was no radiation into her legs. On examination, the employee was able to touch her toes, and there was no tenderness over the lower back. Straight leg raising was negative to ninety degrees, and the employee wanted to return to work.
The employee returned to work the following week at her regular hours and duties, and in November, with Dr. Schapiro=s approval, she resumed working forty hours per week. She continued to work full time for the employer until she was terminated on September 4, 2002, due to her inability to learn the new and more advanced technologies required by her job. She has not returned to work since September 4, 2002. On June 9, 2003, she filed a claim petition, alleging entitlement to permanent total disability benefits continuing from September 4, 2002, to unspecified permanent partial disability benefits, and to payment of unspecified medical expenses causally related to the work injury of February 14, 2001. The employer denied liability for the benefits claimed, and in July 2003 the employee applied for Social Security disability benefits.
Dr. Schapiro testified by deposition on behalf of the employee on November 30, 2004. He opined that the employee had never fully recovered from her low back injury of February 14, 2001, and that, because of her gait instability and lack of balance as she walks, she keeps reinjuring that injury. It was his opinion that she had sustained a permanent injury to her low back in addition to her MS. He testified that the employee is permanently and totally disabled and that her MS is a substantial contributing factor in her disability. As to whether the employee=s injury of February 14, 2001, is also a substantial contributing factor in that disability, Dr. Schapiro stated that A[i]t certainly was a factor to her disability at that time [in April 2001]. Now it=s hard to separate it out to say whether it=s still the factor that is continuing to disable her at this point, because the MS has worsened as the time has gone on.@ Dr. Schapiro explained further that:
It=s the combination of the way her back is structured, the foramen, the nerves, the discs, the muscular stress, the weakness from the MS, it=s a combination of all of that that=s fitting together that=s causing the chronic problem. It=s not so easy as, well, just go in and fix that and it will be fixed, it=s a combination of issues. Is that continuing to participate in her disability? Yes.
If--and this is more answer than you want, . . . If we fixed her back tomorrow, would she still be disabled? Yes.
On March 1, 2005, deposition testimony was taken also from neurologist Dr. James Allen, who had examined the employee for the employer on November 24, 2003. Based on a history, a neurologic examination, and a review of the employee=s medical records on that date, Dr. Allen opined that the employee had probably recovered fully from the effects of any February 14, 2001, work injury within a few weeks or months of the injury and certainly by the time she saw Dr. See on June 7, 2001. Dr. Allen attributed the employee=s periodic discomfort in her low back to a combination of chronic degeneration at the L5-S1 disc and the employee=s spastic paresis in her lower limbs caused by her MS. Dr. Allen explained that, in order to maintain her balance while walking, the employee tends to hyperextend her lower back. He thought it likely that the employee would continue to have some chronic lumbar complaints. While he found the employee to be totally disabled from employment, Dr. Allen attributed her disability solely to her progressive MS.
The employee=s claim petition came on for a hearing before Compensation Judge Gary M. Hall on March 17, 2005, and the record closed on April 8, 2005. Issues at trial were (1) whether the employee was entitled to permanent total disability benefits as a result of her admitted injury and (2) whether the admitted injury was a substantial contributing factor in that claimed disability. The employee testified that her low back symptoms never went away after February 14, 2001, and that her symptoms have been localized to that portion of the back that she injured at work, about four to five inches below the beltline. She testified also that, since the injury, she has had some days when she feels quite good and others when she struggles with her back and MS. She testified that she believes that her altered gait has aggravated her low back problems, for which Dr. Schapiro has prescribed physical therapy in treatment of her pain.
By findings and order issued June 7, 2005, the compensation judge concluded that the employee had sustained a temporary aggravation of a pre-existing low back condition on February 14, 2001, that had resolved by June 7, 2001, when she saw Dr. See. He therefore found that the work incident was not a substantial contributing cause of the employee=s current disability. 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).
In concluding that the employee=s work injury of February 14, 2001, was temporary in nature and had resolved by June 7, 2001, the compensation judge found Dr. Allen=s opinions to be more persuasive then Dr. Schapiro=s. On appeal, the employee contends that the judge=s findings are unsupported by substantial evidence because Athe opinion of Dr. Allen contradicts itself.@ She argues that, while Dr. Allen testified that the employee=s low back strain had resolved by June 7, 2001, the doctor testified also that the employee=s low back symptoms had not changed over the last three years, suggesting that the injury had not resolved after all. That being the case, the employee contends that her work injury remains a substantial contributing cause of her disability despite the worsening of her MS condition. We are not persuaded.
First of all, we believe that the employee has misconstrued Dr. Allen=s opinion. When he testified that the employee=s back condition had not significantly changed over the past three years, Dr. Allen was responding to a question about the period subsequent to the commencement of the employee=s claimed total disability on September 4, 2002. The compensation judge essentially captured Dr. Allen=s opinion in Finding 9, when he stated,
To the extent the employee=s current disability includes a low back component, that component is either a result of her preexisting low back condition, as aggravated by her multiple sclerosis-related altered gait and multiple sclerosis-related falls, or solely a result of the altered gait and multiple sclerosis-related falls. In any case the contribution of that component to her overall disability is at most minor.
In the end, the record as a whole more than adequately supports the judge=s finding of a temporary injury. The judge found that the employee=s symptoms following the February 14, 2001, work incident were relatively mild, that no disability was expected, and that she was able to return to work without restrictions. The judge=s finding on this point is supported by the records from Now Care, by the fact that the employee missed no time from work, and by the fact that she sought no further treatment for her back until after the flare-up of her MS symptoms that prompted a return to Dr. Schapiro in April 2001. The judge found also that the employee=s findings on the MRI of May 21, 2001, did not suggest a symptomatic disc and were essentially unchanged from a previous MRI of July 22, 1992. The judge=s interpretation is supported by the testimony of Dr. Allen. Finally, the judge also found that Dr. See=s evaluation on June 7, 2001, revealed an essentially normal low back. This finding is also supported by Dr. Allen=s testimony. A trier of fact=s reliance on an expert=s opinion is usually upheld 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). Here, although she has argued that it is self-contradicting, the employee has not alleged that Dr. Allen=s opinion is based on any false premises.
While evidence may exist in this case to support the employee=s contention that her work injury was not temporary in nature, the issue before this court is not whether the evidence may support a conclusion different from the compensation judge but whether substantial evidence exists to support the findings of the judge. See 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, we find ample evidence to support the judge=s finding that the employee=s work injury was temporary in nature. Because we therefore affirm that finding of the judge, we need not address the employee=s arguments regarding substantial contributing cause or superseding intervening cause; once the judge had concluded the employee=s injury was temporary, those issues became irrelevant. Having concluded that it was not unreasonable for the judge to rely on Dr. Allen=s opinion, we affirm the judge=s decision in reliance thereon. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 The employee appealed also from the judge=s finding that the employee had not shown that she meets the statutory requirements for permanent total disability. Because we affirm the judge=s finding of a temporary injury, we need not address this issue.
 There is no evidence in the record that any workers= compensation benefits have been paid as a result of the February 14, 2001, incident.
 This is according to the history provided to Twin Cities Physical Therapy on May 30, 2001. Actual medical records relating to this therapy are not part of the record.