ROBERT L. EKEBERG, Employee, v. STANLEY M. TAUBE and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS, Employer-Insurer/Appellants, and STANLEY M. TAUBE, UNINSURED, Employer, and U.S. DEP=T OF VETERANS AFFAIRS, HEALTHPARTNERS, INC., CDI/PMSI, MN DEP=T OF LABOR & INDUS./VRU, and REGIONS HOSP., Intervenors, and SPECIAL COMP. FUND.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 5, 2006
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including well-founded medical opinion and the employee=s testimony, supports the compensation judge=s findings that the employee=s current low back condition is the result of his September 1, 2002, personal injury and that his June 4, 2003, injury was a temporary aggravation of his pre-existing condition.
NOTICE OF INJURY - TRIVIAL INJURY. Substantial evidence supports the compensation judge=s finding that the employee gave timely notice of his September 1, 2002, personal injury on or about June 10, 2003, concluding it was then that the employee understood the probable compensable nature of his September 2002 work injury.
Determined by: Johnson, C.J., Wilson, J. and Stofferahn, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Michael F. Scully, Sieben, Grose, Von Holtum & Cary, Minneapolis, MN, for the Respondent Employee. Jason L. Schmickle, Hanson, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Appellants. Michael D. Miller and Nancy E. Lamo, McCollum, Crowley, Moschet & Miller, for the Respondent Employer. Lorelei M. Hoyer, St. Paul, MN, for the Special Compensation Fund.
THOMAS L. JOHNSON, Judge
The employer and insurer, Stanley M. Taube and Minnesota Assigned Risk Plan/Berkley Risk Administrators (MARP/Berkley), appeal from the compensation judge=s findings that the employee=s current medical condition is the result of his September 1, 2002, personal injury and that the employee=s personal injury of June 4, 2003, was temporary, and that the employee gave timely statutory notice of the September 1, 2002, injury to the employer. We affirm.
Robert L. Ekeberg, the employee, was employed by Stanley M. Taube, the employer, as a property manager. On September 1, 2002, the employee sustained a personal injury arising out of and in the course of his employment when he slipped carrying packages down the steps at Mr. Taube=s home and struck his low back on the steps. On that date, the employer was insured by the Minnesota Assigned Risk Plan administered by Berkley Risk Administrators.
The employee testified that immediately after the fall he felt pain in his low back, left buttock and left leg extending down to the knee. He testified this pain never went away after the fall, but he did not alter his work duties in any way. There is no evidence of any medical care until December 16, 2002, when the employee called the Veterans Affairs Medical Center (VAMC), seeking an appointment with Dr. Mary Hotchkiss for back problems due to Atrauma and muscle damage to his back.@ The employee requested a cortisone injection. A note from Dr. Hotchkiss stated she was not scheduled to see patients and recommended the employee take Ibuprofen and do stretching exercises which the employee had done in the past, referring to her note of September 13, 2002. On December 17, 2002, the employee went to the clinic and saw a staff nurse who reported Athe employee had been doing his stretching exercises since he fell this summer and this usually helps, but this time he has had no relief.@ By note dated December 26, 2002, Dr. Hotchkiss stated back injections were no longer done at that clinic and since she had not previously evaluated the employee for back pain she could not order consultation. (Pet. Ex. A1.)
In an unappealed finding, the compensation judge found the employee sustained a temporary aggravation arising out of and in the course of his employment with the employer on January 1, 2003, when he fell while shoveling snow on the employer=s driveway. The employee was insured by MARP/Berkley on this date. The employee saw Dr. Hotchkiss at the VAMC on January 10, 2003, and gave a history of persistent low back and left leg pain which began when he slipped and fell on his back in September 2002. On examination, the doctor noted no spinal tenderness, straight leg raising was negative and the neurologic examination was normal. Dr. Hotchkiss ordered an MRI scan which showed multi-level degenerative disc disease from L1 to S1 with no evidence of nerve root impingement. The doctor recommended conservative care including exercise and Ibuprofen. On February 10, 2003, the employee returned to see Dr. Hotchkiss stating his left leg pain had resolved but he continued to experience low back pain. The doctors= diagnosis was improving low back pain likely due to mild degenerative changes.
On June 4, 2003, the employee sustained a third personal injury while working for the employer. On this date, the employer was uninsured for workers= compensation liability. The employee testified that following this injury he experienced a sharp pain in his back and left leg so severe that he could not work and had difficulty getting up and walking. On June 10, 2003, the employee saw a nurse practitioner at the VAMC complaining of increased low back pain with radiation into the left leg. The employee rated his pain at ten on a ten-point scale. The employee was admitted to the hospital, treated with Medrol and Percocet and discharged the same day. An MRI scan showed a small disc protrusion at L2-3 pressing upon the thecal sac and causing a mass-effect on the left L3 nerve root.
In August 2003, the employee was examined by Dr. Walter Bailey, a neurosurgeon. The employee complained of persistent severe low back pain with radiation down the left leg. The doctor diagnosed left S1 joint pain with minor left L5 radiation, nonconcordant with the MRI pathology. Dr. Bailey recommended an SI joint injection which was done in August with a second injection in October 2003. In November 2003, the employee reported to Dr. Hotchkiss that his back and left leg pain was significantly improved. In June 2004, the employee was seen at VAMC for evaluation of chronic low back pain worse over the last week. The employee received another SI joint injection.
A third MRI scan was completed in November 2004. It showed multi-level disc degeneration from L1 through L5 with no focal herniations or canal stenosis. Mild foraminal narrowing was seen at L3-4 and L4-5.
The employee was examined by Dr. Glenn Buttermann in February 2005 on referral from the employee=s family physician. The doctor diagnosed multi-level degenerative disc disease with instability at L2-3 and L3-4. Dr. Buttermann recommended epidural steroid injections and Indomethacin.
Dr. Robert Barnett, an orthopedic surgeon, examined the employee in April 2005 at the request of the employer and insurer. The employee then complained of low back pain radiating into both legs, left more than right. The doctor diagnosed degenerative spondylosis of the lumbar spine with disc injuries at L1-2 and L2-3. The doctor opined the employee sustained an injury to his back in September 2002, and stated the incidents in January and June 2003 were temporary aggravations of the 2002 injury. Dr. Barnett opined the employee needed no further medical treatment and was capable of working on a full time basis, subject to restrictions. Dr. Barnett rated a ten percent whole body disability and concluded the employee had reached maximum medical improvement. Dr. Barnett later reviewed the employee=s deposition and issued a second medical report. In this report, Dr. Barnett opined the employee sustained a Gillette-type personal injury that culminated in September 2002. The doctor again opined the January and June 2003 injuries were temporary aggravations of the employee=s degenerative spondylosis that had been symptomatic since September 2002. Dr. Barnett based his opinion on the medical records which he stated, Adescribed similar symptoms before and after the incident on June 4, 2003, and the MRI findings in January 2003 and November 2004, which were basically the same.@ (Pet. Ex. A7.)
The employee filed a claim petition seeking workers= compensation benefits resulting from personal injuries on September 1, 2002, January 2003 and/or June 4, 2003. Following a hearing, the compensation judge found the employee sustained personal injuries on September 1, 2002, January 1, 2003, and June 4, 2003. The compensation judge found the January and June 2003 personal injuries were temporary aggravations of the September 1, 2002, personal injury. The compensation judge further found the employer received timely statutory notice of the September 1, 2002, personal injury on or about June 10, 2003, concluding as of that date the employee understood the probable compensable nature of his September 2002 and January 2003 personal injuries. The employer and MARP/Berkley appeal the compensation judge=s decision.
1. September 1, 2002, Personal Injury
The appellants contend the compensation judge=s finding that the employee=s current medical condition is the result of his September 1, 2002, personal injury is unsupported by substantial evidence. The appellants acknowledge Dr. Barnett=s opinions support the compensation judge=s finding, but contend the doctor=s opinions are inconsistent with the evidence in the case. Specifically, the appellants assert that although the employee had low back and left leg pain following the September 2002 incident, he sought no medical treatment and did not alter his work activities in any way. After the June 4, 2003, injury, however, the employee testified he was unable to work because the pain was just too debilitating. He further testified that after June 4, 2003, his pain never returned to the level it had been prior thereto.
The appellants further contend the medical records are inconsistent with Dr. Barnett=s opinions and the compensation judge=s finding. A VAMC note dated June 10, 2003, states the employee presented with severe back pain which he described as worse than it had ever been, rated at a constant ten out of ten. The January 2003 MRI scan showed no nerve root involvement while the June 10, 2003, scan showed a small left paracentral disc protrusion at L2-3 pressing upon the left ventral thecal sac. The scans, the appellants contend, demonstrate a significant change in the employee=s low back condition after June 2003. Finally, it was not after the June 4, 2003, injury that the employee received injections, began taking narcotic pain medication, was referred for a surgical consultation and received treatment at a chronic pain clinic. The appellants argue the compensation judge=s finding cannot be reconciled with the clear and unequivocal testimony of the employee and the medical records. Accordingly, the appellant=s contend the compensation judge=s finding that the September 2002 personal injury was the substantial cause of the employee=s disability is unsupported by substantial evidence. We are not persuaded.
Certainly, there is evidence which would support a result contrary to the conclusion reached by the compensation judge. The issue on appeal, however, is not whether the evidence would support a contrary result but whether the evidence supports the decision reached by the compensation judge. It is the role of this court to determine whether the findings and order are clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted. Minn. Stat. ' 176.421, subp. 1. 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).
The employee testified he injured his low back in September 2002. Initially, he used Ibuprofen and heat and ice to treat his back. He stated that after this injury any activity that required bending or lifting aggravated his symptoms and that his low back symptoms beginning in September 2002 never resolved. The employee sought medical attention in December 2002 complaining of low back and left leg pain that he related to his September 2002 personal injury. The January 2003 MRI scan showed multi-level degenerative disc disease with no evidence of nerve root impingement. Admittedly, the June 2003 MRI scan was interpreted as showing a small L2-3 disc protrusion pressing upon the thecal sac causing a mass effect on the left L3 nerve root. However, by November 2004, the MRI scan showed only mild degenerative disc disease with no focal disc herniation or nerve root impingement.
Finally, we have carefully reviewed the two medical reports of Dr. Barnett. The doctor reviewed the employee=s medical records and was provided a copy of the employee=s deposition for his review. Dr. Barnett noted the employee had persistent low back symptoms following his September 2002 injury which continued through June 2003, from which he concluded the employee never recovered from the initial injury. Dr. Barnett concluded the employee=s degenerative spondylosis became systematically and functionally a problem beginning in the fall of 2002. In discussing the effect of the June 2003 injury, Dr. Barnett stated, Ait remains my opinion that the July 4, 2003, incident did not result in a separate and distinct injury, but was a temporary aggravation of the initial injury. This is based on the medical records, which describe similar symptoms before and after the incident on June 4, 2003, and the MRI findings in January 2003 and November 2004, which were basically the same.@ (Pet. Ex. A7.)
Dr. Barnett=s opinions were adequately founded and the compensation judge could reasonably rely upon them. These opinions are also consistent with the MRI scans and supported by portions of the employee=s testimony. This is evidence a reasonable mind might accept as adequate to support a conclusion. Accordingly, the compensation judge=s finding must be affirmed.
The compensation judge found the employee gave timely notice of his September 2002 injury to the employer on or about June 10, 2003. The judge found it was then the employee understood the probable compensable nature of his September 1, 2002 work injury. The appellants contend the employee knew he had sustained an injury in September 2002, and sought medical attention in December 2002 for his injury. Accordingly, the appellants contend the employee did not give the employer timely notice of his September 2002 and January 2003 personal injuries and his claim must be barred.
Minn. Stat. ' 176.141 provides that, "[u]nless knowledge is obtained or written notice given within 180 days after the occurrence of the injury no compensation shall be allowed." In Barcel v. Barrel Finish, 304 Minn. 536, 232 N.W.2d 13, 15, 28 W.C.D. 4, 5-6 (1975), the Supreme Court held that when an injury is of a trivial nature not resulting in present disability, the statutory time for giving notice runs from the time when it becomes reasonably apparent that such injury has resulted in or is likely to cause compensable disability. Whether an injury is of a trivial nature and the date on which it first becomes reasonably apparent to the employee that the injury resulted in disability are questions of fact. Balow v. Kellogg Coop. Creamery Ass'n, 248 Minn. 20, 78 N.W.2d 430, 434, 19 W.C.D. 43, 48-49 (1956).
In a memorandum, the compensation judge explained her basis for concluding the employer received timely statutory notice.
The employee=s notice to the employer after the incident on June 4, 2003 is sufficient under these circumstances. Until that date when the symptoms became debilitating, the employee was able to continue working without a change in job duties. He held a reasonable belief based upon his ability to continue working without lost time that the injuries on September 1, 2002 and January 2003 would not result in a compensable disability. When treatment was sought at the VA Medical Center on December 16 and 17, 2002 with a report of low back pain without relief, the employee described the pain as normally relieved with exercises, heat, and ice. As of January 3, 2003, the employee reported pain going down the leg. As of January 8, 2003, Dr. Hotchkiss took a history of low back pain from a slip and fall in September 2002 with leg pain after November 12, 2002. The employee had >remained active and exercises by walking on a treadmill,=according to those medical notes and remained ambulating without difficulty. After the MRI, Dr. Hotchkiss reported that there is Ano cause for the pt=s reported leg pain.@ No further treatment or referral was recommended except over-the-counter medications and exercise. With this history of minimal treatment recommendations by the treating physician, the employee=s understanding that the work injuries of September 1, 2002 and January 2003 were not likely to result in compensable disability are reasonable.
The compensation judge drew reasonable inferences from the evidence. Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). The compensation judge=s decision is, therefore, affirmed.