ROCKWELL HOFFMAN, Employee, v. L & D MASONRY and MINNESOTA WORKERS= COMP. ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS CO., Employer-Insurer, and OPUS N.W. CORP. and ST. PAUL TRAVELERS INS., Employer-Insurer/Appellants, and HAM LAKE PHYSICAL THERAPY, NORTH SUBURBAN CHIRO. CLINIC, NORAN NEUROLOGICAL CLINIC, and TWIN CITIES BRICKLAYERS HEALTH & WELFARE FUND, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 19, 2006
CAUSATION - SUBSTANTIAL EVIDENCE; PRACTICE & PROCEDURE - REMAND. Where the compensation judge=s decision on primary liability and/or causation was apparently based on an erroneous interpretation of the medical evidence and the employee=s testimony, remand for reconsideration was required.
Vacated and remanded.
Determined by Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Kathleen Behounek
Attorneys: David P. Stewart, Paige J. Donnelly, St. Paul, MN, for the Respondent Employee. Elizabeth Holden Hill, Minnetonka, MN, for the Respondent Employer-Insurer. Thomas A. Atkinson, John G. Ness & Assocs., St. Paul, MN, for the Appellants.
DEBRA A. WILSON, Judge
Opus Northwest Corporation and its insurer appeal from the judge=s finding that the employee=s disability was caused by an April 30, 2003, work injury. We vacate and remand.
Rockwell Hoffman [the employee] has worked in the construction industry as a block and bricklayer since 1979. On October 1, 1990, he sustained a work-related injury to his low back while employed by L & D Masonry [L & D]. The employee was apparently diagnosed with disc herniations and/or multilevel degenerative disc disease. L & D accepted liability for the injury and paid the employee benefits for a 9% permanent partial disability of the body as a whole.
The employee continued to have low back pain after the 1990 work injury but was able to continue working in the block and bricklaying industry. His symptoms waxed and waned over the years but seemed to increase with twisting, turning, and bending to cut brick and stone at work. He sought chiropractic treatment periodically when he experienced flare ups in his low back symptoms.
In April of 2003, the employee worked for Opus Northwest Corporation [the employer]. The week preceding April 30, 2003, he worked at the College of St. Catherine, building a stone sign monument using large pieces of stone. That work required a large amount of bending, twisting, and lifting.
On Sunday April 27, 2003, the employee played nine holes of golf.
The employee worked for the employer at the University of St. Thomas in Minneapolis, beginning on Monday, April 28, 2003. He performed his full duties as a block and bricklayer on Monday and Tuesday, laying fire-rated block, which is thicker and heavier than typical block. After beginning work on Wednesday, April 30, 2003, at 7 a.m., laying fire-rated block, he allegedly experienced a severe pain in his low back that went down his left leg. The symptoms were in the same location as the symptoms from the 1990 injury, but the left leg pain was more severe. He reported this incident to a foreman on the worksite and sought immediate treatment with his chiropractor, Dr. Richard R. Tollefson. Dr. Tollefson=s office record contains the following notation: Agolfing Sunday - initial onset-mild 9by Mon. Grad onset of LBP since yesterday A.M.@
The employee was also seen by Dr. John Bordwell, at the Allina Medical Clinic, that same day. According to Dr. Bordwell=s office note,
He=s had low back pain for the past four days. May have been worsened by golfing. He=s had two disk injuries to his back 15 years ago. He=s had flare ups intermittently and now the pain is in the left thigh, occasionally to the left calf, occasionally into the scrotum.
Dr. Tollefson referred the employee to Dr. Ana Patricia Groeschel, at the Noran Neurological Clinic, where he was examined on May 26, 2003. Dr. Groeschel recorded a history of a disc problem in 1990, with ongoing problems, and an incident at work recently where Ahe had a nagging pain in his lower back which got aggravated while he was twisting and grabbing something at work and suddenly he felt shooting pain down his left leg.@ She ordered an MRI, which showed a small right intraforaminal and far lateral disc herniation at L3-4, a left intraforaminal to far lateral disc herniation at L4-5, with left L4 root compression, a small left posterior L5-S1 disc herniation with mild displacement of the left S1 root, and mild disc desiccation and bulge at L2-3 and T12-L1.
The employee was disabled from work from April 30, 2003, to June 2, 2003, due to his low back symptoms. He then returned to his regular duties as a block and bricklayer.
On October 21, 2003, the employee filed a claim petition seeking temporary total disability benefits and medical expenses as a result of the 1990 and 2003 injuries. The matter proceeded to hearing, and, in Findings and Order filed on May 3, 2006, the compensation judge found that the April 27, 2003, golf outing did not increase the employee=s low back symptoms, that the employee had sustained a permanent work-related injury to his low back on April 30, 2003, and that the employer and insurer were responsible for payment of temporary total disability benefits, benefits for a 1% permanent partial disability of the whole body, and 30% of the employee=s medical expenses. The employer and insurer appeal.
STANDARD OF REVIEW
On appeal, the Workers= Compensation Court of Appeals must determine whether 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 (2004). 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). 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, Aunless 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 appeal from the judge=s finding that the employee=s golf outing (on April 27, 2003) did not increase his low back symptoms and from her finding that the employee sustained a permanent work injury on April 30, 2003. The employer and insurer allege that the compensation judge=s Arecitation of the medical records and employee=s testimony is manifestly contrary to the weight of the evidence or not supported by the evidence as a whole and establishes the employee=s subsequent treatment and alleged disability are due to a non-work related injury on April 27, 2003.@ The employer and insurer also contend that Athe compensation judge concluded that the employee=s medical records were >vague= and do not establish that the alleged injury of April 30, 2003, was actually the result of the employee golfing on Saturday April 27, 2003. The compensation judge failed to recall the employee subsequently conceded providing history of a golfing injury to his doctors on April 30, 2003.@
In her memorandum, the judge explained as follows:
The treatment notes of Dr. Tollefson, the employee=s chiropractor, indicate that the employee reported that he played golf prior to April 30, 2003. The records are rather vague and do not state that the employee reported that he injured his low back playing golf or that his symptoms were significantly exacerbated from playing golf. The employee testified that he did play golf the weekend before his work injury, but that the activity did not cause him to experience increased low back or leg symptoms. The employee=s testimony was credible. The compensation judge finds that the evidence fails to support the contention of Opus/St. Paul Companies that the employee sustained a low back injury from playing golf in April 2003.
However, Dr. Tollefson=s April 30, 2003, office notes reflect that the employee was golfing on April 27, 2003, when he had an Ainitial onset@ of pain. Accordingly, we cannot agree with the compensation judge=s characterization of the records as Avague@ regarding the employee=s exacerbation of pain while golfing.
In addition, we have concerns about the compensation judge=s understanding of the employee=s testimony about his golf outing. On direct examination, the employee did testify that he did not injure his back while golfing and that he did not have any symptoms different from those he had experienced since 1990. However, on cross-examination, the employee Aguessed@ that he had told Dr. Bordwell that golfing may have worsened his back, and he testified that he did tell Dr. Tollefson that he had experienced an onset of low back pain while golfing on April 27, 2003.
Because the judge=s finding of a work-related injury on April 30, 2003, was apparently based on an erroneous belief that the employee did not exacerbate his low back condition playing golf three days before, we must remand for reconsideration. We have not reversed the judge=s findings, because the remaining evidence conflicts as to whether the employee sustained a work-related injury on April 30, 2003. It is for the fact finder to make that ultimate determination after reconsidering the evidence in light of Dr. Tollefson=s April 30, 2003, records.
 Limited medical records were introduced into evidence regarding the 1990 injury.
 Liability for the other 70% of medical expenses was apportioned to L & D Masonry and its workers= compensation insurer.
 It is apparent from their brief that, by appealing from the finding of a permanent work injury on April 30, 2003, the employer and insurer meant to contest the finding that a work injury occurred.