RONALD E. LANE, Employee, v. SIFCO CUSTOM MACHINING, and SENTRY INS. GROUP, Employer-Insurer/Appellants, and SIFCO CUSTOM MACHINING, and COMMERCE & INDUS./AIG CLAIMS SERVS., Employer and Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 1, 2006
CONTRIBUTION & REIMBURSEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s determination that the employee=s work injury of January 19, 2004, had resolved by May 19, 2004, and that benefits paid after that date were the result of his March 26, 1987, work injury insured by Sentry.
Determined by: Stofferahn, J., Rykken, J., and Pederson, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Louis A. Stockman, Petersen, Sage, Graves & Stockman, Duluth, MN, for the Respondent Employee. James Schaps and Jason L. Schmickle, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Appellants Sifco/Sentry. Nicole B. Surges, Erstad & Riemer, Minneapolis, MN, for the Respondents Sifco/AIG.
DAVID A. STOFFERAHN, Judge
Sifco Custom Machining and Sentry Insurance Group appeal from the compensation judge=s determination that the employee=s January 19, 2004, work injury was temporary, and that benefits due to the employee after May 20, 2004, were the result of the employee=s March 26, 1987, injury and were the responsibility of Sentry. We affirm.
Ronald E. Lane began working for Sifco Custom Machining on May 4, 1981. This appeal arises out of low back injuries the employee sustained at Sifco on March 26, 1987, September 19, 1990, and January 19, 2004. At the time of the 1987 and 1990 injuries, Sifco was insured for workers= compensation liability by Sentry Insurance Group. The insurer in 2004 was Commerce and Industry/AIG Claims Service.
On March 26, 1987, while pulling an oil tank from underneath a machine, the employee felt a snap in his low back on the left side. The employee treated for his injury with Dr. Ronald Ercolani. The employee had a CT scan of the low back done on April 24, 1987, which was read as showing Amild to moderate, broad based, central herniation of the L5-S1 disc, results in mild impingement upon the axillae of the S1 nerve roots, left greater than right.@ Dr. Ercolani referred the employee to an orthopedist, Dr. Steven Kuslich. He made no treatment recommendations other than for the employee to modify his activities. On August 24, 1987, the employee was given work restrictions by Dr. Kuslich of no lifting over 20 pounds. Dr. Kuslich also indicated the employee was at maximum medical improvement and had sustained permanent partial disability of 14 percent of the whole body for a herniated disc with objective findings. The employee testified that he always had low back pain after his 1987 injury, and that he would miss time from work because of his low back pain.
The employee did not recall the circumstances of his September 19, 1990, work injury. The medical records and First Report of Injury indicate that the employee bent over to catch a heavy part which was falling and felt additional back pain. The employee continued to receive conservative care for his low back under the direction of Dr. Ercolani. At Dr. Ercolani=s referral, the employee saw a neurosurgeon, Dr. Daniel Ahlberg on December 10, 1990. Dr. Ahlberg=s impression was of chronic low back pain syndrome. No surgery was recommended. In an MMI report dated January 29, 1991, Dr. Ercolani indicated the employee had zero percent permanent partial disability from the September 1990 injury and stated that the employee was able to resume his former employment.
It appears that the employee did not treat for low back problems until 2000 when he went to NorthWorks Occupational Health Services. The employee testified that his wife, a registered physical therapist, was able to assist him in dealing with his symptoms, providing various physical therapy modalities. On occasion, she even took him to the hospital on her day off to provide him with traction at no cost to the insurer. In his visit with Dr. Thomas Oas on August 4, 2000, the employee advised the doctor that he had injured his back at work the day before but that his low back symptoms went back many years, beginning when he had pulled on an oil tank at work. The initial assessment was of a chronic lumbar strain. No treatment was recommended other than pain medications.
In January 2002, the employee saw Dr. Jennifer Heubner, also at NorthWorks, who began a program of Ibuprofen, use of ice or heat, and range of motion exercises. Her assessment was of lumbar radiculopathy, and the employee was given work restrictions of no lifting or carrying more than 20 pounds. The employee saw Dr. Heubner twice more that month for his low back problems and noted improvement in his symptoms. The medical records from NorthWorks indicate that the employee returned from time to time in 2002 with low back symptoms.
Dr. Oas recommended an MRI which was done in October 2002. It was read as showing Asmall left paracentral disc protrusion at L5-S1, possibly a source of irritation to the traversing left S1 nerve@ and Adegenerated bulging discs at L3-4 and L4-5.@ Dr. Oas concluded that the employee was not likely to become symptom free given the duration of time his symptoms had existed, and that the emphasis of treatment should be to limit symptoms by restricting physical activity. Dr. Oas recommended a Functional Capacities Evaluation to determine permanent restrictions. It does not appear that the FCE was done, apparently because the employee was treating in 2003 for a right shoulder work injury.
On January 13, 2004, the employee consulted Dr. Heubner. The employee advised her that his employer had a new attendance policy and he needed to know if there were days when he could leave early because of his back pain. Dr. Heubner took a detailed history from the employee which included the fact that because of his low back pain, he needed a riding mower to mow his yard and that he was not able to walk to his deer stand when hunting and needed an ATV to continue that activity. The employee reported that he had back pain every day and had frequent flare-ups of significant pain. Dr. Heubner provided permanent restrictions of Ano lifting or carrying more than 15 to 20 pounds and no pushing or pulling more than that and limited twisting, turning and bending at the waist.@
The employee injured his back again on January 19, 2004. While moving a 10-pound cover for a table, he twisted and felt a snap or jerk in the left side of his low back. He saw Dr. Heubner with complaints of low back pain radiating to his left leg. He was diagnosed with acute lumbar radiculopathy, restricted from lifting over 10 pounds, and advised to use Aleve for pain control. He was also subsequently referred for a program of physical therapy. The employer was apparently unable to accommodate the employee=s restrictions and he was placed on temporary total disability by AIG.
The employee saw Dr. Heubner on May 19, 2004, with continued low back symptoms. Dr. Heubner placed work restrictions on the employee, stating AI have once again written his permanent restrictions for his lower back to include: no lifting or carrying more than 15 to 20 pounds and no pushing or pulling more than 15 to 20 pounds. Limiting twisting, turning and bending at the waist.@ The employee was not placed on a treatment program, but was instead told to return as needed. An MRI was done at Dr. Heubner=s direction in July 2004, which was interpreted in part as showing Ano significant internal change when compared to study of October 2002.@
A number of pleadings were filed in this case and were consolidated for hearing before Compensation Judge Peggy Brenden on July 6, 2005. For purposes of this appeal, the pertinent pleading is the petition for contribution and reimbursement filed by AIG. The compensation judge identified the issue raised by the pleading as one of apportionment and whether AIG was entitled to reimbursement from Sentry of benefits paid to the employee since January 19, 2004.
The employee was evaluated on behalf of AIG by Dr. Thomas Raih on November 11, 2004. Dr. Raih concluded that the employee had an L5-S1 disc herniation with mild compression of the S1 nerve root dating back to 1987 and L4-5 degenerative disc disease dating back to 1990. It was Dr. Raih=s opinion that the January 19, 2004, injury was a temporary aggravation of the employee=s previous problems. He pointed to the lack of change in findings in the July 2004 MRI and to the similarity of symptoms after January 19, 2004, compared with symptoms before that date. Dr. Raih stated that the employee=s current symptoms were the result of his 1987 work injury.
Dr. Paul Wicklund examined the employee on behalf of Sentry on February 25, 2005. In his report, he stated that the January 2004 injury represented a permanent aggravation of the employee=s pre-existing condition. Dr. Wicklund=s opinion was that the various scans since 1987 showed less bulging or herniation at the L5-S1 level than there had been in 1987, indicating that the 1987 injury had become insignificant. According to Dr. Wicklund, most of the employee=s symptoms related to the degenerative process at L4-5. Based on the employee=s increased symptomology in the legs and the employee=s report of decreased ability to function, Dr. Wicklund concluded that the January 2004 injury was responsible for the employee=s present condition.
In her Findings and Order of July 21, 2005, the compensation judge determined that the January 19, 2004, injury was a temporary injury which was fully resolved by May 19, 2004. AIG was found responsible for all benefits from January 19, 2004, through May 19, 2004, and Sentry was liable for benefits after that date and ordered to reimburse AIG. Sentry appeals.
On appeal, Sentry argues the compensation judge=s decision that the January 2004 injury was not a substantial contributing factor in the employee=s condition after May 19, 2004, is not supported by substantial evidence. Sentry contends that the evidence does not support a conclusion that the employee had returned to his pre-January 2004, condition by May 19, 2004. Specifically, Sentry points to the notation by Dr. Heubner in her May 19, 2004, chart note that the employee was feeling worse. Sentry also cites to Dr. Wicklund=s report and to the employee=s testimony.
The question for this court, however, is not whether evidence exists in the record which might have supported a contrary decision by the compensation judge. The issue on review for this court is whether there is substantial evidence in support of the compensation judge=s decision. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
In her memorandum, the compensation judge stated that she was relying on Dr. Raih=s opinion in reaching her conclusions. There is no question that Dr. Raih had adequate foundation for his opinion, and we have held on a number of occasions that a well-founded medical opinion may serve as the basis for finding substantial evidence which supports a compensation judge=s determination. Heitland v. R.O. Drywall, slip op. (W.C.C.A. Apr. 5, 2005). The compensation judge=s determination that the January 2004 injury had resolved by May 2004 was also based in substantial part on the finding that there was no objective change in the employee=s condition as found in the MRIs done in 2002 and 2004. In addition, work restrictions set by Dr. Heubner on May 19, 2004, were the same as the permanent restrictions set by her on January 13, 2004. We find substantial evidence in the record which supports the compensation judge=s decision and the decision is affirmed.
 There were other issues at the hearing including the employee=s entitlement to ongoing temporary total disability, the question of whether or not the employee had reached MMI, and the employee=s entitlement to certain medical treatment. Those issues were decided by the compensation judge but were not appealed and will not be discussed in this decision.