ROBERT COX, Employee/Appellant, v. DAKOTA COUNTY CMTY. DEV. and SFM, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 21, 2007
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge=s determination that the employee=s work injury is not a substantial contributing factor to his current condition, and that the employee has no restrictions as a result of that injury.
Determined by: Rykken, J., Johnson, C.J., and Pederson, J.
Compensation Judge: Harold W. Schultz, II
Attorneys: Richard S. Eskola, Columbia Heights, MN, for the Appellant. Steven T. Scharfenberg, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge=s decision that the employer and insurer may discontinue the employee=s temporary total disability benefits. We affirm.
On September 13, 2005, Robert Cox [the employee], sustained an injury to his left upper extremity while employed as a painter for Dakota County Community Development [employer]. At the time of his injury, he had worked there for approximately five years, and earned a weekly wage of $734.40. He injured his left upper extremity while unloading five-gallon buckets of paint, each weighing 40 to 50 pounds, from the back of a van. As one of the buckets slipped, he jerked his left arm while attempting to prevent the bucket from falling to the grounds. He initially felt as if he had pulled a muscle in his left arm. The employee continued to work for a short time, to complete his shift, using his right arm to perform his work duties; according to the medical records, the employee is left-hand dominant.
The employee has experienced ongoing pain in his left shoulder area since his injury. His symptoms persisted, especially a stiffness he felt in the top of his left shoulder and neck area. He finally reported the injury to the employer on October 24, 2005, and sought medical treatment at Park Nicollet Clinic on October 25. He reported to Dr. Michael Goertz that he had experienced left shoulder pain since his work injury approximately one month earlier, especially when he reached to his side and also when he lifted his left arm above shoulder level. Dr. Goertz diagnosed an AAC strain with impingement,@ assigned work restrictions for at least two weeks, and prescribed Naprosyn. Dr. Goertz recommended physical therapy if the employee had not improved by the end of that week.
Also on October 25, 2005, the employer advised the employee and two co-workers that their positions had been eliminated. Although the employer and insurer initially denied primary liability for the employee=s injury, they later admitted liability and commenced payment of workers= compensation benefits.
Following his initial examination by Dr. Goertz in October 2005, the employee received follow-up medical treatment from him, and underwent physical therapy prescribed by Dr. Goertz. By mid-November, due to the employee=s continued symptoms, Dr. Goertz ordered an MRI scan of the left shoulder, which was conducted on December 7, 2005, and was interpreted to show the following:
1. Tendinopathy in the infraspinatus and supraspinatus tendon with a partial thickness tear of the articular surface of the supraspinatus tendon.
2. Degenerative changes in the acromioclavicular joint and undersurface spurring of the lateral acromion.
3. No labral tears.
Upon referral from Dr. Goertz, Dr. Mark Thomas examined the employee on December 20, 2005, following which he diagnosed left shoulder impingement syndrome and recommended surgery. On February 15, 2006, Dr. Thomas performed surgery in the nature of a primary arthroscopic left shoulder subacromial decompression and an arthroscopic left distal clavicle resection. The operative report indicated that the labrum was within normal limits.
The employee received post-surgical care from Dr. Thomas during the next few months. He testified that his symptoms have not changed or decreased ever since his injury in September 2005, and that his shoulder pain did not diminish after his surgery in February 2006. Dr. Thomas=s records note his examination findings, including an April 11, 2006, finding of Amild weakness in abduction and external rotation. Impingement sign is mildly positive,@ and a continued diagnosis of left shoulder impingement syndrome. Dr. Thomas released the employee to return to work within lifting and reaching restrictions. At an examination by Dr. Thomas on July 11, 2006, the employee reported ongoing pain, constant aching, and pain while sleeping. Dr. Thomas continued the physical work restrictions he had earlier assigned and ordered another MRI scan to assess the employee=s condition.
An MRI scan of the left shoulder, taken on July 27, 2006, was interpreted as showing abnormal findings, including tendinopathy of the distal supraspinatus and distal superior subscapularis tendons, mild osteoarthritis of the glenohumeral joint, and mild to moderate subacromial bursal thickening/bursitis. In addition, the MRI scan showed a deformity consistent with a tear of the entire anterior and superior labrum - - a tear that had not been evident on the December 2005 MRI scan nor indicated in the February 2006 surgical report.
Dr. Thomas reviewed the scan and noted that the employee had continued pain and tendinitis. In his chart note of September 5, 2006, Dr. Thomas referred the employee for a second medical opinion and a change in medical provider because of his lack of improvement and inability to return to work under his medical care.
In late August and early September 2006, the employee participated in racing time trials at Brainerd International Raceway, where his activities were videotaped by a private investigator at the request of the insurer. The employee was involved in racing automobiles in time racing involving straight line acceleration on a quarter-mile track. As depicted on a videotaped recording, which was placed into evidence at the hearing, the employee drove a car in time trials, and was observed performing various activities while at the track, including wiping off a car before each race, carrying an air bottle used to fill tires, lifting a can of gas and putting the contents into the gas tank, and lifting and removing a trunk lid with assistance from another person.
On October 16, 2006, Dr. Thomas Raih conducted an independent medical examination of the employee. The employee reported persistent symptoms in his left shoulder. In his report of October 24, 2006, Dr. Raih diagnosed the following, which he concluded resulted from the employee=s injury and age-related degenerative changes: impingement syndrome, partial rotator cuff tear, degenerative acromioclavicular joint, and status post arthroscopic subacromial decompression. Dr. Raih suggested a subacromial steroid injection if the employee=s symptoms persisted. He assigned a 5% permanent partial disability of the whole body, relative to his partial rotator cuff tear and his surgery.
In conjunction with his examination, Dr. Raih reviewed the MRI scan of July 2006 and the surveillance videotape, and found the Afindings on surveillance indicate that [the employee=s] complaints are not as severe as suggested at the time of this evaluation,@ and that Athose activities could be aggravating@ his condition. Dr. Raih recommended temporary restrictions on lifting and overhead work, and opined that the employee had reached maximum medical improvement (MMI) from his injury as of the date of the exam. He also suggested that a subacromial steroid injection may be needed if the employee has persisting complaints in the future, but specifically concluded that any additional treatment after the time of reaching MMI would not be considered as related to the work injury.
On November 16, 2006, Dr. Raih issued an additional report, identifying it as a clarification of his earlier report. He rescinded the work restrictions outlined in his initial report, advising that those restrictions were related to the employee=s work injury and would have ended as of the date of his examination. He advised that he did not expect any need for permanent restrictions.
Dr. Thomas concurred with Dr. Raih=s findings. In his chart notes completed on November 20, 2006, Dr. Thomas opined that the employee was capable of full-time employment without restrictions, that the employee did not require prescription medication, and that he had no plans for further treatment for the employee.
On December 7, 2006, Dr. Rolf Hauck examined the employee upon referral from his family physician. Dr. Hauck found significant degenerative rotator cuff disease without an obvious full thickness rotator cuff tear, as well as a significant labral pathology with traction injury to his left arm. He commented that it was Apossible that a SLAP type injury to the labrum could have occurred.@ He advised the employee that it was a Acomplex situation@ and that he was unable to tell whether the employee=s symptoms could be related to his labral deformity. He injected the employee=s left shoulder with Depo-Medrol and Marcaine; that injection provided some but not complete relief.
According to a January 29, 2007, chart note from Dr. Hauck, he considered the employee=s condition to be a Acomplex problem.@ Dr. Hauck ordered further studies, including an MRI arthrogram of the left shoulder which was performed on February 8, 2007. Dr. Cooper Gundry interpreted that study to show a broad-based tear of the superior labrum. According to his February 12, 2007, chart note, Dr. Hauck reviewed the findings from the arthrogram, and recommended that the employee undergo a diagnostic arthroscopy of the left shoulder and proceed with a superior labral repair. In his February 12, 2007, report, he concluded that the employee=s superior labral tear was consistent with the nature of his injury, and that the employee=s 2005 work injury was the sole contributing factor to his disability.
On February 28, 2007, Dr. Raih provided an additional report, outlining his assessment of the cause of the employee=s condition, and, specifically, the new finding of a superior labral tear detected on the arthrogram. He concluded that the labral tear was a new finding, not evident before the July 2006 MRI. In his opinion, the labral tear did not result from the employee=s 2005 injury.
On April 6, 2007, Dr. Hauck issued a report, following his review of Dr. Raih=s recent report and the videotape prepared by the private investigator. Dr. Hauck addressed the issue of the cause of the employee=s labral tear, and stated that
In conclusion, the [employee=s] initial injury could produce a labral tear. We have evidence with MRI arthrogram that he has a large tear. Either the MRI imaging is incorrect or the patient had another injury or the labral tear wasn=t obvious during the first surgery. I cannot really determine which of these is the case based on my present evaluation. Given the patient=s failure to respond to the initial treatment and the presence of abnormal pathology, I have recommended a diagnostic and possible therapeutic arthroscopy as described.
Litigation on this matter commenced with the employer and insurer=s petition to discontinue, filed on December 26, 2006. In that petition, the employer and insurer contended that the employee had been released to return to work without restrictions to his left shoulder by both Dr. Raih and Dr. Thomas, and also asserted that recent diagnostic studies showed Aa potential rotator cuff tear and/or SLAP lesion,@ and that no medical evidence showed that the employee=s work injury substantially contributed to that condition. An evidentiary hearing was held before a compensation judge on February 14, 2007, to address the petition to discontinue. Supplementary medical evidence was submitted post-hearing.
On April 12, 2007, the compensation judge issued his findings and order, in which he granted the employer and insurer=s request to discontinue payment of temporary total disability benefits. The compensation judge found that Aas of the date of hearing, the employee is not suffering from the effects of the September 13, 2005 personal injury.@ (Finding 31.) He also concluded that the employee had not sustained a new injury as a result of the physical activity recorded on the surveillance videotape, and that the employee=s documented activities Awere not excessive and probably were within his restrictions, as they existed at that time.@ He found that the employee=s labral tear, detected on an MRI scan and an MRI arthrogram, was not related to the employee=s work injury. The compensation judge determined that, based on the medical evidence, the employee=s current condition was not causally related to his work injury, and the employer and insurer could discontinue payment of temporary total disability benefits.
In his memorandum, the compensation judge explained the limited scope of his decision. He stated that:
This is a narrow decision. There is no finding that the employee has fully recovered from the effects of the September 13, 2005 personal injury. Three doctors have assessed whole body impairment. At this point in time the employer and insurer have shown that the personal injury is not a substantial contributing factor to the employee=s current condition. He does not have any current restrictions due to that injury. The employer and insurer are legally entitled to discontinue the employee=s workers= compensation benefits.
The employee appeals from the discontinuance of temporary total disability benefits.
The employee appeals from the compensation judge=s finding that, as of the hearing date of February 14, 2007, the employee was not Asuffering from the effects of the September 13, 2005 personal injury,@ and appeals from the corresponding discontinuance of benefits. At issue on appeal is whether the evidence in the record supports the judge=s findings.
The compensation judge reviewed and outlined the employee=s medical history and diagnostic studies conducted after his 2005 work injury, and referred to the various medical opinions in the record. The judge noted that by November 2006, Dr. Raih determined that the employee had reached MMI, and that, although he had been subject to temporary work restrictions as a result of his work injury, he no longer needed work restrictions. The judge also outlined the findings from follow-up examinations in late 2006 and early 2007, and concluded that the employee no longer was restricted as a result of his work injury.
As part of his analysis, the judge reviewed the various medical opinions concerning the etiology of the employee=s labral tear in his left shoulder, which was first detected on an MRI scan in July 2006. The judge concluded that this labral tear was not related to the employee=s work injury. He also addressed the information presented by the employer and insurer concerning the employee=s activities with automobile racing in August and September 2006, and concluded that the activities depicted on the surveillance videotape did not cause any additional injury. Having determined that, however, the compensation judge concluded that, as of the date of hearing, the employee=s work injury did not represent a substantial contributing factor to his current condition, and that the employee was not subject to any current restrictions due to his 2005 work injury. He therefore granted the employer and insurer=s petition to discontinue benefits.
The employee argues that since there is no evidence that he had sustained any subsequent aggravation or injury to his left shoulder, the only logical conclusion is that his current left shoulder condition, including the labral tear for which he requires additional treatment, was caused by the work injury. The employee testified that he has never fully recovered from his original shoulder injury in September 2005. Even though he experienced some symptomatic relief from his February 2006 surgery, the employee=s symptoms persisted, which caused his physicians to conduct additional diagnostic studies. Through those studies, a new condition was detected in the employee=s left shoulder - - a potential labral tear or SLAP lesion.
The parties disputed the cause of the labral tear, and also whether the employee=s work injury remained a substantial contributing factor in the employee=s condition and need, if any, for restrictions. The record contains conflicting opinions, from treating and consulting physicians, on whether that newly-discovered condition was related to the employee=s 2005 work injury, and also on the issue of whether the employee remains restricted as a result of his work injury. Dr. Raih, the employer and insurer=s medical expert, concluded that the employee requires no restrictions as a result of his 2005 work injury, and that he has reached MMI from that injury. Dr. Raih also concluded that the superior labral tear shown on the February 8, 2007, MRI arthrogram was not related to the work injury of September 13, 2005. Dr. Thomas, the employee=s surgeon at the time of his 2006 surgery, concurred with that assessment. Dr. Hauck, with whom the employee has treated since late 2006, opined that the employee=s injury to his left shoulder directly relates back to his work injury in September 2005 and that the superior labral tear was consistent with the nature of his injury, although Dr. Hauck acknowledged that he could not really determine whether the labral tear simply was not obvious on the initial MRI scan or during surgery, or whether the employee had another injury that caused the tear. The compensation judge adopted Dr. Raih=s opinion that the employee=s current shoulder condition was not causally related to his work injury, and concluded that, at least as of the time of the hearing, the employee was not under any restrictions due to that injury.
The employee argues that Dr. Raih did not have adequate foundation for his medical opinion. The competence of a witness to render expert medical testimony depends upon both the degree of the witness=s scientific knowledge and the extent of the witness=s practical experience with the matter at issue. Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983). Dr. Raih examined the employee on October 16, 2006. As part of his evaluation, the doctor obtained a history from the employee, reviewed his medical records and radiographic studies, and conducted a physical examination. As a general rule, this level of knowledge establishes a doctor=s competence to render an expert opinion. See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn.1988).
In reviewing cases 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. 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). We agree with the compensation judge that this is a close case, and that it presents a medically complex scenario. The record contains conflicting opinions from medical experts on the nature and cause of the employee=s condition. However, it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). In addition, where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Hengemuhle at 60, 37 W.C.D. at 240.
In this case, as he stated in his memorandum, the compensation judge found Dr. Raih=s report of February 28, 2007, to be the most persuasive piece of evidence he reviewed. That report, in addition to the evidence in the record as a whole, supports the compensation judge=s conclusions. Based on the medical evidence in the record, therefore, we cannot say that the compensation judge erred when determining that, as of the time of the hearing, the employee=s work injury was not a substantial contributing factor to his current condition, and that the employee had no current restrictions as a result of that injury. Accordingly, we affirm.