MARK J. HOVLAND, Employee, v. STREATER, INC., and ATLANTIC MUT. INS. COS., Employer-Insurer/Appellants, and MN DEP=T OF ECON. SEC., and MAYO FOUND., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 6, 2007
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence in the form of a well-founded medical opinion supports the compensation judge=s decision that the employee=s work injury is a substantial contributing factor in his ongoing disability.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Harold W. Schultz, II
Attorneys: John J. Horvei, Attorney at Law, New Brighton, MN, for the Respondent. Inger Hansen-Corona and William M. Topka, Erstad & Riemer, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The compensation judge determined that the August 14, 1995, work injury was a substantial contributing factor in the employee=s present disability. The employer and insurer have appealed. We affirm.
Mark Hovland was born on November 17, 1954, and graduated from high school in 1974. After a term in the military, he worked at a variety of jobs in the Albert Lea area. Beginning in 1989, Mr. Hovland worked on an intermittent basis for Streater, Inc.. Streater made commercial steel shelving. Mr. Hovland would work for several weeks in a variety of labor assignments until he was laid off by the company for economic reasons. He might be laid off for a period of anywhere from 2 to 24 weeks until Streater recalled him to work.
After a layoff of 16 weeks, Mr. Hovland returned to Streater to work as an assembler on April 12, 1995. He worked in this position until his injury in August 1995. Streater prepared an analysis of this job after the work injury. It was described as being a job which required occasional lifting of 51 to 100 pounds, frequent lifting of 11 to 50 pounds, and constant lifting of up to 10 pounds. The job was also identified as requiring standing and as being heavy and repetitive.
Mr. Hovland presented to the Albert Lea Clinic on August 14, 1995, with complaints of right shoulder, forearm and upper arm discomfort. The history he provided at that time was AWorks at Streaters past 4 2 years. Work larger and heavier than in past. Over past 4 2 to 5 weeks increased discomfort R arm, hand goes to sleep.@ The initial assessment was Astrain R shoulder, rule out disc.@ Mr. Hovland returned to the clinic two days later with complaints of increased pain. It was noted that he appeared to be in distress and was unable to fill out forms without pain. The assessment was of probable C6-7 radiculopathy and an emergency request for an MRI was made to Atlantic Mutual, the workers= compensation insurer for Streater. The MRI, done on August 16, 1995, was read as showing,
C5-6 and C6-7 levels show marginal degenerative spurs which narrow the lateral recessed bilaterally. C5-6 herniated disc posteriorly and to the right which most likely compresses the right C6 nerve root. At C6-7 there is a disc herniation posteriorly. Bilateral C7 nerve roots could be affected by degenerative changes.
Mr. Hovland was taken off work and Atlantic Mutual initiated payment of temporary total disability benefits on August 24, 1995, using an injury date of August 14, 1995.
The Albert Lea Clinic referred Mr. Hovland to a neurosurgeon, Dr. David Beck, in Mason City, Iowa. He saw Dr. Beck on September 6, 1995, and reported to Dr. Beck that on August 8, 1995, while building frames at work, he had immediate neck pain going down his right arm which he had never had before and which caused him to be unable to work. Mr. Hovland also reported to Dr. Beck that his symptoms had essentially resolved after his girlfriend=s daughter walked on his upper back. Dr. Beck released Mr. Hovland to return to work with no treatment recommendations and temporary total disability benefits were discontinued as of September 8, 1995.
Mr. Hovland returned to work at Streater and continued to work there in laboring jobs on the same basis as previously, laid off for some weeks and working for some weeks. Between his return to work in September 1995 and March 1998, he worked a total of 96 weeks and was laid off 37 weeks. Mr. Hovland testified that he had difficulty doing his usual job. He would drop items and would have pain in his neck and shoulder at the end of the day. He would also have headaches that began in his neck. Mr. Hovland did not seek medical care for his neck and shoulder between 1995 and 1998 but did call his family doctor for prescriptions of Ultram, a pain medication.
Mr. Hovland returned to Dr. Beck on March 18, 1998. He reported progressive right arm and neck pain. Dr. Beck ordered a repeat MRI of the cervical spine which was done on March 23, 1998. The MRI showed AC5-6 and C6-7 cervical degenerative disc disease and spondylosis with posterior bony bar formation and broad base disc bulges as well as bilateral areas of foraminal stenosis.@ After the MRI, Dr. Beck advised Mr. Hovland that a foraminotomy and possibly a discectomy at C6-7 would provide relief. Mr. Hovland decided to seek another opinion and on August 18, 1998 was seen by Dr. Ronald Reeves at the Spine Center at Mayo Clinic on referral from his family doctor. Dr. Reeves diagnosed cervical spondylosis and recommended additional testing. Atlantic Mutual denied the testing and Mr. Hovland did not see Dr. Reeves again.
Mr. Hovland was off work as of May 5, 1998, as the result of his cervical complaints and was paid temporary total disability benefits by Atlantic Mutual on the August 14, 1995 injury. He returned to work with restrictions set by his family doctor on June 5, 1998, and his temporary total disability benefits were discontinued.
Mr. Hovland was evaluated by Dr. Stephen Kazi on behalf of the employer and insurer on December 4, 1998. Dr. Kazi agreed with a diagnosis of cervical spondylosis at the C5-6 and C6-7 levels with evidence of radiculopathy in both upper extremities. Dr. Kazi concluded, however, that the condition was the result of degenerative disc disease and that the reported work incident of August 8, 1995, was not a contributing factor in the current symptoms. Dr. Kazi also stated Mr. Hovland had restrictions from his cervical condition which limited him to light work.
Mr. Hovland saw his family doctor for his cervical condition on a number of occasions between the end of 1998 and March 1999. No active treatment was provided. He did not see a doctor for his condition after March 1999, but received refills of Ultran from his family doctor.
Mr. Hovland continued to work at Streater until July 2002. As in the past, he worked for a number of weeks and was laid off for some weeks during the period June 1998 to July 2002. He worked during this time on a restricted basis. Mr. Hovland was not called back to work after his layoff in July 2002, and in 2004, he went back to Streater to resign so he could use his retirement account money. As of the date of hearing, Mr. Hovland was working for the City of Albert Lea in the Utilities Department. He testified that the work with the city was work he was physically able to tolerate.
In March 2003, Mr. Hovland filed a claim petition, alleging entitlement to various workers= compensation benefits as the result of the August 14, 1995, injury at Streater.
Mr. Hovland saw Dr. Robert Wengler at the request of his attorney on October 28, 2004. Dr. Wengler prepared a report and, for the hearing, provided a deposition in March 2006. Dr. Wengler was given a hypothetical question which incorporated the history given at the Albert Lea Clinic on August 14, 1995, of heavier work with worsening symptoms over the previous four to five weeks. The hypothetical also included Mr. Hovland=s history of a specific incident on or about August 8, 1995, and provided information concerning the employee=s employment with Streater since 1989. Dr. Wengler=s opinion was that Athis is a developing Gillette phenomenon with an acute aggravation precipitated by the work activities approximate to August of >95.@ It was Dr. Wengler=s opinion that the work injury was a substantial contributing factor in the employee=s present condition and need for work restrictions. He also rated Mr. Hovland as having 22 percent permanent partial disability of the whole body.
Dr. Kazi evaluated Mr. Hovland again on March 10, 2006, and gave a deposition before the hearing. In his report, Dr. Kazi noted the differing histories concerning the onset of cervical pain. Dr. Kazi stated that the MRI reports showed evidence of a Adegenerative process of chronic nature.@ Dr. Kazi concluded there was no Gillette injury and that the work injury Aon or about August 14, 1995,@ was a temporary exacerbation of the underlying chronic condition. On cross-examination, Dr. Kazi conceded that working at a job requiring lifting of 51 to 100 pounds could aggravate an underlying degenerative condition but stated that such an aggravation would require work at this level over several years.
The hearing took place before Compensation Judge Harold Schultz II on April 4, 2006, and the record closed on April 26, 2006, with the filing of post-hearing memoranda from the attorneys. In his Findings and Order of June 26, 2006, the compensation judge concluded that Mr. Hovland had sustained a Gillette injury on August 14, 1995, in addition to the specific injury on August 8, 1995. The compensation judge awarded the 22 percent permanent partial disability rated by Dr. Wengler and ordered payment of monitoring period benefits, temporary partial disability benefits and medical expenses. Streater and Atlantic Mutual appeal.
The compensation judge determined that Mr. Hovland sustained a Gillette injury on August 14, 1995, as well as a specific injury on August 8, 1995, and that these injuries were substantial contributing factors in his current condition, including his wage loss, need for medical care, and permanent partial disability. Streater and Atlantic Mutual argue the compensation judge erred, first, in basing liability in part on a Gillette injury and second, in finding the 1995 work injury to be permanent.
Streater and Atlantic Mutual argue that, although they admitted an injury on August 14, 1995, they had admitted a specific injury and not a Gillette injury. They further contend that a Gillette injury claim is barred by the statute of limitations and that, accordingly no liability can be imposed for the claimed 1995 injury. We disagree.
The statute establishes liability for a personal injury which arises out of and in the course of employment. Minn. Stat. ' 176.021, subd. 1. Payment of compensation to an injured employee constitutes a proceeding which tolls the statute of limitations, a process which is generally referred to as Aadmitting@ an injury. Minn. Stat. ' 176.151, Savina v. Litton Indus./Litton Medical Systems, 330 N.W.2d 456, 35 W.C.D. 659 (Minn. 1983). When an employer admits a personal injury, it does not admit a specific injury or a Gillette injury. The question for the compensation judge in the present case was whether the personal injury of August 14, 1995, an injury for which Atlantic Mutual paid workers= compensation benefits, was a substantial contributing factor in Mr. Hovland=s present disability. The mechanism of the personal injury is irrelevant in this case except to the extent it assists in answering this question.
In this case, Mr. Hovland attributed the cause of his problems to the specific incident on August 8, 1995. There is no medical opinion establishing causation for the cervical condition with that incident. The initial medical records emphasize work activity over the preceding four to five weeks which was heavier than usual. Dr. Wengler found that history, as well as the history of physical labor over a number of years, to be significant. Further, we note that the First Report of Injury, filed by Streater, identified the August 14, 1995, work injury as being due to Arepetitively using screw gun to put frames together.@
The compensation judge found the August 14, 1995 injury, to be a substantial contributing factor in the employee=s cervical condition. The question for this court is whether substantial evidence supports the compensation judge=s finding. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
Dr. Wengler and Dr. Kazi, the medical doctors who provided opinions in this matter, agree that the employee=s diagnosis was that of cervical spondylosis. Dr. Kazi testified that the spondylosis was a result of a degenerative condition not related to any work injury. In contrast, Dr. Wengler testified that the degenerative condition had been aggravated by the employee=s work injury and that the work injury was a substantial contributing factor in the employee=s current situation.
Both Dr. Kazi and Dr. Wengler had adequate foundation for their opinion. Indeed, the information available to each doctor was virtually identical. The compensation judge accepted the opinion of Dr. Wengler. This court has stated previously that a determination of a compensation judge based on a medical opinion will be affirmed if the medical opinion relied upon was well founded. Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003).
Streater and Atlantic Mutual also argue that the compensation judge erred in finding the 1995 work injury to be a permanent injury. They contend that any ongoing disability is the result of the underlying degenerative condition and not the 1995 work injury. Streater and Atlantic Mutual point to the lack of significant treatment between 1995 and 1998 and claim that the 1998 treatment from Dr. Beck is clearly the result of the degenerative condition. Essentially, on appeal, Streater and Atlantic Mutual want this court to adopt the opinion of Dr. Kazi. The choice between competing medical opinions is a choice for the compensation judge to make. Nord v. City of Cook, 360 N.W.2d 364, 37 W.C.D. 364 (Minn. 1985). In the present case, the compensation judge adopted the opinion of Dr. Wengler that the employee=s work injury resulted in an aggravation of the employee=s underlying degenerative condition. The permanent partial disability which results from the aggravated condition is compensable. Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975). Dr. Wengler=s opinion provides sufficient support for a determination that the 1995 work injury is a substantial contributing factor in Mr. Hovland=s current disability, including his permanent partial disability.
The compensation judge=s decision is affirmed.