PARISS K. LONDON, Employee/Appellant, v. UNITED PARCEL SERV., and LIBERTY MUT. INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 14, 2007
CAUSATION - TEMPORARY AGGRAVATION. Substantial evidence supports the compensation judge=s determination that the employee=s work injury of August 1, 2006, was a temporary aggravation of his pre-existing neck and back condition, from which the employee had fully recovered by August 21, 2006.
Determined by Johnson, C.J., Wilson, J., and Pederson, J.
Compensation Judge: James F. Cannon
Attorneys: Pariss K. London, pro se Appellant. David J. Odlaug and Jason Schmickle, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s finding that his personal injury of August 1, 2006, was a temporary aggravation of a pre-existing condition from which the employee fully recovered by August 21, 2006. We affirm.
Pariss K. London, the employee, sustained a personal injury on August 1, 2006, arising out of his employment with United Parcel Service, the employer, then insured by Liberty Mutual Insurance Company. On that date, the employee was driving a semi-tractor through the Burlington Northern & Santa Fe Railroad yard to pick up a trailer. As he was crossing a railroad track, the passenger side of the employee=s truck was struck by a railroad car driving at approximately three to five miles per hour. The employee=s truck was pushed sideways down the track for a distance of approximately 12 feet. After the accident, the employee unfastened his seatbelt and exited the cab of the truck. The employee testified he did not have any pain or discomfort in his neck or back at that time.
The employee did not work on August 2, 2006. He testified he awoke at 3:30 a.m. on August 3, 2006, with pain in his mid and low back. The employee sought treatment at Kenwood Chiropractic Arts where he had previously been treated for back and neck injuries. The employee complained of neck and back pain. Natalie Dousette, D.C., took the employee off work and commenced a regimen of chiropractic treatment. Dr. Dousette referred the employee to the Noran Neurological Clinic where he had also previously treated. The employee saw Dr. Ronald Tarrel on September 12, 2006, and gave a history of developing significant neck and back pain and headaches following his August 1 personal injury. The doctor=s neurologic examination was essentially normal with no evidence of sensory loss. Dr. Tarrel diagnosed a cervical and lumbar sprain with an aggravation of underlying known degenerative changes, and opined the employee was improving with the chiropractic treatment.
An October 2006 MRI scan of the lumbosacral spine was normal with no evidence for disc herniation or stenosis. An MRI scan of the cervical spine in November 2006 was compared to a cervical myelogram CT scan obtained in July 2001. The radiologist stated there appeared to be greater degenerative changes at C5, C6, and C7 with an osteophyte at C6-7 that was not present on the previous study. The conclusion was worsening degenerative changes of the lower cervical spine.
The employee had a prior history of neck and back injuries. In 1994, the employee injured his neck and back in a motor vehicle accident for which he sought treatment at both Kenwood Chiropractic Arts and the Noran Clinic. On November 13, 2000, the employee sustained a work-related injury when he was struck by a falling box. The employee again treated at Kenwood Chiropractic Arts and the Noran Clinic for this injury. A cervical MRI scan in January 2001 showed moderate to advanced multi level cervical disc degeneration and multi level foraminal stenosis at C6‑7 and C7-T1. When compared to a prior MRI scan of February 1995, the radiologist noted the degenerative changes at the C7-T1 level were new. The employee saw Dr. Fred Lux at the Noran Clinic on February 14, 2001. The doctor ordered an EMG nerve conduction test of the right arm and leg which was normal. Dr. Lux concluded the employee=s symptoms were mostly myogenic in cause and opined the employee=s pain would improve. A cervical myelogram in July 2001 showed bone spurs at C5-6 and C6-7 with mild ventral ridging at C4-5 and C5-6. A CT scan following the myelogram showed a C5-6 disc herniation without evidence for nerve root compression with moderate bilateral stenosis at C6-7 and C7-T1. By report dated September 12, 2001, Dr. David Stussy at Kenwood Chiropractic diagnosed a compression injury to the employee=s neck, shoulder, and low back, myofascitis and an aggravation of pre-existing degenerative cervical and thoracic conditions. Dr. Stussy rated a 12% permanent disability secondary to the work injury, placed restrictions on the employee=s activities, and stated he would suffer from exacerbative symptoms in the future that would limit his ability to work from time to time.
Dr. Paul Cederberg, an orthopedic surgeon, examined the employee in August 2006 at the request of the employer and insurer. The doctor diagnosed neck and back pain of unknown etiology and opined, the employee was not injured in the August 2006 injury. At worst, Dr. Cederberg opined, the personal injury caused a temporary aggravation of the employee=s pre‑existing condition which had resolved, and no further treatment was reasonable or necessary.
The employer and insurer admitted liability for the employee=s August 1, 2006, personal injury and commenced payment of temporary total disability benefits. Thereafter, the employee filed a request seeking rehabilitation services and filed a medical request. The employer and insurer, based upon Dr. Cederberg=s report, filed a Petition to Discontinue Benefits. The consolidated pleadings were heard by a compensation judge at the Office of Administrative Hearings. In a findings and order, the compensation judge found that prior to his personal injury, the employee had a pre-existing neck and back condition. The judge found the employee=s personal injury of August 1, 2006, was a temporary aggravation of the pre-existing condition which resolved by August 21, 2006. Based upon these findings, the compensation judge allowed the employer and insurer to discontinue benefits to the employee, and denied the employee=s claims for medical expenses and rehabilitation services subsequent to August 21, 2006. The employee appeals.
The pro se employee contends the findings and order of the compensation judge are unsupported by substantial evidence. The employee further asserts the admission into evidence of Dr. Cederberg=s August 28, 2006, medical report somehow constituted fraud. For these reasons, the employee contends the findings and order of the compensation judge must be reversed.
As part of his appeal, the employee submitted two medical reports relative to his November 13, 2000, injury: a report of Dr. Cederberg dated May 22, 2001, and a health care provider report completed by Dr. Lux, dated April 30, 2001. Neither of these reports were offered into evidence at the hearing before the compensation judge. Dr. Cederberg=s 2001 report was directed to American Interstate Insurance Company which presumably was the workers= compensation carrier for the employee=s November 13, 2000, work injury. In this report, Dr. Cederberg concluded the employee had subjective symptoms without objective clinical findings, and diagnosed a resolved contusion of the neck and right shoulder and pre-existing multilevel degenerative disc disease of the cervical spine. Dr. Cederberg opined the employee sustained no permanent partial disability as a result of the November 2000 work injury and stated the 12% permanency rating of Dr. Stussy was not accurate. The April 2001 report of Dr. Lux stated there was no evidence of any pre-existing condition affecting the employee=s disability and opined it was too early to determine whether the employee sustained any permanent partial disability by reason of his November 2000 personal injury. The employee apparently contends, based upon these two medical reports, that the compensation judge=s finding, that the employee had permanent restrictions and a 12% permanent partial disability as a result of the November 2000 personal injury is unsupported by substantial evidence. The employee further argues that in view of his 2001 report, the 2006 report of Dr. Cederberg is a fraud upon the court. We are not persuaded.
This court=s review on appeal from the findings and order of a compensation judge is limited to the evidence submitted to the compensation judge. See Gollop v. Gollop, 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986). In very limited circumstances, however, the interests of justice may require that this court consider medical reports omitted from the hearing record and remand the case to the compensation judge for further review. See e.g., Neumann v. AT & T, slip op. (W.C.C.A. June 15, 2001); see also, Horan v. Blake Constr., 453 N.W.2d 52, 42 W.C.D. 791 (Minn. 1990).
The employer and insurer offered into evidence Exhibit 3, the medical records of the Noran Neurologic Clinic. There is no explanation as to why Dr. Lux=s April 30, 2001, health care provider report was not included in Exhibit 3. With respect to Dr. Cederberg=s 2001 report, we find no evidence of mistake, omission, or inadvertent error in failing to offer it into evidence. We conclude these two reports are not of such significance as to require a reopening of the record and a remand to the compensation judge. While we acknowledge the employee might reasonably have expected Exhibit 3 to include Dr. Lux=s April 2001 report, it is apparent from the radiographic tests performed at the Noran Clinic that the employee had degenerative disc disease which pre-dated his 2000 work injury. Dr. Cederberg opined, in May 2001, the employee had pre-existing multilevel degenerative disc disease of the cervical spine. In his 2001 report, Dr. Cederberg did not state the employee had no permanent disability or restrictions, but rather, stated he had no permanent disability or restrictions secondary to the 2000 work injury. This is essentially the same opinion Dr. Cederberg rendered following the August 2006 personal injury. Contrary to the employee=s suggestion, we do not find Dr. Cederberg=s two reports to be inconsistent nor do we find any evidence of fraud. The reports of Dr. Lux and Dr. Cederberg are not inconsistent with the compensation judge= findings, and we find no legal or equitable basis upon which to reopen the record or remand the case to the compensation judge.
There is evidence in this case which, if accepted by the compensation judge, would support a different outcome. That evidence includes the testimony of the employee and the records of Kenwood Chiropractic Arts. The issue before the court, however, is not whether the evidence will support a different finding but whether substantial evidence supports the decision reached by the compensation judge. It is the role of this court to determine whether the 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).
Dr. Cederberg reviewed the employee=s medical records and performed a physical examination of the employee. This knowledge of and experience with the case provide an adequate foundation for Dr. Cederberg to render an expert opinion. Dr. Cederberg opined the August 1, 2006, work incident was, at worst, a temporary aggravation of the employee=s pre-existing degenerative disc disease which had resolved by the date of the doctor=s examination. While Dr. Stussy had a different opinion, it is the compensation judge=s responsibility, as the trier of fact, to resolve conflicts in expert testimony. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Because Dr. Cederberg=s opinions were adequately founded, the compensation judge could reasonably rely upon them. The medical report of Dr. Cederberg constitutes substantial evidence which supports the compensation judge=s decision. Accordingly, that decision must be affirmed.