JOHN BRUYER, Employee/Appellant, v. PIZZA HUT and PMA GROUP/GALLAGHER BASSETT SERVS., INC., Employer-Insurer, and MINNESOTA DEP’T OF HUMAN SERVS./BRS, MILLENNIUM NEUROSURGERY, STILLWATER MED. GROUP, and ST. CROIX ORTHOPAEDICS, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 15, 2008
CAUSATION - TEMPORARY INJURY. Substantial evidence, including expert medical opinion, supported the compensation judge’s decision that the employee sustained only a temporary cervical injury in a work-related low-speed motor vehicle collision.
Determined by: Wilson, J., Stofferahn, J., and Rykken, J.
Compensation Judge: Harold W. Schultz, II
Attorneys: Dennis Atchison, Malone & Atchison, Edina, MN, for the Appellant. Timothy P. Eclov, Johnson & Condon, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s decision that the employee’s February 6, 2007, work-related cervical injury was merely temporary and resolved by April 25, 2007. We affirm.
On the evening of February 6, 2007, the employee was involved in a motor vehicle accident while in the course and scope of his employment as a pizza delivery driver for Pizza Hut [the employer]. As the employee described it, the accident occurred when the car he was driving rear-ended another car that had stopped for a traffic light. The employee testified that he was wearing a seatbelt but nevertheless struck his head on the car windshield. His car was evidently moving slowly at the time of the collision; by one report, he was traveling at a rate of 10 miles per hour. The force of the collision damaged the employee’s front bumper and the other driver’s rear bumper. The estimated cost to repair the employee’s car, to replace the front bumper cover, license bracket, and emblem, was about $800.00.
The employee testified that he had a headache immediately after the accident and that he returned to the restaurant to report the accident to his shift supervisor. It is unclear whether he finished his shift that night.
The employee testified that he began experiencing neck pain and shooting left arm pain the day after the collision, but he did not seek medical care for two more days, until February 9, 2007, when he was seen at Lakeview Hospital emergency room. Records from that evaluation indicate that the employee had been experiencing increasing neck and bilateral arm pain since the accident three days before and that he believed that he might have struck his head on the roof of the car. The employee underwent a cervical x-ray, which revealed a reversal of expected cervical lordosis at C3-4, but no soft tissue swelling, and he received an injection of morphine prior to being discharged home.
The employee was subsequently seen by several different physicians for escalating complaints of neck and radiating arm pain, particularly left arm pain. An MRI scan performed on March 1, 2007, was read as revealing a “[s]ubtle left eccentric protrusion at the proximal foraminal level” at C5-6, causing foraminal encroachment with some right uncinate spurring and mild narrowing of the right foramen at that level, but no cord effacement. In a treatment note from the next day, one provider described the scan as showing “questionable mild cervical changes at C5-6” and wrote that it was “unclear if this was causing significant discomfort.”
Physical therapy and therapeutic injections were apparently ineffective in relieving the employee’s symptoms. The employee, who has a long history of chemical dependency, at times sought prescriptions for narcotic pain medication from more than one provider, at one point even altering a prescription to provide for more medication. Nevertheless, because of the apparent failure of conservative care, Dr. Gregory Harrison, a neurosurgeon, concluded that the employee would benefit from surgery.
That surgery, a left C5-6 keyhole foraminotomy, was performed by Dr. Harrison on April 26, 2007, after several emergency room visits by the employee for complaints of severe neck pain. The surgery was considered somewhat successful, in that the employee reported relief from about 50% of his arm symptoms. However, a second surgery, with an anterior approach, has been recommended by Dr. Harrison to deal with the remainder of the employee’s pain complaints.
When the matter came on for hearing on December 27, 2007, issues included the nature and extent of the February 6, 2007, injury and whether the employee’s treatment, including the April 2007 surgery, was reasonable, necessary, and causally related to the injury. Evidence included the employee’s medical records, including records from treatment prior to the February 6, 2007, accident; a DVD and report concerning surveillance of the employee in September of 2007; causation opinions from Dr. Harrison and from Dr. David Florence, the employer and insurer’s expert examiner; and the employee’s testimony.
In a decision issued on February 25, 2008, the compensation judge concluded, in relevant part, that the employee had sustained a temporary injury to his cervical spine on February 6, 2007, and that the effects of that injury had continued only through April 24, 2007. Accordingly, the judge denied all claimed benefits after April 24, 2007, including medical expenses associated with the April 26, 2007, surgery. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers’ Compensation Court of Appeals must 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 (2008). Substantial evidence supports the findings if, in the context of the entire record, “they 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, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of 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).
Two physicians offered opinions about the nature and extent of the employee’s injury.
In a December 13, 2007, report, Dr. Harrison, the employee’s surgeon, described the employee’s symptoms, scan results, and course of treatment before concluding that, “to a reasonable degree of medical certainty, [the employee’s] cervical issues are related to his motor vehicle accident from February of 2007.” Dr. Harrison also indicated that he had offered the employee a second surgery, from an anterior approach, and that further recommendations as to restrictions and permanent partial disability could be addressed after the second procedure was completed.
Dr. Florence, the employer and insurer’s medical expert, disagreed with Dr. Harrison’s conclusions and recommendations. In his report, dated October 2, 2007, Dr. Florence indicated that he had reviewed the employee’s medical records, from fourteen different providers, and he described various findings noted in some of those records. Dr. Florence also took a history from the employee and conducted a physical examination. In the diagnosis section of his report, Dr. Florence wrote as follows:
1. Status post discectomy, C5-C6 left, without definitive objective radiculopathy.
2. Subjective radiculopathy, C6 nerve root, left, seen on MRI, not substantiated clinically.
3. Neck and left arm pain.
4. Nicotine dependence.
5. Medication abuse history.
6. History of anxiety.
7. History of depression.
8. Marked functional overlay.
In the discussion section of the report, Dr. Florence expressed concern that cervical disc surgery had been performed so soon after the employee’s accident without any EMG studies to confirm a neurological deficit, and he indicated that the C6 nerve root compression seen on the employee’s MRI was not substantiated by either EMG or any other definitive evidence of motor deficit. Dr. Florence went on to conclude that
[i]n all probability, based on minimal impact of the accident (previously acknowledged by Mr. Bruyer as 10 miles per hour), plus the fact that Mr. Bruyer’s car has never been repaired and is still the “family car,” and the overall functional overlay factors, it would appear that Mr. Bruyer had little or no physical injuries or conditions resulting from the motor vehicle accident of February 6, 2007.
The likelihood of Mr. Bruyer having a significant cervical condition from this type of minimal (10 miles per hour) accident is slim to none.
Furthermore, according to Dr. Florence, even assuming that he had sustained a minor cervical injury in the February 6, 2007, motor vehicle accident, the employee would have reached maximum medical improvement from the effects of the injury within three weeks, at most. As such, in Dr. Florence’s opinion, the employee’s April 26, 2007, surgery was not reasonable, necessary, or causally related to the accident.
In his decision, the compensation judge found that “the employee sustained a temporary injury to his cervical spine on February 6, 2007, and the effects of that lasted through April 24, 2007.” The compensation judge also concluded that the employee’s April 2007 cervical surgery was not reasonable and necessary and that the February 6, 2007, accident was “not a substantial contributing factor to that surgery.” In his memorandum, the judge went on to explain his decision on these issues as follows:
The preponderance of the evidence is that the employee sustained no more than a temporary injury as a result of the February 6, 2007 motor vehicle accident. He was involved in a low speed impact on that day and sustained a minimal amount of trauma. He did not seek medical treatment for three days subsequent to that and the entries from the providers beginning at that point do not indicate any observable trauma such as any bruising or injury to the head/scalp.
The employee did sustain a cervical spine injury which had to be addressed. He received medication and then went through some diagnostic studies along with an epidural steroid injection. This compensation judge is convinced that the medical treatment was reasonable and necessary to address the effects of the injury through April 24, 2007. However, the situation is different in respect to the treatment after that point.
The employee was admitted to St. Joseph’s Hospital on April 25, 2007 for surgery that occurred the following day. That surgery and all the treatment subsequent to that was not substantially contributed to by the effects of the injury. This compensation judge accepts the opinion of Dr. Florence, with slight qualification. Dr. Florence sees this as a temporary injury of about three weeks duration. This compensation judge concludes that the temporary injury lasted for a few weeks in addition to that. In any event, this compensation judge agrees with Dr. Florence that the surgery was neither reasonable nor necessary nor causally related to the personal injury.
On appeal, the employee argues, in part, that Dr. Florence’s opinion as to the minor nature of the employee’s injury lacks foundation, because Dr. Florence based his opinion on the erroneous assumption that there were “no significant findings on the MRI,” that a 10-mile-per-hour crash “could not cause a significant neck injury,” and that, “because the family car was still drivable, no significant injury could have occurred.” We are not persuaded.
It may be true, as the employee alleges, that Dr. Florence did not review the employee’s actual MRI scan, as opposed to the scan report, before rendering his opinion as to the nature of the employee’s injury. However, it is clear to us that Dr. Florence did not base his opinion on any supposed lack of “significant findings” on MRI; rather, the doctor concluded that the MRI findings alone were not significant because those findings had not been confirmed by any objective evidence - - such as an EMG - - of neurological or motor deficit. In other words, Dr. Florence found no objective clinical correlation between the MRI findings and the employee’s symptoms.
We are similarly unpersuaded by the employee’s arguments concerning the nature of the accident itself. Obviously, the speed of a collision and the damage done to the involved vehicle are the kind of factors that medical experts typically consider in evaluating questions of medical causation. And, to the extent that the employee is suggesting that Dr. Florence lacked the expertise necessary to offer an opinion concerning the probable effects of a low-speed collision, the same argument could be made regarding Dr. Harrison. That is, there is no evidence in the record to support the conclusion that Dr. Harrison has any greater expertise in this regard than Dr. Florence.
A compensation judge’s choice between conflicting expert opinions is generally upheld if the facts assumed by that expert are supported by the record. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). In the present case, we find no basis to conclude that the compensation judge erred in relying on the opinion of Dr. Florence that the employee’s February 6, 2007, injury was merely temporary.
The employee also argues that the judge’s decision is unsupported by the record as a whole, because his decision as to the duration of the injury - - through April 24, 2007 - - is not supported by the opinion of any medical expert. As the employee points out, Dr. Florence indicated that any injury would have resolved within about three weeks, and, the employee maintains, there is no logical basis in the record to cut off the employer and insurer’s liability for the employee’s treatment expenses and disability two days before surgery, when the employee had been undergoing more or less continuous treatment, for the same symptoms, since the date of injury.
This argument is not entirely without merit, as we can find no specific evidence supporting the judge’s decision regarding the duration of the employee’s injury, and the judge offered no real explanation on this point. However, as previously indicated, the record reasonably supports the judge’s decision that the injury was temporary. As such, the effects of the employee’s cervical injury ended, by definition, prior to the employee’s cervical surgery. The only other option, under these circumstances, would be to conclude that the effects of the injury ended prior to the date chosen by the compensation judge. However, as this would merely benefit the employer and insurer, and the employer and insurer did not appeal, we instead find it appropriate to affirm the judge’s decision in its entirety.
 The employee had been performing this job for the employer, part time, for about two months prior to the accident. He had also been employed, full time, as a carpenter, for a company called Purcell Construction, where he had worked for about a year and a half. On the afternoon of February 6, 2007, prior to reporting to his job with the employer, the employee was laid off from his construction job.
 The employee had some history of treatment for neck and back symptoms prior to the incident at issue here, but there is no evidence of any ongoing treatment, symptoms, or restrictions related to his prior condition.
 As noted earlier in this decision, one of the employee’s medical providers described the scan as showing “questionable mild cervical changes at C5-6, unclear if this is causing significant discomfort.” In his report, Dr. Florence described one reference by Dr. Harrison to “diminished [sensation] globally in the left upper extremity” as a “major red flag for functional overlay.” In general, treating physicians noted little or no spasm, motor deficits, or reflex abnormalities.