GAIL M. CIESLAK, Employee/Appellant, v. MINNESOTA OCCUPATIONAL HEALTH and RTW GROUP, Employer-Insurer/Cross-Appellants, and PREFERREDONE ADMIN. SERVS./INGENIX, ALLINA MED. CLINIC, and MINNESOTA DEP’T OF EMPLOYMENT AND ECON. DEV., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 30, 2008
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge’s decision that a twisting incident at work did not substantially contribute to the employee’s hip condition and did not result in a personal injury within the meaning of the Workers’ Compensation Act.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Harold W. Schultz, II
Attorneys: Eric R. Lee, Lee Law Firm, Minneapolis, MN, for the Appellant. Gregg A. Johnson and Joseph P. Mitchell, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Cross-Appellants.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s finding that the employee did not sustain a work-related injury. The employer and insurer cross-appeal from the judge’s finding that the employee provided timely notice. We affirm the judge’s finding on primary liability, and, as a result, we need not consider the cross-appeal.
The employee began working for Minnesota Occupational Health [the employer] on August 29, 2006. She was 43 years old at the time. Prior to her employment with the employer, the employee had undergone multiple surgeries, including approximately 15 surgeries to her right knee (culminating in a knee replacement in 1998), gallbladder surgery, decompression surgery on her right shoulder, a hysterectomy, an appendectomy, and an anterior/posterior fusion at L4-S1 in August of 2005. She had three prior workers’ compensation injuries: a back injury on July 24, 1991, a right knee injury on February 12, 1996, and a lumbar/thoracic spine injury on December 4, 2000. Medical records reflected complaints of left hip pain in 2001, symptoms in the left lateral thigh from the greater trochanteric region radiating down the anterior thigh in 2002, and left hip pain radiating to the groin area and upper thigh in 2005 after her back fusion.
On September 5, 2006, as she was bending over to grab a bag from a trash receptacle, the employee twisted when her stethoscope began falling into the not yet closed bag. She later testified that she “popped [her] hip out” at that time and felt “an electrical shock coming from inside going out in [her] groin area and then burning along side the lateral part of [her] hip.” The employee also testified that, within the first week after this incident, she could not lie on her left side, and it had begun getting harder to get into and out of her car at the end of the day.
The employee was seen by Dr. Steven Anderson at Allina Medical Clinic-Woodlake on September 15, 2006, for a prescheduled exam for evaluation of a possible hernia. The employee testified that she discussed the September 5, 2006, incident and hip symptoms with Dr. Anderson at that appointment. His office notes reflect, “Low back/hip pain. Hip pain has been since the surgery. On the left radiating to the thigh. . . . Hip waxes and wanes.”
The employee continued to work without time off due to her symptoms from September 5, 2006, until October 25, 2006, and she received no additional medical treatment of any kind until October 27, 2006, when she returned to Dr. Anderson. Office notes from that appointment reflect as follows:
Hip popped out and hurt bad and then got better but not resolved. Hurt when she was at work, jerked right hip when trying to prevent her stethoscope from falling into the dirty/red waste bag. Tuesday of this week was dealing with sharps again, then felt like grinding and clicking. Now is catching a clicking audibly.
The employee received a steroid injection into the left hip that day and responded well.
On November 10, 2006, the employee was seen again by Dr. Anderson, who noted that the employee was “still with left hip pain.” He performed a steroid injection at the left trochanter bursa, which the employee tolerated well and resulted in much easier movement and ambulation. On that same date, Dr. Anderson prepared a clinic report of work ability, listing the employee’s diagnosis as enthesopathy of hip region and indicating that the condition was work related.
The employee underwent an MRI of the pelvis and left hip on December 11, 2006. The radiologist’s impression was
mild articular cartilage loss of both hip joints in symmetric fashion without evidence of erosion or effusion. There is slight increased T12 signal intensity in the soft tissue adjacent to the left greater trochanter, which could represent minor soft tissue contusion, myotendinous strain of the gluteal insertion, or early bursitis.
On December 12, 2006, Dr. Anderson noted that the employee had been off of work from October 25 through October 27; on November 10, 13, and 15; and from November 21 to December 12, 2006, and that the employee’s hip symptoms were improved as a result of her time off.
The employee saw Dr. Bradley Nelson, at TRIA Orthopaedic Center, on December 14, 2006. Dr. Nelson recommended physical therapy and a repeat MRI. It was his opinion that the employee had greater trochanteric bursitis and a snapping iliotibial band, but he was concerned that her complaints of occasional radiating pain into the groin could be indicative of a labral tear. A repeat MRI of the employee’s left hip, performed on January 16, 2007, showed a small focus of increased signal along the acetabular labrum.
Dr. Nelson saw the employee again on January 18, 2007, two days after an unsuccessful repeat corticosteroid injection. He reviewed the repeat MRI and was not convinced that the employee had a labral tear. He also indicated that it was difficult to determine the employee’s pain generator as her symptoms were relatively diffuse in nature. He recommended a continued gentle rehabilitation program and also suggested a second opinion if her symptoms did not resolve within 6-8 weeks.
On January 31, 2007, the employee was examined by Dr. Christopher Larson, for a second opinion. Dr. Larson recorded a history of left hip pain that had not gotten significantly better with physical therapy and had recently worsened. He interpreted her MRI as showing evidence of a small labral tear involving the superior/anterior acetabular labrum, and he suggested another coricosteroid injection and continued rehabilitation. However, noting that the employee was frustrated with rehabilitation, the doctor told her that she could consider hip arthroscopy, labral repair. Surgery has apparently been scheduled.
The employee was examined by independent medical examiner Dr. Paul Wicklund on March 2, 2007. In a report dated March 6, 2007, Dr. Wicklund noted that the employee did not recall ever having experienced left groin pain or left hip problems prior to September 5, 2006, and that she gave a history of a pop and an electric-like shock in her left groin, with pain along the left lateral hip area, following the September 5, 2006, twisting incident. Dr. Wicklund diagnosed left hip and groin pain secondary to a labral injury occurring on September 5, 2006. On April 16, 2007, the attorney for the employer and insurer sent Dr. Wicklund records from 29 additional medical providers. After reviewing those records, Dr. Wicklund wrote a letter, dated April 23, 2007, stating that the additional medical records raised “definite questions regarding causation of her labral injury to her left hip.”
On May 1, 2007, Dr. Larson wrote a letter indicating that his final diagnosis was a labral tear and some mild capsular laxity “secondary to an injury that [the employee] sustained while bending over and twisting at work.” He went on to state,
Based on the MRI and based on the x-rays and her physical exam, it seems apparent that the pain she is having is coming from her hip joint. An injection relieved the majority of that pain temporarily that again indicated that her pain is likely coming from this specific injury. I think to the best degree of medical certainty it is likely based on no pain prior to this and pain after this, this is what her symptoms and injury are related to. If she would’ve had pain prior to this injury it is possible that she aggravated a preexisting injury however I have no evidence that she was having problems prior to this specific injury based on my note.
The employee filed a claim petition on December 11, 2006, seeking temporary total disability benefits, medical benefits, including approval for hip surgery, and a rehabilitation consultation as a result of a claimed left hip injury on September 5, 2006. That claim petition proceeded to hearing on an expedited basis on May 4, 2007. The record was left open at the conclusion of the hearing that day, in part to allow for the deposition of Dr. Wicklund and a supplemental report from Dr. Larson.
Dr. Wicklund’s deposition was taken on May 17, 2007. At that deposition, he indicated that he had reviewed medical records from an additional 16 providers since his April 2007 letter, and he described how a person could injure the labrum of the hip and the symptoms that would follow. He testified that waxing and waning hip pain would be consistent with a long-standing labral tear. Dr. Wicklund further testified that, after reviewing the additional medical records, he had come to conclude that the employee had not injured her left labrum on September 5, 2006. Dr. Wicklund was also questioned about Dr. Nelson’s diagnosis of greater trochanteric bursitis, and he agreed that the employee had that condition, cause unknown.
The June 11, 2007, letter of Dr. Larson was submitted to the compensation judge on June 14, 2007. In that letter, Dr. Larson stated that, with regard to medical records indicating that the employee was having left hip and groin pain in August of 2005, “the key would be to note whether or not her pain was similar to the previous pain she had or whether or not this pain was previously more consistent with her radicular symptoms.” It was Dr. Larson’s suggestion that Dr. Transfeldt, who had treated the employee in 2005, give his opinion as to whether the employee’s symptoms in 2005 were radicular in nature, or whether they were similar to what she experienced in 2006.
In findings and order filed on July 31, 2007, the compensation judge found, in relevant part, that the employee was involved in an incident on September 5, 2006, where she twisted as she was removing a bag from a trash receptacle, but that that incident did not cause a personal injury within the meaning of the Minnesota Workers’ Compensation Act and was not a substantial contributing cause of her need for medical treatment beginning September 15, 2006, or her time off from work. The judge also found that the employee did give notice of the incident to the employer within 30 days of September 5, 2006. The employee appeals and the employer and insurer cross-appeal.
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 (2006). 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 the 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).
The employee first contends that the judge erred “as a matter of law by holding that the employee did not sustain a personal injury within the meaning of the [Minnesota] Workers’ Compensation Act.” Specifically, the employee contends that the event which precipitated the injury was the stethoscope slipping from the employee’s neck causing her to jerk suddenly and that “this risk is not a risk that the general public is subject to.”
The employee’s argument is misplaced. The compensation judge clearly accepted the employee’s testimony that she twisted at work on September 5, 2006, as her stethoscope slipped, and there is no suggestion that the compensation judge did not think that this activity arose out of and in the course of the employee’s employment. What the judge went on to find, however, was that the incident was “not a substantial contributing factor to the treatment beginning September 15, 2006, and her time off of work beginning in October 2006.”
In his memorandum, the compensation judge stated that he had accepted the opinions of Dr. Wicklund as set forth in his deposition. A judge’s choice of expert opinions is generally upheld unless the facts assumed by the expert are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employee argues that “the fact that [Dr. Wicklund] later changed his opinion based on his review of prior medical records for the low back does not undermine the logic of the cause and effect opinion expressed in his initial report.” We are not persuaded.
Dr. Wicklund did initially opine that the employee had sustained a labral injury of her left hip on September 5, 2006, as a result of the twisting incident. But, as Dr. Wicklund later testified, his opinion to that effect was based in part on the assumption that the employee had never had previous left hip or groin pain and that the employee’s first treatment for the left hip, after September 5, 2006, was October 27, 2006, records from which date reference the September 5, 2006, incident. When Dr. Wicklund was made aware of prior medical records reflecting symptoms potentially consistent with a labral tear, and the September 15, 2006, office note of Dr. Anderson, which did not contain any history of injury on September 5, 2006, but instead referenced hip pain that had waxed and waned since the employee’s back surgery, Dr. Wicklund changed his opinion. Based on this new information, which conflicted with what the employee had told him, Dr. Wicklund opined that the employee’s subtle labral tear dated back to August of 2005 or earlier. There being no argument that Dr. Wicklund’s opinions are based on facts not supported by the evidence, we affirm the judge’s choice of expert opinions.
The employee also contends that the compensation judge erroneously assumed that an incident had to be unusual or strenuous in order to be compensable, pointing to the following statement in the judge’s memorandum:
Another important factor is the description of the incident itself. There was no physical impact at the time. The employee bent over and twisted as her stethoscope started to slip off her neck. Overall, this involved a slight amount of trauma. It is not a substantial contributing factor in her small labral tear or greater trochanteric bursitis.
Again, we are not persuaded.
The judge’s comment on the lack of physical impact must be viewed in the context of Dr. Wicklund’s deposition. Dr. Wicklund testified that, in addition to a possible small labral tear, the employee had greater trochanteric bursitis. When questioned by the employee’s attorney as to whether that condition could be brought on by repetitive walking and standing, Dr. Wicklund answered, “usually not.” Dr. Wicklund also stated that the cause of greater trochanteric problems is usually unknown, but, to be traumatically induced, a direct fall onto the greater trochanter is usually necessary. Further, while Dr. Wicklund testified that “you can’t conclusively say you couldn’t injure the labrum” in a twisting incident such as the employee described, he also testified, “it would have to be a fairly forceful extreme motion of the hip that would start to force the ball of the hip out of the socket.” Given Dr. Wicklund’s explanations of causation of traumatic trochanteric bursitis and labral tear, we cannot conclude that the compensation judge erred by considering the lack of impact in evaluating the question of causation.
Finally, the employee contends that, “it would be in the best interest of ascertaining the truth to reopen the record on remand to take additional medical testimony, in light of the comment contained in Dr. Larson’s June 11, 2007, letter.” The “comment” in question is apparently Dr. Larson’s suggestion that Dr. Transfeldt be asked whether the employee’s symptoms in 2005 were radicular in nature or otherwise. However, we can find no indication that the employee asked the compensation judge to leave the record open for this purpose. Under these circumstances, to remand the matter for additional evidence would be inappropriate.
There being substantial evidence, in the form of Dr. Wicklund’s deposition opinions, to support the judge’s finding that the employee did not sustain a compensable injury on September 5, 2006, we affirm that finding. Having affirmed that finding, we need not consider the cross-appeal regarding notice.
 Disorder of the muscular or tendinous attachment to the bone. Dorland’s Illustrated Medical Dictionary 602 (29th ed. 2000).
 And while the employer and insurer appealed from this finding, it was not briefed. The issue is therefore deemed waived. Minn. R. 9800.0900, subp. 1.
 On cross-examination, Dr. Wicklund testified that those symptoms could also be consistent with a low back condition causing referred pain, but that he found that to be less likely.
 While the employee did offer explanations for why Dr. Anderson did not record a history of her work injury when she saw him on September 15, 2006, the compensation judge apparently did not find her explanation credible.
 Dr. Wicklund also testified that the incident on September 5, 2006, would not have aggravated a preexisting labral tear. There is no argument that the incident aggravated or accelerated preexisting greater trochanteric bursitis.