DEAN JANOWICZ, Employee/Appellant, v. ME GLOBAL, INC., and SENTRY INS. GROUP, Employer-Insurer, and ATRIUM HEALTH PLAN, INC., and ST. MARY’S DULUTH CLINIC HEALTH SYS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 17, 2008
CAUSATION - PRE-EXISTING CONDITION. Where the employee had been treated for inflammatory arthritis prior to the allegedly injurious work incident, where the employee’s pain level following that incident was similar to what he had reported nine months earlier related to his arthritis, where the employee himself did not consider his back condition to be work related until some 2½ months after that incident, where the arthritis condition had flared up after the incident to the extent that he filed a claim for non-work-related benefits, the judge’s denial of the employee’s claim for benefits in reliance on a properly founded expert medical opinion was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Ronald R. Envall, Law Office of Ronald R. Envall, Duluth, MN, for the Appellant. James A. Schaps, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge’s determination that the employee sustained a mild lumbar strain on May 19, 2006, that totally resolved within six weeks of that date without the need for medical treatment, and from the judge’s denial of his claims for wage loss and medical and rehabilitation expenses. We affirm.
Dean Janowicz [the employee] was born on May 12, 1970, and began working as a molder for ME Global, Inc. [the employer], a manufacturer of steel castings, on November 7, 2004. Before going to work for the employer, the employee had worked at a number of laboring jobs without injury or physical problems. With the employer, the employee worked primarily at one of the stations on the molding table and was occasionally required to shovel sand that dropped through a grated floor to a pit below.
On August 17, 2005, the employee was seen at the Duluth Clinic by rheumatologist Dr. Ana Fernandez, complaining that he had been experiencing “pain in the joints of the hands, the low back, the elbows and neck for at least one year plus.” He rated his level of pain at six to seven on a scale of one to ten, and he reported that he had also had problems with excessive worries, anxiety, depression, difficulty staying asleep, and lack of restful sleep. Dr. Fernandez diagnosed significant arthralgias involving the small joints of the hands, with generalized stiffness, and, believing that the employee might have an early inflammatory arthritis, she placed the employee on Etodolac for his joint pain. On February 8, 2006, while on layoff from work, the employee saw Dr. Fernandez in follow-up and reported that he was noticing stiffness in the low back in the morning. Dr. Fernandez noted that the employee’s serologies had been negative, and she recommended a trial of Plaquenil. She also advised the employee to follow up at the Duluth Clinic Superior with rheumatologist Dr. Raymond Hausch, as the Superior location was more convenient for him.
On Monday, May 22, 2006, the employee was seen at his family health clinic by Dr. Sinisa Vujkovic with complaints of pain the lumbar spine, knees, and hands. The doctor noted that, while it had been present for a few years, the pain had worsened and had been constant since Saturday. The employee rated his level of pain at eight on a scale of one to ten. X-rays of the lumbar spine were interpreted as normal, and Dr. Vujkovic took the employee off work. No mention was made of any work injury.
Also on May 22, 2006, the employee applied for short term disability benefits by completing the employer’s “Proof of Disability” form. In the portion of the form identified as “Employee’s Statement,” the employee indicated that his total disability began on May 22, 2006, and that his claim was neither due to an accident nor the result of work related illness or injury. As attending physician, Dr. Vujkovic reported that the employee’s diagnosis was degenerative joint disease, that the condition did not arise out of the employee’s employment, and that the employee’s symptoms first appeared on May 20, 2006. On the employer’s portion of the form, the employer’s representative noted that the employee had last worked on May 19, 2006, and that she had no information regarding workers’ compensation or other disability income benefits that would affect the employee’s claim.
The employee was seen for the first time by Dr. Raymond Hausch on May 25, 2006. The employee again reported pain his lower back and pain in his hands. Dr. Hausch reviewed Dr. Fernandez’s notes, obtained a history from the employee, and performed a physical examination. He assessed possible inflammatory arthritis and prescribed medications, and the employee made no mention to Dr. Hausch of a work injury.
In a letter on June 14, 2006, Dr. Hausch advised the employer that he was treating the employee for a seronegative rheumatoid arthritis and that the employee was still having ongoing symptoms involving stiffness and pain in his joints, especially those of his hands and back. Because the medication that he prescribed to treat the condition can take several months to work, the doctor did not anticipate any dramatic improvement or return to work for at least three months.
The employee returned to see Dr. Hausch on July 31, 2006, reporting some improvement over the past month. He reported that he was still fatigued and achy, but that his biggest complaint was pain in his left buttock that went episodically down his leg. Dr. Hausch advised the employee that he was not certain whether or not the left buttock and leg symptoms related to the employee’s arthritis, suggesting that they might instead be sciatica. The employee raised the question of whether or not his low back complaints could be work related, but there as evidently no discussion. Dr. Hausch continued the employee’s medications and ordered an MRI scan of the employee’s low back.
Dr. Hausch reviewed with the employee the results of the MRI at an office visit on August 17, 2006. He reported that the MRI showed a large broad-based disc bulge at L3-4 that was slightly asymmetric to the right, with moderate right neuroforaminal narrowing. The MRI, he noted, did not correlate with the employee’s left leg symptoms. Dr. Hausch recommended an EMG to document any neurological compromise, prescribed some physical therapy, and contemplated a referral to physical medicine and rehabilitation.
On August 23, 2006, the employee reported to his employer for the first time that during the early morning hours of his shift on May 19, 2006, while shoveling sand in “the pit” located below the molding table, he had suddenly felt a sharp, stinging sensation in his low back, the likes of which he had never felt before, following which he had returned to his molding table duties and finished his shift. Five days later, on August 28, 2006, the employee underwent an EMG with physiatrist Dr. Nayyer Mujteba, who read the EMG to reveal a normal left lower extremity, with no evidence of compression neuropathy, plexopathy, lumbar radiculopathy, or myopathy. On August 30, 2006, Dr. Hausch wrote to the employee to advise him of the EMG results and to recommend a referral for physical therapy and treatment by a physiatrist. About two weeks later, in a letter dated September 12, 2006, Dr. Hausch advised the employer that the employee was still having problems with both seronegative inflammatory arthritis and low back pain. He reported that the medications that he had prescribed had still not fully set in and that the employee was still having ongoing joint pain, swelling, and stiffness. He reported also that the employee as undergoing physical therapy and might require an additional referral regarding his back.
The employee was examined by Dr. Mujteba for treatment purposes on September 15, 2006. In the history obtained by Dr. Mujteba, the employee reported that his symptoms had stated on May 19, 2006, while shoveling silica sand at work. The employee stated that he felt his symptoms were secondary to rheumatoid arthritis. The doctor assessed the employee’s problems for the most part as being mechanical in nature, with the left L5-S1 facet joint as the major pain generator. Dr. Mujteba did not feel that the employee’s pain was related to his L3-L4 level disc bulge. The employee was given a facet joint injection at the L5-S1 level and was referred for physical therapy.
On September 27, 2006, Dr. Hausch issued a letter directed “To Whom It May Concern,” stating that the employee’s back pain was not related to the inflammatory arthritis for which Dr. Hausch had been treating him. He noted that Dr. Mujteba would be caring for the employee’s back pain and he would continue to treat him for his arthritis.
The employee was seen in follow-up by Mujteba on October 11, 2006, with the chief complaint of a deep, focal pain at the lumbosacral junction. The employee reported that the facet injections had not provided any relief. Dr. Mujteba was unable to reproduce the employee’s symptoms with palpation, and he indicated that the did not know their cause. He recommended a pelvic MRI and added Flexeril to the employee’s medications.
On October 12, 2006, the employee filed a claim petition, seeking payment of temporary total disability benefits continuing from May 19, 2006, as well as medical and rehabilitation benefits. The employer and insurer initially admitted liability for the employee’s alleged injury, but in their formal answer to the claim petition, filed on November 21, 2006, they denied liability.
The employee returned to see Dr. Mujteba on November 2, 2006. His pelvic MRI reflected essentially a normal pelvis, and, as the employee reported no symptoms improvement and Dr. Mujteba could not reproduce the pain, Dr. Mujteba believed the employee might benefit from the expertise of another physician and referred the employee to the Duluth Clinic’s Medical Orthopedic Services.
On November 6, 2006, the employee was seen by orthopedist Dr. Wade Lillegard. The employee gave Dr. Lillegard a history of developing left-sided low back pain while shoveling sand on May 19, 2006. Dr. Lillegard assessed the employee’s left posterior hip pain as emanating more from his back, possibly related to an SI dysfunction or to the employee’s broad-based disc bulge at L3-L4. He recommended diagnostic injections in the SI joint and evaluation by a spine therapist. The employee was evaluated by physical therapist Brenda Leavelle on that same day, and physical therapy was initiated. The employee returned to see Dr. Lillegard on December 11, 2006, and reported no improvement from the SI injection. Dr. Lillegard’s impression was left low back pain, and he ordered an epidural steroid injection and continued physical therapy. In a January 4, 2207, letter responding to inquiries from the employee’s attorney, Dr. Lillegard diagnosed left-sided low back pain, stating as follows as to the cause:
Based on my examination of Mr. Janowicz and review of his file it is my opinion to a reasonable degree of medical certainty that the left-sided low back condition is substantially related to the shoveling activities at work on May 19, 2006. It appears the specificity and focal nature of his back pain after the work injury is quite different from the generalized back stiffness he was experiencing prior to the shoveling injury. I concur with Dr. Hausch in his assessment that this is more likely than not unrelated to Mr. Janowicz’s arthritic condition. It is quite probable that this is a substantial contributing factor to Mr. Janowicz’s inability to work at full capacity.
On February 1, 2007, the employee underwent diagnostic lumbar discography at the L3-4, L4-5, and L5-S1 levels, followed by a CT scan. The employee reported concordant pain with injection at the L3-4 level. He was seen in follow-up by Dr. Lillegard on February 5, 2007. Dr. Lillegard reviewed the employee’s CT scan and reported that it showed some extravasation of the dye from the L3-4 disc posteriorly. He concluded that the employee’s low back pain for the past ten months was related to fissuring of the L3-4 disc. Given that conservative measures undertaken had not brought the employee relief of his symptoms, Dr. Lillegard referred the employee for a surgical consultation.
On March 8, 2007, the employee was examined by orthopedist Dr. Richard Strand on behalf of the employer and insurer. Dr. Strand obtained a history from the employee, reviewed the employee’s medical records, and performed a physical examination. Based on his evaluation, Dr. Strand diagnosed the following: (1) left side low back pain of undetermined etiology, with possible minor mechanical back strain; (2) degenerative disc disease at L3-4 without significant herniation or nerve root compression; and (3) rheumatoid arthritis. Dr. Strand concluded that, at most, the employee had sustained a minor mechanical strain of the lumbar spine on May 19, 2006. He did not believe that the employee’s continued pain on the left side correlated with any of the imaging or testing or examination, and he did not believe that any further medical treatment was necessary for the alleged injury of May 19, 2006. Dr. Strand noted also that “[the employee] has had extensive treatment that has not significantly altered his symptoms, which leads one to believe that this is not mechanical-type back pain due to a lumbosacral strain, but may be more related to his rheumatoid arthritis disease than has been given credit so far.” On April 11, 2007, in response to inquiries from the employer and insurer’s attorney, Dr. Strand indicated that at the time he examined the employee, the employee had had a minimal amount of pain and an essentially normal examination. He stated further:
The most I could make from the history as reported in the medical records was that he had a temporary minor low back strain, which was totally unrelated to his minimal degenerative disc disease at L3-4. It is my opinion that his low back strain would have completely healed without significant treatment within six weeks, and at that point, he would have been able to resume regular employment activities at ME Global.
Counsel for the employee forwarded Dr. Strand’s March 8, 2007, report to Dr. Lillegard on April 5, 2007. In a letter on April 13, 2007, Dr. Lillegard disagreed with Dr. Strand’s conclusions, especially his opinion that the etiology of the employee’s left-side low back pain is undetermined. In Dr. Lillegard’s opinion, the employee’s positive discogram “directly implies that this is determined to be discogenic.” It remained his opinion that the employee’s “current low back condition” was substantially related to the work injury in May, 2006. Dr. Lillegard indicated also that the employee had yet to achieve maximum medical improvement and remained restricted to sedentary duty. In a letter to the employer’s attorney dated May 8, 2007, Dr. Strand commented upon Dr. Lillegard’s letter of April 13, 2007, and essentially reiterated the opinions that he had expressed on Mach 8 and April 11, 2007.
On May 15, 2007, the employee was examined by neurosurgeon, Dr. James Callahan. Dr. Callahan obtained a history from the employee and reported the employee’s claim that, while he was shoveling in a somewhat confined space on May 19, 2006, he had felt a pull and a tear in his back. Dr. Callahan concluded that the employee’s condition was consistent with a work injury due to repetitive shoveling, bending, and twisting, and he did not think that the employee’s degenerative disc change and injury were due to inflammatory arthritis. He concluded that surgery was an option to help the employee with his back pain but that it was not a necessity in the sense that he was in any danger of paralysis.
The employee’s claim for benefits came on for hearing before and compensation judge on May 16, 2007. Issues at trial including the following: (1) whether the employee had suffered a work injury on May 19, 2006; (2) whether the employee’s notice of injury on May 19, 2006, was adequate under the provisions of Minnesota Statutes section 176.141; and (3) the nature and extent of the employee’s claim injury of May 19, 2006, and, in relation thereto, his entitlement to temporary total disability benefits, rehabilitation benefits, and payment of medical expense and the claims of the intervenors. By Findings and Order issued July 13, 2007, the compensation judge concluded that the employee’s symptoms immediately following the May 19, 2006, shoveling incident were most consistent with a flare up of his inflammatory arthritis symptoms masking possible mild lumbar strain symptoms. The judge adopted the opinions of Dr. Strand to the effect that the shoveling incident of May 19, 2006, resulted at most in a mild lumbar strain that totally resolved with six weeks of May 19, 2006, without medical treatment. Consequently, the judge denied the employee’s claim for benefits. 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 (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 compensation judge concluded that the employee’s symptoms immediately following the May 19, 2006, shoveling incident were most consistent with a flare-up of his inflammatory arthritis symptoms possibly masking symptoms of a mild lumbar strain. He concluded also that the shoveling incident resulted at most in a mild lumbar strain that totally resolved within six weeks of May 19, 2006, without medical treatment, except that received by the employee to treat the flare-up of his inflammatory arthritis condition. The employee contends that the judge’s findings are clearly dependent on the opinions of Dr. Strand, that Dr. Strand’s opinions lack foundation and are unsupported by the medical record or testimony, and that the judge’s decision must therefore be reversed. Specifically, the employee contends that Dr. Strand’s opinions presume the existence of medical evidence of improvement in symptoms and function six weeks after the May 19, 2006, injury and medical evidence that the ongoing symptoms are attributable to rheumatoid arthritis, neither of which, he argues, exists in the medical record, the opinions of the treating specialists, or the employee’s testimony. We are not persuaded.
We note, first of all, that the compensation judge’s findings are based on something more than the opinions of Dr. Strand. In a memorandum accompanying the findings and order, the judge found significance in the fact that the employee had been diagnosed and had received treatment for an inflammatory arthritic condition prior to the shoveling incident of May 19, 2006. He found it notable that the employee’s pain level following May 19, 2006, was similar to what the employee had reported nine months earlier, on August 17, 2005, when he related to Dr. Fernandez a pain level of six to seven out of ten emanating from the joints of his hands, low back, elbows, and neck. The judge noted also that “the shoveling incident was apparently so insignificant, trifling, and inconsequential that the employee himself did not consider his condition to be work related until some 2½ months later.” Moreover, the judge noted that, following the shoveling incident, the employee’s arthritic condition had flared up to the extent that he filed a claim for non-work-related benefits on May 22, 2006.
With regard to the employee’s claim that Dr. Strand’s opinions lack foundation, we note that foundation goes to the competence of a witness to provide expert opinion. The competence of a medical expert depends upon both the witness’s scientific knowledge and his or her practical experience with the subject matter at issue. Drews v. Kohl’s, 55 W.C.D. 33, 39 (W.C.C.A. 1996)(citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)). Dr. Strand is an orthopedic surgeon, and he took a history from the employee, reviewed the employee’s medical records, and personally examined the employee. 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, 68, 40 W.C.D. 1130, 11210-33 (Minn. 1988).
As we have stated, “A trier of fact is not required to accept the opinion of a treating doctor over the opinion of an independent medical examiner. So long as the opinion of the IME doctor has adequate factual support, this court will not reverse the compensation judge on that issue.” Borgstrom v. Cavallin, Inc., slip op. (W.C.C.A. Oct. 8, 1996) (citing Wilson v. North Star Steel, slip op. (W.C.C.A. Dec. 6, 1993)). In the present case, Dr. Strand was privy to the same records and history as those reviewed by the treating doctors. Dr. Strand’s opinion, that the employee’s May 19, 2006, injury was a minor mechanical strain that would have completely healed without significant treatment within six weeks, was based on his interpretation of the record. His opinions are adequately supported by the record. Although there were other medical opinions in the case, including those of Drs. Lillegard and Callahan, supportive of the employee’s position, this court normally affirms a compensation judge’s choice between the divergent opinions of medical experts unless the opinion relied upon was without adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The employee argues in the alternative that the employee at minimum is entitled to six weeks of temporary total disability benefits, based on the judge’s finding that the employee sustained a mild lumbar strain which resolved totally within six weeks, coupled with Dr. Strand’s opinion in his letter of April 11, 2007, that after that six week period “[the employee] would have been able to resume regular employment activities at ME Global.” We are not persuaded.
It appears from his findings and order that the judge’s denial of wage loss benefits during the six weeks following the May 19, 2006, incident was based on his view of the entire record and not just on the opinions of Dr. Strand. At Finding 30, the judge found the employee’s symptoms immediately following the May 19, 2006, incident were most consistent with a flare-up of his inflammatory arthritis symptoms. Indeed, that also appeared to be the assessment of Dr. Vujkovic on May 22, 2006, and of Dr. Hausch on May 25, 2006. In a letter faxed to the employer on June 14, 2006, Dr. Hausch had removed the employee from work based on that diagnosis, not a lumbar strain diagnosis. In fact, during the period in question, the employee had not only failed to report a work injury to his employer and treating doctors but had affirmatively claimed that his need for medical disability was unrelated to his employment.
As we have referenced earlier, the judge noted in his memorandum that “the shoveling incident was apparently so insignificant, trifling, and inconsequential that the employee himself did not consider his condition to be work related.” After his visit to Dr. Hausch on May 25, 2006, the employee obtained no other medical treatment for his alleged low back injury during the six weeks at issue. At Finding 33, the judge found that the employee failed to show that the shoveling incident of May 19, 2006, was a substantial contributing cause of his inability to work following the incident. Because we find substantial evidence in the record to support the judge’s decision, the findings and order are affirmed in their entirety. See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 59, 37 W.C.D. 239 (Minn. 1984).
 The employee was laid off by the employer from January 13, 2006, until sometime in late April or Early May of that year.
 This is according to unappealed Finding 16.
 As part of his record review, Dr. Strand also reviewed hard copies of the MRI of the lumbar spine of August 2, 2006, x-rays of the lumbar spine of May 22, 2006, x-rays of the pelvis of February 8, 2006, and the CT scan of the lumbar spine of February 1, 2007.