KENNETH D. OLSON, Employee, v. RDO FROZEN FOODS - LAMB WESTON, SELF-INSURED/RTW, INC., Employer/Appellant, and CENTRAL MINN. SPINE CTR., BEMIDJI ASSOC=D. RADIOLOGISTS, PHYSICIANS CLINIC OF MINN., NORTH COUNTRY REG=L HOSP., and BLUE CROSS BLUE SHIELD OF N.D.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 17, 2008
CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION. The compensation judge relied on a medical opinion with adequate foundation when he determined that the employee=s work injury was a substantial contributing factor in causing his low back condition.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Paul V. Rieke
Attorneys: Thomas A. Klint, Law Office of Thomas A. Klint, Anoka, MN, for the Respondent. David J. Klaiman, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellant.
DAVID A. STOFFERAHN, Judge
The compensation judge determined the employee sustained an injury to his low back on May 21, 2005. The employer has appealed and argues that the compensation judge erred by relying on a medical opinion which lacked adequate foundation. We affirm.
Kenneth Olson began working for Lamb Weston in September 2001. The company produced french fries for restaurants and in May, 2005, the employee was a packing operator, with the basic responsibility of keeping the packaging lines running. Part of that job involved staging paper and poly rolls weighing up to 600 pounds, using equipment to place rolls in position to be loaded on the packing machinery. On May 21, 2005, the employee was standing by a 400-pound paper roll when it fell off a pallet and struck him just above the right side of his pelvis, rolled down his leg, and landed on his right foot.
The employee was not forced to the ground, but had to pull his foot out from underneath the roll. He felt what he described as immediate hot/cold flashes throughout his body. The employee first sought medical care for this incident on May 23, 2005, when he went to the Dakota Clinic. At that time, he was noted to have a superficial soft tissue injury and paresthesias in his right knee. The employee worked his regular job from the date of injury to May 29, 2005, when he took a personal leave for three weeks after the birth of a child. When he was ready to return to work, he was advised by the employer that he needed to see his doctor. He did so on June 29 with complaints of tenderness and paresthesias in his right leg. The employee was assessed as having a possible torn meniscus in the right knee and was given restrictions to avoid prolonged knee bending at work.
The employee testified that within a day or so of returning to work he began experiencing low back pain and bilateral leg pain. He went to Dakota Clinic for this problem on July 28, following an MRI of his right knee which showed a torn meniscus. Dr. Carlisle provided work restrictions of avoiding bending and heavy lifting. An orthopedic evaluation was recommended.
The employee saw Dr. Glen Johnson at Headwaters Orthopaedics in Bemidji on August 11, 2005, for right leg and knee pain. Dr. Johnson performed a partial medial menisectomy on September 7, 2005. The employee considered the surgery to be successful. The employer and insurer paid for the surgery and the employee=s right knee condition is not an issue on the present case.
Because of continued right leg pain and paresthesias, Dr. Johnson referred the employee to Dr. S. Ross Mangiamele for an EMG. The EMG was done on October 3, 3005, and was read as being consistent with a diagnosis of an injury to the saphenous nerve. The history of the May 25, 2005, injury provided to Dr. Mangiamele was that AKenneth was struck on the right medial leg with a paper roll which weighed approximately 600 pounds. Immediately following the event, paresthesias and pain were appreciated upon the anterior aspect of the right distal leg. There was a significant component of anesthesia or decreased sensation appreciated at this region. Pain was noted as well as exacerbation of the paresthesias with prolonged standing.@
The employee returned to see Dr. Mangiamele on November 9, 2005, with symptoms of bilateral lower extremity paresthesias and lower back pain. An MRI of the lumbar spine was done and was read as showing: A1. Degenerative Disc Disease at L2-L3, L4-L5, and more advanced at L5-S1. 2. Left Pericentral Disc Protrusion at L5-S1 likely.@
Based upon the MRI and the employee=s continued symptoms, the employee was referred to Central Minnesota Spine Center where he saw Dr. Sunny Kim on May 24, 2006. The history the employee provided to Dr. Kim was , Ahe was >crushed@ by a 400 pound roll as it came down onto his abdomen and thighs. Since that time he had back pain with radiation into the legs. He denies having had any low back problem prior to the incident. He initially had pain in the right knee. About three weeks later he started having increased low back pain.@ Dr. Kim=s diagnosis was of a two level disc herniation at L4-L5 and L5-S1. He recommended a trial lumbar epidural steroid injection and stated that, Abased on the history, the employee=s condition was caused by his work injury.@ The employee did not have the injections performed, however Dr. Kim placed permanent work restrictions on the employee of no lifting over 50 pounds and no work over eight hours a day.
In August 2006, the employee filed a claim petition alleging entitlement to certain workers= compensation benefits as the result of a low back condition which he claimed was related to his May 21, 2005, work injury.
The employee was evaluated on behalf of the employer and insurer by Dr. David Fey on November 30, 2006. The history provided to Dr. Fey of the May 21, 2005, incident was that a
paper roll weighing approximately 400 pounds rolled off a pallet Acontacted his right hip and then rolled down his right leg, coming to rest on his foot.@ After conducting an examination and reviewing medical records, Dr. Fey concluded that Abased on the review of medical records, specifically considering the significant delay in any specific report of the low back symptoms, I would not relate any of Mr. Olson=s low back complaints to his claimed work injury of May 21, 2005. Mr. Olson has MRI evidence of multi-level degenerative disc disease and in my opinion, all his complaints regarding his low back would be related to his multi-level degenerative disc disease.@
Dr. Fey also provided deposition testimony for the hearing. The hypothetical question provided to him gave a history that the employee was facing the roll when the roll fell and struck the employee in the pelvic area and rolled down his right leg, landing on his right foot. The employee pulled his right foot out from under the roll and was able to walk away. Dr. Fey testified that the hypothetical was generally consistent with his previous understanding of the employee=s case and he restated his opinion that any back problems experienced by the employee were the result of degenerative changes.
Dr. Kim also provided deposition testimony. The key issue in his deposition was the casual relationship between the May 21, 2005, work injury and the employee=s low back problems. Dr. Kim testified that the employee Awas crushed by a 400 pound roll as it came down onto his abdomen and thighs.@ Later in the deposition, while discussing the mechanics of the employee=s injury, reference was made to the paper roll Aknocking him down.@ At the hearing the employee also presented an additional report from Dr. Mangiamele. In the history portion of the report, Dr. Mangiamele stated the paper roll Arolled upon Mr. Olson and entrapped him onto the floor.@ In the conclusion section of his report Dr. Mangiamele did not refer to entrapment, but instead stated that Aa 400 pound roll of paper came upon the anterior pelvis, leg, knee, and foot which resulted in right lower extremity pain and paresthesias, subsequent demonstration of meniscal injury secondary to work-related accident which occurred on 5-21-05.@ Finally, he concluded Athe back condition of the lumbrosacral radiculopathy is related to the work injury which occurred on 5-21-05.@
The employee=s claim petition was heard by Compensation Judge Paul Rieke on August 22, 2007. Issues for determination were whether the employee sustained a low back injury on May 21, 2005, and the employee=s entitlement to various wage loss benefits and medical expenses. In the Findings and Order issued on August 27, 2007, the compensation judge concluded that the work injury was a substantial contributing factor to the employee=s low back condition. The compensation judge denied the employee=s claims for temporary total disability compensation, but awarded temporary partial disability benefits as well as medical and medical-related expenses. The employer and insurer appealed.
The primary issue for determination at the hearing was whether the employee sustained an injury to his low back as the result of the incident on May 21, 2005, when the employee was struck by a 400-pound roll of paper. Three doctors provided an opinion on causation: Sunny Kim, S. Ross Mangiamele, and David Fey. The compensation judge adopted the opinion of Dr. Mangiamele and determined the employee=s back condition to be work-related. The employer argues on appeal that the compensation judge erred in relying on Dr. Mangiamele=s opinion because that opinion lacked adequate foundation.
The question of foundation goes to the competency of a witness to render an expert opinion. Foundation may be established by personal knowledge, a hypothetical question, or testimony at the hearing. Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978). Dr. Mangiamele, as a treating physician, had sufficient knowledge of the employee=s situation to express an expert opinion under this standard. The employer argues, however, that Dr. Mangiamele had incorrect information as to the work injury of May 21, 2005, and this rendered his opinion to be without foundation. We disagree.
First, we note that the compensation judge examined this issue closely. He rejected Dr. Kim=s opinion because of Dr. Kim=s understanding as to how the work injury happened. According to the compensation judge, the flaws in Dr. Kim=s opinion were his understanding that the employee had back pain from the date of the work injury and his understanding that the paper roll had landed on top of the employee. The compensation judge found these misunderstandings significant enough to result in Dr. Kim having insufficient foundation for his opinion on causation.
It is incorrect, however, to argue as does the employer, that Dr. Mangiamele had the same misunderstandings as did Dr. Kim. Although Dr. Mangiamele had the employee Aknocked down@ and Aentrapped@ in the first paragraph of his August 10, 2007, report, he was given a different fact situation in the letter soliciting his opinion. More importantly, in the section of his report in which he provided his conclusions, he described the employee Ahaving had a 400 pound roll of paper come upon the anterior pelvis, leg, knee and foot which resulted in right lower extremity pain and parasthesias.@ Further, what Dr. Mangiamele may have meant by the use of the word >entrapped= is unclear, but it is correct that the employee=s right foot was initially trapped under the paper roll.
The history referred to by Dr. Mangiamele in the conclusion section of his report is virtually identical to the information given to the IME, Dr. Fey, in a hypothetical question at the time of his deposition. Given the totality of the evidence, we are unable to conclude as a matter of law that Dr. Mangiamele did not have foundation to provide an opinion on causation. We conclude that the issue raised by the employer in this case goes to the weight to be given that opinion by the compensation judge. Simons v. Ridgeview Med. Ctr., No. WC06-211 (W.C.C.A. Dec. 1, 2006). The employer raised the issue of foundation at the hearing and, as the findings indicate, the compensation judge carefully considered this issue when making his determination.
The decision of the compensation judge is affirmed.