JAMES H. HOUGH, Employee/Appellant, v. MINNESOTA VIKINGS FOOTBALL CLUB and EMPLOYERS INS. CO. OF WAUSAU, Employer-Insurer, and MINNESOTA VIKINGS FOOTBALL CLUB and TRAVELERS GROUP, Employer-Insurer, and BLUE CROSS & BLUE SHIELD OF MINN., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 31, 2009
CAUSATION - MEDICAL TREATMENT. Where the employee had not received any treatment for the work injury to his low back in over twenty-three years, and where the decision was implicitly supported by expert medical opinion of record, the compensation judge's denial of any and all claims for any current medical care and treatment for the employee's work injury was not clearly erroneous and unsupported by substantial evidence.
CAUSATION - MEDICAL TREATMENT. Where the employee had not received any treatment for the work injury to his neck in over twenty years, and where the decision was supported by adequately founded expert medical opinion, the compensation judge's denial of any and all claims for any current medical care and treatment for the employee's work injury was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Stofferahn, J., and Johnson, C.J.
Compensation Judge: Rolf G. Hagen
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Appellant. Craig B. Nichols and Nicholas J. Micheletti, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents, Vikings/Wausau. John G. Ness, John G. Ness & Assocs., St. Paul, MN, for the Respondents, Vikings/Travelers.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge's denial of payment of medical expenses related to treatment of his lumbar and cervical spine. We affirm.
James Hough attended Utah State University on a football scholarship from 1974 to 1977. In the spring of 1977 he was drafted by the Minnesota Vikings Football Club [the employer] to play guard or center for the 1978 football season, having no history at that time of any permanent cervical, thoracic, or lumbar spinal injuries or symptoms. On December 10, 1979, Mr. Hough [the employee] sustained a personal injury to his low back in the course of his work for the employer. The employee was twenty-three years old on that date, and the employer, which was insured at the time against workers' compensation liability by Employers Insurance Company of Wausau [Wausau], had actual notice of the injury.
Subsequent to his injury, the employee treated conservatively, primarily with hot packs, cold packs, and over-the-counter medications, and he received some minimal chiropractic care during two or three off-seasons from chiropractor Dr. Bryan Zins, eventually discontinuing that care in about 1982, when he found it to be ineffective. Upon examination of the employee on July 21, 1982, the employer's team physician, orthopedic specialist Dr. David Fischer, found the employee to be "within normal limits with the exception of the right knee." At a precamp examination about two years later, on July 20, 1984, Dr. Fischer found the employee's lumbar spine again to be "[w]ithin normal limits" and the employee to be subject to "[n]o apparent significant injury or illness" and able to "participate in camp without restriction." At a precamp physical the following year, on July 31 and August 1, 1985, Dr. Fischer found the employee's lumbar spine again to be "[w]ithin normal limits" and the employee able to "participate in camp without restriction." Subsequent to terminating his chiropractic treatment in the summer of 1982, the employee did not seek any treatment for his low back for about twenty-five years.
On November 9, 1986, the employee sustained a personal injury to his cervical spine, again in the course of his work as a football player with the employer, having previously sustained no permanent injury to his neck or been subject to any related restrictions. The injury came when the employee hit another player head-on, following which he immediately experienced a burning sensation in his neck, arms, and hands. He was evidently unable initially to move his neck and lost feeling in his hands and was taken out of the game, where he was examined by Dr. Fischer. After about fifteen minutes, when feeling had returned to his arms and hands, the employee returned onto the field to finish out the final three or four plays of the game. X-rays of the employee's cervical spine the following day, November 10, 1986, were normal, and Dr. Fischer diagnosed a "Burner (brachial plexopathy), C-5 root weakness, left arm" and ordered a CT scan. The scan, taken that same day, was read as negative, revealing no evidence of a herniated disc, no evidence of significant bulging, no fractures, no nonpatent foramen, and no spinal stenosis.
About a week later, in a game on November 16, 1986, the employee experienced a recurrent left "burner," which resulted, according to Dr. Fisher's records, in "pain and tingling over the left arm into the hand which resolved over a period of a few minutes." The employee was taken out of the game and then kept out of the following two games, but he did return to work thereafter, playing in the final four games of the regular season. In a year-end injury review and physical examination on December 22, 1986, Dr. Fischer reported that the employee had reported "that again and again yesterday he did have mild recurrence of the burner but on the whole it has improved over the past two weeks." Dr. Fischer's diagnosis on that date was of "[b]rachial plexopathy, left arm, with mild residual shoulder abduction and elbow extension weakness." The employee had been thirty years old on November 9, 1986, and had been earning a weekly wage of about $4,302.88. The employer and its insurer at the time, Travelers Group [Travelers], acknowledged liability for the injury.
In June of 1987, the employee retired from professional football, consequent to multiple football injuries, including a right shoulder injury and bilateral knee injuries that had required multiple surgical operations. On November 12, 1987, Dr. Fischer issued a report opining that the employee had reached maximum medical improvement [MMI] with regard to his "[b]urner (brachial plexopathy) C5 root weakness, left arm" sustained on November 9, 1986, with no permanent partial disability related to that injury. On December 9, 1987, the employee was examined by occupational medicine specialist Dr. Donald Garland, relative to pending litigation regarding particularly the employee's knees and his right shoulder. In his eventual twelve-page report on March 31, 1988, Dr. Garland referenced injuries to the employee's left knee, right knee, right lower leg, left upper arm, and right shoulder, but he referenced no injury to the employee's lower back, and his only reference to anything resembling a neck injury was to "one episode of a pinched nerve, and numbness in one arm some time ago." In the conclusory section of his report, Dr. Garland stated in part that the "left upper arm injuries have healed without any permanent disability."
On May 11 and 12, 1989, issues between these parties regarding multiple work injuries to the employee's body, including injuries to both of his knees, to his left arm, and to his right leg, and a November 9, [sic] 1986, "burner" injury, apparently that which is here again a matter of litigation, came on for hearing before Compensation Judge Jennifer Patterson. In her findings and order filed July 28, 1989, Judge Patterson concluded in part that there was no evidence of record that the employee required any long-term treatment for the "burner"/brachial plexopathy that he had sustained in November 1986, noting that there was no current claim that that specific injury resulted in permanent partial disability.
Some seventeen and a half years later, on March 8, 2007, the employee saw orthopedic surgeon Dr. Ensor Transfeldt, complaining of low back pain and left foot numbness, without any radiculopathy, which he said had been ongoing "for a long time" but for which he had not sought any treatment. The doctor's examination of the employee revealed full and pain-free range of motion in both hips, and he noted that some February 2007 MRI and CT scans had revealed "multilevel degenerative changes with juvenile disc disease," along with a disc herniation at L4-5, a protruding disc at L5-S1 with mild to moderate stenosis, and a broad-based central protrusion at L3-4. Concluding that the employee's multilevel disc degeneration rendered him not a good candidate for surgery, Dr. Transfeldt ruled out surgical intervention and recommended continued conservative care. The doctor's records on that date indicate that the employee was working at the time as a full-time bank manager, and they make no mention of any football injury or even of any professional football experience.
The following day, March 9, 2007, the employee was also seen, evidently by Dr. Joseph Kandiko, for complaints of neck and upper extremity pain that he said he had been having for about a year. Dr. Kandiko ordered an MRI scan of the employee's cervical spine, which was conducted on April 10, 2007, and was read to reveal multilevel cervical disc degeneration with the following: (1) a moderate-sized area of marrow edema apparently associated with a Schmorl's node deformity at C3; (2) mild central canal stenosis at C3-4 and mild to moderate central canal stenosis at C6-7 and C5-6, with cord impingement at both of those levels; (3) advanced facet arthropathy from C7 to T1, with minimal spondylolisthesis, moderately severe bilateral foraminal stenosis, and bilateral C8 neural impingement; and (4) moderate to severe foraminal stenosis at C6-7, C5-6, C3-4, and C2-3.
The employee was also being seen about this time for a chronic condition in his knees by orthopedist Dr. Daniel Rotenberg, and Dr. Rotenberg evidently referred the employee for a surgical consultation with orthopedic surgeon Dr. Michael Smith regarding the employee's neck. The employee saw Dr. Smith on May 22, 2007, on which date Dr. Smith noted in his report,
About 20 years or so ago [the employee] had an injury where he was hit and lost feeling in his upper extremities. He had the typical burners and recovery thereafter. . . . Ultimately he has gone on to slowly and steadily with the passage of time have difficulty with left greater than right upper extremity tingling and numbness.
Upon examination of the employee and review of his MRI scan, Dr. Smith noted that the employee had "no brachial plexus tenderness" on either the left or the right side, and he concluded that the employee was suffering from multi-level degenerative disc disease of the cervical spine, with moderate central canal stenosis, moderate foraminal stenosis, and juvenile discogenic disease. His diagnosis was "congenital and acquired cervical stenosis," together with "[c]arpal tunnel related peripheral entrapment neuropathy." On that diagnosis, Dr. Smith recommended surgery in the form of a "canal expanding laminoplasty," together with a concomitant fusion if the employee was found to be obviously unstable due to his degenerative retrolisthesis. The doctor indicated that the condition appeared to be work related, but he acknowledged that he did not have all of the relevant old records.
On July 31, 2007, the employee was examined by orthopedist Dr. John Hefferon, for the purpose of determining whether the employee was entitled to total and permanent disability benefits under the National Football League Player Retirement Plan. Upon examination of the employee and review of his medical records, Dr. Hefferon concluded in part that the employee was subject to severe degenerative disc disease of the lumbar spine, including multi-level foraminal stenosis, and multi-level degenerative disc disease of the cervical spine, including central canal and foraminal stenosis. Without specifying a date of injury, the doctor related generally both of these conditions to the employee's work activities playing football for the employer, and the employee was ultimately granted permanent total disability status under the National Football League Player Retirement Plan.
Eventually, about a year later, on April 4, 2008, the employee filed a claim petition, which he amended on April 25, 2008, alleging entitlement to payment of certain medical benefits, including payment for Dr. Transfeldt's low back treatment in March of 2007 and the cervical surgery recommended by Dr. Smith in May of 2007, consequent to his work injuries in December 1979 and November 1986, respectively.
On July 15, 2008, the employee was examined for the employer and Wausau by orthopedic surgeon Dr. William Simonet, who diagnosed multilevel degenerative disc disease of the lumbar spine, with no evidence of active radiculopathy or myelopathy; baseline juvenile discogenic disease with degenerative scoliosis; a history of bilateral knee injuries requiring right total knee arthroplasty and pending left total knee arthroplasty; and significant prior cervical spine injuries resulting in acquired cervical spine stenosis. Dr. Simonet concluded that there was no evidence that the employee had sustained any injury to his low back as a result of his employment on December 10, 1979, that the employee did not require any additional formal medical care or surgery for his back, that he had reached maximum medical improvement with regard to his back, and that he had not sustained any permanent injury to his low back.
On September 3, 2008, the employee was examined for the employer and Travelers by orthopedic surgeon Dr. Richard Strand, who issued his report on September 9, 2008. Upon physical examination, Dr. Strand found a normal contour to the cervical spine, decreased range of motion but no palpable spasm or tightness, no tenderness in the paracervicals or trapezii, no abnormality in scapular function, and only negative findings on impingement tests. After a thorough review of the employee's medical records and history, Dr. Strand diagnosed the employee's current neck condition as "congenital and acquired cervical stenosis based on multiple level degenerative disc disease and degenerative spondylosis," with "radiologic diagnosis of juvenile discogenic disease." It was Dr. Strand's opinion that the employee's November 1986 "burner"-type football injury had completely resolved without any residual disability shortly after its occurrence, that it was not a substantial contributing factor in the employee's current condition, and that, while the employee "certainly is in need of" it, the fusion surgery proposed by Dr. Smith was unrelated to the employee's November 1986 work injury. He explained, "That [the employee] did not obtain any significant medical treatment for neck pain between 1987 and 2007 indicates that that injury likely did not involve the cervical spine and was purely a plexus injury," noting that, in his opinion, "there is no evidence that [the employee's] burner on November 9, 1986, substantially contributed to the severe degenerative changes in his cervical spine at this time." Dr. Strand supposed further that "[m]ost likely [the employee's current condition] is related to the genetic abnormality of Juvenile discogenic disease." "In my experience," he noted, "when we see patients with [Scheuermann's/juvenile discogenic disease] in the lumbar spine [as was found on the employee's February 2007 lumbar MRI scan], they always have similar degenerative changes in the cervical spine."
The matter came on for hearing on September 30, 2008. Issues at hearing included the following: (1) the nature and extent of the employee's low back injury of December 10, 1979; (2) the nature and extent of the employee's cervical injury of November 9, 1986; (3) whether the employee's December 1979 lumbar injury was a substantial contributing factor in his need for the medical care and treatment provided to him by Dr. Transfeldt on March 8, 2007; (4) whether the employee's November 1986 cervical work injury is a substantial contributing factor in his need for care provided and proposed in treatment for his neck, including the proposed cervical fusion surgery; and (5) whether any claims of the employee arising from the December 1979 low back injury are barred by operation of Minnesota Statutes section 176.141 and/or Minnesota Statutes section 176.151. The parties stipulated at hearing in part that all medical care at issue, including the treatment provided to the employee during his visit with Dr. Transfeldt on March 8, 2007, and the cervical fusion surgery proposed by Dr. Smith, is reasonable and necessary. The employee testified in part that, although he did not seek any medical treatment for either his low back or his neck for over twenty years after each injury, he was never without pain during that time and only refrained from seeking treatment out of a professional football player's habit of playing with pain and not complaining until the injured body part was actually "broke."
By findings and order filed November 21, 2008, the compensation judge concluded in part that the employee's December 1979 low back injury was a temporary sprain/strain that had completely resolved, without residual effect or the need for restrictions or further medical treatment, no later than the summer of 1982. Based primarily on the expert medical opinion of Dr. Strand, the judge, while finding the hearing testimony of the employee to be credible, concluded further that the employee's November 1986 cervical injury was
a "burner" type injury (brachial plexus) which did completely resolve without residual shortly thereafter; that the employee currently suffers from multi-level degenerative disc disease, juvenile discogenic disease, and cervical and foraminal stenosis; that the 11/09/1986 [injury] is not a substantial contributing factor in the employee's current condition; that the proposed surgery (canal expanding laminoplasty and fusion) is reasonable and necessary but not related to the 11/09/1986 work injury. Further, this Compensation Judge believes that Dr. Strand's opinions are based upon adequate foundation.
On those findings, the compensation judge denied all of the employee's claims for medical benefits, including those related to his treatment by Dr. Transfeldt on March 8, 2007, and the cervical fusion surgery proposed by Dr. Smith. The employee appeals.
STANDARD OF REVIEW
In reviewing cases 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. 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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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.” Id.
1. The 1979 Low Back Injury
The compensation judge found that the employee's 1979 low back injury was in the nature of a temporary sprain/strain that completely resolved without residual effect or the need for restrictions no later than the summer of 1982, with the employee's successful completion of his pre-season physical examination at that time. On that conclusion, the judge denied payment for any medical care after the summer of 1982, including the treatment of Dr. Transfeldt in March of 2007. The employee contends that this conclusion is unsupported by substantial evidence. He argues that the judge's sole basis for concluding as he did was the fact that the employee had no medical treatment for his back over the course of the twenty-five-year period from 1982 to 2007 and that this "very limited basis for the Judge's finding" is insubstantial in comparison with the employee's testimony to continuing back pain and records documenting assistance from Vikings training staff, chiropractic care from Dr. Zins, and a causation opinion from Dr. Hefferon. We are not persuaded.
The employee testified repeatedly that, while he has lived with low back problems ever since his work for the employer, he has always refrained from seeking medical attention, initially because a young football player's reporting of an injury that he can live with bodes very poorly for his longevity with the team. After retiring from football, he testified, he continued to refrain from seeking attention out of application of that same attitude by habit. The compensation judge expressly credited the former explanation, applicable while the employee was working for the employer, but he implicitly declined to credit the latter explanation, nor was that decision in our estimation unreasonable. It is apparent that the judge found the very minor assistance with his back that the employee received from the employer's trainers, such as the furnishing of heating pads and over-the-counter pain killers, to be relatively insubstantial as actual "medical" attention, particularly given its occurrence over twenty years earlier with no such attention since. This is true also of the two summers of off-season chiropractic care with Dr. Zins that the employee obtained at the advice of his punter to help make him a better "long snapper." Moreover, the employee had abandoned his treatments with Dr. Zins by at least twenty-three years by the time of the treatment of Dr. Transfeldt that is here at issue. While the judge did not expressly rely on the July 2008 causation opinion of Dr. Simonet, Dr. Simonet's opinion that the employee's current condition was unrelated to his work for the employer in 1979 was properly in evidence, and it was within the judge's discretion to implicitly credit it over the more general opinion of Dr. Hefferon. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) ("[T]he trier of fact's choice between experts whose testimony conflicts is usually upheld [unless] the facts assumed by the expert in rendering his opinion are not supported by the evidence."). Because it was not unreasonable, we affirm the compensation judge's denial of all claims of the employee for any payment for medical care or treatment after the summer of 1982. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
2. The 1986 "Burner" Injury
The compensation judge found that there was no evidence that the employee required any long-term treatment for his 1986 "burner" injuries, noting that the employee did not seek any treatment for the injury following the end of the 1986-87 football season until the spring of 2007. On that finding, and in express reliance on the expert medical opinion of Dr. Strand, the judge denied payment for any of the neck-related treatment at issue, including the surgery recommended by Dr. Smith. The employee contends that this conclusion is unsupported by substantial evidence. He argues that the expert opinion of Dr. Strand, upon which the judge expressly relies, is full of erroneous factual assumptions that are material to his opinion. And yet, he argues, the judge decided to rely on that opinion over the opinions of four other examining physicians who have attributed the employee's condition to his activities as a football player. We are not persuaded.
The employee takes issue with Dr. Strand's presumptions (1) that the employee's November 9, 1986, work injury was "a brachial plexus injury, a so-called burner," (2) that the injury likely did not involve the cervical spine and was purely a plexus injury, (3) that, according to the records of Dr. Fischer, the burner resolved, (4) and that "one blow to the shoulder resulting in a burner does not result in multiple level degenerative changes in the spine." The employee argues that, according to Dr. Fisher's note of November 10, 1986, the employee sustained both a burner (brachial plexopathy) and C5 nerve root weakness, arguing further that the C5 nerve root is located within the cervical spine and that "the inclusion of the diagnosis of C5 nerve root weakness is indicative of an injury that extended beyond the plexus." The reference in Dr. Fischer's diagnosis is not, however, to any bony or cartilage or otherwise spinal impingement on the nerve as such. The reference is merely to weakness along the path served by the C5 nerve, and we conclude that it was not unreasonable for Dr. Strand, and so ultimately for the compensation judge, to focus on the employee's brachial plexopathy, which is the condensed form of the employee's diagnosis in many of the medical records in evidence.
The employee argues further that Dr. Fisher's December 22, 1986, year end injury review, upon which Dr. Strand, and in turn the compensation judge, relies, does not reflect resolution of the employee's November 9, 1986, neck injury "shortly thereafter," as found by the judge in Finding 8. The employee notes that that year-end review reports that the employee did have a mild recurrence of his burner "yesterday" but that on the whole it has improved over the past two weeks. We cannot find unreasonable Dr. Strand's implicit conclusion that a month and a half is a relatively short recovery time after a painful football injury. Nor does it seem to us that there is any material distinction to be drawn here, as the employee seeks to draw, between a blow to the head and a blow to the shoulder as something causative of a plexus injury.
Finally, the employee goes on to argue that these allegedly erroneous factual bases for Dr. Strand's opinion are of increasingly material importance in light of the fact that the reports of Dr. Garland, Dr. Hefferon, and Dr. Simonet all reference ongoing cervical spine complaints. The judge does not appear to have considered these reports, the employee asserts, arguing further that the judge appears to have expressly rejected the opinion of Dr. Smith merely "due to the fact that he had not reviewed the older records and reports." This is true, the employee argues, although "[t]here is nothing in [Dr. Smith's] chart note that indicates that his opinions were based on facts unsupported by the record," arguing further, "It is Dr. Strand's opinion that is tainted in this regard." Both Dr. Smith's and Dr. Strand's reports are ample and fully developed, however, and we conclude that the compensation judge was clearly within his discretion in choosing the opinion of Dr. Strand over that of Dr. Smith. See Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73.
X-rays and a CT scan taken immediately after the employee's November 9, 1986, injury were normal. Team medical records, though they are replete with reports of many injuries sustained by the employee over the years of his work for the employer, mention no cervical injury as such. In his report on November 12, 1987, following the employee's retirement from football, team physician and orthopedist Dr. Fisher concluded that the employee had reached MMI with regard to his November 1986 injury, with no permanent impairment. In his report the following year, on March 31, 1988, Dr. Garland referenced several different work related injuries but no cervical injury. For about twenty years subsequent to a few treatments in the first year after his injury for his injury, the employee sought no attention for a condition that Dr. Strand sees evidence of being a juvenile, congenital condition. Because it was not unreasonable under these facts and in reliance on the expert opinion of Dr. Strand, we affirm the compensation judge's denial of any and all claims of the employee for medical care and treatment provided or proposed in treatment for the employee's November 9, 1986, work injury. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 As concluded in Finding 2 of eventual Findings and Order of Compensation Judge Jennifer Patterson filed July 28, 1989.
 We do not find these scans in evidence among the exhibits.