HASSAN M. JIROW, Employee/Appellant, v. JENNIE-O TURKEY STORE, INC., SELF-INSURED/COTTINGHAM & BUTLER CLAIM SERVS., Employer, and ABBOTT NORTHWESTERN HOSP., PAR, INC., and NEUROLOGICAL ASSOCS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 15, 2009
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports a determination that the employee’s work injury was not a substantial contributing factor in his herniated disc and need for surgery.
Determined by: Stofferahn, J., Johnson, C.J., and Pederson, J.
Compensation Judge: James F. Cannon
Attorneys: Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Appellant. Gregory G. Heacox and Elizabeth Chambers-Brown, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s determination that his August 13, 2007, work injury was not a substantial contributing factor in the diagnosis of a lumbar herniated disc and in the need for lumbar surgery. We affirm.
Hassan Jirow, the employee, was born in Somalia in 1958. He had no education in Somalia and is unable to read or write Somali. The employee immigrated to this country in 1999 and went to Willmar, Minnesota, soon after his arrival where he obtained a job at Jennie-O Turkey Store. He has worked at Jennie-O since then. The employee does not speak or read or write English.
In August 2007, the employee worked on the drum line at Jennie-O. The drum line is a production line and the employee’s duties essentially involved removing meat from turkey drumsticks. The employee worked this assignment on a full-time basis. The weights involved were fairly minimal; a supervisor testified that the drumsticks weighed no more than 34 ounces. The employee also worked a second full-time job on the clean-up crew at Jennie-O. After his usual shift, he would go through the plant, picking up trash and placing it in a cart. The cart would then be emptied into a dumpster. The employee had worked both on the drum line and in clean-up since he started at Jennie-O in 1999.
On August 13, 2007, while he was emptying the trash cart, he slipped and fell backwards. The employee testified that he had immediate pain on the left side of his back and in his left hip. The employee stated that his supervisor, Michael Strutz, found him on the floor, helped him up and took him to the nurse’s office. Mr. Strutz testified at the hearing, however, that he was not at the scene when the employee fell and that he first saw the employee after the incident in the nurse’s office.
At the nurse’s office, the nurse on duty, Mary Straus, completed notes indicating that the employee had injured his back while lifting a barrel. He reported his pain as being at 5 on a scale of 5, with 5 being overwhelming pain. The employee’s statements were translated for the company nurse by A.A. Gaal, a Somali supervisor. The company nurse gave the employee options of seeing a doctor, a chiropractor, or physical therapist at Rice Memorial Hospital. The employee chose to see the therapist and an appointment was made for him later that day.
At physical therapy, the employee provided a history that he had fallen backward at work and had back pain. The therapist called Jennie-O to discuss the history of the injury with the company nurse and received a different history. The employee reported pain in his low back with pain down his left leg and “numbness into his left quads.” The therapist provided electrical stimulation for the employee and he said he felt much better afterwards. He was scheduled for additional therapy. In the assessment, the physical therapist stated, “Pt. was difficult to evaluate due to his pain and inability to move on his own. However, question if the pts. pain is as bad as he acts as he was able to move on his own after only 15 minutes of electrical stimulation.”
The employee was placed on work restrictions and given a light duty assignment at Jennie-O, wiping off tables in the employee cafeteria. He was on light duty from August 13 until October 9, 2007. The employee was also expected to check in with one of the company nurses every day. The nurses’ notes show that the employee’s complaints, behavior at work, and medical treatment were closely monitored by Jennie-O. Throughout the period when he was on light duty, the employee continued to complain of low back pain. There are numerous references in the notes to instances in which an observer, generally a supervisor or nurse, would report that the employee did not appear to be in distress.
After his August 13 physical therapy appointment, the employee had two more physical therapy sessions in August. On August 16, he reported pain at 4 on a 5 point scale. The physical therapist asked the receptionist to watch the employee and see how he left the building and “evaluate how the pt. was walking.” The physical therapist stated that if the employee continued to have pain at the next appointment, he would be referred to a doctor. When the employee returned on August 21, he reported he was doing pretty well and rated his pain at 3/5. No medical appointment was made; instead the employee was sent back to his regular duties. The employee returned to his regular duties on August 30.
On August 30, the employee went to the Emergency Room at Rice Memorial Hospital after his work shift. He reported low back and left leg pain that had developed two weeks ago when he had fallen at Jennie-O. His physical exam was essentially normal, except for some increased discomfort during straight leg raising. The doctor assessed mechanical low back pain with symptoms suggesting radicular components. He was started on Naprosyn and continued on light duty. He was to return September 13 and further imaging would be considered if there was no improvement. The employee returned to his light duty assignment of wiping off tables in the cafeteria.
When the employee returned to the Emergency Department at Rice Memorial Hospital on September 13, he continued to report low back pain, particularly in the left sacroiliac region. He was referred to physical therapy for 3 weeks of treatment. The initial therapy note suggested that the employee’s pain was improving but when he saw the therapist on October 5, he reported his pain was worsening despite doing his exercises three times a day. The therapist’s assessment was “Pt. continues to have low back pain and still question his legitimacy as he does not seem to have difficulty with rolling around in bed.”
On October 8, the therapist sent an e-mail to Dr. William Doyle, the doctor who had referred the employee to physical therapy. The e-mail stated that the employee had made “little to no progress in PT.” The e-mail further noted that the employee “reports that he is doing well and having little pain but then subjectively reports pain as for 4/5.” The e-mail also contained comments from the company nurse at Jennie-O about her observations of the employee at work.
On October 9 the employee was seen by Dr. Doyle, the same physician who saw him on September 13. In the medical history, the doctor commented that the employee has “a note from physical therapy that his pain seems to have improved significantly and he has received maximum benefit from his physical therapy.”  Dr. Doyle appears to have been in contact with Jennie-O concerning the employee’s condition since he states that the employee “was observed to have a reasonable activity in his work environment at limited duty with no obvious pain or discomfort.” The employee continued to complain of pain in his low back in the area of the posterior iliac crest. Dr. Doyle released the employee to his regular work and concluded that no further treatment was necessary.
The employee testified that he continued to have low back pain but he returned to his regular job. He stated that he did so because he was afraid that if he did not do so, he would be fired. He testified that he would go to the company nurses and receive ibuprofen for his pain. The two company nurses at Jennie-O denied any such contact.
The employee saw his own doctor on January 3, 2008, when he consulted with Dr. Robert Boyd at Affiliated Community Medical Centers in Willmar. The employee gave a history that he had fallen at work and hit his side and had pain in the right hip. He stated that over the counter medication had not been helpful. The physical exam, including straight leg raising, was normal. Dr. Boyd ordered radiographic evaluation and provided pain medication.
An MRI was done on January 16, 2008. It was read as showing a generalized disc bulge at L4-5 which was “likely having mass effect on the left L5 nerve root.” There was also an annular tear in the L5-S1 disc which contacted the L5 nerve root. Dr. Boyd referred the employee for physical therapy and sent him to the pain clinic for an injection at the L4-5 level. The employee was also taken off work.
The employee was referred to a neurosurgeon, Dr. Charles Watts, and saw him on January 24. Dr. Watts noted that the employee was unable to dorsiflex his left foot and diagnosed a “severe” L4 radiculopathy. He recommended a “left L4-5 extended hemilaminectomy with micro discectomy.” Because of insurance coverage issues, the surgery was not done until February 19, 2008, at Abbott Northwestern Hospital by Dr. Watts. Dr. Watts noted in his surgery report that there was a disc herniation with “clear impingement of the exiting L4 and L5 nerve root sleeves.” The employee continued in follow up care with Dr. Watts. As of the date of the hearing, he had not been released to return to work by his treating physician.
The employer denied primary liability for the August 13, 2007, injury and placed the employee on short term disability benefits. The employee filed a claim petition on February 1, 2008, for workers’ compensation benefits arising out of the August 2007 injury.
At the request of his attorney, the employee was evaluated by Dr. Robert Wengler on April 24, 2008. Dr. Wengler diagnosed “L4-5 disc herniation on the left with extrusion, left drop foot secondary to damage to the 4th or 5th lumbar nerve root.” Dr. Wengler related the diagnosis to the August 13, 2007, work injury, concluded the employee was unable to work, and determined that the employee had sustained permanent partial disability as the result of his work injury.
Dr. Mark Friedland conducted an IME for Jennie-O on May 27, 2008. Dr. Friedland prepared a report of that date and also provided a deposition for the hearing. Dr. Friedland’s opinion was that the employee “sustained nothing more than a lumbosacral strain/sprain” from the August 13, 2007, work injury. It was his further opinion that the sprain/strain had resolved by October 9, 2007, when the employee was released to return to work without restrictions by Dr. Doyle. According to Dr. Friedland, the L4-5 disc herniation and resulting surgery were not related to the work injury. Dr. Friedland stated in his deposition that he believed the medical evidence indicated a new injury or superseding event occurred in January 2008 which had resulted in the herniated disc.
The employee’s claims were heard by Compensation Judge James Cannon on July 31, 2008. Issues at the hearing were whether the employee sustained a work related injury to his low back on August 13, 2007; whether the work injury, if it occurred, was a substantial contributing factor in the herniated disc condition; and the employee’s entitlement to wage loss, permanent partial disability, medical, and rehabilitation benefits. In his findings and order of October 27, 2008, the compensation judge determined that the employee had sustained a work injury to his low back on August 13, 2007, but that the work injury was not a cause of the employee’s herniated disc. All claims were denied. The employee appeals.
The employee argues on appeal that the compensation judge’s determination as to causation for the employee’s herniated disc is not supported by substantial evidence. The employee contends that the evidence convincingly demonstrates that he had low back and left lower extremity pain from the time of his work injury until was diagnosed with a herniated disc by Dr. Watts. This establishes that the herniated disc was caused by the work injury.
Under this court’s standard of review, a factual determination by a compensation judge is to be affirmed if it is supported by substantial evidence when considering the record as a whole. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). We find substantial evidence in the deposition testimony of Dr. Friedland which supports the compensation judge’s determination.
When the employee saw Dr. Boyd on January 3, 2008, he complained of pain in his right hip which he attributed to his fall at work. The physical examination on that date, including straight leg raising, was completely normal. When the employee saw Dr. Watts for the first time on January 24, the examination showed the employee was unable to dorsiflex the left foot at all and Dr. Watts diagnosed a severe left L4 radiculopathy with left foot drop.
In his deposition, Dr. Friedland pointed to the “dramatic change in the examination” between January 3 and January 24 as evidence that the herniated disc was not the result of the work injury in August 2007 and was an indication of a new injury or superseding incident in January 2008. Neither Dr. Watts nor Dr. Wengler provided any explanation as to why an injury in August 2007 which allegedly resulted in a herniated disc had no objective findings of a disc injury until January 2008 and why the findings on January 24 were so different from those on January 3.
An employee must prove by a preponderance of the evidence that the work injury was a substantial contributing cause of the claimed disability. Minn. Stat. § 176.021, subd. 1; Fischer v. Saga Corp., 463 N.W.2d 501, 43 W.C.D. 559 (Minn. 1990). We conclude the evidence supports a determination that the employee failed to establish that the work injury was a substantial contributing factor in the disability from the L4 disc herniation.
This was a difficult decision and we affirm the compensation judge’s decision with some reluctance. There are a number of disturbing facts in this case. As the employee points out in his brief, the employer engaged in numerous inappropriate contacts with the employee’s health care providers, apparently primarily to undercut the employee’s credibility as to the pain he was experiencing. The health care providers at Rice Memorial Hospital abetted this conduct, demonstrating more concern over the question of whether the employee had as much pain as he claimed than in the question of the efficacy of the employee’s care. Dr. Doyle’s release of the employee to return to work appears to have been based on improvement from physical therapy that lacks any support in the actual records and was made after consulting with the company nurse.
The compensation judge made comments about the employee’s credibility in statements found in the records without any recognition that those statements were filtered through translators who were rarely identified and whose competency was never shown. Finally, there was no acknowledgement by anyone in this case that there may well have been cultural factors involved in the employee’s actions and statements which should have been considered.
Nevertheless, we conclude that these problems did not unduly influence the decision in this matter and so we have decided not to reverse the compensation judge as a result of these issues. The compensation judge’s decision is therefore affirmed.
 No such note is in evidence.