THOMAS J. LAHOUD, Employee, v. BERKLEY RISK ADM’RS and CAMDEN FIRE INS. ASS’N./ONEBEACON INS. GROUP, Employer-Insurer, and STATE FUND MUT. INS. and CHUBB & SON GROUP, Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 27, 2009
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge’s conclusion that the employee’s original work-related carpal tunnel syndrome injury in 1996 did not substantially contribute to the employee’s carpal tunnel condition and need for surgery after a carpal tunnel injury in 2005.
Determined by: Wilson, J., Stofferahn, J., and Pederson, J.
Compensation Judge: Rolf G. Hagen
Attorneys: Bonnie A. Peterson, Sieben, Grose, Von Holtum & Carey, Minneapolis, MN, for the Respondent Employee. D. Jeffrey Pricco, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants. Mary E. Kohl and Stacey A. Molde, Johnson & Condon, Minneapolis, MN, for the Respondent Employer-Insurer.
DEBRA A. WILSON, Judge
State Fund Mutual Insurance and its insurer appeal from the judge’s finding that the employee’s work injury with Berkley Risk Administrators was not a substantial contributing cause of the employee’s symptoms, permanent partial disability, or need for medical treatment after June of 2005. We affirm.
The employee was originally diagnosed with right carpal tunnel syndrome [CTS] in 1992. From the date of diagnosis until April 17, 1996, the employee did not seek or receive any medical care for that condition.
The employee worked as a senior premium auditor for Berkley Risk Administrators [Berkley], where his work involved a lot of handwriting, 10-key work, gripping, and driving. On April 17, 1996, he sustained a work-related injury in the nature of right CTS. Berkley was insured for workers’ compensation liability by Camden Fire Insurance Association [Camden], and Berkley/Camden admitted liability for the injury and paid for medical treatment. When an EMG on June 17, 1996, confirmed mild right-sided CTS, the employee was referred for a surgical consultation. However, the employee declined to proceed with surgery at that time. In approximately mid-July of 1996, Berkley provided the employee with a laptop computer, which reduced his need for writing, and the employee’s CTS symptoms significantly subsided.
The employee continued to work for Berkley until January 11, 1999. From mid-July of 1996 until the end of his employment with Berkley, the employee performed his regular activities as a senior premium auditor, worked without restrictions or wage loss, and did not receive treatment from any doctor for right CTS symptoms.
On or about January 12, 1999, the employee began work as a senior premium auditor for State Fund Mutual Insurance Company [SFM]. His job duties were identical to those he had performed for Berkley. The employee worked in this capacity without wage loss, restrictions, or medical care for CTS, until approximately June of 2005. At that time, while performing a policy holder premium audit, the employee experienced a severe jolt, electric shock, or sharp pull in his right wrist as he was lifting and pulling policyholder records and journals. Subsequent to that event, the employee began to experience additional and more intense right CTS symptoms, including numbness in his right hand and arm and increased symptoms at night. The employee reported his increased symptomatology to SFM on approximately July 27, 2005. Two days later, on July 29, 2005, the employee was seen by Dr. Richard F. Hirt, who diagnosed right CTS and prescribed physical therapy, medications, and a night splint.
On August 26, 2005, Dr. Hirt diagnosed moderate to severe right CTS and referred the employee for an EMG. The EMG, performed on September 7, 2005, was interpreted to be indicative of a disorder of both median nerves at the wrist as seen in bilateral CTS. The right median nerve, however, was more severely involved than the left.
The employee was subsequently referred to Dr. Mark Urban, who performed a right carpal tunnel release procedure on September 27, 2005. The employee obtained no relief from the surgery. On October 7, 2005, Dr. Urban opined that “it is my opinion that his right carpal tunnel syndrome is work-related. In my opinion his work activities caused a permanent aggravation of his pre-existing symptoms.” A repeat EMG on July 31, 2006, showed continued median nerve dysfunction, with some block at the wrist, superimposed upon a demyelinating polyneuropathy involving both median and ulnar nerves, with chronic neurogenic changes. During the employee’s last visit on August 7, 2006, Dr. Urban noted that the employee had let his CTS “go on too long prior to undergo[ing] surgical treatment,” and he stated that he had no solution for the employee’s ongoing symptoms.
SFM and its workers’ compensation insurer, Chubb & Son Group [Chubb], denied liability for the alleged July 27, 2005, injury but paid the employee’s medical expenses under a temporary order served and filed on January 25, 2006.
On October 19, 2006, the employee was examined by independent medical examiner Dr. Scott McPherson. Dr. McPherson subsequently reported that the employee’s CTS and need for right hand surgery was “a continuation of his condition previously diagnosed in April 1996.” He rated the employee as having a 3% permanent partial disability.
On March 20, 2007, SFM/Chubb filed a Petition for Contribution and/or Reimbursement, seeking contribution from Berkley/Camden for benefits paid.
The employee filed a claim petition on October 1, 2007, seeking payment for a 3% permanent partial disability and authorization for a consultation with a neurologist. Both employers and insurers denied liability for the benefits claimed, but SFM/Chubb subsequently paid the employee for the 3% permanency.
An order consolidating the petition for contribution and the claim petition was filed on December 3, 2007.
The employee was examined by independent medical examiner Dr. Wayne Thompson on January 14, 2008, at the request of Berkley/Camden. In his report dated January 16, 2008, Dr. Thompson opined that the employee’s right CTS was a result of “his having synovitis of his carpal tunnel, related to his diabetes mellitus.” He went on to state that “if the employee had experienced no significant issues with his right upper extremity and had undergone no treatment between 1996 and 2005, then it is my opinion that his current carpal tunnel syndrome is unrelated to the 1996 injury date.” He also stated that “if the employee had sustained a specific aggravation in 2005, as he reports in his history . . . then that injury would be a substantial factor in his current carpal tunnel syndrome.”
The matter came on for hearing in June of 2008, and in a findings and order filed on August 14, 2008, the compensation judge found, in part, that the employee had sustained a personal injury on or about July 27, 2005, in the nature of a permanent aggravation of his underlying and preexisting right CTS; that the 1996 work injury was not a substantial contributing cause of the employee’s disability and need for medical care and treatment from and after July 27, 2005; and that statutory apportionment of permanency was not appropriate. SFM/Chubb 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 (2008). 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 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).
1. 2005 Injury
SFM/Chubb suggests that, while the judge found that the employee had sustained a new injury in June of 2005, when he was lifting and pulling records and journals, that finding must be reversed because no doctor specifically related the employee’s symptoms in 2005 to that incident. We are not persuaded.
When the employee saw Dr. Hirt on July 29, 2005, the doctor recorded that “about six weeks ago he had lifted and pulled back a heavy journal and felt discomfort in his right wrist. Since that time he states it has persisted, and in fact, gotten worse.” The doctor also listed “DOI: 7/29/05.” The employee was also seen by Dr. David Bachman at the Andover Park clinic on September 22, 2005. His records reflect that “Pt. claim since 6/20/05 [indecipherable] he was lifting he exacerbated pain & numbness R.” Dr. Urban noted in his September 2005 letter that the employee had noted increased symptoms since early July 2005, and, in October of 2005, Dr. Urban opined that the employee’s “work activities caused a permanent aggravation,” which the judge could reasonably conclude was a reference to the work activities of lifting/pulling in June of 2005. Finally, Dr. Thompson opined that, if the employee had in fact sustained a specific aggravation in 2005, as the employee reported, that injury would be a substantial contributing cause of his CTS thereafter.
These medical records, combined with the employee’s testimony that the 2005 incident “seemed to aggravate my hand problem” and that symptoms were more intense and frequent after that, provide substantial evidence to support the judge’s finding of a specific injury in 2005. We therefore affirm that finding.
2. Preexisting Condition
SFM/Chubb contends that the employee’s right CTS dates back to his work-related injury in 1996, arguing that that injury was a “substantial contributing cause of or factor to his ongoing symptoms after June 2005” and the resulting permanent partial disability and need for medical treatment. As part of that argument, SFM/Chubb points to certain evidence that supports their contention that “clearly, the employee’s pre-existing condition must be considered a substantial contributing factor in his ongoing disability.” The issue before this court, however, is not whether evidence supports an alternative finding, but whether substantial evidence supports the findings made by the judge. See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
SFM/Chubb also states that Dr. Urban “opines that the employee’s pre-existing condition played a role in his symptoms and need for treatment in 2005, specifically indicating that the employee’s decision to hold off on surgery likely contributed to his ongoing symptoms and lack of improvement following surgery in 2005.” This may be one possible interpretation of Dr. Urban’s opinion, but it is not the only interpretation, and, given the record as a whole, it was not unreasonable for the compensation judge to find that the 1996 injury was not a substantial contributing cause of the employee’s disability and medical treatment after 2005.
The employee testified by deposition that his primary symptom in 1996 was his right hand falling asleep at night. He also testified that, after getting a laptop, that symptom went away completely. While he would have some “very mild” symptoms of less durability of the hand, quicker fatigue, and occasional problems grasping things, these symptoms did not occur everyday and did not lead him to seek further medical treatment after June of 1996. The employee further testified that he did not recall an “extreme episode” or “a major flare-up” from 1996 until 2005, and there is no evidence that the employee was subject to work restrictions or that he missed time from work, due to hand symptoms, for nine years.
As noted above, the employee testified about a specific incident occurring in June of 2005, where he felt a very sharp pain in his wrist and into his fingers. After 2005, he testified, his symptoms were more intense and frequent, and his loss of dexterity became more pronounced. In his memorandum, the compensation judge noted that he placed significant weight on the employee’s deposition testimony in concluding that the 1996 work injury was not a substantial contributing cause of the employee’s overall disability and need for medical treatment after July of 2005. The judge’s evaluation of this evidence was not unreasonable.
In addition, Dr. Thompson opined that, if the employee had no significant issues with his right upper extremity and no treatment between 1996 and 2005, then the employee’s current CTS was unrelated to the 1996 injury. The employee’s testimony and the medical records reveal no significant issues or treatment to his right upper extremity from 1996 to 2005. The employee’s testimony and Dr. Thompson’s opinion provide substantial evidence to support the judge’s finding that the 1996 work injury was not a substantial contributing cause of the employee’s disability and need for medical care after July 27, 2005.
3. Apportionment of Permanent Partial Disability
SFM/Chubb argues that, because the employee had CTS documented on EMG as early as 1996, permanency payable following CTS surgery in 2005 must be apportioned against the 1996 injury. Again we are not persuaded.
The compensation judge denied apportionment because there was no evidence of ongoing loss of use or loss of function following the 1996 injury, and because, after the 1996 EMG, the employee did not have an additional EMG to substantiate continued pain and paresthesia.
In Beck v. Dick & Jane’s Price Rebel, 40 W.C.D. 254 (W.C.C.A. 1987), this court held that apportionment under Minn. Stat. § 176.101, subd. 4(a), is not available in the absence of evidence establishing that the employee had a preexisting loss of use or impairment of function. In the instant case, as noted in the judge’s memorandum, the employee worked for nine years, prior to the July 27, 2005, work injury, without restrictions and without time loss from work. Accordingly, we affirm the judge’s finding that apportionment under Minn. Stat. § 176.101, subd. 4(a), is inappropriate.
The judge’s findings are affirmed in their entirety.
 While the lifting/pulling event occurred in June 2005, the judge utilized July 27, 2005, as the date of injury, apparently because that is the approximate date that the employee gave notice to SFM. There is no suggestion that SFM/Chubb disputes the date of injury used by the compensation judge.
 Perhaps for a pre-op physical.
 We also note that, while Dr. McPherson opined that the employee’s CTS problems after 2005 were a continuation of that condition diagnosed in 1996, he relied, in part, upon his belief that the employee had “ongoing intermittent flares,” which the employee denied in his deposition and which is not substantiated by medical records.
 The employee’s permanent partial disability was rated under Minn. R. 5223.0470, subp. 2.B.(3), for pain and paresthesia persisting despite treatment or recurring and persisting despite treatment and substantiated by persistent findings on electrodiagnostic testing, three percent.
 SFM/Chubb points to no evidence suggesting any significant loss of use or impairment of function during those nine years.