DENISE J. LOMAX, Employee, v. K-MART, SELF-INSURED/MINN. SELF-INSURER’S SEC. FUND/BERKLEY RISK ADM’RS CO., Employer/Appellant, and K-MART and SEDGWICK CLAIMS MGMT. SERVS., INC., Employer-Insurer, and CENTER FOR DIAGNOSTIC IMAGING, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 15, 2009
CAUSATION - TEMPORARY AGGRAVATION. Substantial evidence, including the employee’s testimony and expert opinion, supported the compensation judge’s decision that the employee’s second work-related low back injury was merely temporary.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: James F. Cannon
Attorneys: Jackson S. Baehman, Attorney at Law, Woodbury, MN, for the Respondent Employee. T. Michael Kilbury, Peterson, Logren & Kilbury, St. Paul, MN, for the Appellant. Sarah M. Hunter and Steven E. Sullivan, Johnson & Condon, Minneapolis, MN, for the Respondents, K-Mart/Sedgwick..
DEBRA A. WILSON, Judge
The self-insured employer, K-Mart, by MN Self Insurers’ Security Fund, administered by Berkley Risk Administrators Company, appeals from the judge’s finding that the employee’s July 21, 2006, work injury resolved within three months. We affirm.
The employee sustained a work-related injury to her back on December 18, 2000, while working as an assistant manager for K-Mart, which was self-insured for workers’compensation purposes with claims administered by Berkley Risk Administrators Company. The employee’s symptoms were located primarily on the left side of her low back. An MRI performed on October 2, 2001, showed a left paracentral and foraminal disc protrusion at L4-5 that appeared to be displacing the L5 nerve root as well as mild to moderate degenerative changes at L3-4 and L4-5. The employer admitted liability, and the employee was off work and received temporary total disability benefits from February 7, 2002, through January 5, 2003. On October 29, 2002, Dr. Matthias Feldkamp performed an L4-5 microdiscectomy and foraminatomy. K-Mart/Berkley paid the employee benefits for a 14% whole body disability.
The employee returned to work in her pre-injury job in early January of 2003 with a restriction of lifting no more than 20 pounds and an indication that this restriction would be permanent. She was originally released to work 40 hours per week, but Dr. Feldkamp allowed her to return to her usual 45-48 hours per week after a short period. Although Dr. Feldkamp did not see the employee again until December of 2008, on March 13, 2003, he issued a work and activity release form, changing her lifting restriction to 50 pounds. The employee regularly worked outside her restrictions, was never asymptomatic after this 2000 injury, and continued to have some low back symptoms, left leg symptoms, and a few right leg symptoms, for which she would periodically receive medical treatment.
On July 21, 2006, the employee sustained another work injury to her low back while working for K-Mart, which was at that time insured for workers’ compensation purposes by Sedgwick Claims Management Services, Inc. The employee’s back pain initially was primarily on the right side, but then returned to the left side. The employee treated with Dr. Sean Hearn for this injury. Dr. Hearn diagnosed back pain and on August 31, 2006, restricted the employee from lifting or carrying more than 21 pounds or pushing and pulling more than 26 pounds. When the employee returned to Dr. Hearn on September 22, 2006, she indicated that her restrictions were not being honored and that she wanted to have her hours reduced so that she could tolerate her back pain. Dr. Hearn issued a report of workability increasing her restrictions to lift/carry no more than 11 pounds.
A few days later, on September 26, 2006, the employee informed Dr. Hearn that she felt she could work only 35 hours a week, and she asked for further restrictions. Dr. Hearn issued a new report of workability that day, limiting the employee to 35 hours per week because of her pain problems.
The employee apparently received no further medical treatment for her low back condition until March 16, 2007, when she was seen again by Dr. Hearn. At that time, the employee indicated that her legs had been bothering her for the past three weeks and that she did not know why things had gotten worse. She also noted that her back had been a problem since 2000. Dr. Hearn issued a note indicating that the employee would benefit from working 32 hours per week until her pain was under better control.
Dr. Hearn also ordered an MRI, which was performed on March 26, 2007. The MRI was read as showing postoperative changes at L4-5, as a result of her surgery, with no evidence of recurrent or residual disc protrusion, and asymmetric left lateral disc bulging at L4-5, which “was present on the study of 10/2/01 and does not appear to be significantly changed.”
The employee has continued to work in her job as an assistant manager, without missing days from work.
The employee filed a rehabilitation request in June of 2008, seeking an on-site job analysis and listing both the 2000 and 2006 dates of injury. An administrative conference was held in October of 2008, at which time the mediator/arbitrator ordered that a rehabilitation consultation be performed to determine if the employee was a qualified employee for rehabilitation purposes. The mediator/arbitrator also found that the December 18, 2000, work injury was a substantial contributing cause of the need for the rehabilitation consultation and ordered K-Mart/Berkley to provide the consultation, further finding that, if the employee was a “qualified employee,” then the on-site job analysis should be included in the rehabilitation plan.
The employee also filed a medical request on July 9, 2008, seeking payment for the March 26, 2007, MRI and two medications prescribed by Dr. Hearn, Gabapentin and tramadol, again listing the two dates of injury. At the administrative conference held on these issues, K-Mart/Berkley contended that the disputed treatment was not related to the December 2000 work injury; K-Mart/Sedgwick argued that the disputed treatment was not related to the 2006 injury as that injury was merely temporary. The mediator/arbitrator went on to find that the disputed MRI and the prescription for Gabapentin were causally related to the December 18, 2000, work injury but that it had not been established that the prescription for tramadol was reasonable, necessary, and causally related to the December 2000 work injury. The employee and K-Mart/Berkley then filed petitions for formal hearing.
On December 17, 2008, the employee returned to see Dr. Feldkamp, who noted that he had not seen the employee since January of 2003. At the time of that exam, the employee indicated that she had been experiencing increasing pain over the past six months, also noting, “although the symptoms have been going on acutely for the last six months or so, they had been coming up over the last few years to a much lesser extent.” Dr. Feldkamp diagnosed an L4 and “possibly L5” radiculopathy, noting, “this could be due to foraminal stenosis at L4-5 due to progressive disc collapse” and a very slight spondylolisthesis at L4-5. He recommended flexion/extension lumbar spine x-rays to determine whether there was instability and questioned “how much conservative treatment we should consider before considering surgery.”
The employee was examined by independent medical examiner Dr. John Dowdle at the request of K-Mart/Berkley. In a report dated December 23, 2008, Dr. Dowdle diagnosed inflammation of the left sacroiliac joint, mechanical back pain with degenerative disc disease, and a previous laminectomy at the L4-5 on the left. It was his opinion that the 2006 work injury was a permanent aggravation of the employee’s underlying multilevel lumbar degenerative disc disease. He agreed with a lifting limit of 20 pounds and suggested that the employee work only 32 hours per week. He apportioned responsibility for wage loss and treatment after the July 21, 2006, work injury on a 50-50 basis between the “underlying degenerative condition” and the employee’s July 21, 2006, injury.
The employee also underwent an independent medical examination with Dr. Mark C. Engasser. In his report of December 23, 2008, Dr. Engasser diagnosed status post microdiscectomy left L4-5, multilevel lumbar degenerative disc disease, and myoligamentous strain of the lumbosacral spine. It was Dr. Engasser’s opinion that the 2000 injury was permanent and remained a substantial contributing cause of the employee’s back condition. He also opined that the 2006 injury was temporary in nature and would have lasted for a period of three months. After the three month period, the December 2000 injury would be solely responsible for the employee’s low back condition.
On January 5, 2009, Dr. Engasser wrote a letter indicating that the employee’s recent flare-up of pain was related to her original injury of December 18, 2000. On that same date, Dr. Hearn wrote a letter stating, “I think her pain did stem from the injury in July 2006.” In that letter, he also indicated, “I drew this information from the EMR which did not have any information from 12/18/00.”
Following hearing on the requests for formal hearing, the compensation judge found that the 2006 injury was only temporary in nature and had fully resolved within three months, and he therefore ordered K-Mart/Berkley to pay for the employee’s rehabilitation services and medical expenses. K-Mart/Berkley 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. Dr. Engasser’s Opinion
The compensation judge specifically adopted the medical opinions of Dr. Engasser as set forth in his report of December 23, 2008. K-Mart/Berkley argue that Dr. Engasser’s assumption that the employee did not miss work after July 21, 2006, is “simply incorrect and unsupported anywhere in the record” and that his report, therefore, lacks the requisite foundation for adoption by the judge. K-Mart/Sedgwick contend, on the other hand, that the issue of foundation was not raised at hearing and therefore cannot be raised on appeal. In the alternative, K-Mart/Sedgwick contend that Dr. Engasser’s opinions are adequately founded.
Foundation goes to the competency of a witness to provide an expert opinion, which is dependent on the witness’s scientific knowledge and practical experience with the subject matter of the offered testimony. Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A. 1996) (citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)). K-Mart/Berkley’s arguments in the instant case do not call into question the degree of Dr. Engasser’s scientific knowledge nor the extent of his experience. As such, the issue is not foundation but rather the weight to be given to Dr. Engasser’s opinion.
A judge’s choice of expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). In the instant case, K-Mart/Berkley contend that Dr. Engasser incorrectly assumed that the employee did not miss any work after the 2006 injury.
We note initially that the employee testified in her deposition, taken on December 18, 2008, that she did not miss any time from work, due to her back, after the 2006 injury. However, K-Mart/Berkley contend that, because the employee has been restricted to 32-35 hours of work per week since at least September of 2006, she had in effect lost time from work. Dr. Engasser noted in his report, however, that he had reviewed the Allina Medical Clinic records from June 8, 1970, to November 28, 2008, and those records contain several references to the employee’s restriction on hours beginning in September of 2006. Furthermore, Dr. Engasser’s failure to mention the restriction in hours in his report does not necessarily mean that he was unaware of it.
In addition, nowhere did Dr. Engasser indicate that he had based his opinion on the fact that the employee did not lose any time from work after the 2006 injury. Rather, he stated that he had based his opinion on the fact that the employee had a recurrence of low back and radicular pain after her surgery in 2002, but before the 2006 injury, and that there was “no evidence of any new diagnosis or new condition or any substantial concrete structural change in the lower back on comparison of the MRIs of 2001 and 2007.” These facts are not disputed by K-Mart/Berkley and are supported by the medical evidence.
2. Temporary Aggravation
K-Mart/Berkley contends that the judge’s finding that the effects of the July 21, 2006, injury had resolved by October 21, 2006, is wholly unsupported. Again, we are not persuaded.
The employee’s testimony supports the judge’s finding of a temporary aggravation ending as of October 21, 2006. Specifically, the employee testified at hearing that her back pain was at a level of 6 on a scale of 0-10 prior to 2006, was at 8 on the date of injury, and that, three months after the 2006 injury, the pain had returned to its baseline. The employee also testified in her deposition that, when seeking medical care since 2006, she usually refers to the 2000 injury, because “I think that’s where it’s all stemming from.”
In addition, the medical records show that, after September 22, 2006, the employee went without further medical treatment until March of 2007, and there were no significant changes on the 2007 MRI as compared with the MRI of 2002.
Following her 2000 work injury, the employee had surgery, was off work for over 11 months, was rated as having a 14% permanent partial disability, had continuing symptoms, and received periodic treatment. She testified that her symptoms continued up to the time of the 2006 injury, that she worked outside her restrictions regularly from 2003 to July of 2006, that she went six months without any treatment from September 2006 to March 2007, and that her pain increased from the 2006 injury but returned to its pre-July 2006 level within 3 months. Given these circumstances, when coupled with Dr. Engasser’s opinion, there is substantial evidence to support the judge’s finding that the employee’s 2006 injury was temporary.
K-Mart/Berkley contend that the opinions of Dr. Hearn and Dr. Dowdle support a determination that the July 21, 2006, injury was a substantial contributing cause of the employee’s current condition. With regard to Dr. Hearn, we note that his only causation opinion is contained in his January 5, 2009, letter, in which he indicated that he did not have any information from December 18, 2000. But, more importantly, the issue on appeal is not whether the evidence will support alternative findings, but, rather, 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 (3). Because the compensation judge was entitled to rely on the opinion of Dr. Engasser regarding the nature and extent of the 2006 injury, we affirm the judge’s decision in its entirety.
 K-Mart apparently declared bankruptcy at some point, and MN Self-Insurers’ Security Fund, with claims administered by Berkley, assumed responsibility for the workers’ compensation claim for the 2000 work injury. For purposes of simplicity, we will continue to refer to K-Mart, self-insured by MN Self-Insurers’ Security Fund, administered by Berkley, as K-Mart/Berkley.
 K-Mart apparently emerged from bankruptcy in May of 2003.
 It is this court’s understanding that Sedgwick is a claims administrator and not an insurer; however, both the compensation judge and Sedgwick’s attorney indentified Sedgwick as K-Mart’s insurer on this date.
 In her deposition, the employee testified that her symptoms returned to baseline “a couple of months” after the 2006 injury.
 The fact that more severe restrictions were not recommended until after July of 2006 does not necessarily establish that those restrictions were the result of the 2006 injury.