PATRICK W. DIVINE, Employee, v. HOIGAARD’S, INC., and A.P. CAPITAL/ASU RISK MGMT. SERVS., LTD., Employer-Insurer/Appellants, and INSTITUTE FOR ATHLETIC MED., Intevenor.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 18, 2010
CAUSATION - SUBSTANTIAL EVIDENCE. Where the medical opinion relied on by the judge was extremely equivocal, the physician relied on assumptions not supported by the record, and contemporaneous and subsequent treatment records did not support the conclusion that the employee sustained a work-related injury to his right shoulder, the record as a whole did not support the compensation judge’s decision that the employee sustained a work-related right shoulder injury that substantially contributed to his need for proposed surgery.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Kathleen Behounek
Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Respondent. John T. Thul, Cousineau McGuire, Minneapolis, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the judge’s finding that the employee sustained an injury to his right shoulder on May 24, 2002, that was a substantial contributing cause of his current need for surgery. We reverse.
On May 24, 2002, the employee was working for Hoigaards, Inc. [the employer], as a head bicycle mechanic, when he sustained a work-related injury while attempting to remove the bottom bracket on a bike. At that time, he felt a snap and then burning and numbness in the right side of his neck, down his arm, into his fingertips.
The employee received treatment at South Lake Chiropractic the next day. Examination revealed tenderness in the thoracic spine on the right, left, and in the middle, and spasm and tenderness in the paravertebral, trapezius, levator scapulae, and rhomboid muscles bilaterally. Deep tendon reflexes of the biceps and triceps were normal on both sides. The diagnosis at the time was “acute, traumatic, moderate thoracic sprain/strain,” and the doctor’s treatment plan was to adjust the employee’s neck and thoracic spine and use cervical traction and ice, vibration, and a TENS unit. The employee received treatment on ten occasions and was then discharged from care on August 20, 2002. The employer and insurer admitted that the employee sustained a work-related injury.
The employee missed no time from work following that injury but did modify his activities for some period. He continued his job as a bike mechanic for the employer until 2005, when he went to work for a different bike store. Eventually, he obtained employment as an x-ray technician.
The employee treated with Dr. John T. Anderson on November 15, 2005, for a left shoulder injury. The employee completed a shoulder assessment form that day indicating problems he had with his left arm doing ten specific activities. He also noted no difficulty performing those same activities with his right arm. Dr. Anderson examined both shoulders and noted no abnormal findings as to the right shoulder. On December 22, 2005, Dr. Anderson performed surgery on the employee’s left arm, including a mini open rotator cuff repair.
The employee received no medical treatment for his right shoulder condition until March 20, 2008, a day after he experienced pain in his neck, right shoulder, and down his arm while shaking water out of a cleaning pad, or dish, at home. He was seen at the Fairview-Maple Grove Clinic, describing the onset of symptoms the previous day and complaining of right shoulder pain. Under “prior history of related problems,” he mentioned only a left shoulder injury. On exam, it was noted that the employee had tenderness in the proximal biceps tendon and coracoids region. The diagnosis at the time was a sprain of the right shoulder/arm and biceps strain, and the employee was referred for physical therapy.
When physical therapy was not effective, an MR arthrogram of the employee’s right shoulder was ordered. That study, conducted on May 20, 2008, revealed a high-grade partial-thickness tear of the anterior and mid fibers of the supraspinatus tendon, partial-thickness tear of the infraspinatus tendon, partial-thickness tear of the subscapularis, complete tear of the biceps tendon, severe acromioclavicular joint osteoarthrosis, fraying of the labrum, and degenerative changes of the glenohumeral ligament.
The employee was seen by Dr. Bradley Nelson on June 17, 2008. Dr. Nelson recorded that the employee had a
long history of right shoulder pain. [The employee] had a significant injury in 2002 while lifting a bike in a bike shop. At that time he feels that he may have torn his long head of biceps tendon. He has had intermittent shoulder pain since that time. His pain has markedly increased since March.
According to Dr. Nelson, the MRI revealed a significant partial-thickness rotator cuff tear of the supraspinatus, tendinosis of the infraspinatus and superior subscapularis but no tearing, and a long head of the biceps rupture. He recommended that the employee begin a program working on posterior capsular stretching until he could have rotator cuff surgery.
On August 10, 2009, Dr. Nelson responded to a letter from the employee’s attorney, noting that the employee had described an injury in May of 2002,
where he was moving a bracket cartridge from a bike. The cartridge was stuck and after excessive force to try to loosen this mechanism, he had significant shoulder pain. He saw a chiropractor at that time and was given treatment. He was allowed to return to work on August 26, 2002.
The doctor opined that “it is certainly plausible that this injury resulted in a proximal biceps rupture and also may have contributed to his rotator cuff injury.” Dr. Nelson went on to note that the employee’s right shoulder “has been symptomatic intermittently throughout the years and is now bothersome enough to warrant surgical treatment.”
On August 26, 2009, the employee filed a claim petition, alleging entitlement to shoulder surgery as a result of the May 24, 2002, work injury.
The employee treated with Dr. Nelson again in October of 2009. At that time, the employee complained of pain both over the anterior and lateral aspect of the shoulder. He also had some superior shoulder pain and some occasional mechanical catching-type sensation. On that date, the doctor noted that the employee wanted to proceed with surgical repair of his rotator cuff.
The employee was examined by independent medical examiner Dr. Paul Yellin on November 20, 2009. In his report of December 1, 2009, Dr. Yellin agreed with Dr. Nelson’s opinions as to diagnosis and the employee’s need for surgery, but he opined that the employee’s right shoulder problem “in no way relates to an alleged injury of May 24, 2002.” According to Dr. Yellin, the symptoms that the employee had experienced in 2002 were “more consistent with some type of temporary nerve irritation,” and the employee’s shoulder problems were developmental, “which predisposed Mr. Divine to the wear and tear eventually leading to rotator cuff tearing and labrum tearing necessitating . . . surgery.”
When the matter came on for hearing, the parties stipulated that the employee had sustained a work-related injury on May 24, 2002, and that the proposed right shoulder surgery was reasonable and necessary treatment. The issues were whether the employee had injured his right shoulder on the date of injury, and, if so, whether that injury was temporary or was a substantial contributing cause of the employee’s need for surgery.
In findings and order filed on March 22, 2010, the compensation judge found, in part, that the employee had been unable to complete his work duties after the injury on May 24, 2002, that the employee had experienced intermittent symptoms in his right shoulder from August of 2002 until March of 2008, that the employee had sustained an injury to his right shoulder on May 24, 2002, and that that injury was a substantial contributing cause of the employee’s current right shoulder condition and need for surgery. The employer and insurer appeal.
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).
The employer and insurer contend that substantial evidence does not support the compensation judge’s finding that the employee injured his right shoulder on May 24, 2002, and that the judge erred in relying on Dr. Nelson’s opinion. We agree that the record as a whole does not support the judge’s decision.
The chiropractic records from May 25, 2002, through August 1, 2002, do not reflect any injury to the employee’s right shoulder. The employee’s complaint at the time of his initial treatment was of sharp pain in the right upper back, down the arm to the hand. While the chiropractor noted some spasm and tenderness at the trapezius and levator scapulae on May 25, 2002, it appears that these symptoms were bilateral, and no doctor opined that the employee’s symptoms at this point were due to an injury to his right shoulder. Rather, the chiropractor’s diagnosis was moderate thoracic sprain/strain, and treatment was directed to the employee’s neck and thoracic spine. The judge indicated in her memorandum that chiropractic records showed pain and spasms in the shoulder on multiple occasions; however, the only mention of the employee’s shoulder in the chiropractic records is a July 1, 2002, notation, “Pt reports R shoulder blade soreness.” (Emphasis added.)
In her memorandum, the judge explained her finding as to the occurrence of a right shoulder injury by stating that she found the opinion of Dr. Nelson more persuasive than that of Dr. Yellin. However, a judge’s choice of expert opinions will not be upheld if 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.C. 364 (Minn. 1985). In the instant case, Dr. Nelson relied on several facts that are not supported by the record. For example, in his office notes, Dr. Nelson refers to the employee as having sustained a significant injury in 2002, and, in his report of August 10, 2009, he referred to the employee as having had significant shoulder pain at the time of that injury. Furthermore, that same report suggests that the employee was off work from the date of injury until August 26, 2002. There is, however, no evidence to support the doctor’s statement that the injury was significant, that the employee had significant shoulder pain at the time of the injury, or that the employee had been off work until August 26, 2002, because of the injury.
At hearing, the employee testified that on May 24, 2002, he felt “like a snap and a burning and then some numbness down in my fingertips extending from my right neck all the way down my arm.” He did not testify to having experienced shoulder pain at that time. The employee also testified that he did not miss work because of that injury. Chiropractic records reflect that the employee received only ten treatments before being released from care, and we see no evidence that Dr. Nelson reviewed those records.
Dr. Nelson also stated that the employee’s shoulder “has been symptomatic intermittently throughout the years,” another statement not supported by the evidence. There is no record indicating that the employee received any medical treatment for right shoulder symptoms in 2003, 2004, 2005, 2006, or 2007. While the employee received chiropractic treatment in November of 2002 and in February, March, and June of 2004, that treatment was for upper back and neck soreness, and the employee did not complain of right shoulder pain at that time. Furthermore, when asked at hearing whether he was having any right shoulder problems prior to June 1, 2005, the employee testified only, “you know, off and on I probably had irritations.” The employee was not asked whether he had experienced right shoulder problems between June 2005 and March 24, 2008. The employee also testified that, immediately following his 2008 onset of symptoms, he did not tell any doctor of having had a prior problem with his right shoulder, because he had forgotten about the 2002 injury. We also note that Dr. Nelson’s opinion was very equivocal, indicating only that causation was “plausible” and “entirely possible.”
In addition, when the employee treated for his left shoulder injury in 2005, he indicated that he had no difficulty with his right arm, and Dr. Anderson noted no abnormalities in the employee’s right shoulder upon examination.
The only real evidence of a possible right shoulder injury occurring on May 24, 2002, is a statement completed by the employee on June 23, 2002, for the insurer. In that form, he described the ongoing nature of his problem as “pain & stiffness in shoulder, numbness in hand, pain in forearm.” This note, standing alone, does not rise to the level of substantial evidence to support the judge’s finding.
Finally, we would note that the judge explained her decision in part by concluding that the MR arthrogram findings “are consistent with an old, traumatic injury.” There is, however, no medical opinion evidence indicating that the MRI findings are consistent with an old, traumatic injury.
The employee’s 2002 medical records contain no reference to the employee’s right shoulder or rotator cuff symptoms, and the diagnosis at that time was of a thoracic strain. Treatment was directed to the employee’s neck and thoracic spine, there is no evidence that the 2002 injury caused significant pain or the need for any time off work, there is no evidence that the employee experienced ongoing right shoulder symptoms or underwent treatment from 2002 until 2008, and Dr. Nelson’s opinions rely on assumptions not supported by the record. For those reasons, we reverse the judge’s finding that the employee sustained a work-related right shoulder injury in 2002 that is a substantial contributing cause of his current need for right shoulder surgery.
 The provider used the letter “B” in relation to the spasm and tenderness found in these soft tissues. The notes indicate that “R” is for right, and “L” is for left, so we assume that B is meant to designate bilateral.
 The chiropractor did not record any findings with regard to the supraspinatus, infraspinatus or subscapularis muscles. The MR arthrogram in May of 2008 showed tears of these muscles.