ANTHONY J. HAMPSON, Employee, v. RAPAT CORP. and BROADSPIRE INS., Employer-Insurer/Appellants, and MEDICA HEALTH PLANS and INNOVIS HEALTH, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 21, 2010
CAUSATION - PRE-EXISTING CONDITION. Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee’s work-related low back injury substantially aggravated or accelerated the employee’s underlying ankylosing spondylitis.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Gary P. Mesna
Attorneys: Steven C. Schneider, Schneider, Schneider & Schneider, Fargo, ND, for the Respondent. Brad Delger, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the judge’s decision that the employee’s work-related low back injuries substantially aggravated, accelerated, and contributed to the employee’s underlying ankylosing spondylitis. We affirm.
On November 5, 1991, the employee sustained a work-related injury to his low back while employed by Rapat Corporation [the employer] as a painter. He subsequently underwent treatment for what was diagnosed as a low back strain, and he was eventually released to return to work with restrictions. At some point, the employee left his job with the employer because the work was too hard on his back.
In 1999, the employee was diagnosed as suffering from ankylosing spondylitis, an autoimmune disease causing pain and stiffness throughout the spine, among other symptoms. Dr. Joseph Sleckman, the rheumatologist who made the diagnosis, subsequently treated the employee for this condition on an ongoing basis.
In January of 2000, the parties entered into a stipulation, settling all claims for benefits related to the November 1991 injury, except claims for future medical expenses, on a full, final, and complete basis. According to the stipulation, the parties agreed, in part,
That on or about November 5, 1991, the employee sustained an alleged injury to his back, which was superimposed upon previously asymptomatic ankylosing spondylitis, arising out of and in the course of his employment, of which the employer had knowledge or due notice.
An award on stipulation was issued on January 25, 2000.
Both before and after the parties’ settlement, the employer and insurer paid for medications prescribed by Dr. Sleckman, including Embrel, hydrocodone, and oxycodone. Eventually, however, in 2009, the employer and insurer took the position that these medications were not related to the employee’s work injury but were instead necessitated solely by the employee’s underlying ankylosing spondylitis.
When the matter came on for hearing before a compensation judge, the employer and insurer admitted that the medications prescribed by Dr. Sleckman were reasonably required to treat the employee’s back condition. The sole issue was whether the employee’s need for those medications was substantially necessitated by the employee’s work injury. Evidence bearing on the disputed issue consisted primarily of reports from Dr. Sleckman and from Dr. Asim Kahn, the employer and insurer’s independent examiner.
In a decision issued on July 14, 2010, the compensation judge concluded that the employee’s need for the medications at issue was causally related to the employee’s work injury. 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).
In his findings, the compensation judge concluded that the employee’s “work-related injuries were a substantial aggravating, accelerating, and contributing cause of the ankylosing spondylitis.” On appeal, the employer and insurer contend that substantial evidence does not support the compensation judge’s decision that the employee’s work injury “caused” his ankylosing spondylitis. We are not persuaded.
Two physicians offered opinions on causation: Dr. Sleckman, the employee’s treating physician, and Dr. Khan, the employer and insurer’s independent examiner. Both doctors agree that the employee has ankylosing spondylitis, that ankylosing spondylitis is an autoimmune disorder, and that the disputed medications are reasonably required to treat the employee’s back condition. However, the two physicians disagree as to whether the employee’s need for treatment is causally related to his work injury.
Dr. Khan issued three reports discussing the nature of the employee’s condition and treatment. After what he described as extensive research on the issue of whether trauma can trigger ankylosing spondylitis, Dr. Kahn wrote, in part, as follows:
We know there is still no clearcut evidence [of] what initiates the ankylosing spondylitis and the pathogenesis of the disease is still unclear. There may be some environmental factors . . . which can be seen in patients who have underlying inflammatory bowel disease or certain other autoimmune disorders, but as far as ankylosing spondylitis, there is no evidence that physical trauma is responsible for initiating the disease process. Certainly, the disease symptoms can get exacerbated with doing heavy physical activities, which can bring on small micro fractures in these patients. Certainly, these patients are at more risk of having back injuries and fractures as they tend to develop these major syndesmophytes, which are calcifications, which are noted along the cartilages and along the bony spurs which are connecting the spine. . . . [One study suggests] that injury does not cause ankylosing spondylitis, but brings it to the patient’s attention. . . . Certainly, in my opinion, he probably had symptoms of early ankylosing spondylitis and if the radiologist is not a bone radiologist, there is a significant likelihood that he would have missed the early diagnosis. No one at that point was looking for this diagnosis until he was evaluated by Dr. Joseph B. Sleckman, who did the appropriate testing and x-rays and did an HLA-B27 testing.
In his earlier reports, Dr. Kahn indicated also that the employee’s low back strain “did not result in an acceleration of the underlying ankylosing spondylitis beyond any normal progression,” although the strain could have caused a temporary exacerbation, resulting in increased pain.
For his part, Dr. Sleckman explained his contrary opinion as follows:
There is discussion in the medical literature of trauma accelerating the illness. It is known that patients with ankylosing spondylitis really have to restrict their activities, although stretching to maintain mobility and cardiovascular tone is to be advised. The spine is stiffer and more predisposed to trauma. There are physicians who believe that trauma can play a role in aggravating this. I will quote a paper by Dr. Dafne Gladman, Professor of Medicine at the University of Toronto. She prepared a paper for the Work Place Safety and Insurance Tribunal on trauma and inflammatory arthritis. This was in Canada in September 1998. She said, “Trauma may aggravate ankylosing spondylitis in that a patient with ankylosing spondylitis has syndesmophytes in the spine. These reflect ossification of the outer layers of intervertebral discs, as well as ossification of longitudinal ligaments. Trauma may lead to fracture of these sites, leading to pseudojoints which become very painful for these patients.”
Although [the employee] did not have any major syndesmophytes, I do believe that there was an underlying stiffness of the joints that would render them predisposed to microfracture. This would certainly substantially aggravate his underlying illness that he was predisposed to.
There are instances when trauma and the immune system are related. There is an illness called systemic lupus, for example, whereby sunlight exposure traumatizes the skin and exposes antigens which become targets for antibody production. One could [envision] cases whereby stress would unmask various antigens in genetically susceptible individuals and lead to acceleration of an illness. There is a lot of work also being done on the relation of stress in the immune system, and it is possible that physical or even psychological stress can indeed change the immune system. We would like to think that these 3 categories are pure, such as the immune system, the mind, and the physical structure of the body, being 3 separate things. In all likelihood they are related and interact. Essentially, as I said, my opinion remains the same that in [the employee’s] case there was trauma and microtrauma to the spine that affected the areas of pathogenesis of his ankylosing spondylitis and accelerated the process. I have reached this conclusion based on the fact that [the employee] was doing quite well before the work injury of 1991. My opinion is also based in the treatment I have provided as well as the office notes and my physical examinations for more than 11 years in treating this patient.
I did look carefully at Dr. Khan’s opinion and his addendum, but I just have a different opinion on what has occurred.
The compensation judge accepted Dr. Kahn’s opinion that the employee’s injury did not “initiate the disease,” but the judge also accepted Dr. Sleckman’s opinion that “there was substantial aggravation and acceleration of the disease in the employee as a result of the work injuries.”
The employer and insurer contend that there is no evidence that trauma or injury “causes what is ultimately a purely genetic, autoimmune disorder” and that “there are no studies, no x-rays, and no tests to show that his work-related injury initiated the process of ankylosing spondylitis in the employee.” (Emphasis added.) However, as indicated above, the compensation judge made no such findings. The employer and insurer also contend that Dr. Sleckman’s opinion is not sufficiently supported by “any concrete or specific scientific study.” However, nothing in the law requires medical opinion evidence to be supported by medical literature. The employer and insurer’s argument on this point was simply a factor for the compensation judge to weigh in evaluating the conflicting expert opinions.
Ankylosing spondylitis has a strong genetic component, but the cause of the disease is apparently not entirely understood. This fact, however, is not determinative of the question of compensability. See, e,g., Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988). Dr. Sleckman, a rheumatologist and the employee’s treating physician of eleven years, concluded that the employee’s underlying disease was substantially aggravated by the employee’s work-related injury. The judge was entitled to accept Dr. Sleckman’s opinion in this regard, and we affirm. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
 In their brief on appeal, the employer and insurer also argue that the judge erred in denying their request for a post-hearing deposition of their independent medical examiner. However, the employer and insurer failed to raise this issue in their notice of appeal. As such, this court lacks jurisdiction to consider it. See Minn. Stat. § 176.421, subd. 6 (“On appeal, . . . the Workers’ Compensation Court of Appeals’ review is limited to the issues raised by the parties in the notice of appeal or by cross-appeal”).
 The employee also sustained work-related low back injuries on January 7, 1991, and February 22, 1994. Differentiating between the effects of the three injuries is not important for purposes of this appeal.