PHUNG T. IDLEBURG, Employee/Appellant, v. GOLDEN LIVING CTR.and INSURANCE CO. OF THE STATE OF PA./CONSTITUTION STATE SERVS., Employer-Insurer, and PARK NICOLLET MED. CTR. and METHODIST HOSP., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 26, 2010
ARISING OUT OF & IN THE COURSE OF; CAUSATION - PRE-EXISTING CONDITION. Where medical evidence and testimony as to the mechanism of the onset of the employee’s knee pain at work was both varying and undefined, where the employee’s surgeon described the employee’s condition as primarily a degenerative one probably involving some pre-existing cartilage damage in her knee, where that surgeon was unable to attribute the employee’s problems to any particular event, and where the immigrant employee’s contention that the record was inaccurate due to a language barrier was rebutted by evidence that a translator was always present at her examinations, the compensation judge’s conclusion that the employee did not prove that her knee disability arose out of her employment was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, C.J., and Wilson, J.
Compensation Judge: Bradley J. Behr
Attorneys: Thomas D. Mottaz and Jerry W. Sisk, Law Office of Thomas D. Mottaz, Coon Rapids, MN, for the Appellant. Christine L. Tuft and Noelle L. Schubert, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge’s conclusion that the employee failed to prove that her left knee injury arose out of her employment. We affirm.
On August 24, 2008, Phung Idleburg [the employee] experienced an episode of acute pain in her left knee in the course of her employment as a dietary aide with Golden Living Center [the employer]. The employee sought treatment for her pain the following day, August 25, 2008, at Park Nicollet Clinic urgent care, where she reported “while she was taking out the trash yesterday at work she felt a sudden pain in her left knee posterior kneecap and lateral knee,” which had now left her unable to walk. The employee is a Vietnamese immigrant, and her medical records on that date indicate that she was “accompanied by a Hmong interpreter.” X-rays were negative with no evidence of fracture or dislocation, and an ultrasound of the employee’s left lower extremity on that same date was normal, with a baker’s cyst noted. The employee was prescribed ibuprofen and a knee brace and was told to ice her knee three or four times a day and to elevate her leg as much as possible. The employee was fifty-six years old on August 24, 2008, and was earning a weekly wage of $333.67. Prior to that date she had no history of any left knee pain or of any medical treatment addressed to her left knee.
The employee apparently returned to the employer after her medical appointment on August 25, 2008, with light duty work restrictions that had been issued to her by the doctor, but the employer was evidently unable to accommodate those restrictions, and the employee was sent home. Two days later, on August 27, 2008, the employee returned to Park Nicollet Clinic urgent care, where she saw Dr. John Kasmirski, whose notes report that the employee’s sudden onset of knee pain had occurred “while she was at work walking.” Those notes go on to report, “She is on her feet all day. Is unsure if she had a twisting injury or slipped as the floor is frequently wet where she works” and that “[s]he does note that she had a bump behind her left knee prior to onset of these symptoms.” Dr. Kasmirski’s office notes for that date indicate that both an interpreter and the employee’s husband were in the room at the time of the examination.
The employee saw Dr. Kasmirski again on September 17, 2008, when office notes report that her injury occurred “when she was walking across a slippery floor” and again indicate that an interpreter was present for the examination. The employee reported feeling “a bit better” on that date, but she still had swelling in the knee and still walked with a slight limp, and, with her exam appearing “more consistent with a meniscal injury today,” Dr. Kasmirski recommended an MRI scan. The employer and insurer evidently denied payment for the scan, but it was conducted nevertheless on September 25, 2008, and was read to reveal a tear in the posterior horn of the medial meniscus, together with some thinning of portions of the patellar cartilage. On September 30, 2008, the employee, her husband, and an interpreter attended a follow-up examination with Dr. Kasmirski, who, again reporting that the employee’s injury had occurred “when she was walking across a slippery floor,” reviewed the MRI scan with the employee. Noting that the MRI results were consistent with a medial meniscal tear but that the employee “has some mild degenerative change as well,” Dr. Kasmirski diagnosed a medial meniscal tear, evidently administered a cortisone injection, and referred the employee for a surgical consultation. She returned to see Dr. Kasmirski once again on October 8, 2008, about a week later, requesting another injection for her pain, and Dr. Kasmirski refilled her Vicodin and Tylenol prescriptions. Noting that the employee “does have degenerative changes in her knee on MRI scan as well [as her meniscal tear],” Dr. Kasmirski indicated that the employee “is aware that surgery may not be the answer” but concluded that she should nevertheless go ahead with the surgical consultation.
On October 15, 2008, the employee filed a claim petition, alleging entitlement to temporary total disability benefits continuing from August 25, 2008, together with rehabilitation benefits and Heaton attorney fees, consequent to a work injury on August 24, 2008. The employer and insurer denied primary liability, contending in part that the employee did not sustain a personal injury on the date alleged and that her condition did not arise out of and in the course of her employment.
On October 17, 2008, the employee underwent a surgical consultation with orthopedist Dr. Michael Hebert. Upon examination of the employee and review of her September 25, 2008, MRI scan, Dr. Hebert diagnosed left knee medial compartment degenerative joint disease and a degenerative tear in the medial meniscus of that knee. When the employee was reluctant to consider knee replacement surgery, Dr. Hebert suggested that she might gain some benefit from arthroscopic debridement and partial medial meniscectomy, noting, however, that he could not guarantee her relief due to pre-existing articular cartilage damage. On October 23, 2008, Dr. Hebert performed on the employee’s left knee a partial medial meniscectomy and debridement of the medial femoral condyle as recommended.
The employee evidently did not experience any significant improvement in her symptoms as a result of the surgery despite post-surgical injections, continuing instead to suffer from swelling and continuing pain in her knee. Nevertheless, on December 5, 2008, Dr. Hebert released her to return to work at sedentary employment beginning December 13, 2008. On January 19, 2009, apparently at the request of the employee, Dr. Hebert released the employee to return to work on February 1, 2009, still with restrictions but without specifying those restrictions. On February 13, 2009, having been off work since August 25, 2008, the employee returned to work evidently at her job with the employer, part time for about a month and then full time. Following her return to work, the employee evidently continued to have symptoms in her knee, and in May and June of 2009 Dr. Hebert performed some additional injection treatment. Eventually, on August 4, 2009, with the employee’s symptoms continuing after several months of conservative treatment, Dr. Hebert opined that the only long-term and permanent solution for the employee’s condition would likely be a total knee arthroplasty. He concluded on that date that, while she did not require any specific restrictions, the employee was likely to have persistent pain and swelling that was likely to be exacerbated by a lot of heavy squatting and lifting.
On August 6, 2009, Dr. Hebert submitted a narrative report to the employee’s attorney, in which he diagnosed the employee’s condition as follows:
The diagnosis for her is basically degenerative joint disease with her knee. Specifically though she has had a left degenerative type tear of the posterior horn of the medial meniscus. She also has significant grade 3 and 4 degenerative change in the medial femoral condyle of her knee, and also grade 3 change in her patellofemoral joint. These are all consistent with a degenerative type arthritis in the left knee.
Dr. Hebert stated that “many of the changes in [the employee’s] knee are degenerative in nature and cannot be [at]tributed to one sole injury.” He went on to state, however, that “by her history it is clear that [the employee] had an exacerbation of this while . . . at work on August 24, 2008,” concluding, “I do believe [that the employee’s work played] a substantial contributing role [in] the need for surgery,” although, “as I have discussed previously this is primarily a degenerative condition and likely she had some pre-existing cartilage damage in her knee prior to this work injury.”
The matter came on for hearing on October 8, 2009. Issues at hearing were as follows: (1) whether the employee had sustained an injury to her left knee that arose out of her employment on August 24, 2008; (2) whether the employee was temporarily and totally disabled from August 25, 2008, to February 12, 2009, as a substantial result of a work-related injury to her left knee; (3) whether the employee had sustained a diminution of earning capacity from February 13, 2009, to March 12, 2009, as a substantial result of a work-related left knee injury, entitling her to temporary partial disability benefits; (4) whether the employee had sustained any permanent partial disability as a substantial result of a work-related injury to her left knee; (5) whether treatment provided to the employee by certain intervenors was reasonable and necessary to cure and relieve the effects of a work-related injury; and (6) whether those intervenors were entitled to reimbursement. The parties stipulated at hearing that the employee had been temporarily and totally disabled from August 25, 2008, to February 12, 2009, as a result of her left knee pain and left knee surgery, but the employer and insurer denied that that disability arose out of a compensable work-related injury. The parties stipulated also that the employee had sustained a 3% whole-body permanent partial disability as a result of her October 23, 2008, left knee surgery, which involved removal of more than fifty percent of the medial meniscus. The employer and insurer again denied, however, that that disability and the need for that surgery arose out of a compensable work-related injury. Finally, the parties stipulated also that all medical treatment provided by intervenors Park Nicollet Medical Center and Methodist Hospital for left knee symptoms from August 25, 2008, through the date of the hearing was reasonable, the employer and insurer again disputing causation.
Evidence admitted at hearing included the testimony of the employee, who, although she understands substantial English, testified at all times through a Vietnamese interpreter. The employee testified in part that she felt the onset of her pain at work on the date alleged while pushing a plastic trash cart outside to a dumpster. She testified that the cart was about five feet long, about three feet wide, and about three and a half feet high and was loaded at the time with about four big bags of garbage. She testified also that, contrary to medical records in evidence, no interpreter was present at her first medical appointment for her knee pain on August 25, 2008.
By findings and order filed December 12, 2009, the compensation judge concluded in part that the degenerative condition noted on the employee’s September 25, 2008, MRI scan of her left knee pre-existed August 24, 2008. The judge found also, however, that the employee had sustained a permanent aggravation of that condition while performing her job with the employer on August 24, 2008, and that that aggravation had caused the condition to become symptomatic. The judge found further, however, that the employee had not proven that that aggravation, while occurring in the course of her work, actually arose out of and consequent to the employee’s work on that date. On those findings, the compensation judge denied the employee’s claims and the claims of the intervenors. The employee appeals.
STANDARD OF REVIEW
In reviewing cases 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. 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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyion Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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 the evidence or not reasonably supported by the evidence as a whole.” Id.
The compensation judge concluded at Finding 13 that “during the weeks after 8/24/08 the employee was unsure of any specific work activity which had caused her acute left knee pain.” At Finding 14 the judge concluded further that the employee “failed to demonstrate that she was subject to an increased risk of injury due to her job duties or the physical conditions of her employment.” On those findings, the judge concluded at Finding 15 that the employee had failed to prove that her left knee injury arose out of her employment. The employee contends that these conclusions are clearly erroneous and unsupported by substantial evidence--legally erroneous in their apparent requirement that a supporting medical opinion must cite a mechanism of injury and factually unsupported in that the employee’s work at pushing a cart at work did place her at increased risk of injury. We are not persuaded.
The phrase 'arising out of’ the employment is expressive of the requirement that there must be a causal connection between the conditions which the employer puts about the employee and the employee's resulting injury. The requisite causal connection - - which need not embrace direct and proximate causation as for a tort - - exists if the employment, by reason of its nature, obligations or incidents may reasonably be found to be the source of the injury-producing hazard. [Footnote omitted.] The causal connection of source is supplied if the employment exposes the employee to a hazard which originates on the premises as part of the working environment, or if the employment, as part of the working environment, peculiarly exposes the employee to an external hazard whereby he is subjected to a different and greater risk than if he had been pursuing his ordinary personal affairs. [Footnote omitted.]
Nelson v. City of St. Paul, 249 Minn. 53, 55-56, 81 N.W.2d 272, 275, 19 W.C.D. 120, 123 (1957). An employee need not prove that his accident or exposure in the work place was the sole cause of the disability, only that the work environment was an “appreciable” or “substantial” contributing cause. Roman v. Minneapolis St. Ry. Co., 268 Minn. 367, 380, 129 N.W.2d 550, 558, 23 W.C.D. 573, 592 (1964); Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 497-98, 40 W.C.D. 117, 122 (Minn. 1987). Nevertheless, in order for her injury to be deemed to have arisen out of her employment, an employee must still affirmatively demonstrate that some element of the workplace constituted a risk to which she would not have been subjected while pursuing the ordinary affairs of personal life. See Nelson, 249 Minn. at 56, 81 N.W.2d at 275, 19 W.C.D. at 123; cf. Goebel v. Dyneon Corp./3M Co., slip op. (W.C.C.A. Jan. 24, 2005) (where the record reasonably supported the conclusion that, while she was walking, the employee’s knee gave out solely as a result of a personal, preexisting condition, substantial evidence supported the judge’s conclusion that the employee did not establish that her injury arose out of her employment).
In this case, there was varying evidence in the medical record that the onset of the employee’s pain occurred “while she was taking out the trash yesterday at work,” “while she was at work walking,” and “at work . . . when she was walking across a slippery floor.” That same record indicates that the employee reported being “on her feet all day,” being “unsure if she had a twisting injury or slipped as the floor is frequently wet where she works,” and having “a bump behind her left knee prior to onset of these symptoms” - - perhaps the pre-existing baker’s cyst noted on her August 25, 2008, ultrasound. Moreover, although he ultimately concluded that the employee’s work on August 24, 2008, played a substantial contributing role in her need for surgery, the employee’s own surgeon was unable to attribute the employee’s problems to any particular event, noting that hers was “primarily a degenerative condition and likely she had some pre-existing cartilage damage in her knee prior this work injury.” In the context of these facts, it was not unreasonable for the compensation judge to conclude that the employee did not prove that her disability arose out of her employment. This is true notwithstanding the employee’s apparent contention that her medical record is inaccurate due to a language barrier, the records clearly indicating that interpreters were present at all of her examinations. Because it was not unreasonable, we affirm the compensation judge’s decision. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 See Heaton v. J. E. Fryer & Co., 36 W.C.D. 316 (W.C.C.A. 1983).