RANDALL A. NOWACKI, Employee/Appellant, v. CC SERVS., INC., and CHUBB GROUP OF INS. COS., Employer-Insurer, and HEALTHPARTERS, CENTRAL MINN. NEURO-SCIENCES, LTD., CENTER FOR DIAGNOSITC IMAGING, PHYSICIANS NECK & BACK CLINIC, and NOVACARE OUTPATIENT REHAB. EAST, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 29, 2010
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee’s work injury was not a substantial contributing factor to his ongoing cervical and lumbar symptoms, permanent partial disability, or medical treatment.
Determined by: Rykken, J., Johnson, C.J., and Pederson, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Luke M. Seifert, Quinlivan & Hughes, St. Cloud, MN, for the Appellant. Michael Forde and Andrew M. Grimsrud, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge’s finding that the employee’s December 13, 2007, work injury was not a substantial contributing factor to the employee’s ongoing cervical and lumbar symptoms, permanent partial disability, or medical treatment incurred after February 20, 2008. We affirm.
On December 13, 2007, Randall Nowacki, the employee, fell from a ladder while working as an insurance adjuster for CC Services, the employer, which was insured for workers’ compensation liability by Chubb Insurance Companies, the insurer. After inspecting a roof on a house in Tulsa, Oklahoma, the employee climbed down from the roof on a ladder with his back to the ladder, and slipped from the third or fourth rung of the ladder. He slid down and fell on his tailbone, landing on a concrete patio. The employee did not report an injury at that time and did not miss any time from work. The employee testified that he experienced throbbing and numbness in his hands, pain in his neck and low back, and increased stiffness while driving back to Minnesota.
In early February 2008, the employee experienced shoulder and neck symptoms the morning after he had carried his young daughter up a sledding hill. The employee testified that his young daughter had hit a tree while sledding, and that he ran down the hill and then carried her back up the hill. The next morning he awoke with shoulder and arm symptoms. On February 20, 2008, the employee was treated by Dane Durdall, a physician assistant at a HealthPartners Clinic, reporting left shoulder pain extending from his neck down his left arm and a decreased range of motion and stiffness in his neck. The employee gave a history that included the sledding incident, but did not mention his earlier fall off a ladder or any low back pain. The employee also reported that during the past summer he had some degree of left shoulder or arm pain when pulling out latches for an extended ladder but was not aware of any other past significant shoulder problems.
The employee evidently was recommended to seek physical therapy or chiropractic treatment. On March 14, 2008, he treated with Dr. Brian Hilbert, a chiropractor, reporting left neck pain radiating into the left shoulder and arm that had come on four weeks earlier and had worsened over the last two weeks. The employee was treated with cervical traction, medication, physical therapy, and home exercises.
On March 28, 2008, an addendum to Dr. Hilbert’s report referred to the employee’s report of a motor vehicle accident 15 years earlier where he had been injured when he was ejected through the front window of his vehicle. Dr. Hilbert indicated that the degenerative changes in the employee’s neck were consistent with that type of injury.
On April 7, 2008, the employee filed a first report of injury for the December 13, 2007, work injury. The employer and insurer admitted notice of the injury but denied primary liability.
The employee underwent approximately eight chiropractic treatments for his cervical spine in March and early April 2008. On April 9, 2008, the employee underwent an MRI scan of his cervical spine which indicated disc degeneration and combined marginal osteophytic spurs and disc protrusions at C4-5, C5-6, and C6-7 with encroachment to the central spinal canal and foramina.
At an appointment on April 14, 2008, the employee consulted Dr. Hilbert, reporting his fall from a ladder in December 2007. Dr. Hilbert diagnosed a lumbar strain, lumbar facet imbrication and SI joint segmental dysfunction. In an addendum to the employee’s earlier chart notes, Dr. Hilbert explained that the employee had advised him about the December 13, 2007, work injury involving a fall from a ladder as well as his lower back and neck pain following that injury. Dr Hilbert indicated to the employee that his neck injury primarily resulted from marked degenerative changes of the cervical spine which likely had been occurring over several years and that it was possible that recent injuries had caused an exacerbation. Based on his review of the employee’s MRI scan of his cervical spine, Dr. Hilbert referred the employee for a neurological consultation.
On that same day, the employee consulted Central Minnesota Neurosciences, where he was examined by Patti Benoit, RN/CNP. The employee advised Nurse Benoit of his 1994 automobile accident, his fall from the ladder in December 2007 and the sledding incident in February 2008. He reported that on the day after the sledding incident he awoke with excruciating neck and arm pain. Nurse Benoit diagnosed cervical and left arm pain, cervical stenosis and cervical osteophytes, and referred the employee for physical therapy. The employee began physical therapy at NovaCare on April 16, 2008 and continued through May 2008. By mid-May 2008, the employee reported 85-90% relief of his neck, left shoulder and arm symptoms from therapy, although he continued to notice a decreased range of motion in his neck.
In mid-May 2008, the employee returned to his HealthPartners clinic to again consult Physician Assistant Durdall, this time for low back pain. The employee reported that in December 2007 he had fallen approximately three feet from a ladder, onto his buttocks, and that he noticed low back pain for a short period of time thereafter. The employee reported that during the past 3-4 weeks he had noticed discomfort in his left buttocks and pain extending through his hip and thigh area, but that in hindsight he felt that his earlier shoulder problems, for which he had treated three months earlier, were likely related to neck symptoms caused by his December 2007 injury.
A May 19, 2008, MRI of the employee’s lumbar spine indicated four-level disc degeneration and a disc extrusion at L4-5 with marked neural compression which reportedly would explain the employee’s symptoms. The scan also showed moderate bilateral foraminal stenosis at L4-5. At the L5-S1 level the scan showed a central and left parasagittal disc protrusion without impingement and severe bilateral foraminal stenosis with gangionic impingement. There were positive findings at the L3-4 and L2-3 levels as well. P.A. Durdall diagnosed low back pain with multi-level degenerative disc disease and noted a disc extrusion at the L4-5 level that he felt was problematic. In his chart note, P.A. Durdall commented that it was certainly possible that the employee’s low back condition was related to his December injury “but there is no way that I can clearly define a yes or no as to whether that was causative to this. In discussion though, [the employee] has certainly had a flare of lower back pain since that fall had taken place and he is able to correlate when he started having more back issues to that fall.”
P.A. Durdall referred the employee to Dr. Mark Thibault at Physicians Neck and Back Clinic for evaluation. Dr. Thibault examined the employee in June 2008 and reviewed his records. The employee reported that low back and left buttock pain were his primary concerns. After reviewing the employee’s recent MRI scans of his cervical and lumbar spine, Dr. Thibault stated that the imaging abnormalities shown on the scans took years to develop and “were very likely present before the injury or onset of pain. Therefore, it cannot be stated with any certainty that the abnormalities are related to his current condition.” Dr. Thibault also stated in a July 1, 2008, letter that the employee’s symptoms resulted from an aggravation of his underlying condition and that he had sustained musculoligamentous strain injuries of his spine as a result of his December 13, 2007, injury. Dr. Thibault recommended that the employee complete a rehabilitation program. He attended 28 sessions of physical therapy at the Physicians Neck and Back Clinic, between June 2008 and January 2009, with good results; home exercises were recommended for him to maintain the improvement in his symptoms. The employee also attended additional physical therapy treatments at NovaCare, in September 2008 and later in September and October 2009. He reported improvement from this therapy.
On August 15, 2008, the employee was examined by Dr. Stephen Barron at the employer and insurer’s request. Dr. Barron opined that the employee had degenerative disc disease of the cervical and lumbar spine that was unrelated to the December 13, 2007, work injury. Dr. Barron felt that the employee’s medical records did not substantiate his history of an injury in December 2007, referring in part to the employee’s approximately two-month delay in seeking medical treatment. Dr. Barron reexamined the employee in June 2009; later reports by Dr. Barron indicated that, in his opinion, the employee had no objective findings on examination and no permanent partial disability, and that he was able to continue working at a full-duty capacity with no restrictions.
The employee was also examined by Dr. Robert Wengler, who opined in a December 1, 2008, report that the employee had multilevel degenerative disc disease of the cervical spine with lesion at C5-6 and disc herniation at L4-5 on the left, and that these conditions and related medical treatment were related to his December 2007 work injury. Dr. Wengler concluded that the sledding incident in February 2008 was of a minor relative magnitude as compared to the employee’s fall from a ladder in December 2007, and that “the sledding incident may have aggravated the developing problem but was certainly not the provocative injury.” Dr. Wengler recommended continued conservative treatment and work restrictions.
Dr. Barron reviewed Dr. Wengler’s report and reports from the employee’s MRI scans of his cervical and lumbar spine and advised that none of the reports altered his opinion concerning the employee’s condition.
On January 26, 2009, the employee filed a claim petition for permanent partial disability benefits and medical expenses incurred since February 2008. The employer and insurer denied primary liability.
A September 28, 2009, MRI of the employee’s lumbar spine indicated posterior annular tear with a broad-based posterior disc herniation at L5-S1 and that the caudally dissecting disc extrusion at L4-5 had significantly retracted since 2008.
A hearing to address the employee’s claim petition was held on December 4, 2009. Relying on Dr. Barron’s opinion, the compensation judge found that the employee’s December 13, 2007, work injury was not a substantial contributing factor to the employee’s ongoing cervical and lumbar symptoms, permanent partial disability, or medical treatment incurred after February 20, 2008. The employee appeals.
The compensation judge weighed all of the medical evidence and ultimately relied upon Dr. Barron’s opinion when concluding that the employee’s December 13, 2007, work injury was not a substantial contributing factor to his ongoing cervical and lumbar symptoms, permanent partial disability, or medical treatment incurred after February 20, 2008. A compensation judge’s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). In this case, the facts underlying Dr. Barron’s opinion are supported by the medical records in evidence. As we have held in other cases as well, this court will generally affirm a compensation judge’s decision which is based on a choice between competing medical opinions. Perry v. ADB Constr., Inc., 68 W.C.D. 491 (W.C.C.A. 2008). In this case, the judge found Dr. Barron’s opinion to be persuasive and consistent with the facts of the case, and adopted his opinion. She explained, as follows:
The persuasive and rational opinion of Dr. Barron most closely takes into consideration the lack of immediate medical treatment after the fall from the ladder, the lack of immediate report of injury to his employer, the history of neck, and shoulder symptoms after carrying his daughter reported to HealthPartners on February 20, 2008, inference of lack of ongoing symptoms to the lumbar and cervical spine after the work injury, and greater weight of the evidence. Dr. Barron’s opinion that the employee’s symptoms in the cervical and lumbar spine are fully attributable to his preexisting multilevel degenerative disc disease unrelated to the fall from the ladder on December 13, 2007 represents the greater probability of the truth.
In reviewing factual determinations, it is this court’s role to review the entire record and to assess the substantiality of evidence supporting the decision of the judge. Under our standard of review, supportive evidence is substantial if it is, in light of the record as a whole, “evidence that a reasonable mind might accept as adequate,” granting “due weight to the opportunity of the Compensation Judge to evaluate the credibility of witnesses appearing before the judge.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984); Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). 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). The issue on appeal is not whether the record would have supported the employee’s claim, but whether the judge’s decision is supported by evidence that a reasonable mind might accept as adequate. Reel v. Loftness Specialized Farm Equip., slip op. (W.C.C.A. Feb. 3, 2004).
The compensation judge reviewed the evidence and testimony submitted into the record and concluded that the evidence did not support a claim that the employee’s work injury was a substantial contributing cause of his ongoing condition and need for treatment. That determination is supported by substantial evidence in the record as a whole, including the medical opinion issued by Dr. Barron and references in medical records, and we therefore affirm the compensation judge’s finding that the employee’s December 13, 2007, work injury was not a substantial contributing factor to the employee’s ongoing cervical and lumbar symptoms, permanent partial disability, or medical treatment incurred after February 20, 2008.