KATHY TAFS, Employee/Appellant, v. OBSERVATION HILL DAYCARE and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM’RS CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 2, 2010
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee’s work injuries did not substantially contribute to the employee’s need for fusion surgery.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Jennifer Patterson
Attorneys: Stephanie M. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Appellant. James K. Helling and Kris Huether, Brown & Carlson, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s finding that the employee’s work injuries did not substantially contribute to the employee’s need for fusion surgery. We affirm.
Medical records from Polinsky Medical Rehabilitation Center establish that the employee treated for low back pain with right posterior thigh pain to the knee in November and December of 1988. The employee reported that a CT scan taken at that time showed “swollen discs.” Medical records from Dr. Michael Huska reflect that the employee treated for arthritis pain in 1990, 1991, and 1992, and, in his office note of May 28, 1991, Dr. Huska indicated that the “back is biggest problem.”
The employee was working as a childcare worker for Observation Hill Daycare [the employer] on April 22, 1994, when she experienced the onset of low back pain while lowering a baby into a play pen. After resting at home for three days, she treated at Duluth Internal Medicine Associates for complaints of low back pain extending into her legs. An MRI of the lumbar spine performed on April 28, 1994, showed disc protrusions at L4-5 and L5-S1.
The employee was referred to a neurosurgeon, Dr. William Himango, who saw the employee on May 4, 1994, at which time the employee told the doctor that she had never experienced back pain prior to the April 22, 1994, injury. Dr. Himango reviewed the MRI and opined that the employee was not a candidate for surgery. He prescribed physical therapy.
On June 2, 1994, her treating doctor, Dr. Huska, released the employee to return to work half days, with a lifting restriction of 15 pounds. About a month later, on July 8, 1994, Dr. Huska took the employee off work. Records from Polinsky Medical Rehabilitation Center reflect that employee was off work completely for several short time spans between April 1994 and May of 1995, followed by returns to work with modified job duties. As of May 1, 1995, the employee was working full time.
The employee reinjured her back, working for the employer, on January 5, 1996, when she was pulled off balance by a child weighing 25 to 30 pounds. On February 5, 1996, Dr. Huska noted that the employee had been doing home exercises, had worked half time for a short period, but was then back to full-time work. His diagnosis was chronic back pain. Dr. Daniel Wallerstein opined that the employee had reached maximum medical improvement [MMI] from this injury by February 28, 1996.
The employee returned to work with the employer, caring for infants, but she left that employment in approximately March of 1996 and subsequently provided daycare in her home, or in her daughter’s home.
On July 17, 1996, the employee sustained a new work injury to her low back while lifting her grandchild. She commenced physical therapy again on July 24, 1996, dating her onset of symptoms to July 17, 1996. The employee has not worked since that injury.
Occupational medicine specialist Dr. Jed Downs began treating the employee on September 19, 1996. The employee had a repeat MRI, performed on November 25, 1996, which was interpreted as showing “some low lumbar arthritis findings. Otherwise negative.” In a letter to the employee dated December 9, 1996, Dr. Downs indicated that the employee’s MRI “does not look too bad” and that the findings were of “fairly mild degenerative changes.” He indicated that he did not think that the employee was a candidate for lumbar fusion.
Dr. Huska examined the employee on January 27, 1997, and noted that he had reviewed the employee’s repeat MRI, which showed “increased arthritis and no significant lesion present.”
On April 10, 1997, Dr. Downs opined that the employee had sustained a 10% whole body impairment as a result of her chronic mechanical and myofascial back pain and found that she was at MMI from the April 1994 injury.
The employee was examined by independent medical examiner Dr. Michael Davis on October 10, 1997. In his report, Dr. Davis concluded that the employee had sustained soft tissue injuries to her lumbar spine on April 22, 1994, January 5, 1996, and July 17, 1996. He diagnosed a chronic lumbosacral strain and found that the employee was at MMI. It was his opinion that the July 17, 1996, injury was a superseding, intervening cause of the employee’s disability.
In October of 1998, the parties entered into a stipulation for settlement. At that time, the employee was contending that she was permanently totally disabled as a result of the 1994 and January 1996 work injuries and that she had sustained a 10% whole body impairment. The employer and insurer paid the employee $55,000 in full, final, and complete settlement of all claims, with the exception of future medical expenses. An award on stipulation was filed on November 4, 1998.
On February 18, 2000, Dr. Thomas Silvestrini evaluated the employee for diffuse and generalized pain. He diagnosed fibromyalgia and chronic pain syndrome. When seen by Dr. Downs on November 6, 2001, the employee complained of pain everywhere, “including her arms, back and chest as well as her low back.”
In June of 2002, the employee was seen by Dr. Downs complaining of left-sided pain involving both “the front and back.” Dr. Downs opined that this pain was “likely secondary to visceral restrictions,” noting that the employee had a history of a total abdominal hysterectomy and appendectomy and had substantial intra-abdominal scarring. Visceral therapy was ordered and performed.
On April 28, 2004, Dr. Downs reported that the employee’s back pain “is multifactorial with a component of degenerative disk disease and annular tear likely secondary to work but also with a fairly profound visceral adhesion secondary to multiple abdominal procedures.” In his office note of September 22, 2004, Dr. Downs noted that the employee’s deep myofascial restrictions “are a preexisting underlying component. She does have the work related injury with mechanical low back pain and probably contribution to her degenerative disk disease as well.”
The employee’s back symptoms were treated with medication throughout the years, and she was seen at six-month intervals for medical monitoring.
In April of 2005, Dr. Downs noted that the employee’s visceral adhesions “are probably her most dominant problem at this point in time.” Also in 2005, the employee was hospitalized for neck and arm pain.
When Dr. Downs left his practice, the employee began treating with Dr. Julie Reichhoff for her back complaints. In her office note of August 2, 2006, Dr. Reichoff’s assessment was “low back injury, likely mostly stable.” The employee was advised to continue with her current medications.
The employee was seen by Dr. Reichoff on September 20, 2007, for complaints of left leg and hip pain after having fallen on a wood pallet two weeks previous. The employee began physical therapy. When seen again on October 29, 2007, the employee reported that physical therapy was working on her low back and radicular symptoms, and Dr. Reichoff noted, “low back pain with radiculopathy, aggravated more recently but initial injury 4/22/94.”
An MRI performed on January 14, 2009, was interpreted as showing a small disc protrusion at L5-S1, moderate central stenosis at L4-5, and a broad-based disc bulge at L3-4.
Dr. R.W. Hendricks examined the employee on February 4, 2009, to evaluate her for possible back surgery. He interpreted the MRI scan as showing degenerative disc disease at L3-4, L4-5, and L5-S1. He opined that the employee had severe mechanical/discogenic low back pain, without evidence of radiculopathy. He recommended that the employee be seen by Dr. Timothy Garvey for evaluation. Dr. Hendricks stated, “I make no venture on the original cause of her problem as she asked today and defer all questions, workability, disability and other issues to Dr. Downs and Dr. Wallerstein.”
The employee was seen by Dr. Garvey on February 26, 2009. Dr. Garvey described the MRI as showing multilevel intervertebral disc degeneration with disc herniations at four levels. Dr. Garvey offered an L2-to-sacrum decompression and fusion as a procedure of last resort, but he offered no opinion as to causation for the need for surgery.
On August 13, 2009, the employee was seen by Dr. J.J. Rother, who agreed that the employee was an appropriate candidate for a fusion from L2 to S1.
Dr. David Carlson performed an independent medical examination of the employee on October 28, 2009. In his report following that exam, Dr. Carlson opined that the employee had sustained a lumbosacral strain on April 22, 1994, that had fully resolved within six months. While he agreed that the recent MRI showed degenerative disc changes, Dr. Carlson did not believe that those findings had anything to do with the 1994 injury.
The employee filed a medical request on January 20, 2010, seeking approval for the surgery recommended in Dr. Garvey’s report from February 2009. In their response, the employer and insurer denied that the surgery was reasonable and necessary or causally related to the work injuries of April 22, 1994, and/or January 5, 1996.
The matter came on for hearing before a compensation judge. At hearing, the parties stipulated that the four-level fusion surgery was necessary to treat the employee’s low back. In findings and order issued after the hearing, the judge found that the work injuries did not substantially contribute to the employee’s need for fusion surgery. The employee 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).
The employee contends on appeal that she was “prohibited from testifying at hearing about the details surrounding her symptoms and the several aggravating incidents she’s experienced since the initial April 1994 work injury.” We find no basis for this allegation.
At hearing, the employee indicated repeatedly that she had difficulty recalling pertinent facts, testifying that “I have a bad memory,” “I’m not positive,” “I do not recall,” “I’m not really sure,” “I think my memory is faulty,” and “with all the medication I’ve been taking I - - I can’t remember anything back then.” When the employee’s attorney then attempted to read treatment records into the record, the compensation judge asked counsel to instead make reference to the record and treatment date. The attorney did not object or make an offer of proof. We can find no error in the compensation judge’s decision to rely on written medical records when the employee discredited her own ability to testify from memory.
The issue on appeal is whether substantial evidence supports the judge’s finding that the 1994 and 1996 work injuries did not substantially contribute to the employee’s need for fusion surgery. The compensation judge accepted Dr. Carlson’s opinion that the employee sustained a musculoligamentous strain on April 22, 1994, which would have resolved within six months.
The employee contends, in part, that Dr. Carlson’s opinions lack foundation. We are not persuaded. Dr. Carlson reviewed the employee’s medical records, examined the employee, and took a medical history from her. This knowledge constitutes adequate foundation for an expert opinion. See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988).
The employee also complains that Dr. Carlson did not review the actual diagnostic scans. We note, however, there is no requirement that a doctor review actual scans. Moreover, Dr. Carlson referenced both the 1994 and 2009 MRIs in the “Radiographic Review” portion of his report. In addition, he reviewed the records from the Duluth Clinic, which contain reference to the 1996 MRI. Dr. Carlson was obviously aware of the findings on the MRIs. We therefore find no basis to reverse on these grounds.
The employee also argues that Dr. Carlson’s diagnosis is inconsistent with the medical records from 1994, which reflect that the employee was treated for disc problems thereafter. There is, however, no definitive opinion that the employee’s degenerative disc problems were causally related to her work injury of 1994 and/or January of 1996. Dr. Downs noted in September of 2004 only that the employee “does have the work related injury with mechanical low back pain and probably contribution to her degenerative disk disease as well.” (Emphasis added). The employee has established no facts relied upon by Dr. Carlson that are not supported by the evidence.
Substantial evidence supports the judge’s finding that the April 1994 and/or January 1996 work injuries did not substantially contribute to the employee’s current need for fusion surgery. The employee had treated for low back and leg symptoms prior to April of 1994, and she had indicated to doctors in 1988 that she had “swollen discs.” An MRI taken only six days after her work injury already showed mild degenerative changes at the L4-5 and L5-S1 level. The employee underwent physical therapy for the 1994 injury but was pain-free and received no further treatment after May 1, 1995, until February of 1996. While the employee sustained an admitted work injury on January 5, 1996, there is no record indicating that she received treatment until February 5, 1996, at which time it was noted that she had treated with home exercise and was back to full-time work. It was only after she sustained another injury in July of 1996, while lifting her grandchild, that the employee stopped working. The MRI taken in 2009 has been interpreted as showing herniated discs at four levels, and no doctor has explained how the 1994 and/or January 1996 work injuries substantially contribute to the employee’s need for fusion surgery based on that 2009 MRI. Dr. Carlson has opined that no further treatment is necessary for the 1994 injury, and the employee has established no facts relied upon by Dr. Carlson that are not supported by the evidence.
While the employee made numerous other arguments on appeal, they have no bearing on the issues before the compensation judge or this court on appeal. The judge’s findings and order are affirmed in their entirety.
 The Polinsky records for May 1, 1995, reflect that the employee’s back was tired by the end of the day but that she had no pain. It was noted that the employee had been instructed in home exercises and had met all therapy goals. When there was no further contact from the employee for four weeks, she was formally discharged from physical therapy on June 8, 1995.
 At the time of this exam, the employee did not recall the 1996 work injury.
 A judge’s choice of expert opinions is usually 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 present case, there was no opinion definitively stating that the proposed surgery was causally related to either the 1994 or the 1996 injury. As such, there was no choice between expert opinions. The only reports addressing causation were those of Dr. Davis and Dr. Carlson. In her memorandum, the judge stated that she found both of those reports persuasive.
 The employee contends that the judge “incorrectly found” that the employee “did not work with children after the onset of low back pain” in 1994, that the judge erred in concluding that the employee was self-employed in the daycare business in July of 1996, and that the employee’s low back and leg condition in November of 1988 was not a substantial cause of her need for fusion surgery. As to this last, the judge made no such finding.