JAY ENGELHART, Employee/Appellant, v. LISTON GEN. CONTRACTING, SELF-INSURED/THE BUILDERS GROUP/MEADOWBROOK CLAIMS SERVS., Employer, and MINNESOTA HEALTH CARE PROGRAM and ITASCA MED. CARE, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 18, 2012
CAUSATION - TEMPORARY INJURY. Substantial evidence, including the expert medical opinion adopted, supported the compensation judge’s finding that any work-related neck injury the employee may have sustained was merely temporary.
Determined by: Hall, J., Wilson, J., and Stofferahn, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Thomas R. Longfellow, Longfellow Law Office, St. Paul Park, MN, for the Appellant. Timothy P. Jung, Amy E. Lanser, and Mark A. Fredrickson, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for the Respondents.
GARY M. HALL, Judge
The employee appeals from the compensation judge’s determination that the employee’s “present cervical spine symptoms and condition are unrelated to employee’s work incident of June 16, 2009,” and his denial of the employee’s claims related to his cervical spine in their entirety. We affirm.
The employee, Jay Engelhart, claims that on June 16, 2009, he sustained a work-related injury to his lumbar spine, left hip, and cervical spine while in the course of his work for the employer herein, Liston General Contracting. The cervical spine is at issue on appeal.
The First Report of Injury indicates that the employee sustained an injury in the nature of a bruised hip. The employer, which is self-insured, initially acknowledged liability for the reported injury, and began paying workers’ compensation benefits. On July 8, 2009, the employee filed a Claim Petition alleging entitlement to limited periods of temporary total disability benefits. The initial Claim Petition alleged that the employee sustained an injury to his “back and left hip” on June 16, 2009. The self-insured employer admitted that the employee sustained an injury on June 16, 2009, but it reserved defenses regarding the nature and extent of the employee’s injury as claimed. On January 25, 2010, the employee amended his Claim Petition to include an alleged injury to his neck as a result of his injury on June 16, 2009. The self-insured employer denied the occurrence of any neck injury, beyond a possible cervical strain. It denied liability for any alleged workers’ compensation benefits, including medical expenses, beyond anything that had already been paid related to the low back.
The employee’s injury occurred on June 16, 2009, when a wooden beam fell and struck him on the back. The employee presented to Meridian Medical Clinic on June 16, 2009, where he saw Physician’s Assistant Trevor Yartz and reported a work injury earlier that day. The physician’s assistant noted, “a treated piece of lumbar [sic] approximately 5x6x6 feet in length . . . fell approximately 6 feet while he was bent over landing on the left side of his back.” The employee was complaining of muscle spasm with a bit of numbness into his left lower extremity. He also felt some pain in the hip and buttocks on the left. X-rays of the lumbar spine were normal. No other x-rays were taken that day. The employee was assessed with a contusion on the left side of the lumbosacral spine. He was given pain medication and a work ability report keeping him off work until June 22, 2009. There was no mention of the employee’s neck in the June 16, 2009 treatment note.
On June 22, 2009, the employee returned to Meridian Medical Clinic and saw Dr. Peter Eriksson. The employee was there for follow up regarding a low back injury that occurred on June 16, 2009. On examination, the employee’s neck was reportedly supple with no tenderness over the cervical spine. The employee had a large contusion in his lumbar region. He was assessed with a lumbar contusion injury. The employee was to follow up with Physician’s Assistant Yartz in the next few days. He was to remain off work until then.
The employee saw Mr. Yartz again on June 25, 2009. The employee said that his back had improved. There was some bruising, and he still had a few knots and sore spots. He felt he was capable of returning to work on Monday. The employee was still being assessed with a lumbar contusion workers’ compensation injury. He was to return to work the following Monday.
The employee returned to see Mr. Yartz on June 30, 2009. He had tried going back to work and doing some light activities, but his back was “really bothering him.” He also felt a bit of pain into his left leg as well. The employee was being assessed with an acute lumbar contusion workers’ compensation injury. He was given additional pain medications. He was also instructed to begin physical therapy, and he was taken back off work.
The employee returned to see Mr. Yartz again on July 9, 2009. He had ongoing low back problems. He had also developed a bit of numbness and tingling into his left lower extremity. The employee was being assessed with an acute lumbar spine contusion along with concerns of possible radiculopathy.
The employee saw Mr. Yartz on July 16, 2009. The employee’s physical therapist had called Mr. Yartz and indicated that the employee was having some more pain up into his thoracic spine now as well. Mr. Yartz assessed the employee with what was now a lumbar/thoracic contusion along with complaints of pain in the left leg. The employee was scheduled for MRIs of the thoracic and lumbar spines.
The employee underwent MRIs of the thoracic and lumbar spine on July 17, 2009, through Deer River Healthcare. The MRI of the thoracic spine revealed “no acute thoracic spine abnormalities to account for it [sic] the described pain.” The MRI of the lumbar spine showed “acute lateral disc herniation left L4-L5 with moderate stenosis of the left neural foramen.” On the thoracic MRI report, the radiologist noted, “mild annulus defect with disc bulge is observed at the C6-C7 level.”
The employee returned to see Mr. Yartz on July 30, 2009. Mr. Yartz noted that the thoracic MRI had been “fine.” However, the lumbar spine showed what appeared to be a disc herniation at L4-L5. Mr. Yartz also noted that the employee “has had some tenderness on the left side of his neck.” Mr. Yartz felt that the employee “may have probably even sustained a whiplash type injury from the trauma of the metal falling on him from above.” The employee denied any left upper extremity numbness. He did have some trigger point tenderness in the trapezius area. Mr. Yartz was now assessing the employee with acute L4-L5 disc herniation as well as “left-sided neck pain trigger point tenderness trapezius.” Mr. Yartz referred the employee for a neurosurgery consultation, and the employee said he would prefer to see Dr. Harris through the SMDC Health System.
The employee saw Dr. Frederick Harris on August 20, 2009, for a neurosurgical consultation at SMDC. Dr. Harris recommended a selective nerve block at L5 and a Medrol Dose pack. He also noted that the employee was complaining of “some pain in his neck and left triceps.
The employee returned to see Mr. Yartz on August 25, 2009. The employee reported having “some neck pain, he states in the central portion of his spine, at approximately C5-6.” The employee reported having pain in the neck if he pushed on it, and the pain seemed to radiate into the left shoulder and down the left upper extremity. Mr. Yartz was now assessing the employee with an L5 disc herniation as well as neck pain, all of which he related to the June 16, 2009 injury.
As of October 30, 2009, Physician’s Assistant Yartz was recommending that the employee undergo an MRI of the neck, but the self-insured employer was refusing to pay for the MRI. Mr. Yartz also referred the employee to Dr. Harris for an evaluation, this time focused on the employee’s neck. In a letter to Dr. Harris dated October 30, 2009, Mr. Yartz indicated that the employee was complaining of left extremity pain and numbness into his hand. Mr. Yartz felt that the employee also sustained an injury to his neck at the time of the June 16, 2009 incident. The employee saw Dr. Harris again on November 19, 2009. The employee was complaining of neck stiffness, “lightning bolts” of pain in his neck, and pain radiating down his arm with decreased range-of-motion. He was complaining of numbness and tingling in his left upper extremity. However, the employee had no clear radicular pain, and he said these symptoms were happening in two-week cycles. He also said the pain was mostly in his posterior neck in the trapezius area and down to the elbow and into the fourth and fifth digits of the left hand. Dr. Harris recommended an MRI of the neck.
On December 21, 2009, the employee underwent an independent medical examination with Dr. Ross Paskoff at the request of the self-insured employer. Dr. Paskoff felt that the employee had sustained a lumbar herniation and myofascial strain as a result of his June 16, 2009, injury. He also felt the employee sustained a thoracic spine myofascial strain along with a cervical spine myofascial strain. Dr. Paskoff felt the employee had not reached MMI, but he released the employee to work full time in a sedentary position.
On December 30, 2009, the employee underwent an MRI of the cervical spine at Deer River Healthcare. The following impressions were given:
1. Multilevel disc degenerative changes.
2. Moderate effacement of the thecal sac and spinal cord due to left para midline disc protrusion at C5-C6 with left neuroforaminal stenosis.
3. Disc bulge with slight central disc protrusion causing slight effacement of the thecal sac and slight compression of the spinal cord at the C6-C7 level. Left neuroforaminal stenosis at this level is also observed.
4. Chiari 1 malformation without evidence of syrinx development.
Dr. Harris’ office informed the employee of the results on January 21, 2010. Dr. Harris then ordered epidural injections at C5-6 and C6-7. Mr. Yartz continued to keep the employee off work pending approval of the cervical injections.
The employee did undergo an epidural steroid injection of C7-T1 with Dr. Paul Olson at Deer River Healthcare Center, and he continued to follow up with Dr. Harris’ office in June and August of 2010. Dr. Harris began to discuss the possibility of an anterior fusion from C5 to C7. The employee also continued treating with Physician’s Assistant Yartz. As of November 2, 2010, the employee was being given increased dosages of Oxycontin along with a prescription of Hydrocodone.
On October 11, 2010, the employee presented for an independent medical examination with Dr. Jed Downs, which was arranged by the employee’s attorney. Dr. Downs indicated that the force of the beam hitting the employee’s body would have been significant. Dr. Downs noted that the employee’s neck was not reported as being directly struck. However, the employee would have experienced rapid acceleration and deceleration, and his head would have initially snapped backward and then snapped forward as a result of the impact. Dr. Downs suspected that the employee did have some pre-existing component of spondylosis in the neck, although it was asymptomatic. Dr. Downs felt that the broad-based disc bulges in the employee’s neck were more likely than not to be substantially caused by the injury on June 16, 2009, leading to the onset of significant symptoms. Dr. Downs went on to indicate that the employee would have permanent partial disability ratings pursuant to “MCAR 5223.0370, Musculoskeletal Schedule Cervical Spine, Subpart 4D and D4.” The doctor also felt that a cervical discectomy infusion would be anticipated, which meant that the employee would be rated under Subpart 5B as well. Therefore, the employee would have a 9 percent plus 9 percent plus 5 percent, or 23 percent total, permanent partial disability rating for the neck. Dr. Downs also ended up rating the employee with 11 percent permanent partial disability rating for the low back, which would include a L4-5 discectomy. Ultimately, Dr. Downs felt the employee would have a combined 31.5 percent permanent partial disability rating.
The self-insured employer subsequently sent the employee for an independent medical examination with Dr. Terry Hood. Dr. Hood examined the employee on November 6, 2010, and he issued a report dated November 16, 2010. The employee was presenting with complaints of neck pain extending into the left shoulder and radiating down the arm to the elbow and into the left thumb. He also complained of some numbness of the fifth digit of the left hand and the ulnar aspect of the fifth digit of the left hand. He was complaining of occasional mid back pain and diffuse low back pain as well, which extended into both buttocks. Although the employee was complaining of potential C6 and C7 radiculopathies, Dr. Hood did not find objective evidence of left C6 or C7 radiculopathy. The employee’s complaints were not in a C6 or C7 radicular pattern. Imaging showed a central and left-sided disc protrusion at C5-6 and a potential left C7 radiculopathy. The employee was also complaining of paresthesia in the ulnar aspect of the hand, which Dr. Hood felt most likely represented an ulnar neuropathy.
Ultimately, Dr. Hood did not believe that the employee sustained an injury to his cervical spine as a result of the claimed work injury on June 16, 2009. Dr. Hood noted that the first time the employee complained of cervical problems would have been on July 30, 2009. If the employee had incurred an acute disc herniation or an exacerbation of a preexisting condition in the cervical spine on June 16, 2009, he would have presented with neck complaints much sooner than he did. Dr. Hood did not believe that the employee’s ongoing complaints, need for medical treatment, or need for restrictions, as related to his neck, if any, were related to the injury on June 16, 2009.
In a letter to the employee’s attorney, dated January 7, 2011, Dr. Harris indicated that when he first saw the employee, his primary complaint was low back pain. He did indicate that he was having some neck pain and left triceps pain at that time. The first visit took place on August 20, 2009. The December 30, 2009 cervical spine MRI showed multilevel degenerative disc disease with C5-6 and C6-7 stenosis, with radiculopathy, and C5-6 disc protrusion. If radicular pain persisted, Dr. Harris would consider a cervical discectomy and fusion at multiple levels. Dr. Harris then went on to state the following:
You have asked whether Mr. Engelhart’s work activities, in June 2009, caused or aggravated the cervical diagnosis listed above. Work activities did not cause the degenerative disc disease/stenosis. It is possible the work injury aggravated Mr. Engelhart’s neck condition but there is no way for me to state an opinion in this regard to a reasonable degree of medical certainty.
On May 19, 2011, the employee referred himself for a second opinion regarding his neck with Dr. Amir Mehbod at Twin Cities Spine Center. Dr. Mehbod reviewed the employee’s diagnostic studies and examined the employee. He opined that the best treatment for the employee’s symptoms would be non-surgical. Although surgery could be an option for the employee, Dr. Mehbod did not feel the employee would get any long-term reliable benefit from the surgery given the extent of his neck symptoms. Dr. Mehbod noted the employee reported an injury on June 16, 2009, when the beam fell on his back. The employee reported “immediate onset of neck pain, thoracic pain, low back pain, and radiation to the bilateral buttocks and thighs with radiation to the left upper extremity into the whole arm.” Dr. Mehbod concluded that the employee sustained an injury to his neck as a result of the injury on June 16, 2009. Before that, the employee did not report any problems. Therefore, Dr. Mehbod stated, “After [the June 16, 2009 injury] all his problems started, so in my opinion this is a WC case.”
The matter came on for hearing on March 29, 2012, before Compensation Judge Jerome Arnold. Before proceeding, the parties either settled or agreed to delay litigation on several issues. Ultimately, the only issues presented at hearing were as follows:
1. Employee’s entitlement, if any, to minimal permanency of the lumbar spine.
2. Whether employee suffered any injury to his cervical spine and the extent of entitlement, if any, to a minimal permanency rating.
3. Employee’s entitlement to reimbursement of medical treatment expenses and medical mileage expenses.
4. Intervenors’ entitlement to payment/reimbursement for medical treatment, including prescriptions furnished to or on behalf of the employee.
Judge Arnold served and filed his Findings and Order on May 11, 2012. His decision was largely unappealed, with the exception of Finding 26 and Order 5. Finding 26 states as follows:
The employee’s present cervical spine symptoms and condition are unrelated to employee’s work incident of June 16, 2009. To the extent employee suffered any injury to his cervical spine on June 16, 2009 it was temporary in nature and fully resolved within 3 months of June 16, 2009.
Order 5 states that “the employee’s claims related to his cervical spine are denied in their entirety.” In his memorandum, Judge Arnold explained that the evidence shows that the employee’s entitlement to workers’ compensation benefits related only to his lumbar spine condition for the June 16, 2000, low back injury. Judge Arnold adopted and relied upon the opinions of Dr. Hood and specifically rejected those of the other medical providers and independent medical examiners. According to Judge Arnold, Dr. Hood’s opinions regarding the employee’s cervical condition and its causation were most consistent with the medical treatment record and the mechanism of the work injury of June 16, 2009.
The employee appeals the compensation judge’s determination with regard to his cervical spine.
This appeal centers on causation regarding the employee’s cervical spine condition. The employee argues that “substantial evidence does indeed suggest that [the employee] did sustain a work related injury to his back as well as his neck on June 16, 2009 and that the employee is therefore entitled to the 10% permanent partial disability rating.”
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. Lyon 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.
It is not necessary that the employment be the only cause of the condition for which benefits are sought, and an injury is compensable if it can be shown that the employment is a substantial contributing factor in the employee’s condition. See Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 40 W.C.D. 110 (Minn. 1987); Roman v. Minneapolis St. Ry. Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1964). Likewise, an injury is compensable if the employment is a substantial contributing factor to the aggravation or acceleration of a pre-existing condition. Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975); Vanda v. Minnesota Mining & Mfg. Co., 300 Minn. 515, 218 N.W.2d 458, 27 W.C.D. 379 (1974).
The employee bears the burden of proving, by a fair preponderance of the evidence, the compensability of his or her claims. See Swanson v. Fairway Foods, 439 N.W.2d 722, 723, 41 W.C.D. 1010, 1013 (Minn. 1989). Questions of medical causation fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). In making decisions regarding causation, it is the function of the compensation judge to resolve conflicts in expert medical testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372-73 (Minn. 1985). This court is required to uphold a compensation judge’s choice between expert medical opinions, unless the expert opinion, as chosen, assumes facts that are not supported by substantial evidence. Id.
The compensation judge adopted the opinions of one of the independent medical examiners here, Dr. Hood. The compensation judge explained that he felt that “the opinions of Dr. Hood as to employee’s cervical condition and its causation are most consistent with the medical treatment record and the mechanism of the work incident of June 16, 2009 causing employee’s low back injury.” In Finding 26, the compensation judge acknowledged that the employee may have sustained a temporary neck injury, but he determined that the employee’s present neck symptoms and condition are unrelated to the work injury on June 16, 2009.
The employee argues that there are numerous medical opinions in support of his claimed neck injury. While that may be true, the choice between medical opinions is the province of the compensation judge. Here, the compensation judge credited Dr. Hood’s opinion that if the employee had incurred an acute disc herniation or an exacerbation of a preexisting condition in the cervical spine on June 16, 2009, he would have presented with neck complaints much sooner than he did. Dr. Hood did not believe that the employee’s ongoing complaints, need for medical treatment, or need for restrictions, as related to his neck, if any, were related to the injury on June 16, 2009. Dr. Hood is a neurosurgeon, and he reviewed the employee’s medical records (including actual images of the cervical spine MRI scan), obtained a history, and conducted a personal, physical examination of the employee. This level of knowledge is sufficient to afford foundation for the opinions of a medical expert. See, e.g., Caizzo v. McDonald’s, 65 W.C.D. 378 (W.C.C.A. 2005). The employee does not allege that Dr. Hood’s opinions lacked foundation. Although the employee does not agree with Dr. Hood’s opinions, the employee does not allege that the facts assumed by Dr. Hood are not supported by the record. Therefore, there is no basis to conclude that the judge erred in accepting Dr. Hood’s opinions. See Perry v. ADB Constr., Inc., 68 W.C.D. 491 (W.C.C.A. 2008).
The employee argues that “substantial evidence could also support that Mr. Engelhart’s degenerative disk disease was aggravated or accelerated and the disks likely bulged on the date of injury leading to the onset of the symptomatology he has dealt with since mid-2009 considering he was without pain or issues prior to June 16th.” (Emphasis added.) However, substantial evidence, including Dr. Hood’s opinions, supports the opposite conclusion. The employee’s medical records do not reference any complaints regarding his neck until July 30, 2009. The employee may have testified that he “hurt from his head to his toes,” but the contemporaneous medical records make no such reference. His initial neck examinations appear to be normal, as noted by Dr. Ericksson on June 22, 2009, and initial x-rays and other scans involved only the low back and not the neck. Where, as here, evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).
Ultimately, the resolution of this case depends on a choice between conflicting medical opinions. The employee presented medical evidence in support of his position that his current neck condition is related to his work injury, and the employer presented Dr. Hood’s well-founded opinion in support of its defense. On this record, we conclude that the findings and order of the compensation judge, including his choice between expert opinions, are supported by substantial evidence, and we affirm.
 We note that the compensation judge referred to the IME date with Dr. Downs as October 11, 2011. However, the date of the examination does not appear to be a significant factor in the compensation judge’s conclusions, and the employee does not dispute the compensation judge’s substantial characterization of Dr. Downs’s opinions. As such, this was a harmless error that does not require action by this court. See Johnson v. Arctic Cat, Inc., 64 W.C.D. 106, 110 (W.C.C.A. 2004); see also Dozier v. Control Data Corp., 44 W.C.D. 246 (W.C.C.A. 1990), summarily aff’d (Minn. Mar. 7, 1991) (indicating that the issue is whether the evidence in question is portrayed correctly in substance and, if so, an error may be considered harmless).