GARETT HAGGERTY, Employee, v. PRO STAFF PERSONNEL SERVS. and ACE INS./CCMSI, Employer-Insurer/Appellants, and CENTER FOR DIAGNOSTIC IMAGING, BLUE CROSS AND BLUE SHIELD OF ILL., ST. CLOUD HOSP., and CENTRAL MINN. NEUROSCIENCES, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 8, 2012
CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY. Substantial evidence in the form of credible testimony from the employee and his mother and a medical report based on that testimony supports the compensation judge’s determination that the employee sustained a work injury to his low back on September 6, 2010.
Determined by: Stofferahn, J., Hall, J., and Johnson, J.
Ccompensation Judge: Paul D. Vallant
Attorneys: Steven J. Drummond, Drummond Law Office, Alexandria, MN, for the Respondent. Janet Monson, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s determination that the employee sustained a work-related injury to his low back on September 6, 2010. We affirm.
Garett Haggerty was an employee of Pro Staff on September 6, 2010. Pro Staff, a temporary employment service, assigned Mr. Haggerty to work at SunOpta in Alexandria. His assignment there was to take boxes of products off a conveyor belt and stack them on pallets for shipping. Mr. Haggerty worked at SunOpta one day, September 6, 2010, and claims he injured his low back from the work that day.
Mr. Haggerty was born January 25, 1992, and was 18 years old on the date of the claimed injury. He had a history of low back problems before his employment at Pro Staff. He began treating for left-sided lumbar pain at the Alexandria Clinic in March 2008. An MRI scan done on March 13, 2008, was read as showing “early degenerative disc disease lumbar spine at the L3-4 and L4-5 interspaces, with mild dehydration.” “Moderate posterior protrusion” at L4-5 associated with an annular tear, mild protrusion at L5-S1 and “a small area of posterior protrusion of disc material” associated with an annular tear at L3-4 were noted as well.
Conservative care was not successful in resolving Mr. Haggerty’s symptoms and he was referred to Central Minnesota Neurosciences where he saw Dr. Lynn Miller. On December 1, 2008, Dr. Miller performed surgery described as “L4-5, L5, S1, diskectomy with left L5 hemilaminectomy.” On January 14, 2009, Mr. Haggerty reported to his doctors that his left leg numbness and tingling were gone but that he still had some symptoms at times in his left leg. At the hearing, Mr. Haggerty also stated that if he went too far when he went running, he would have a “twinge” in his back. Mr. Haggerty testified that after his surgery, he was able to engage in physical activities such as long boarding, a type of skate boarding. According to the records in evidence, Mr. Haggerty had no additional treatment for his low back before his employment with Pro Staff.
When Mr. Haggerty started his assignment at SunOpta on September 6, 2010, he was taken to the conveyor belt where he would be working. Boxes coming down the line were to be taken off and stacked in a specific pattern on a pallet. Mr. Haggerty was shown how to do the job for a half hour or so by another worker and then he began doing the job by himself. The pallet on which Mr. Haggerty placed the boxes was on an adjustable platform that would adjust its height as boxes were stacked. Boxes were usually placed at about chest level. Boxes came down the line fast enough so that when Mr. Haggerty turned back from putting a box on the pallet, another box was ready to be stacked. Mr. Haggerty described the job as requiring constant turning and twisting, and occasional reaching to place a box at the back of the pallet. Each box weighed approximately 45 pounds. With training, breaks, and a period when the line was down, it appears Mr. Haggerty did this work for about six hours.
Mr. Haggerty testified that about half way into his work shift, he began experiencing soreness in his low back. By the end of his work day, his back was very stiff and it hurt to bend over. Mr. Haggerty was picked up from work by his mother. She testified at the hearing that she called Pro Staff and advised the company that her son had hurt his back on the job. A representative of Pro Staff testified at the hearing and stated there was no record of any such notification.
Mr. Haggerty has a history of treatment for a number of medical conditions, including ADD, anxiety disorder with panic attacks, depression, and drug abuse. On September 9, 2010, Mr. Haggerty saw his family doctor at Alexandria Clinic, Dr. Brian Carlsen, for his anxiety disorder. There is no reference in the chart notes from that date of any low back symptoms. Mr. Haggerty returned to the Alexandria Clinic on September 13, 2010, with complaints of increased anxiety, resulting in panic attacks. There is no mention of low back problems on that date as well.
Mr. Haggerty was admitted to the Douglas County Hospital on September 14, 2010, for a drug overdose. There is no reference to low back concerns in the admission summary, but the discharge summary of September 16, 2010, notes that Mr. Haggerty’s history was “Notable for some mild back pain recently associated with working a temporary job for the last few weeks.”
On September 22, 2010, Mr. Haggerty saw Dr. Carlsen for evaluation of low back pain. The history in the medical record for that date states “Patient presents for evaluation of back pain. It is in the lumbar area. It has been present for the last few weeks. It came on after he was working a temporary job 9/1. He was lifting 50 pound boxes on an assembly line. He seemed to pull something in his left lower back. It has been bothering him intermittently since then. He rates the pain at a 3/10 and more annoying. He is no longer doing any lifting. No history of reinjury. He has noticed some pain into his buttock and posterior leg, almost down to the knee level. Prior history of bulging discs in the lumbar area, status post surgery.” On examination, Dr. Carlsen found some “paraspinal spasm in the left lumbar area. Some discomfort in that area with flexing at the hip and leg lifts.” Dr. Carlsen recommended an MRI scan given the past history of back surgery.
The MRI scan was done on September 23, 2010, and was interpreted as showing “new posterior left paracentral disc protrusion at L3-4 with congenitally short pedicles causing severe central canal stenosis.”
Dr. Carlsen sent Mr. Haggerty back to Central Minnesota Neurosciences on October 11, 2010. The history from that visit notes, “He was doing well, but around 9-1-10, he started a new job that required him to lift 50-lb. boxes. During his first day he noted severe low back pain and left anterior thigh pain during work, which has progressively gotten worse. He now admits to severe left groin and left anterior thigh pain, low back pain with occasional right sided pain in the same area, worse with walking or running. He has a difficult time going to sleep due to low back pain and left leg pain.” Traction and a therapeutic injection were prescribed but surgery was considered likely because of “the significant size of the disc bulge.”
When Mr. Haggerty returned on October 26, 2010, he saw Dr. Jeffrey Gerdes. Because Mr. Haggerty was complaining of bowel urgency, Dr. Gerdes was concerned about the possibility of a developing cauda equina syndrome. Dr. Gerdes concluded surgery was needed “urgently.” Mr. Haggerty had surgery performed on October 27, 2010, by Dr. Lynn Miller. This surgery was described as “left L3-4 hemilaminectomy, diskectomy.”
Mr. Haggerty made a good recovery from the surgery. In a follow up appointment at Central Minnesota Neurosciences on December 7, 2010, he reported “that his left leg pain has mostly resolved. Occasionally, he will have some pain in left leg with prolong standing or activity at work. He is back to work, working 35-36 hours. He’s done no heavy lifting. He denies any bowel or bladder issues. He has no numbness or tingling.”
The employee filed a claim petition in December 2010 against Pro Staff and its insurer, ACE Insurance, seeking various benefits he alleged were owed as a result of the claimed September 26, 2010, work injury. The employer and insurer denied primary liability in their response.
Mr. Haggerty was evaluated by Dr. John Sherman on behalf of the employer and insurer on March 30, 2011. Dr. Sherman took a history from Mr. Haggerty, reviewed the records, and conducted an examination. Dr. Sherman concluded Mr. Haggerty did not have an injury while working for Pro Staff on September 6, 2010. The information provided to Dr. Sherman stated that Mr. Haggerty’s mother had called Pro Staff on September 7, 2010, to advise them that he would not be coming in to work but that she had not reported an injury. Dr. Sherman also stated in his report that it was not credible that there had been an injury on September 6, 2010, when there was no mention of low back problems on September 9 or September 14. Dr. Sherman was of the opinion that “Mr. Haggerty has congenitally predisposed disc herniation.”
Dr. Jeffrey Gerdes prepared a narrative report of August 5, 2011, in which he stated that Mr. Haggerty’s symptoms began when he was doing “bending and twisting activities” at his job. Dr. Gerdes also stated, “He did have previous discectomies but I think they are unrelated to work activities and to his L3 disc herniation.” Dr. Gerdes also provided a rating of 10% permanent partial disability under Minn. R. 5223.0390, subp. 4.C.(3).
The employee’s claim petition was heard by Compensation Judge Paul Vallant on October 27, 2011. In his findings and order of December 12, 2011, the compensation judge determined Mr. Haggerty sustained an injury to his low back on September 6, 2010, while working for Pro Staff. The compensation judge also found that the work injury was a substantial contributing factor in the employee’s need for surgery and that the employee was entitled to temporary total disability from September 22, 2010, through November 17, 2010, and 10% permanent partial disability as rated by Dr. Gerdes. The employer and insurer have appealed.
On appeal, the employer and insurer raise two points. First, they argue that the compensation judge improperly placed the burden of proof on the employer and insurer. Second, they contend that the compensation judge erred in relying more on the testimony of Mr. Haggerty’s mother than on contemporaneous medical records. We consider each of these arguments in turn.
Minn. Stat. § 176.021, subd. 1, provides that the burden of proof in establishing entitlement to compensation rests with the employee. Meeting that burden is accomplished by producing a preponderance of the evidence on the disputed issue. Preponderance of the evidence means the “evidence produced in substantiation of a fact which, when weighed against the evidence opposing the fact, has more convincing force and greater probability of truth.” Minn. Stat. § 176.021, subd. 1a.
In support of its claim that the compensation judge improperly shifted the burden of proof, the employer and insurer quote the compensation judge’s memorandum in which he said, “There is no persuasive evidence of any other significant trauma that would have caused the employee’s herniated disc.” The employer and insurer argue that they have no obligation to provide an alternate theory of causation in defending a claim.
We note in this regard, that in her opening statement at the hearing, counsel for the employer and insurer referred to a CT scan of Mr. Haggerty’s head done while he was in the hospital from September 13 to 16 as evidence “that there had been trauma, a fall down.” Further, in noting that Dr. Carlsen’s chart had no reference to back pain until September 22, 2010, counsel stated, “I think it’s the fourth time he saw him after the work for my client. And in the meantime, there are many days which aren’t accounted for.” Later, in cross-examination of Mr. Haggerty’s mother, counsel asked a number of questions about possible physical consequences from Mr. Haggerty’s panic attacks, including that “he gets knots in his back” as a possible cause of Mr. Haggerty’s low back problems.
While the employer and insurer may have had no obligation to present an alternative causation theory, the employer and insurer chose to make that argument to the compensation judge. Given these arguments, it was not inappropriate for the compensation judge to comment on the lack of evidence in support of any alternative causation theory.
The employer and insurer also contend that the inferences which can be drawn from the evidence introduced by the employee are not sufficient to overcome contrary inferences. This, they contend, shows that the compensation judge failed to impose on the employee the requisite burden of proof. The employer and insurer cite to two previous decisions by this court in which determinations by a compensation judge that an injured worker failed to establish a claim by a preponderance of the evidence were affirmed.
As those decisions make clear, however, the question of whether the employee has established a claim by a preponderance of the evidence is a question for the compensation judge. “(I)n applying the substantial evidence standard, where the 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…if the compensation judge’s findings are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 239 (Minn. 1984). We conclude that the first argument raised by the employer and insurer is one as to whether substantial evidence exists to support the compensation judge’s decision. Before considering this issue, we turn to the second argument advanced by the employer and insurer.
The second argument is that the compensation judge erred in accepting the testimony of the employee and his mother instead of relying on the medical records. Specifically, because the medical records between September 9 and 16 do not mention the employee having low back pain or having sustained a low back injury, the compensation judge should have rejected testimony from the employee and his mother that he had low back pain at that time.
We find no authority for the proposition that, as a matter of law, any conflict between medical records and witness testimony must always be resolved in favor of the medical records. Conflicts between witness testimony and medical records go to the credibility of the witness and this court has held repeatedly that considering the credibility of a witness is for the compensation judge. Engels v. City of Duluth, 65 W.C.D. 497 (W.C.C.A. 2005); Brown v. Wickes Furniture, No. WC08-163 (W.C.C.A. Dec. 4, 2008); Hatch v. Langhoff Enters., No. WC09-195 (W.C.C.A. Jan. 25, 2010); Perez v. Arby’s Restaurant Group, No. WC11-5273 (W.C.C.A. Sept. 12, 2011).
The compensation judge made his credibility determination in favor of the employee and his mother. He stated he found the employee credible when he testified that the onset of his low back pain began on September 6, 2010, half way through his work on behalf of Pro Staff. The compensation judge stated that Mrs. Haggerty was credible when she testified that she called Pro Staff on September 7 and reported her son’s injury. The compensation judge concluded the medical records were not inconsistent with the testimony given that the focus of the records on September 7 and 13, 2010, was on the employee’s anxiety, depression, and panic attacks. Similarly, the hospitalization on September 14, 2010, was occasioned by Mr. Haggerty’s drug overdose and so the absence of a reference to low back problems was not significant in the view of the compensation judge.
We find no persuasive argument from the employer and insurer which would compel us to reverse the compensation judge’s credibility determination. Accordingly, substantial evidence, in the form of credible testimony and the medical report of Dr. Gerdes which is based on that testimony, exists to support the determination of the compensation judge that Mr. Haggerty sustained a work injury to his low back on September 6, 2010.
The compensation judge’s decision is affirmed.
 Herman v. Polka Dot Dairy, 50 W.C.D. 409 (W.C.C.A. 1994); Swanson v. Medtronics, 42 W.C.D. 58 (W.C.C.A. 1983).