SCOTT A. WALSETH, Employee, v. WAL-MART STORES, INC., and AMERICAN HOME ASSURANCE CORP./AIG/CLAIMS MGMT., INC., Employer-Insurer/Appellants, and UCARE, SANFORD HEALTH SYS., KEN MOBERG CAREER & VOCATIONAL SERVS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 9, 2012
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge’s conclusion that the employee’s work injury was a substantial contributing cause of the employee’s herniated disc and resulting disability and need for treatment.
Determined by: Wilson, J., Johnson, J., and Stofferahn, J.
Compensation Judge: John Ellefson
Attorneys: Mark L. Rodgers and Michael L. Garbow, Rodgers & Garbow, Bemidji, MN, for the Respondent. Christopher E. Sandquist and Cory A. Genelin, Gislason & Hunter, Mankato, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the judge’s finding that they are liable for temporary total disability benefits, medical expenses, and rehabilitation benefits. We affirm.
The employee began work with Wal-Mart Stores, Inc. [the employer], in approximately November of 2009. His job involved unloading trucks, pulling pallets, and occasionally stocking shelves. Prior to his employment by the employer, the employee had received limited treatment for low back pain. His last treatment before beginning work for the employer was on May 7, 2007.
On December 26, 2009, the employee slipped on a wet floor at work and fell on his back. He testified both that he had low back pain radiating to the left and low back pain radiating to both the right and the left. Emergency room records from Northwest Medical Center from December 28, 2009, and January 3, 2010, reflect that the employee was complaining of radiation of pain down the right leg. An MRI performed on January 11, 2010, revealed a herniated disc at L5-S1, “more to the left than the right,” with a broad-based protrusion on the right.
The employee was seen by nurse practitioner Kevin Ballard on January 26, 2010, for an orthopedic consultation. On that date, Mr. Ballard’s impression was low back pain with right leg pain. He reviewed the MRI results with the employee and referred him to Dr. Panjini Sivanna for epidural steroid injections. Dr. Sivanna first saw the employee on February 3, 2010, and noted that the employee was being seen for “severe lumbar radicular pain on the right side.” The employee received an injection on that date and returned to Mr. Ballard on February 9, 2010, for a recheck. At that time, the employee reported that his pain had initially decreased with the injection but “over the last couple of days [he] started noticing pain in the lower back radiating into the left leg.” The employee was released to return to work that day with light-duty restrictions, and he did return to work for the employer. The employer and insurer paid temporary total disability benefits from December 27, 2009, through February 8, 2010.
The employee subsequently received additional treatment for low back pain, primarily from Dr. Sivanna and Dr. Khan. After February 9, 2010, the employee consistently complained of low back pain radiating into the left leg. On March 4, 2010, for the first time since the work injury, the employee reported that he had no pain, following a third epidural steroid injection the day before. There is no record of additional low back treatment until April 20, 2010, when the employee was seen in the emergency room complaining of an acute worsening of his chronic low back pain. The employee treated with Dr. Sivanna the next day, reporting that he had felt good for four weeks but that his back pain then returned to the same level as before, with radiation through the left leg. Dr. Sivanna took the employee off of work, and the employer and insurer resumed payment of temporary total disability benefits.
On May 19, 2010, Dr. Sivanna released the employee to return to light-duty work, two to four hours a day. According to Dr. Sivanna’s office notes, the employee did not return to work due to pain, and, on June 2, 2010, Dr. Sivanna kept him off of work until June 16, 2010. On that date, the employee complained of increased localized pain and received trigger point injections. Dr. Sivanna released the employee to return to light-duty work starting June 21, 2010. The employee did not return to work for the employer on June 21, 2010, and was terminated.
Also on June 21, 2010, the employer and insurer filed a notice of intention to discontinue benefits, alleging “an intervening event” had occurred on June 20, 2010, when the employee slipped at home. Temporary total disability benefits were discontinued.
On June 22, 2010, the employee told Dr. Khan that he had been walking down the steps at home when he twisted his leg and developed severe pain radiating down the posterior left leg. Dr. Khan added Flexeril to the medications that the employee was already taking for back pain. He completed a form indicating that the employee could work with restrictions, including “sitting work only” as of that date.
The employee returned to Dr. Khan on June 30, 2010, for his annual physical. While the doctor diagnosed chronic low back pain, he did not address the employee’s need for restrictions or ability to work. On July 13, 2010, Dr. Sivanna released the employee to return to light-duty work “with significant limitations.” Dr. Sivanna subsequently took the employee off of work completely, and the employee has remained unemployed.
The employee filed a claim petition on September 9, 2010, seeking temporary total disability benefits continuing from June 21, 2010, medical expenses, and rehabilitation services.
The employee contacted qualified rehabilitation consultant [QRC] Tom Lanes on September 22, 2010, and has worked with him since November 15, 2010. When Dr. Sivanna released the employee to return to part-time, light-duty work on March 2, 2011, the QRC prepared a Job Placement Plan and Agreement. Job search was limited to the area of Thief River Falls, Minnesota, because the employee did not have a driver’s license. The following month, the employer and insurer filed a Rehabilitation Request that was later amended, contending, in part, that the employee was not a “qualified employee” pursuant to the independent medical examination of Dr. Richard Strand and the independent psychological examination of Dr. Rauenhorst. The QRC put the plan on hold.
The rehabilitation request and claim petition were consolidated for hearing, and, in findings and order filed September 22, 2011, the compensation judge found that the employee’s work injury was a substantial contributing cause of the employee’s herniated disc and the resulting disability. The employer and insurer appeal.
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 (2010). 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 employer and insurer’s theory of the case on appeal is that the employee had a pre-existing injury to the left side of his low back and sustained an admitted injury to the right side of his low back on December 26, 2009, while working for the employer. The employer and insurer contend that the employee originally complained of right-sided pain but that, when shown the results of his MRI scan, the employee changed his complaints from right-sided leg pain to left-sided leg pain. This, the employer and insurer argue, proves that the employee is dishonest. They also contend that the work injury had resolved by at least June 20, 2010, and that the employee’s ongoing complaints are not related to the work injury. Four specific findings are in dispute.
First, the employer and insurer appeal from the judge’s Finding 3, that “the employee testified that he had pain in his low back extend[ing] both to the right and the left.” The employer and insurer contend that this finding should be “amended” to include a more detailed description of the employee’s testimony and then to conclude that the “employee’s admitted injury was an injury only to employee’s right low back, which resolved, without the need for further restrictions, and without the need for medical treatment, no later than June 21, 2010.” However, the employee testified at hearing that he had both right and left leg pain after the work injury. The judge was not required to discuss all of the evidence, but he did note that medical records from treatment immediately following the injury recorded only right leg pain. While the medical records reflect that from December 29, 2009, through February 3, 2010, the employee complained only of right leg pain, the records do not support the theory that the employee changed his complaints after the MRI scan. In addition, while the MRI scan showed herniation primarily on the left, the radiologist specifically noted protrusion on the right side. Finding 3 is affirmed as written.
The employer and insurer next appeal from Finding 4, in which the judge found that the employee “credibly testified” that he had never before experienced the type of pain he had after the work injury. There is nothing in the medical records prior to 2009 to indicate that the employee had the degree or duration of pain prior to the injury that he had after. In fact, the employee had not treated for low back pain for more than two years prior to his work injury. And, while the employee had degenerative findings on x-ray prior to his work injury, he was never diagnosed with a herniated disc until after the injury. Credibility assessments are for the compensation judge. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). We find no error by the judge in this regard, and Finding 4 is also affirmed.
The employer and insurer also appeal from Finding 6, which deals with the June 21, 2010, incident occurring at the employee’s home. The employer and insurer want this finding “amended” to read that the June 21, 2010, incident caused the employee’s left-sided low back pain. However, the requested amendment would conflict with references in medical records indicating that the employee repeatedly complained of low back and left leg pain after February 9, 2010, well prior to the incident at home. In fact, the employee was seen by Dr. Sivanna four days before the June 21 incident and complained of left leg pain at that time. In addition, the only doctor’s opinion supporting the employer and insurer’s theory was that of Dr. Strand, whose opinion the judge rejected in an unappealed finding. Finding 6 is affirmed.
Finally, the employer and insurer appeal from Finding 8, in which the judge found the employer and insurer liable for the claimed benefits. In making this argument, the employer and insurer contend, again, that the work injury had resolved before the employee injured the left side of his low back on June 21, 2010. However, as noted above, the compensation judge specifically rejected Dr. Strand’s opinion to that effect, and no appeal was taken from that finding.
This is a relatively straightforward case involving the compensation judge’s choice of one expert, Dr. Sivanna, over another expert, Dr. Strand. A judge’s choice between expert witnesses is generally 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 this case, the employer and insurer did not appeal from the judge’s finding accepting Dr. Sivanna’s opinion. They make no argument that Dr. Sivanna’s opinion was either lacking in foundation or based on assumptions unsupported by the record. The judge’s decision is affirmed in its entirety.
 The employee treated once in March of 1995, twice in October/November of 1998, and five times in 2003. In April of 2007, the employee reported having experienced the onset of low back pain when lifting five-gallon containers. He treated once with Dr. Jawad Khan, who reported that the employee was complaining of some radiation of pain to the left leg. The employee received seven chiropractic treatments from Mickelson Chiropractic over the next few weeks. Records from that care reflect that the employee had pain in the low back near the tailbone and some bilateral leg pain, primarily on the left.
 It was only after the epidural injection on February 3, 2010, that the employee’s complaints moved from the right to the left.
 Near the end of their brief on appeal, the employer and insurer contend, “If Employee had been returned to work prior to June 21, 2010, and if a month later his symptoms were back to that level, then by July 21, 2010, employee would be able to work and would not be entitled to Temporary Total Disability benefits thereafter.” At the hearing, however, the employer and insurer argued only that the employee’s work injury had resolved as of February 15, 2010, and that the employee had no compensable work injury after that date. The employer and insurer may not raise issues on appeal that were not before the compensation judge at hearing.
 On March 16, 2011, Dr. Sivanna stated that the December 26, 2009, work injury was a substantial contributing cause of the employee’s disc herniation at L5-S1 and of his current low back and left leg pain.