JOHN CODY CAIZZO, Employee, v. MCDONALD=S / T&K REST. FRANCHISE GROUP, and WESTPORT INS. CORP./GALLAGHER BASSETT SERVS., Employer-Insurer/Appellants, and HEALTHPARTNERS, PARK NICOLLET CLINIC, and METHODIST HOSP., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 14, 2005

 

No. WC04-295

 

HEADNOTES

 

ARISING OUT OF & IN THE COURSE OF - SUBSTANTIAL EVIDENCE.  Substantial evidence, including  well-founded medical opinion, supports the compensation judge=s determination that the act of standing for an extended period of time at the drive-in window was a contributing cause of the  employee=s faint and fall, and that the employee=s resulting injury arose out of his employment.

 

EVIDENCE - EXPERT MEDICAL OPINION.  A medical opinion does not lack foundation because the doctor did not explain the mechanism of injury or the underlying reasons for his expert opinion, and the compensation judge reasonably relied upon the adequately founded opinion of the employee=s treating physician.

 

MEDICAL TREATMENT & EXPENSE - DIAGNOSTIC TESTING.  A referral to a medical specialist or for diagnostic testing to evaluate or rule out an alternative explanation or treatment for a work-related injury is compensable, whether or not the condition or diagnosis evaluated is, itself, work-related, and the compensation judge properly ordered payment of examination by a neurologist and an MRI scan to evaluate or rule out any alternative explanation for the employee=s faint and fall.

 

Affirmed.

 

Determined by:  Johnson, C.J., Wilson, J., and Pederson, J.

Compensation Judge:  Gary P. Mesna

 

Attorneys:  James M. Sherburne, Sherburne Law Offices, Minneapolis, MN, for the Respondent.  James S. Pikala and Peter J. Williams, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s decision that the employee=s fall arose out of and in the course of his employment.  We affirm.

 

BACKGROUND

 

On May 2, 2003, John Cody Caizzo, the employee, was working for McDonald=s/T & K Restaurant Franchise Group, the employer, as part of a work program through his high school.  The employee worked two hours a day from 11:00 a.m. until 1:00 p.m. Monday through Friday.  On May 2, the employee was working at the drive-up window taking orders.  The employee stood to perform this job and was not permitted to sit down while working.  He testified he felt dizzy for a moment then lost consciousness and fell hitting his head on the flat surface of the floor.  The employee awoke with a bump on the back of his head and a laceration on the top of his head.

 

The employee had a history of one prior fainting episode prior to May 2, 2003, when he fainted while working at the same drive-up window for the employer.  The employee was not injured in this fall and did not report it to the employer or seek medical care.  The employee denied being lightheaded and nearly fainting on any other occasions.

 

The employee was taken by ambulance to Methodist Hospital where Dr. Jayne Boche diagnosed and repaired a 4 cm laceration on the employee=s scalp.  A doctor concluded the employee suffered a vagal-induced syncopal episode which may have been exacerbated by his relative fasting and poor fluid intake.  On May 5, 2003, the employee was seen by Dr. Robert Gorman at the Park Nicollet Clinic.  The employee told the doctor he had eaten very lightly that day, having some strawberries and a donut.^[1]  The employee reported he currently took Ritalin, Allegra and Paxil.  The employee denied any sort of work place fumes or exposure that might have caused his fainting incident.  A CT scan on May 5 showed a small parenchymal hemorrhage in the left frontal region with some surrounding edema compatible with the history of a three-day old trauma.  A second CT scan on May 7 was unchanged.  Dr. Gorman diagnosed a syncopal episode of unknown etiology.  An MRI scan of the employee=s brain was normal.  On July 1, 2003, Dr. Sandra Hanson diagnosed a probable common faint with a secondary closed-head injury in good recovery.

 

By report dated April 9, 2004, Dr. Gorman stated:

 

Based on the history that was given, patient became lightheaded secondary to prolonged standing at work.  Other factors were considered, including diet, medication and other causes; but in summary, it was felt that more probably than not, the standing at work in his work area was a contributing factor to his fainting episode and the resulting care that ensued.  (Pet. Ex. A.)

 

The employee filed a claim petition seeking medical and wage loss benefits.  In a Findings and Order served and filed September 27, 2004, the compensation judge found the employee=s fall on May 2, 2003, arose out of and in the course of his employment and awarded benefits to the employee.  The employer and insurer appeal.

 

DECISION

 

1.  Arising out of

 

A personal injury is defined as an Ainjury arising out of and in the course of em­ploy­ment.@  Minn. Stat. ' 176.011, subd. 16.  The Aarising out of @ requirement is a causation test al­though Anot necessarily in the proximate cause sense.@  Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988).  For an injury to arise out of the employment, there must be a causal connection between the employment and the injury.  Lange v. Minneapolis-St. Paul Metro. Airport Comm=n, 257 Minn. 54, 99 N.W.2d 915, 21 W.C.D. 61 (1959).  The requisite causal connection Aexists if the employment, by reason of its nature, obligations or incidents may reasonably be found to be the source of the injury-producing hazard.@  Nelson v. City of St. Paul, 249 Minn. 53, 55, 81 N.W.2d 272, 275, 19 W.C.D. 120, 123 (1957).  The burden of proving that a personal injury arose out of the employment is on the employee.  Minn. Stat. ' 176.021, subd. 1.  The issue on appeal is whether the employee sustained that burden.

 

In the United States, and in Minnesota, the primary test for determining whether an injury arises out of the employment is the Aincreased risk@ test.  This test requires a showing that the Ainjury was caused by an increased risk to which the claimant, as distinct from the general public, was subjected by his or her employment.@  1 A. Larson and L.K. Larson, Workers= Compensation Law, ' 3.00 (1999).  In Minnesota,  the supreme court has stated, A[t]he >arising out of= requirement refers to the causal connection between the employment and the injury.  This requirement requires a showing of some hazard that increases the employee=s exposure to injury beyond that of the general public.@  Kirchner v. County of Anoka, 339 N.W.2d 908, 911, 36 W.C.D. 335, 337 (Minn. 1983).  The injury need not be peculiar to the employment, so long as the injury-producing risk or hazard has its origin or source in the employment.  See Larson, ' 3.00; Briemhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719, 15 W.C.D. 395 (1949).

 

The employee testified that after working for 30 to 45 minutes he became lightheaded, lost consciousness and fell.  There is no dispute the employee was in the course of his employment at the time of his fall.^[2]  Dr. Gorman opined the employee became lightheaded due to prolonged standing at work.  The doctor stated he considered other factors including diet, medication and other causes but concluded he felt, Athat more probably than not, the standing at work in his work area was a contributing factor to his fainting episode and the resulting care that ensued.@  (Pet. Ex. A.)  Thus, there is evidence that the medical cause of the employee=s fall was the employment activity of standing at the drive-in window taking orders.

 

It is the position of the appellant that the mere act of standing did not create a measurable increase in any risk to the employee.  We disagree.  Granted, the act of standing is a rather innocuous activity unlikely, in most instances, to cause injury.  In the vast majority of cases, however, the same can also be said of most employment-related physical activities.  There is no requirement that the work activity be unusual or strenuous, only that the injury follow as a natural incidence of the work.  Foley v. Honeywell, Inc., 488 N.W.2d 268 (Minn. 1992).  Because the employment required the employee to stand for an extended period of time, the employee was subject to an increased risk distinct from that to which the general public is exposed.

 

The compensation judge accepted the causation opinion of Dr. Gorman.  The appellant contends, however, the judge=s reliance on Dr. Gorman=s opinion was legally erroneous because the doctor lacked foundation to opine the employee=s work activities caused his fall.  The appellant argues the only factual basis for the doctor=s opinion is that the employee was standing, which is insufficient factual foundation for the opinion.  Further, Dr. Gorman did not explain how the act of standing would cause the employee to faint.  The appellant argues the doctor=s unsupported conclusion should have been rejected by the compensation judge as lacking any probative value.  We disagree.

 

Dr. Gorman obtained a medical history from the employee and his mother, ordered and reviewed diagnostic tests, reviewed the records of Dr. Boshe and Dr. Hanson, and performed physical examinations.  As a general rule, this level of medical expertise and practical experience establishes competency to render an expert medical opinion.  Reinhardt v. Colton, 337 N.W.2d 88 (Minn 1983).  Dr. Gorman opined the employee=s prolonged standing at work caused him to become light-headed and faint.  That the employee was standing while working is undisputed.  We are unaware of, and the appellant does not present, any other facts which Dr. Gorman should have considered in rendering his opinion.  We acknowledge Dr. Gorman did not explain the mechanism of injury, that is, how standing caused the employee to faint.  An expert medical opinion does not lack foundation because the doctor fails to explain the mechanism of injury or the underlying reasons for the expert opinion.  Rather, the presence or absence of such testimony goes only to the weight that may be afforded the opinion by the compensation judge.  All that is required, under the facts of the case considered as a whole, is that it appears a competent medical witness opined the injury causally contributed to the disabling condition.  See, e.g., Goss v. Ford Motor Co., 55 W.C.D. 316 (W.C.C.A. 1996); Midtling v. Schwan=s Sales Enters., slip op. (W.C.C.A. Sept. 22, 2003).  Dr. Gorman=s opinion was adequately founded and the compensation judge reasonably relied upon it.

 

2.  Medical Expenses

 

On May 7, 2003, Dr. Gorman removed the staples from the employee=s head and released him to return to work.  Thereafter, the employee continued to obtain medical treatment primarily to determine possible causes for his fainting spell.  None of this treatment, the appellant contends, was designed to cure or relieve the effects of the employee=s injury.  Accordingly, the appellant contends, the compensation judge erroneously ordered the self-insured employer to pay for medical treatment incurred after May 7, 2003.

 

Minn. Stat. '176.135, subd. 1(a), requires the employer and insurer to furnish any medical treatment Aas may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury@.  This court has previously held that a referral to a medical specialist or for diagnostic testing to evaluate or rule out an alternative explanation or treatment for a work injury is compensable, whether or not the condition or diagnosis evaluated is, itself, work-related.  See, e.g., Reid v. Isanti Tire & Auto Care, slip op. (W.C.C.A. Apr. 9, 2002); Braatz v. Total Constr. and Equip., slip op. (W.C.C.A. May 19, 1992); Klaven v. Northwest Medical Center, slip op. (W.C.C.A. Sept. 24, 1991).

 

On May 14, 2003, the employee returned to see Dr. Boche for a follow-up examination after his fall.  On May 21, Dr. Sandra Hanson, a neurologist, examined the employee on referral from Dr. Gorman regarding the employee=s closed head injury and intracerebral hematoma.  Dr. Hanson ordered an MRI scan of the employee=s brain.  On July 1, 2003, Dr. Hanson reviewed the results of the MRI scan with the employee.  The treatment the employee received after May 7, 2003, was primarily to evaluate or rule out an alternative explanation for the employee=s faint and resulting fall.  This treatment is, therefore, compensable, and we affirm.