DENNIS THOMES, Employee/Appellant, v. BARBAROSSA & SONS and AMERICAN MUT. INS. CO./MIGA, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 18, 2000

 

HEADNOTES

 

CAUSATION - MEDICAL TREATMENT.  Substantial evidence, including adequately founded medical opinion, supports the compensation judge=s finding that the employee=s 1996 surgery was not causally related to the employee=s 1974 injury. 

 

APPEALS - SCOPE OF REVIEW.  Where the employee listed an issue in his brief but did not address the issue, it is deemed waived.  Minn. R. 9800.0900, subp. 1.

 

Affirmed.

 

Determined by: Rykken, J., Wheeler, C.J., and Pederson, J.

Compensation Judge: Nancy Olson

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s finding that the employee=s 1996 surgery was not causally related to the employee=s 1974 work injury or his subsequent fusion surgery in 1982.  We affirm.

 

BACKGROUND

 

On April 3, 1974, Dennis Thomes, the employee, sustained a work-related injury to his low back while working for Barbarossa & Sons, the employer, who was insured for workers= compensation liability by American Mutual Insurance (now administered by MIGA), the insurer. On that date the employee was 31 years old and earned a weekly wage of $300.00 per week.  The employer and insurer admitted liability and paid wage loss benefits, permanent partial disability, and medical expenses.  The employee initially underwent chiropractic treatment and took aspirin to treat his symptoms, and later was referred to Dr. Robert Wengler, with whom the employee treated four or five times.  In 1981, at the recommendation of Dr. Wengler, the employee underwent an injection at the L5-S1 level, which he initially understood to be a chymopapain injection, and which was unsuccessful. The employee=s pain continued; within three months, he again consulted Dr. Wengler and was advised that the injection had been a placebo.  (T. 35.)

 

The employee continued to have radiating pains in his back and was losing feeling in his legs.  The employee then treated with Dr. Florschutz, who performed a one-level fusion at the L5-S1 level, in 1982.  The employee was rated as having 30% permanent partial disability of the spine after the 1982 surgery and was given restrictions not to lift more than 25 pounds.

 

The employee left the construction industry after his surgery and after talking with Dr. Florschutz and began selling insurance.  (T. 21.)  The employee apparently continued to have symptoms and to seek chiropractic treatment on an occasional basis, however, these records were not introduced into the record below.

 

The employee began treating with Dr. Charles Kinzer, chiropractor, in August 1994, with complaints of low back pain radiating to both legs.  The employee had no new injuries, and believed that his current problems were the result of the previous injury.  A review of Dr. Kinzer=s records shows that the employee treated with Dr. Kinzer four times in a two month period in 1994, eleven times in a two month period in 1995, and approximately three to four times per month in 1996.  Dr. Kinzer referred the employee to Dr. Alexander Lifson at the Institute for Low Back and Neck Care.  Dr. Lifson initially evaluated the employee on April 9, 1996, and recommended an MRI, which indicated spinal stenosis at the L4-5 level, significant narrowing of the spinal canal with impingement of the cauda equina and traversing L5 nerve roots, and a solid fusion at L5-S1.  Dr. Lifson opined that the employee had developed central spinal stenosis at the transitional level above his spinal fusion, which was a progression of his 1974 work injury and directly related to the spinal fusion performed in 1982.  On May 13, 1996, the employee underwent decompression surgery for severe central spinal stenosis at L4-5, and a laminotomy and medial facetectomy at the L4-5 level, performed by Dr. Lifson.  The insurer initially paid for this surgery and for 16 weeks of temporary total disability benefits after this surgery, but later claimed that it paid those benefits and medical expenses under a mistake of fact. 

 

 In January 1997, the employee was referred to Dr. L. Michael Espeland, Anesthesia Pain Clinic, for a consultation concerning his ongoing symptoms.  Dr. Espeland recommended an MRI scan with contrast, to address the possibility of epidural scarring.  Thereafter, the employee was examined by Dr. Jeffrey Gerdes on January 27, and on February 3, 1997, the employee underwent another MRI which indicated a small spinal canal and residual moderately severe central and bilateral subarticular stenosis at L4-5 and a right-sided disc herniation at L3-4 with some nerve root impingement.  On February 29, 1997, the employee underwent another surgery, L3-L5 decompressive laminectomy and L3-4 and L4-5 foraminotomies bilaterally, performed by Dr. Gerdes.  The compensability of this surgery was not at issue in this proceeding.

 

On September 4, 1998, the employee filed a claim petition, alleging entitlement to an underpayment of temporary total disability benefits following the employee=s 1996 surgery, additional benefits based upon an additional 19.3 percent permanent partial disability of the spine, and payment for chiropractic expenses.  The employer and insurer denied liability, asserting that the  claims arose from causes wholly unrelated to the employee=s 1974 injury, and also denied that the claimed chiropractic treatment was reasonable and necessary to cure or relieve the effects of the employee=s injury.

 

In October 1998, the employee underwent a medical examination with Dr. David Boxall at the request of the employer and insurer.  Dr. Boxall opined that the 1996 surgery was not causally related to the 1974 work injury.  He explained that the 1974 injury was to the L5-S1 level, and the later central spinal stenosis and disc herniation were at different levels.  Dr. Boxall opined that the employee=s spinal stenosis was caused by a congenitally small spinal canal and degeneration.

 

A hearing was held on December 7, 1999, on the issues of whether the employee=s 1996 surgery was causally related to the 1974 injury and the extent of the employee=s permanent partial disability after the 1996 injury.  The employee testified that his symptoms in 1994 and after were the same as he had experienced after the 1974 work injury.  The compensation judge found that the employee=s 1996 surgery at the L4-5 level was not causally related to the 1974 work injury.  She also found that the employee=s permanent partial disability rating after his 1996 surgery was an additional 10 percent permanent partial disability to the spine, in addition to the earlier-assigned 30 percent rating, but denied the employee=s claim for additional permanency benefits as that surgery and resulting permanency were not causally related to the employee=s 1974 work-related injury.  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 (1998).  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 the 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).

 

DECISION

 

The employee claims that the compensation judge erred by relying upon Dr. Boxall=s opinion that the employee=s symptoms in 1996 were related to a congenital condition.  The employee argues that the congenital condition was a pre-existing condition and that Athe employer and insurer take the employee as they find him.@  The compensation judge did not find that the employee=s work injury had aggravated, accelerated, or combined with a pre-existing condition to produce a disability, but that a pre-existing disability had caused the employee=s current disability, unrelated to the employee=s previous disability which was caused by the work injury.

 

The employer and insurer also argue that Dr. Boxall had not been provided with records from the employee=s prior treating physicians and that Dr. Boxall was unaware of the employee=s need for ongoing medical and chiropractic care since the date of injury.  Dr. Boxall testified at his deposition that he reviewed the employee=s medical records relating to his more current condition, but did not review records from the employee=s treatment with Dr. Wengler or Dr. Florschutz.^[1]  However, Dr. Boxall indicated that he was familiar with the employee=s history and knew that the employee had undergone the injection and the surgery during the time he was under the care of Dr. Wengler and Dr. Florschutz in 1981 and 1982.  While Dr. Boxall indicated that he was not aware that the employee had not treated for his low back condition every year since the date of injury, he was aware that the employee had undergone occasional chiropractic care since that time.

 

The competence of a medical expert to render an opinion depends both upon the degree of the witness=s scientific knowledge and the extent of the expert=s practical experience with the matter at issue.  For a medical opinion to be afforded evidentiary value, the expert need not be aware of every relevant fact, so long as the omissions do not mislead the fact finder.  In general, any such deficiencies go only to the persuasiveness or weight to be given the opinion.  Drews v. Kohl=s, 55 W.C.D. 33, 39 (W.C.C.A. 1996), summarily aff=d (Minn. July 11, 1996).  Dr. Boxall=s opinion had adequate foundation.

 

The compensation judge noted that Dr. Lifson concluded that the stenosis at the L4-5 level was Aa progression of the problems related to the injury that he sustained@ in 1974, but did not offer an explanation of why the 1974 injury or the 1982 L5-S1 fusion surgery would cause the spinal canal to narrow at the level above the surgery.  Similarly, Dr. Kinzer indicates that the employee=s condition, Athe same old thing,@ is related to the employee=s work injury, but did not provide any explanation for this opinion.  Contrary to the employee=s assertions, Dr. Gerdes=s reports cited in the brief do not address causation.  The compensation judge found Dr. Boxall=s opinion more persuasive.  It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  The compensation judge did not err by relying upon Dr. Boxall=s opinion.  In addition, the compensation judge concluded that the employee=s testimony that he considered his symptoms in 1996 to be consistent with his symptoms since 1974 was not sufficiently persuasive to convince her that there was a causal relationship in this case.  Substantial evidence supports the compensation judge=s finding that the employee=s 1996 surgery was not causally related to the employee=s 1974 injury.  Accordingly, we affirm.^[2]

 

The employee also appealed the compensation judge=s determination of the extent of the employee=s permanent partial disability after the 1996 surgery.  While the employee listed this issue in his brief, the issue was not addressed.  Issues not addressed in an appellant=s brief are deemed waived.  Minn. R. 9800.0900, subp. 1.  In any event, as we have affirmed the compensation judge=s finding that the 1996 surgery was not causally related to the employee=s 1974 work-related injury, we also would have affirmed the compensation judge=s denial of additional permanency benefits based upon a lack of causal relationship to the employee=s 1974 work-related injury.