ROGER L. WALTON, Employee, v. ARAMARK, SELF-INSURED/ALEXSIS RISK MANAGEMENT, Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 27, 2000

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, supported the compensation judge=s decision that the employee sustained a left knee injury as a consequence of his 1979 work-related right knee injury.

 

PRACTICE & PROCEDURE.  The compensation judge did not err in failing to rule on whether the employee had sustained a Gillette injury with a second employer, where the second employer was not a party to the proceedings, the issue was not even raised until half way through the hearing, and there was no medical evidence at all to support such a finding.

 

Affirmed.

 

Determined by Wilson, J., Rykken, J., and Pederson, J.

Compensation Judge:  Ronald E. Erickson

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the compensation judge=s decision that the employee sustained a left knee injury as a consequence of his 1979 work-related right knee injury.  We affirm.

 

BACKGROUND

 

The employee has had right knee problems dating back to 1960, when he sustained a nonwork-related injury that necessitated surgery, an open arthrotomy.  Ten years later, after a stint on active duty in the Air Force, the employee began working for Aramark [the employer], a wholesale distributor of books and magazines.  Sometime in 1979, the employee became a general manager for the employer in their Brainerd facility, spending fifty percent of his time in his office and fifty percent of his time in the employer=s 18,000 square-foot warehouse.

 

On September 11, 1979, the employee sustained a work-related injury to his right knee, for which he underwent surgery about three weeks later.  The employee=s post-operative diagnosis was loose bodies in the right knee with severe degenerative changes of the medial joint.^[1]  The employer apparently admitted liability for the injury and paid the employee various benefits, including benefits for a 5% permanent partial disability of the right lower extremity.

 

The employee continued to work for the employer following his recovery from surgery.  He testified, however, that he continued to experience right knee pain, which worsened over time, and that he consequently altered his gait to shift more of his weight onto his left leg as he walked.  In January of 1997, the employee underwent physical therapy for significant right knee pain and also for back pain.  Recurring right knee pain necessitated physical therapy again in June of that year.  When his symptoms improved, the employee was released to a home exercise program.

 

Effective December 8, 1997, the employer sold its Brainerd warehouse to Charles Levy Company.  The employee stayed on after the facility changed hands and continued performing essentially the same job duties for the new employer.  As always, his work required a substantial amount of walking on the hard concrete warehouse floor.

 

In May of 1998, Dr. Peter Schmitz, the employee=s long-time treating physician, noted that the employee had a Avarus component@ of both knees as well as Agross crepitus on flexion and extension, right worse than left.@  Shortly thereafter, the employee commenced physical therapy for bilateral knee pain.  According to the initial physical therapy note, the employee indicated that his calves and thighs hurt Asecondary to having to walk abnormally because he has such intense anterior shin pain radiating distally to the anterior tibia/fibula complex of the bilateral lower extremities, right greater than left.@

 

The matter first came on for hearing before a compensation judge on August 25, 1998, for consideration of medical expense claims related to the employee=s right knee condition and an alleged consequential low back injury.  In a decision issued on September 22, 1998, Compensation Judge Danny Kelly concluded that the right knee and low back treatment at issue was causally related to the employee=s 1979 work injury, explaining in part that the employee had developed low back pain due to the abnormal gait caused by his right knee injury.  Neither party appealed from this decision.

 

The employee left employment with Charles Levy Company in late April of 1999.  Five or six weeks later, on June 7, 1999, he filed a claim petition and rehabilitation request, alleging entitlement to various benefits from the employer due to work-related injuries to his back, right knee, and left knee.  Following an administrative conference, the employee was found eligible for a rehabilitation consultation.  The employer subsequently filed a request for a de novo hearing, and that matter was eventually consolidated for hearing with the employee=s claim petition.

 

On October 29, 1999, the employee underwent surgery in the nature of a total right knee replacement.

 

By the time of the hearing before Compensation Judge Ronald Erickson on March 8, 2000, the parties had informally settled all current claims relating to the employee=s right knee condition and low back condition^[2]; the only issue presented to the judge was whether the employee=s 1979 right knee injury was a substantial contributing cause of the employee=s left knee condition.  Evidence submitted in connection with this issue included the employee=s testimony, records from the employee=s physical therapy and from his treatment by Dr. Schmitz, and reports from Drs. Thomas Litman and H. W. Park, the employer=s independent examiners.

 

In a decision issued on April 3, 2000, the compensation judge concluded that the employee had sustained a left knee injury as a consequence of his 1979 work-related right knee injury, and he ordered the employer to pay related medical expenses.  The employer appeals.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[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 Food 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, Aunless 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.

 

DECISION

 

As previously noted, the record indicates that the employee had a nonwork-related right knee injury in 1960, followed by surgery; a work-related right knee injury in 1979, again followed by surgery; and continued right knee symptoms thereafter.  The employee testified that worsening right knee symptoms prompted him to change his gait by shifting more weight to his left leg, and medical records at times describe the employee=s gait as antalgic.  The record also establishes that the employee has had a significant weight problem for many years^[3] and that his work for the employer and for Charles Levy Company required a substantial amount of walking on concrete floors.  Medical opinions appear to differ as to the significance of these facts.

 

Dr. Schmitz, who has been the employee=s treating doctor since at least 1979, wrote, in a December 29, 1998, office note:  AHistorically, [the employee] shifts his weight to the left knee because of the fact that the right knee is so bad.  This is obvious[ly] why the left knee has become so bad.  The right knee therefore is indirectly related to the problems with his left knee.@  The employee based his claim of a consequential left knee injury in large part on Dr. Schmitz=s opinion to this effect.

 

The employer, on the other hand, relied on the opinions of Drs. Litman and Park.  In his August 3, 1998, report, Dr. Park wrote that the employee has Aend stage degenerative joint disease of both knees,@ and he indicated that the employee=s knee pain was Adue to ongoing degenerative joint disease dating back to 1960 that was temporarily aggravated by [the employee=s] activities back in 1979.@  Later in his report, Dr. Park concluded,

 

The fact that the patient has bilateral knee degeneration with varus deformity is related to the weight problem as well as surgery that was required back in 1960.  I do not feel that the September 1979 work injury was of any significance as a contributing factor as far as the ongoing degenerative joint disease involving both knees.

 

Dr. Litman, in his report of April 26, 1999, wrote as follows:

 

I clearly understand the import of Judge Kelly=s [1998] decision that the injury in 1979 represented either a cause or substantial aggravation of Mr. Walton=s right knee problems.  Nevertheless, basing my opinion on medical rather than legal facts, it is my opinion that Mr. Walton=s knee problem is due to the injury of 1960 with the surgical procedure done in 1960.  The fact that Mr. Walton had significant degenerative changes on the medial side of his knee in 1974 clearly indicates that the arthritis was established long before any injury in 1979.  Furthermore, the loose bodies in the knee discovered in 1979 for which the surgery was actually performed were unrelated to any traumatic injury, but are degenerative, related to the injury of 1960, with a clearly established degenerative change in 1974.  The fact that Mr. Walton has gone on to further degenerative changes is obviously a natural course in a man of this size and age.

 

The compensation judge concluded that the employee had Aestablished by a preponderance of the evidence that he sustained a left knee injury arising out of and in the course of his employment activity as a consequence of his right knee injury of September 11, 1979.@  The judge did not expressly accept one medical opinion over another.  However, in his memorandum, the judge explained his decision as follows:

 

Employee in this case was a long time employee of Aramark Company.  He worked as a general manager in the warehouse and regularly spent 50% of his time walking and standing on concrete floors.  He sustained a right knee injury that arose out of and in the course of his employment in 1979.  He subsequently had surgery and did experience continued difficulty thereafter.  The employee=s continued problems are well documented in the medical records.  (See Petitioner=s Exhibit A, medical records of Northern Orthopedics, Ltd., Dr. Schmitz).

 

The employee=s right knee problems became progressively worse.  Because of pain in his right knee the employee was forced to shift more of his body weight to the left leg.  Employee is a large person and he testified that he developed an antalgic gait because of the shift in weight.  The antalgic [gait] was also found as a fact by Judge Kelly in his previous decision.  The employee=s long time treating doctor has provided an opinion that the problems in the left knee are due to shifting the weight from the right side to the left side.  (Id., medical record dated 12/29/98).

 

The employee was examined, at the request of the self-insured employer by Dr. Park on August 3, 1998.  Dr. Park was of the view that the employee=s knee problems were totally due to degenerative joint disease and unrelated to his 1979 problems.  Dr. Park=s report does not reflect whether or not he was aware that the employee has done considerable walking on cement surfaces over the years and has developed an antalgic gait.  The employee was also examined by Dr. Thomas Litman on April 26, 1999.  Dr. Litman also seems of the opinion that the employee=s problems are secondary to degenerative changes.  Dr. Litman does not comment on the antalgic gait or whether the weight shift is a contributing factor to the employee=s left knee problems.

 

On appeal, the employer argues that the judge=s decision is unsupported by substantial evidence, contending that the judge Afailed to consider the proper interpretation of the expert medical evidence of Dr. Thomas Litman and Dr. H. William Park, which indicated that the Employee=s excessive weight and degenerative disease are the cause of his current left knee condition.@  More specifically, the employer contends that the judge erred in his description of the reports by those physicians.  The employer also contends that the judge erred in accepting Dr. Schmitz=s opinion, because that doctor=s records Afail to properly consider the Employee=s excessive weight and history of degenerative changes to the knees.@  We are not persuaded.

 

What the judge said about Dr. Litman=s opinion is literally true -- Dr. Litman did not comment on the employee=s antalgic gait or whether weight shifting could have caused or contributed to the employee=s left knee condition.  In fact, Dr. Litman did not offer any causation opinion with specific regard to the employee=s left knee claim.  As for Dr. Park=s opinion, the judge was correct in his observation that Dr. Park did not indicate whether he was aware that the employee had walked on hard concrete floors for many years.  While Dr. Park did note in his report that the employee came into his office Awalking with a significant antalgic gait, right side worse than left,@ arguably contrary to the judge=s statement in his memorandum, the fact remains that Dr. Park did not further discuss the significance, if any, of the employee=s abnormal gait in the development of his left knee condition.  With respect to the employer=s complaints about Dr. Schmitz=s opinion, we would only observe that, contrary to the employer=s argument, the fact that Dr. Schmitz did not discuss the employee=s weight or history of degenerative changes does not mean that his causation opinion lacks Afoundation.@  Dr. Schmitz had been the employee=s treating physician for twenty years and was clearly aware of both his weight problem and his medical history.

 

The compensation judge clearly accepted, as fact, that the employee shifted his weight to his left leg because of right knee pain, and the judge=s conclusion to this effect is well supported by the record.  Then, having reached this underlying factual conclusion, the judge apparently accepted the opinion of the employee=s long-time treating physician, who indicated that the weight shifting had contributed to or aggravated the employee=s left knee condition.  The judge was entitled to rely on Dr. Schmitz=s opinion in this regard.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The fact that the judge may have made a minor error in his description of Dr. Park=s report does not, under these particular circumstances, provide adequate justification to remand the matter to the judge for reconsideration.

 

Finally, the employer contends that the judge erred in failing to Arule upon whether the Employee=s left knee condition is the result of a Gillette injury^[4] which culminated while he was . . . employed with Charles Levy Company.@  This argument has no merit whatsoever. We note initially that Charles Levy Company was not a party to these proceedings and therefore could not be bound by any finding made by the judge.  Secondly, we see no evidence that the employer ever raised this Gillette injury theory prior to the midway point of the hearing, much too late in the process to give the employee adequate notice to prepare a response.  See Kulenkamp v. Timesavers, Inc., 420 N.W..2d 891, 40 W.C.D. 869 (Minn. 1988) (due process requires notice and opportunity to respond before issues regarding benefit entitlement may be made).  Thirdly, there is no medical evidence in this record that the employee sustained a Gillette injury of any kind to his left knee.  See Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994) (Gillette injury determinations are primarily dependent on the medical evidence).  Under these circumstances, any ruling by the judge on the employer=s tardy Gillette claim would have been error.

 

As previously indicated, substantial evidence supports the compensation judge=s determination that the employee=s 1979 work-related right knee injury was a substantial contributing cause of the employee=s left knee injury, and the employer is liable for the employee=s left knee treatment on that basis.  If it believes that the employee=s left knee condition is also the result of a Gillette injury from the employee=s work with Charles Levy Company, the employer is free to pursue a petition for contribution.^[5]  In the meantime, however, the judge=s decision is affirmed.