STEVEN WEFEL, Employee/Appellant, v. KUNZ OIL and AMERICAN COMPENSATION INS./RTW, INC., Employer-Insurer, and MN DEP=T OF LABOR & INDUS./VRU, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 8, 2000

 

HEADNOTES

 

CAUSATION - TEMPORARY AGGRAVATION.  Substantial evidence supports the compensation judge=s finding that the employee=s April 30, 1996 work-related injury was a temporary aggravation of his pre-existing low back condition and her denial of temporary partial disability benefits from and after May 19, 1996.

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the conclusion that the April 30, 1996 work-related injury was temporary, that its effects had ended by May 18, 1996, and that the April 30 injury was not a contributing cause to the employee=s condition after May 19, 1996.  The compensation judge=s decision denying temporary partial disability benefits after May 18, 1996 is, accordingly, affirmed.

 

Affirmed.

 

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

Compensation Judge: Nancy Olson

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

Steven Wefel, the employee, was injured on November 22, 1989, while working for Smith Truck Brokerage.  Dr. Daniel Kurtti, the employee=s primary treating physician, first saw the employee on March 29, 1990.  A CT scan showed an L4-5 posteriolateral disc herniation on the left.  In May 1990, the employee underwent an L4-5 laminectomy.  On July 23, 1991, Dr. Kurtti diagnosed Achronic low back pain, left leg pain, status post L4-5 laminectomy and post-operative scarring at the left side at L4-5 surrounding the nerve root and then multiple-level degenerative disc disease.@  (Ex. F, p. 34.)  The doctor ultimately released the employee to return to work with significant restrictions, including maximum lifting of 10 pounds.  (Ex. E.)

 

In December 1994, the employee entered into a full, final and complete settlement with Smith Truck Brokerage and its insurer.  The employee contended he was permanently and totally disabled as a result of his back injury and radicular pain and weakness in the left leg, and claimed a 13 percent whole body disability pursuant to Minn. R. 5223.0070, subp. 1.B.(2)(c).  The employer and insurer denied permanent total disability and contended there were jobs available to the employee within his restrictions.  The parties ultimately settled all claims, except medical expenses, for the sum of $115,000.00.  An award on stipulation was served and filed on December 20, 1994.

 

From 1989 through 1991, the employee worked with Donald J. Welsh, a qualified rehabilitation consultant.  The employee did not find competitive employment during this period.  The employee remained unemployed until 1995 when he purchased a nightclub.  That business remained open five to six months and then closed.  (T. 103-104.)  In the fall of 1995, the employee attended a forklift driving school and became certified as a forklift operator.  He did not, however, look for work as a forklift driver because he found it too hard on his back.  (T. 108.)  In September 1995, Dr. Kurtti restricted the employee to maximum lifting of 10 pounds, bending to no more than 30 degrees and limited the employee=s sitting and standing.  (Ex. F.)

 

On April 1, 1996, the employee began working as a parts runner for Kunz Oil, the employer, insured by American Compensation Insurance/RTW, Inc.  On April 30, 1996, the employee experienced low back pain when he picked up a tote loaded with parts.  He reported the incident to Michael Marushin, his supervisor, and Scott Riemer, the dispatcher.  The employee left work early that day and was off work May 1 and 2, 1996, due to back problems.  Mr. Marushin spoke with the employee on May 1, 1996, and was told the employee was going to try to get in to see his doctor.  (T. 152.)  The employee returned to work on Friday, May 3, 1996.  The employee worked his regular hours from May 6 to May 11 and worked 32 hours the week of May 13 through May 18, 1996. During the week ending Friday, May 25, 1996, the employee worked eight and a half hours.  He worked four and a quarter hours during the week ending June 1, 1996.  The employee testified he missed work due to pain caused by the April 30, 1996 injury.  The employee did not return to work for the employer thereafter.  (T. 60; Ex. G.)

 

Apparently, there was a wind storm in the Minneapolis metropolitan area on Saturday, May 18 or Sunday, May 19, 1996.  As a result, debris and firewood were strewn around the employee=s yard.  The extent of the employee=s involvement in the cleanup was a significant issue at the hearing.  The employee testified he did none of the work himself.  (T. 66.)  The employee=s neighbor, Jack Anderson and his son, Billy, testified they picked up debris left by the storm in the employee=s yard.  (T. 187-188.)  They also restacked a pile of firewood which had toppled.  (T. 191.)  Jack Anderson testified he did not see the employee pick up any of the debris from his yard.  (T. 188.)  John Wefel, the employee=s father, testified that his son did not participate in the cleanup and most of it was done by Bill Anderson.  (T. 211-12, 214.)  Mr. Marushin testified the employee told him he hurt his back picking up things around his yard after the storm.  (T. 161-62.)  This conversation apparently took place at work on Monday, May 20, 1996.  The employee denied making such a statement to Mr. Marushin.  (T. 114.)

 

On May 31, 1996, the employee returned to see Dr. Kurtti.^[1]  The employee told the doctor he injured his low back three weeks previously while lifting a box of parts.  (Ex. F, p. 13.)  The diagnosis was Achronic low back pain, left leg pain exacerbated, new strain injury.@  (Ex. E.)  Dr. Kurtti took the employee off work and referred him to the urgent care unit for a toradol injection.  Dr. Weisshar noted Athe employee is a 39-year-old male who was seen by Dr. Kurtti earlier today for chronic low back problems that had become more problematic in the last three weeks.  Dr. Kurtti asked him to come over for a toradol injection . . . left leg more involved than the right.@  (Ex. E.)  On June 24, 1996, the employee returned for a recheck with Dr. Kurtti, giving a history of increased back pain and bilateral leg pain.  The doctor ordered an MRI which apparently was not conducted because the employee complained of claustrophobia.  The employee continued to complain of low back and bilateral leg pain and was not released to return to work.  Dr. Kurtti opined the injury of April 30, 1996, was a substantial contributing cause of the employee=s total disability.  (Ex. F.)

 

On November 4, 1996, the employee was examined by Dr. Andrew Smith, a neurosurgeon, at the request of Dr. Kurtti.  The diagnosis was chronic pain syndrome with superimposed dysesthetic pain in the right lower extremity, possibly related to Aeither mechanical or pinched nerve or even diabetic factors.@  The doctor=s report stated the employee should not return to work.  (Ex. E.)  Dr. Smith examined the employee again on April 28, 1997.  He reviewed an MRI done on February 5, 1997, and concluded it showed a recurrent left-sided disc herniation at L4-5 unrelated to the employee=s right-sided symptoms.  He opined no further surgery was necessary.  Dr. Smith further opined the employee continued to be totally disabled from all employment.  (Ex. E.)

 

On October 31, 1996, the employee was examined by Dr. Gary Wyard, an orthopedic surgeon, at the request of the employer and insurer.  He diagnosed a degenerative disc at L4-5, a failed back operation and fibrosis around the L4-5 nerve root.  The doctor concluded these conditions were unrelated to the injury of April 30, 1996.  Dr. Wyard concluded the employee suffered a temporary myofascial sprain/strain injury on April 30, 1996, superimposed on a pre-existing condition.  He found no evidence of any additional permanent disability, and assigned restrictions which he related to the 1989 personal injury.  (Ex. 18.)  Finally, Dr. Wyard opined the employee had reached maximum medical improvement (MMI).  His report was served on the employee on December 4, 1996.

 

The employee filed a claim petition seeking temporary total and temporary partial disability benefits secondary to a personal injury on April 30, 1996.  The employer and insurer denied primary liability.  The case was heard by a compensation judge at the Office of Administrative Hearings on September 30 and October 27, 1997.  In a Findings and Order served and filed December 22, 1997, the compensation judge found the employee sustained a personal injury on April 30, 1996.  The compensation judge also found the employee sustained a back strain injury while cleaning up his yard on May 19, 1996.  She found the employee had reached MMI effective December 4, 1996.  The judge further found the employee failed to prove his back symptoms on June 5, 1996, were due to the work injury rather than an injury at home.^[2]  Finally, the compensation judge concluded the April 30, 1996 injury was not a substantial contributing cause of the employee=s inability to find and hold employment.  Accordingly, the compensation judge denied the employee=s claims for benefits.  The employee appealed to the Workers= Compensation Court of Appeals.  By decision filed September 1, 1998, this court vacated certain findings and remanded the case to the compensation judge.  The decision of the Workers= Compensation Court of Appeals was affirmed by the Supreme Court, without opinion, on December 15, 1998.

 

The remanded case was heard by Judge Olson on September 17, 1999.  The compensation judge did not allow further testimony or receive additional evidence at the hearing.  In a Findings and Order on Remand, filed October 26, 1999, the compensation judge found the employee was not a credible witness, found the personal injury of April 30, 1996 was a temporary aggravation of his pre-existing low back condition, and found the May 19, 1996 incident was an aggravation of the employee=s pre-existing low back condition resulting from the November 22, 1989 injury.  The compensation judge awarded temporary partial disability benefits from April 30 through May 18, 1996, but denied further benefits thereafter.  The employee again 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 (1992).  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

 

Temporary Aggravation

 

The compensation judge found the personal injury on April 30, 1996, was a temporary aggravation of the employee=s pre-existing low back problems which resulted from his November 22, 1989 injury.  (Finding 10.)  The judge awarded temporary partial disability benefits from April 30 through May 18, 1996, but denied entitlement to any benefits thereafter.  The employee argues there is no evidentiary or legal basis which justifies a termination of benefits on May 19, 1996.  We disagree. 

 

Several factors may be considered when determining whether an aggravation of a pre‑existing condition is temporary or permanent, including:  (1) the nature and severity of the pre‑existing condition and the extent of restrictions and disability resulting therefrom; (2) the nature of the symptoms and extent of medical treatment prior to the aggravating incident; (3) the nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom; (4) the nature of the symptoms and extent of medical treatment following the aggravating incident; (5) the nature and extent of the employee's work duties and non‑work activities during the relevant period; and (6) medical opinions on the issue.  "Which of these factors are significant in a particular case and the weight to be given to any factor is generally a question of fact for the compensation judge."  Wold v. Olinger Trucking, Inc., slip op. (W.C.C.A. August 29, 1994).

 

The employee=s 1989 injury was severe.  The injury caused permanent partial disability and resulted in restrictions on lifting, bending, sitting and standing.  The employee contended he was permanently and totally disabled as a result of this injury and, essentially, did not work from 1989 until April 1, 1996.  Dr. Kurtti testified the employee suffered chronic low back and left leg pain as a result of the 1989 injury.  Dr. Kurtti saw the employee approximately every six months to monitor his medications and exercise program.  (Ex. F, p. 8.)  Although the employee re-injured his back on April 30, 1996, he did not seek any medical attention until May 31, 1996.  The employee did complain of significantly increased symptoms after the April 30, 1996 injury, but the compensation judge specifically found the employee not credible.  Despite the injury, the employee worked a regular 40-hour week from May 6 to May 11, then worked 32 hours during the week of May 13-17 1996.  On February 5, 1997, the employee underwent a lumbar spine MRI scan.  Dr. Kurtti stated: Athe diagnoses were basically the same as before the MRI.  He has low back pain and bilateral leg pain, like pain on both sides, he has evidence for previous hemilaminectomy, he has a disc herniation, and he has post-operative scarring; those are the diagnoses.@  (Ex. F, p. 14.)  Dr. Wyard diagnosed a degenerative disc disease at L4-5 and a failed back operation with fibrosis around the nerve root.  Dr. Wyard further found nothing Anew of an objective nature to support Mr. Wefel=s additional complaints subsequent to the alleged injury to his back on April 30, 1996.@  The doctor concluded the employee suffered a myofascial sprain/strain superimposed on a pre-existing condition but the injury was temporary in nature.  (Ex. 18.)

 

The evidence supports a conclusion that the employee=s April 30, 1996 injury was minor and temporary.  We acknowledge the judge made no specific finding that the effects of the temporary injury ended by May 18, 1996.  Such a conclusion is, however, a reasonable inference to be drawn from the evidence.  The employee worked nearly full time from May 6 through May 17, 1996.  The medical records document no significant physical changes after April 30, 1996.  The compensation judge found the employee=s testimony regarding his ongoing symptoms not credible.  "Assessment of witness credibility is the unique function of the factfinder."  Tews v. Geo. A. Hormel & Co., 430 N.W.2d 178, 180, 41 W.C.D. 410, 412 (Minn. 1988).  Implicit in the compensation judge=s termination of benefits on May 18, 1996 is the conclusion that the effects of the temporary aggravation had resolved by that date.  Where 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.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  The compensation judge=s denial of benefits after May 18, 1996 is, accordingly, affirmed.

 

Superceding, Intervening Cause

 

The compensation judge found the employee sustained a temporary injury to his low back on April 30 and awarded temporary partial disability benefits through May 18, 1996.  The judge further found the employee re-injured his low back on May 19, 1996, while picking up debris from his yard.  (Finding 12.)  The judge found, however, that the May 19 injury was an aggravation not of the April 30, 1996 injury, but of his pre-existing low back condition resulting from the November 22, 1989 injury.  (Finding 14.)  The judge also found the May 19, 1996 incident was an Aintervening superceding cause@ of the employee=s low back complaints after May 19, 1996 Ain relation to the April 30, 1996 incident.@ (Finding 20.)  These findings, the employee contends, are factually inconsistent and legally erroneous.

 

The compensation judge found the employee=s April 30, 1996 injury was a minor strain resulting in a temporary aggravation of his pre-existing low back condition resulting from the November 22, 1989 injury.  We have affirmed the judge=s denial of temporary partial disability benefits after May 18, 1996.  The judge found the employee re-injured his back on May 19, 1996 while cleaning debris from his yard, and found this injury was also an aggravation of the employee=s underlying November 22, 1989 work-related injury.  (Finding 14.)  The compensation judge concluded, with respect to the November 22, 1989 injury, that the May 19, 1996 injury resulted from Aa normal activity of life,@ citing Nelson v. American Lutheran Church, 420 N.W.2d 588, 40 W.C.D. 849 (Minn. l988); Rohr v. Knutson Constr. Co., 305 Minn. 26, 232 N.W.2d 233, 28 W.C.D. (1975); Eide v. Whirlpool Seeger Corp., 260 Minn. 98, l09 N.W.2d 47, 2l W.C.D. 437 (1961), implying the employee=s activity would not have been Aunreasonable, negligent, dangerous or abnormal@ with respect to the 1989 injury.  (See Findings 17,^[3] 20.)  She further concluded, however, that the employee had failed to establish a causal connection between the April 30, 1996 incident and his symptoms following the May 19, 1996 injury. (Mem. at 13; Finding 18.)  In so doing, the judge labeled the May 19, 1996 incident an Aintervening superceding cause@Ain relation to the April 30, 1996 incident,@ citing Wallace v. Judd Brown Constr. Co., 269 Minn. 455, 131 N.W.2d 540, 23 W.C.D. 362 (1964) and related cases.  (Finding 20.)  However, the principle expressed in these cases is not that of a Asuperceding, intervening cause.@  Rather, these cases present the issue of whether a subsequent injury was the consequence of a prior compensable injury or Aan entirely new injury, sustained as a result of an occurrence which had no causal relation to the [prior compensable] injury at all.@ Wallace at 545, 23 W.C.D. at 372.  It is apparent the compensation judge concluded the May 19, 1996 injury was a new, independent injury not causally related to the April 30, 1996 injury.  (See Mem. at 13.) 

 

The employee asserts the compensation judge=s application of the superceding intervening cause doctrine is legally erroneous and argues the finding of a new injury on May 19, 1996 is untenable and unsupported by substantial evidence.  Whatever the merits of the employee=s arguments, we need not decide the case on those grounds.  There is evidentiary support for the conclusion that the April 30, 1996 injury was temporary, that its effects had ended by May 18, 1996, and that the April 30 injury was not a contributing cause to the employee=s condition after May 19, 1996.  We, therefore, affirm the decision of the compensation judge.