SEAN BENHAM, Employee/Appellant, v. HOMEWOOD SUITES and TRAVELERS INS. CO., Employer-Insurer, and HEALTHPARTNERS, FAIRVIEW UNIV. MEDICAL CTR., FAIRVIEW SOUTHDALE HOSP., JOHN G. STARK, M.D., and TWIN CITIES SPINE CTR., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 24, 2002

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge=s decision denying benefits on medical causation grounds.

 

Affirmed.

 

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

Compensation Judge:  Kathleen Behounek.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s findings concerning causation for thoracic spine, lumbar spine, brain, and psychological injuries and from the judge=s resulting denial of disability benefits and medical expenses.  We affirm.

 

BACKGROUND

 

The employee was involved in a slip and fall at Arby=s in December of 1995.  He injured his low back and had extensive medical treatment, including surgery by Dr. William Simonet.  On January 25, 1996, Dr. Simonet gave the employee a prescription for Vicodin.  Dr. Simonet=s chart note for May 22, 1996, reflects  that the employee had been using Percocet for a long time.  When he saw the employee on June 27, 1996, Dr. Simonet noted that the employee appeared to be under the influence of mood-altering drugs.  At that visit, the employee was seeking more pain medications.  Dr. Simonet declined to prescribe them, referring the employee to the psychiatrist who was treating the employee for anger management.

 

The employee fractured his ankle in July of 1996.  Dr. David Boxall subsequently performed surgery for that injury.

 

The employee began treatment at the Quello Clinic on December 19, 1996, seeking an orthopedic consultation.  He was referred to Dr. Mark Heller, who saw him in late December of 1996 and removed hardware from his ankle on January 9, 1997.  On October 29, 1997, Dr. Jeffrey Dick opined that the employee had chronic neck pain, upper and low back pain, and leg pain.  He recommended treatment at the Fairview Pain Management Center. 

 

On January 13, 1998, following a psychosocial evaluation of the employee at the Fairview Pain Management Center, Dr. Patrick O=Laughlin reported that the employee was complaining of pain between his shoulder blades, going up to the back of his neck and head.  Dr. O=Laughlin also indicated that the employee  was currently taking Flexeril, Aa new pain medication,@ and using alcohol to manage his pain.  Dr. O=Laughlin diagnosed chronic pain.  On that same date, Dr. Paul C. Biewen, co-medical director of the center, performed a physical examination of the employee and opined that the employee had significant subjective complaints but that his physical examination was Afairly normal.@

 

On July 14, 1998, the employee first treated with Dr. A. Peter Troedson of the Quello Clinic, seeking refills of a morphine prescription.  Dr. Troedson refilled the prescription.  Dr. O=Laughlin=s July 22, 1998, report indicates that the employee was off morphine but was drinking six beers a day on a fairly frequent basis.  Dr. O=Laughlin recommended that the employee recommence antidepressant and pain medications.   Dr. Troedson repeatedly prescribed Vicodin, and the employee also made trips to hospital emergency rooms for Demerol and Vistaril.  In September of 1998, the employee was seen at the Fairview Southdale Hospital emergency room, where he was given Demerol, Vistaril, and Percocet but was told that Anarcotics are not an appropriate long-term management choice.@  In February of 1999, Dr. Troedson expressed concern that the employee was escalating his use of narcotics.  The employee continued to use narcotics, to regularly call in for Vicodin refills before they should have run out, and to visit the emergency room for shots of Demerol.  On April 22, 1999, a Fairview Southdale emergency room doctor=s diagnoses of the employee included narcotic overuse.  On June 4, 1999, Dr. Troedson prescribed the employee a quantity of 80 Vicodin, noting that Ahopefully this will get him through July 1 which will be roughly four weeks.@ 

 

On June 22, 1999, the employee was working for Homewood Suites [the employer], servicing a vending machine, when a television on top of the machine fell and struck him on the head.  After getting home from work, the employee felt the right side of his face go numb, and he developed a significant headache.  He went to Fairview Southdale Hospital, where he was admitted.  A cervical spine MRI taken during that hospitalization showed mild right-sided foraminal stenosis at C4-5 and C6-7 but no focal disc herniations.  Hospital records reflect that, prior to the injury, the employee had been taking six to ten Vicodin tablets a day.  Dr. Biewen performed a pain assessment during the employee=s hospitalization.  He noted that the employee Ais maximizing his description of the event and the severity.  This is of some concern.  He does have a tendency toward symptom magnification.@  Dr. Kevin O=Connor performed a psychiatric evaluation of the employee on June 25, 1999.  He noted that the employee had apparently sneaked out of the hospital in the early hours of the morning, driven his car to pick up and cash his paycheck, and then returned to the hospital.  The employee was discharged on June 27, 1999. 

 

On June 29, 1999, the employee called Dr. Troedson=s office requesting a prescription for Vicodin, which was given.  Dr. Troedson routinely prescribed Vicodin and Soma thereafter, and the employee made repeated trips to hospital emergency rooms for shots of Demerol, Vistaril, and morphine sulfate.  When seen at Fairview Southdale Emergency Room on July 7, 1999, the employee reported to the triage nurse that he had a severe exacerbation of his headache, and he requested IV Demerol.  However, on two occasions, during that visit, when emergency room physician Dr. Brian Patty went to examine the employee, he found the employee sleeping.  The doctor=s assessment was drug-seeking behavior.  Again on July 7, 1999, the employee presented to the emergency room complaining of Athe worst headache he=s had in his life,@ but, when left unattended in the examination room, the employee fell asleep. 

 

  On July 28, 1999, Dr. Gary Krupp performed a neuropsychological evaluation for assessment of the employee=s complaints of severe memory loss and emotional changes.  Dr. Krupp found no neuropsychological residuals secondary to the work injury.  It was his opinion that the employee was Ain the throes of an adjustment reaction secondary to persisting pain which appears to have exacerbated the emotional reaction he had following the previous injury.@

 

On September 2, 1999, Dr. Janiece Aldinger performed a neurological evaluation and opined that the employee=s self-reported symptoms of memory disturbances were Amore consistent with the effects of emotional turmoil, anxiety, and frustration from his situation.  Certainly his prior history of chronic pain is playing a large role in both the symptoms of memory problems and his continuing pain.@

 

The employer and insurer admitted liability for the work injury and began paying workers= compensation benefits.  On July 11, 2000, the employer and insurer had the employee examined by neurologist Dr. Richard Galbraith.  In his reports dated July 11 and September 27, 2000, the doctor concluded that the employee had a normal neurologic exam, with no objective findings to account for his subjective complaints of headache, neck pain, right arm pain, and memory loss.  He also opined that there was no evidence of traumatic brain injury, organic brain syndrome, or post concussion residuals, and that the employee=s continued complaints of headache and neck pain were not directly or indirectly related to the work injury but rather were an excuse for continued abuse of Vicodin and other drugs.  It was also his opinion that the employee could work full time without any restrictions and that the employee had not sustained any permanent partial disability as a result of the work injury.

 

The employer and insurer also had the employee evaluated by psychiatrist Dr. Keith Hartman.  In his report dated September 20, 2000, he opined that, if brain trauma had occurred on June 22, 1999, that trauma would have been revealed in the neuropsychological testing done by Dr. Krupp.  Dr. Hartman did not believe the employee=s account of memory loss, and he diagnosed malingering.

 

On November 24, 2000, the employer and insurer filed a petition to discontinue benefits, based on the reports of Dr. Galbraith and Dr. Hartman.  On January 22, 2001, the employee filed a claim petition, seeking temporary partial and permanent partial disability benefits, medical expenses, and retraining.  The matters were consolidated for purposes of hearing.  When the case came on for hearing on March 27, 2001, issues included causation as to thoracic, lumbar, and psychological injuries, and the employee=s entitlement to benefits for temporary partial disability, permanent partial disability, and medical expenses.  The employee was represented by an attorney at hearing.  An additional day of hearing took place on April 26, 2001.

 

In findings filed on June 25, 2001, the compensation judge found that the employee had a significant history of chronic pain and drug seeking behaviors prior to the work injury; that the employee continued to receive significant amounts of narcotic pain medication after the work injury; that the work injury had not caused or aggravated the employee=s lumbar or thoracic condition or a psychological or psychiatric condition; that the employee had failed to prove a traumatic brain injury, organic brain injury, or post concussion residuals; and that the employee had no restrictions on his ability to work as a result of the work injury.  The judge therefore denied the employee=s claims for temporary partial and permanent partial disability benefits and medical expenses.  The employee, pro se, 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

 

The pro se employee states in a letter to this court dated January 16, 2002:

 

I believe the records show that Judge Kathleen [Behounek=s] decision was verbatim to the IME reports from the Travelers Insurance Company doctors.  My former lawyer purposely failed to produce my IME reports from my specialists, as well as witnesses.  My neurologist, Dr. Miles Belgrade, a specialist in pain management and medicine, as well as Dr. Patrick O=Laughlin, my psychologist.  The only IME report that was received on my behalf was from my primary physician, Dr. Peter Troedson, who is not a specialist in either neurology or psychology.  Therefore, his IME report did not hold much weight with the court in my case.

 

A review of the file reflects that the employee=s attorney did submit voluminous medical records at the hearing, including the records of Dr. Belgrade and Dr. O=Laughlin.  On page 6 of her decision, the compensation judge specifically referenced the May 2000 examination by Dr. Belgrade.  We therefore find no basis for the employee=s argument that the trial court did not have Aproper evidence@ before it.

 

In his letter of February 4, 2002, to this court, in apparent response to the employer and insurer=s responsive brief, the employee attached pages from a medical website and a newspaper article about pain and the use of narcotics to treat pain.  These materials were not offered as exhibits at the time of trial, and this court does not consider, on appeal, evidence that was not before the compensation judge.

 

The employee also asserts in his letter that he has not abused his medications and does not have Adrug seeking behavior.@  The medical records in this file are voluminous, filling over three notebooks.  Within those exhibits there are records that support the employee=s position.  However, this court=s role is not to determine whether the evidence supports alternative findings, but whether substantial evidence supports the findings made by the compensation judge.  In this case, the compensation judge chose the opinions of Drs. Galbraith and Hartman over Dr. Troedson and Dr. George Montgomery.^[1]  A judge=s choice between expert witnesses is usually 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).  We find no error in the judge=s choice between experts here.

 

We also conclude that substantial evidence supports the compensation judge=s findings.  In her memorandum, the compensation judge explained that the medical records supported the employer=s contention that the work injury had resulted in a minor closed head injury, with no permanent or residual effect.  She also stated that the employee=s disability and medication use were unrelated to the work injury but were due instead to pre-existing physical and psychological conditions and addiction to narcotic pain medications.  A review of the record confirms that the employee was diagnosed with a chronic pain syndrome and psychological problems prior to the work injury.  The employee had been using narcotics (specifically, Vicodin and Percocet) for an extended period of time, and doctors had expressed concern about the employee=s use of those medications prior to the work injury.  Medical records indicate that the employee had been taking six to ten Vicodin a day prior to the work injury, and he had made repeated trips to emergency rooms, prior to the work injury, requesting narcotics.  In fact, the employee had received a prescription for Vicodin less than two weeks before his work injury.

 

Following the work injury, the employee=s use of Vicodin continued, as did his trips to emergency rooms requesting narcotics.  On two occasions, he requested narcotics for severe headaches but fell asleep waiting to see the doctor.  The Quello Clinic records reflect visits by the employee to different doctors within that clinic within a short time period of time for Vicodin prescriptions.  Specifically, on October 30, 2000, the employee called the Quello Clinic requesting Vicodin, and Dr. J. Richard Sheehy refused to renew the prescription, noting, Agot 150 on 10-12-00.@  The employee called back to the clinic that afternoon and Dr. Troedson refilled the prescription, giving him 100 Vicodin but noting, Amust last 30 days.@  Dr. Troedson=s records reflect that he refilled the Vicodin again on November 14, 2000.

 

The medical records as a whole and the opinions of Drs. Galbraith, Hartman, and Krupp  provide substantial evidence to support the compensation judge=s findings.^[2]  The findings and order are therefore affirmed in its entirety.