KENT J. CHRISTENSEN, Employee, v. WEIS BLDRS. and CNA COMMERCIAL INS. CO., Employer-Insurer, and WEIS BLDRS. and WESTFIELD COS., Employer-Insurer/Appellants.

WORKERS= COMPENSATION COURT OF APPEALS

JULY 12, 2002

HEADNOTES

CAUSATION - TEMPORARY AGGRAVATION.  Where the compensation judge evidently misapprehended the treating doctor=s opinions, the judge=s award of contribution/reimbursement to the second insurer on grounds that the employee sustained only a temporary aggravation of a preexisting work-related condition was clearly erroneous and unsupported by substantial evidence, and the matter was reversed and remanded to the judge for further consideration on the issues of causation and, potentially, apportionment.

Reversed and remanded.

Determined by Pederson, J., Rykken, J., and Johnson, C.J.

Compensation Judge:  Joan G. Hallock.

OPINION

WILLIAM R. PEDERSON, Judge

The employer and insurer Westfield Insurance Company appeal from the compensation judge=s determination that the employee=s work injury of January 27, 1999, was a temporary aggravation of a preexisting work-related condition and from the judge=s consequent award of contribution/reimbursement to CNA Commercial Insurance.  We reverse.

BACKGROUND

The employee, Kent Christensen, sustained an admitted injury while working for employer Weis Builders as a carpenter on October 5, 1997.  The employee described his job as heavy work, often requiring the climbing of scaffolding and ladders.  The injury occurred while the employee and two other workers were carrying a forty-foot sheet of ribbed steel decking on a rooftop.  His coworkers dropped their end of the metal sheet, causing the employee to lose his balance and fall.  Both knees twisted, and he heard a pop-like sound and developed immediate pain in his knees.  He continued to work following the incident but developed swelling in both knees; at that time, right worse than left.  The employee had no previous history of knee injuries before October 5, 1997.

The employee first sought medical treatment for this injury at Apple Valley Medical Center on October 21, 1997.  Complaints on that date were confined to the right knee, but in his subsequent testimony, the employee indicated that he had symptoms in the left knee as well.  Anti-inflammatory medications were prescribed, but the employee=s symptoms never fully resolved. 

About six months later, on April 14, 1998, the employee was examined by Dr. Martin Waldron at Albert Lea Clinic.  An MRI taken of the employee=s left knee on April 29, 1998, was interpreted as showing horizontal tears involving the posterior horn and body of the medial meniscus, with small bone bruises above and below the medial meniscus tears on the edge of the medial femoral condyle.^[1]  Dr. Waldron referred the employee to Dr. William Shepard, an orthopedist within the Albert Lea Clinic.

On May 18, 1998, Dr. Shepard performed left knee arthroscopy, which revealed a flap tear of the medial meniscus, requiring a partial medial meniscectomy.  A month later, on June 22, 1998, the employee underwent right knee arthroscopy and was noted to have a posterior horn tear of the medial meniscus.  A partial medial meniscectomy was performed on the right knee as well.

Westfield Insurance Company [Westfield], the employer=s workers= compensation insurer on October 5, 1997, paid the employee various benefits, including approximately 14 weeks of temporary total disability and benefits for a 2% whole body impairment related to each knee.  Dr. Shepard placed the employee at maximum medical improvement and released him to return to full work duties on July 28, 1998.  The employee was 38 years old on the date of this work injury and was earning a weekly wage of $867.45.

Following his return to work, the employee was able to perform his job but experienced occasional pain, stiffness, and swelling in his knees, associated with activity.  The left knee symptoms were worse than the right, and the employee described these symptoms as moderate, occurring at least once a week.

On September 23, 1998, the employee returned to Dr. Shepard, complaining of occasional pain over the medial aspect of the left knee when stepping down from a ladder and rotating the left knee.  At that time, Dr. Shepard diagnosed a bursitis under the medial collateral ligament and prescribed anti-inflammatory medication.

The employee sought no further medical attention for his knees until January 29, 1999, when he returned to Dr. Shepard, indicating that he had experienced Aleft knee pain after working kneeling down on ice for a long period of time, then stood up and had pain over the medial aspect of the left knee.@  The work activity that precipitated the employee=s increased stiffness and soreness in his left knee took place two days earlier, on January 27, 1999, while working for the employer at a project at the Lake City Hospital.  The employee described his increased symptoms as having occurred gradually during the course of the day and indicated that they were present in the same location that he had experienced symptoms between August of 1998 and January of 1999.  Dr. Shepard=s initial diagnosis was a left knee sprain, but he also stated, AI suppose the possibility that after kneeling down and then standing up again he could have had further damage to the remaining medial meniscus.@  The following week, Dr. Shepard recommended a program of physical therapy, and by February 15, 1999, his diagnosis was a recurrent torn medial meniscus of the left knee.

The employee completed his physical therapy on March 4, 1999.  On that date, the therapist reported to Dr. Shepard that the employee noted Ano pain at rest and during most activities,@ except for occasional brief episodes of pain with stair-climbing.  The therapist stated that the employee had met the goals of the prescribed therapy.  On March 8, 1999, Dr. Shepard recorded that the employee still had transient locking of his left knee, going on to state, ASymptoms indicate then that he has a new tear of the medial meniscus related to [the] incident of January 27, 1999.@  At that visit, Dr. Shepard recommended rescoping the left knee and reshaving the medial meniscus.

The employee underwent a second surgery to his left knee on May 10, 1999, consisting of a partial medial meniscectomy and medial meniscus shaving.  Operative findings revealed a flap tear of the posterior one-third of the medial meniscus.

CNA Commercial Insurance [CNA], the employer=s workers= compensation insurer on January 27, 1999, paid the employee temporary total disability benefits for the period of February 3, 1999, through June 27, 1999, as well as related medical expenses.^[2]  On the date of this work injury, the employee was earning a weekly wage of $892.75.  Dr. Shepard determined that the employee had reached maximum medical improvement and released him to return to work without restrictions on July 21, 1999.

In a letter dated December 8, 1999, directed to counsel for CNA, Dr. Shepard opined that the employee=s original injury to the left knee in October of 1997 was a Acontributing cause@ of the employee=s disability and the need for the two arthroscopic procedures on the left knee, the first occurring on May 18, 1998, and the second on May 10, 1999.  Dr. Shepard further stated, AMy opinion is that the patient had a mild injury to the left knee on January 27, 1999 but did cause another tear in an already damaged medial semilunar cartilage of the left knee.@  The doctor indicated that he was unable to apportion responsibility between the two injuries on a percentage basis but that he was of the opinion that the 1997 injury was the Amost substantial injury.@  He did not believe that the employee was entitled to additional permanent partial disability for the second left knee surgery, as the employee still maintained 50% of the original semilunar cartilage in the left knee.^[3]

On August 21, 2000, CNA requested a medical record review by orthopedist Dr. Peter Daly.  In a report dated August 28, 2000, Dr. Daly opined that the employee=s work injury of October 5, 1997, was a substantial contributing cause of the employee=s disability and need for medical treatment beginning January 29, 1999.  Dr. Daly also stated that the employee=s work injury of January 27, 1999, was a temporary aggravation of the employee=s preexisting left knee condition and that the aggravation had substantially resolved by March 8, 1999, the date the employee was discharged from physical therapy.  He concluded that the employee=s ongoing symptoms after March 8, 1999, were similar to his symptomotology between August 1998 and January 1999, and that, therefore, AIt appears that [the employee] and the surgeon elected to proceed with the second arthroscopic surgery because of [the employee=s] recurrent flare-ups and not specifically due to the January 29, 1999 incident.@  Dr. Daly apportioned responsibility for the employee=s disability and need for medical treatment 75% to the 1997 injury and 25% to the 1999 injury, through March 8, 1999.  Thereafter, according to the doctor, the 1997 injury, alone, was responsible for 100% of the employee=s disability and treatment, including surgery.

The employee was examined on October 31, 2000, by Dr. Mark Engasser, an orthopedist, on behalf of Westfield.  Dr. Engasser opined that the employee had sustained a permanent aggravation to his left knee on January 27, 1999, in the nature of a recurrent tear of the medial meniscus.  He attributed responsibility for the employee=s medical treatment and disability after January 29, 1999, solely to the new injury, concluding that the employee had undergone a Adefinitive surgery@ on his left knee in May 1998, and, that, were it not for the injury of January 27, 1999, a recurrent tear would not have taken place.

On December 4, 2000, CNA filed a Petition for Contribution and/or Reimbursement against Westfield, and the matter was heard by a compensation judge on August 23, 2001.  In her Findings and Order issued October 22, 2001, the judge stated that she accepted the medical opinions of Dr. Daly and Dr. Shepard and concluded the employee=s injury of January 27, 1999, was a temporary aggravation of the employee=s preexisting injury.  The judge apportioned liability as proposed by Dr. Daly and granted CNA=s Petition for Contribution and Reimbursement.  Westfield 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

In arriving at her determination that the employee=s injury on January 27, 1999, was temporary in nature, it appears the compensation judge relied upon the medical opinions of Dr. Daly and Dr. Shepard.  At Finding 8, the judge stated,  AThe medical opinions of Dr. Daly and Dr. Shepard are accepted.  Both doctors opine that the 1997 injury was more serious injury and underlying cause of the 1999 injury, and Dr. Daly offers the apportionment opinions adopted herein.@  In her memorandum, the judge stated,

The opinions of Dr. Daly are accepted: employee=s temporary aggravation ended by March 8, 1999 when physical therapy ended.  Employee returned to a baseline level.  Employee=s treating doctor agrees.  Dr. Shepard opined that the January 1999 injury to the left knee was mild, but did cause another tear in an already damaged left medial semilunar cartilage.  The October 1997 injury was the initial cause of this damage and contributed to employee=s disability and surgery in 1998 and 1999.  Dr. Shepard opined that the 1997 injury was the most substantial injury.

(Emphasis added.)

On appeal, Westfield contends the opinions expressed by Dr. Daly and Dr. Shepard are irreconcilable and, therefore, cannot form the basis for the judge=s determination of a temporary aggravation.  We agree.

Whether an aggravation of a preexisting condition is temporary or permanent is a question of fact.  It is the function of this court to 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).  It is not our function to retry the case or substitute our judgment for that of the compensation judge.  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, 40 W.C.D. 948 (Minn. 1988).

At Finding 8, the compensation judge stated that she relied upon the medical opinions of Dr. Daly and Dr. Shepard.  In her memorandum, quoted above, the judge stated that Dr. Shepard agreed with Dr. Daly that the employee had sustained a temporary aggravation on January 27, 1999, that had ended by March 8, 1999.  This statement by the judge is clearly erroneous.  Dr. Shepard=s notes and records uniformly describe the employee as having suffered a recurrent torn medial meniscus on January 27, 1999.  Rather than suggesting the completion of a temporary aggravation on March 8, 1999, Dr. Shepard=s note of that date specifically states, ASymptoms indicate then that he has a new tear of the medial meniscus related to [the] incident of January 27, 1999.@  In that same office note, the doctor recommended rescoping the left knee and reshaving the medial meniscus.  While he referred to the 1999 injury as Amild@ and the 1997 injury as the Amost substantial,@ nowhere did Dr. Shepard opine that the 1999 injury was a temporary aggravation.

The employee underwent a second arthroscopic surgery to his left knee on May 10, 1999.  The purpose of the surgery was to treat a recurrent tear of the medial meniscus.  Dr. Shepard opined that the employee had reached maximum medical improvement from this injury on July 21, 1999.  In her memorandum, the compensation judge acknowledged Dr. Shepard=s opinion that the 1999 injury caused another tear in an already damaged left medial semilunar cartilage.  If the judge accepted Dr. Shepard=s opinions, as indicated in Finding 8, it was inconsistent for her to conclude that the employee=s aggravation ended before he underwent the surgery recommended by Dr. Shepard to treat the aggravation.  Dr. Shepard=s opinion is therefore inconsistent with Dr. Daly=s, and both cannot form the basis for the judge=s decision.

Because we conclude the compensation judge evidently misapprehended Dr. Shepard=s opinions, we reverse the judge=s determination of a temporary aggravation and remand the matter for further consideration on the issues of causation and, potentially, apportionment.  On remand, the judge must resolve the conflicting medical evidence.