JESSE DAVIS, Employee/Appellant, v. BERG CONSTR. and LIBERTY MUT. INS. CO., Employer-Insurer, and MN DEP=T OF HUMAN SERVS., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 2, 2002

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee did not sustain a thoracic injury in a work-related incident as claimed.

 

Affirmed.

 

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

Compensation Judge:  Kathleen Behounek.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s finding that the employee did not sustain a work-related thoracic injury on September 24, 1997, as claimed.  We affirm.^[1]

 

BACKGROUND

 

The employee became a journeyman carpenter in about 1976 and subsequently worked in that capacity for a number of different construction firms.  The record indicates that the employee sustained several work injuries while working for employers not party to the current proceedings, including a September 21, 1982, cervical injury; an October 17, 1986, low back injury; and an October 18, 1993, right arm injury, for which right elbow lateral release surgery was performed in 1995.  The employee has received a substantial amount of cervical and low back treatment over the years since his injuries for what has been diagnosed as a herniated C6-7 disc and lumbar degenerative changes.  Records relating to treatment of those conditions include periodic references to mid back, or thoracic, complaints as well.  The employee=s claims against the employers liable for his low back and cervical injuries were eventually settled on a full, final, and complete basis, except for medical expense claims.

 

On September 18, 1997, the employee began a carpentry job with Berg Construction [the employer].  A few days later, on September 24, 1997, he was involved in an incident on the job site in which he became upset after an argument with coworkers.  Shortly after the argument, the employee was bumped from behind by a wall being carried by another employee.  The employee testified that the wall weighed thirty to thirty-five pounds, that it struck him in the back of the head and mid back, and that it struck him hard enough to knock his cloth hat off his head.  The coworker testified that the wall Apushed@ the employee in the back or shoulder as the coworker was setting it into place and that the employee immediately started screaming that the coworker had done it intentionally.  In any event, the employee did not complain to coworkers or his supervisors about any injury, refused an offer for treatment, and quit his job that day after reporting the incident to management.  That same afternoon, the employee played golf.

 

The employee testified that his low back and left leg began to bother him about a week and a half after the September 24, 1997, incident and that the pain started moving into his mid back within a month or two and then also into his right leg, where he had never experienced symptoms before.  After several months, the employee called for an appointment with Dr. Jack Hubbard, who had treated him on occasion for low back and leg symptoms in the past.  Records from the employee=s visit with Dr. Hubbard on March 5, 1998, indicate that the employee reported having begun experiencing increasing mid back discomfort over the past few months, but there is no reference in the records to any incident occurring on September 24, 1997.  Records from a March 10, 1998, follow-up visit state that the employee Acannot relate it to any particular incident and states that it was a gradual deterioration.@  The employee was ultimately referred for physical therapy and underwent a thoracic MRI scan on May 29, 1998, which revealed a herniation at T4-5.  The first reference by Dr. Hubbard to the September 1997 work incident is contained in an August 1998 report.  Dr. Hubbard found no causal connection between the incident and the employee=s thoracic disc herniation.

 

The employee was also seen on a number of occasions for his thoracic condition by Dr. Sunny Kim.  Dr. Kim=s reports are somewhat contradictory, but eventually, after prompting by the employee, Dr. Kim reported that the employee=s thoracic condition was related to the September 1997 incident at work, and he rated the injury as warranting a 5% whole body rating.  However, at least some physicians, including Dr. Hubbard, have questioned the correlation between the employee=s symptoms and the T4-5 herniation.

 

In late November of 1998, the employee called the employer to report a work injury occurring on September 24, 1997.  He completed an injury report for the employer on December 8, 1998.

 

On February 13, 2002, the matter came on for hearing before a compensation judge for resolution of the employee=s claims for medical expenses, permanent partial disability benefits, and 104 weeks of temporary total disability benefits related to a thoracic injury allegedly resulting from the September 24, 1997, incident in which the employee was bumped by the wall.  Issues included medical causation of the employee=s thoracic condition and whether the employee had given statutorily adequate notice of injury.  Evidence included the employee=s extensive treatment records, the report of independent examiner Dr. Mark Friedland, and the testimony of the employee, several coworkers, and one of the owners of the employer.  In a decision issued on April 19, 2002, the compensation judge resolved the determinative issues in favor of the employer and insurer, finding, in part, that the employee had not established the occurrence of a work injury to his thoracic spine as claimed.  The employee 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 employee appeals from the compensation judge=s decision that he did not injure his thoracic spine in the September 24, 1997, incident, arguing, in total, as follows:

 

The major issue in the herein appeal is Compensation Judge Behounek=s Finding at number 10 of her Findings and Order, where she states: >The preponderance of the evidence fails to establish that the employee sustained a work related injury on September 24, 1997.=  Paragraph 10, Findings and Order.  It is undisputed that the Employee/Appellant sustained a disc herniation at T4-5.  Petitioner=s Exhibit A, from the Low Back Care Clinic.  Where the evidence is undisputed, the reviewing court may review De Novo.  On those issues, this Court is free to substitute its findings for the Compensation Judge and is not bound by the substantial evidence rule set forth in Hengemuhle vs. Long Prairie Jaycees supr., See Meyering vs. Marvin K. Wessell 38 WCD 42, 383 N.W.2d 370 (Minn. 1986).

 

The issue here, however, is not whether the employee has a herniated thoracic disc, but whether that herniated disc is causally related to the September 24, 1997, incident, an issue that was in fact strenuously contested.  The record as a whole easily supports the judge=s decision.

 

As previously indicated, the employee complained of thoracic or mid back symptoms on various occasions prior to September 24, 1997, while treating for his now settled cervical and lumbar conditions, especially in 1988, but also in 1983, 1987, and 1989.  He did not complain of injury or any symptoms, to either his coworkers or management, on the date of the incident, and in fact went to play golf that same afternoon after having refused treatment.  He was not actually seen for mid back symptoms, after the September 1997 incident, until March of 1998, nearly six months later, and there is no mention of the September 1997 incident in Dr. Hubbard=s records until August of 1998, almost a year after the incident occurred.  Moreover, when that incident was described to him, Dr. Hubbard, one of the employee=s treating physicians, wrote as follows:

 

We again discussed his midback pain.  He provides a history to me that he feels that his midback discomfort worsened after he was struck in the back of his head by a coworker.  I asked him about this, in terms of severity of the head trauma.  This was a fairly minor bump on the back of his head.  He was not thrown to the ground.  There was no trauma to the midback region.  This apparently occurred in October 1997.  He does state that his midback pain worsened after this incident.

 

I indicated that I would be happy to document this additional history for him.  However, I told him that I did not feel that the relatively minor head bump resulted in his thoracic disc herniation.  At the most, I feel that it may have caused some aggravation or irritation of the muscular component that he had been experiencing.

 

Dr. Friedland also reported that the employee=s thoracic condition was not related to the September 24, 1997, incident at work.  The fact that Dr. Kim eventually concluded otherwise provides no grounds for reversal of the judge=s decision.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

Because substantial evidence in the record as a whole amply supports the judge=s decision that the employee did not sustain a work injury to his thoracic spine on September 24, 1997, we affirm the judge=s decision in its entirety.