HENRY HANSON, Employee, v. JOHNSON BROTHERS CORP. and WAUSAU INS. GROUP, Employer-Insurer/Appellant, and BLUE CROSS/BLUE SHIELD OF MINN. and COMPCOST, INC., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 24, 2002

                       

HEADNOTES

 

CAUSATION - MEDICAL EXPENSES; CAUSATION - AGGRAVATION.  An employee's testimony is sufficient to support a finding of disability even in the face of contrary medical opinion; where it was supported by the testimony of record and by various medical records in evidence, the compensation judge=s conclusion that the employee=s October 1993 low back injury had not yet fully resolved prior to 1995 and remained a substantial contributing factor in the employee=s need for medical treatment thereafter was not clearly erroneous and unsupported by substantial evidence, notwithstanding the arguable occurrence of several subsequent aggravations.

 

EVIDENCE - EXPERT MEDICAL OPINION.  Where he had expressly indicated that he had Areceived and considered@ the transcript of the independent examiner=s deposition, the compensation judge did not err in rejecting the independent examiner=s opinion, altlhough the employee had arguably submitted no expert medical opinion to the contrary.

 

ATTORNEY FEES - SUBD. 7 FEES; STATUTES CONSTRUED - MINN. STAT. ' 176.081, SUBD. 7. Under the law in effect on the employee=s 1993 date of injury, Roraff fees may not form the basis for an award pursuant to Minn. Stat. ' 176.081, subd. 7, and the judge=s decision to the contrary was reversed.

 

Affirmed in part and reversed in part.

 

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

Compensation Judge:  Donald D. Erickson

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's conclusion that certain medical expenses are causally related to the employee=s work injury and from the judge=s award of attorney fees under Minn. Stat. ' 176.081, subd. 7.  We affirm the award of medical benefits but reverse the award of subdivision 7 attorney fees.

 

BACKGROUND

 

On April 12, 1991, Henry Hanson sustained a work-related injury to his low back while lifting some iron in the course of his employment with Range Industrial Chrome.  X-rays revealed no lumbar bony abnormalities or disc space narrowing, and Dr. M. A. Fowler diagnosed acute low back strain and prescribed medications, heat therapy, and two days of bed rest.

 

On October 13, 1993, Mr. Hanson sustained another injury to his low back, this while transferring some two-hundred-pound steel tubes onto a forklift in the course of his employment as a laborer with Johnson Brothers Corporation.  Mr. Hanson [the employee] received treatment for his injury on that same date from nurse practitioner Terry Granlund, to whom he reported that his pain had been immediate upon injury and had included both a burning sensation down  into the back of his right thigh and symptoms in the left hip.  Nurse Granlund diagnosed a Aposterior sacral torsion@ injury, prescribed medications, and referred the employee for physical therapy.  The employee saw the physical therapist the following day, to whom he described the injury as follows:  AI felt a pull and a pop; I went down on my knees, I had a hot burning in the L[ow] B[ack] and in the R[ight] leg.@  In follow-up on October 18,  1993, Nurse Granlund added a diagnosis of thoracolumbar segmental dysfunction.  The employee was subsequently released to return to work with restrictions, and Johnson Brothers Corporation [the employer] provided him with a light duty job.  The employer and its insurer admitted liability for the injury and commenced payment of benefits.  The employee was thirty-four years old on the date of this work injury and was earning a weekly wage of $588.80.  On November 9, 1993, Nurse Granlund noted that the employee=s segmental dysfunctions had resolved, but the employee continued to have moderate tenderness of the right paravertebral muscles, together with muscle spasms that interrupted his sleep at night.

 

Subsequent to his initial treatment in October 1993, the history of the employee=s low back treatment and examination has been extensive and complex, involving at least a dozen different physicians.  On December 23, 1993, in the context of a report on certain neck and upper right extremity problems for which the employee was seeing him, Dr. W. A. Himango noted that the employee had gone to physical therapy after his injury, and Athe low back pain resolved.@  On March 8, 1994, the employee explained to the insurer that his condition did improve with physical therapy Ato a point@ but that he was continuing to have low back and radicular leg pain mainly on the right, extending normally to the knee and sometimes down into his calf, depending on his position.

 

On March 22, 1994, Nurse Granlund noted in her records that she had discussed the employee=s low back dysfunction with Dr. J. E. Downs, and apparently they had agreed that physical therapy would be indicated in treatment of it.  On May 10, 1994, Dr. Downs released the employee to return to work with restrictions, including that he A[a]void twisting forcefully at waist.@  On May 16, 1994, Dr. Downs indicated that the employee had reached maximum medical improvement [MMI] on May 10, 1994, with regard to his October 13, 1993, mid and low back injuries.  Dr. Downs rated the employee=s related permanent impairment at 3.5% of the whole body under Minnesota Rules 5223.0390, subp. 3.B., which provides for that rating for a lumbar pain syndrome where there exist certain specified symptoms Abut no radiographic abnormality.@  Dr. Downs indicated on that same date that further treatment was advised AAS NEEDED for back[;] exacerbations of mechanical dysfunctions may occur.@

 

On June 6, 1994, the employee filed a claim petition, alleging entitlement to various medical and other benefits consequent in part to the employee=s October 1993 work injury.  In their Answer on June 23, 1994, the employer and insurer asserted in part that any disability from and after December 23, 1993, was Aattributable to causes wholly unrelated to the employee=s claimed injuries herein.@

 

The employee was apparently found subsequently to be no longer able to work as a laborer, and on July 5, 1994, he underwent a pre-employment physical with Dr. Fowler preparatory to beginning a job as a machinist with Itasca County.  On that date Dr. Fowler found the employee=s spine normal, with no limitation in the employee=s range of motion.  On August 22, 1994, the employee underwent an independent medical examination [IME] by Dr. Stephen Barron.  In his report on September 2, 1994, Dr. Barron indicated that he, too, found no objective evidence of either permanent partial disability or the need for continuing treatment of the employee=s low back.  Dr. Barron reported that x-rays of the employee=s lumbar spine were normal, and he indicated that, in his opinion, the employee could return to work without low back-related restrictions.  On September 26, 1994, the employee testified by deposition, in part that sitting and riding continued to aggravate his low back, sending pain down into his legs, sometimes into the calves.

 

In early January of 1995, the employee felt a recurrence of severe pain after twisting his back while carrying a pail of water at work, contrary to restrictions against such twisting issued by Dr. Downs in May 1994 relative to the 1993 work injury.  About a week later, on January 13, 1995, he saw Dr. Paul Erickson, who documented Apain in the low back that radiates into both legs to about the knee region.@  Dr. Erickson diagnosed chronic low back pain, Aetiology not entirely clear.@  Plain x-rays taken January 13, 1995, revealed disc space narrowing at L4-5 not apparent on the x-rays of April 13, 1991.  An MRI scan taken four days later revealed mild disc space narrowing at L4-5 and L5-S1, with moderate disc protrusions at both of those levels, possibly impinging on the L5 and S1 nerve roots.  Eventually, pursuant to an award on stipulation filed July 28, 1995, the parties reached full, final, and complete settlement of all claims related to the October 13, 1993, low back injury and also to an alleged neck injury two days earlier^[1]--with the exception of medical expenses, which were left open subject to defenses other than primary liability.

 

On February 23, 1996, the employee experienced another work-related onset of back pain, for which he saw Dr. R. J. Peterson.  Dr. Peterson noted the employee=s Ahistory of lumbar disc disease@ and reported that the employee was feeling spasm and pain this time down his left leg.  On February 27, 1996, Dr. Peterson certified that the employee had reached MMI with regard to his low back condition and that it was too early to determine if the employee had sustained any permanent partial disability.  On May 16, 1996, Dr. Erickson rated the employee=s low-back related permanent impairment at 19% of the whole body, for disc herniations at levels L4-5 and L5-S1.

 

On September 25, 1998, the employee was examined for the employer and insurer by Dr. Jack Drogt, who diagnosed the following:  (1) a work-related lumbosacral sprain and strain without neurologic deficit on October 13, 1993, from which the employee reached MMI on September 2, 1994, without permanent impairment; (2) multilevel degenerative disc disease with disc protrusions at L4-5 and L5-S1; and (3) progressive back and ongoing lower extremity discomfort from June 1998.  Dr. Drogt recommended an MRI scan but indicated that he did not believe that the need for one was related to any work activities.  It was his opinion that the employee=s low back pain was a result of multilevel degenerative disc disease complicated by functional overlay.

 

On June 24, 2000, the employee saw chiropractor Dr. Timothy Graupman for severe low back pain that radiated into his right leg, foot, and toes.  Dr. Graupman subsequently referred the employee to Dr. William Rutherford, whom the employee saw on July 26, 2000.  Dr. Rutherford diagnosed low back pain with radicular symptoms to the right leg, which condition he indicated was Adue to his old injury and at this point is progressive.@  He concluded that the employee probably had a disc herniation, ordered x-rays, and recommended another MRI scan to evaluate the employee=s need for surgery or other therapy.  The x-rays revealed disc narrowing and osteophyte formation at L4-5 consistent with degenerative arthrosis, and the radiologist found the spine=s A[a]ppearance is not significantly changed.@

 

On October 3, 2000, the employee experienced yet another onset of low back pain in the course of his work.  He saw Dr. John Fedje-Johnston on that date for what that doctor reported to be an Aexacerbation of his back pain,@ with reference to Aan injury back in Oct. 1993.@  Dr. Fedje-Johnston reported the employee=s complaint of a Aburning sensation in his back with radiation down the lateral aspect of rt. leg,@ leaving him with Asignificant difficulty even standing straight.@  Dr. Fedje-Johnston diagnosed A[e]xacerbation of chronic low back pain with radicular symptoms.@

 

On November 14, 2000, the employee filed a medical request, seeking payment for $623.28 in medical and related out-of-pocket expenses related to his A[b]ack and neck,@ together with authorization for the MRI scan recommended by Dr. Rutherford.    The employer and insurer refused to pay for scan, and the matter was considered at an administrative conference on January 5, 2001.  By a decision and order pursuant to Minn. Stat. ' 176.106, filed February 5, 2001, the employee=s medical request was denied, on grounds that the October 13, 1993, work injury was not a substantial contributing factor in the need for the disputed treatment.  On about February 13, 2001, the employee apparently experienced further radicular low back pain in the process of simply standing up from his dinner table, and on February 16, 2001, he filed a Request for Formal Hearing on his medical request.  On February 20, 2001, the employee underwent another MRI scan, which was read to reveal both a noncontained herniated disc at L4-5, which was causing some flattening of the dural sac, and protruding disc material at L5-S1, which displaced the S1 nerve roots laterally.  The radiologist compared the scan to the MRI scan of 1995 and the x-rays of July 26, 2000, and he concluded that Athe disc herniations at L4-5 and at L5-S1 have not significantly changed.@

 

On March 30, 2001, the employee was examined again for the employer and insurer by Dr. Drogt, who diagnosed chronic low back pain with ongoing right lower extremity discomfort.  Based expressly on Athese two events, the pre-employment physical and the independent Medical Evaluation of Dr. Barron,@ Dr. Drogt concluded in part as follows:

 

It would appear, therefore, that the injuries subsequent to September 2, 1994, were the injuries of significance including and in particular the injury of the week of January 6, 1995, when [the employee] lifted a two-gallon pail and then subsequently underwent an MRI scan on January 15, 1995.  In addition, the injuries of February 1996 and October 1996 would have cumulatively been re-aggravations of that original injury and would, in my view, constitute a substantial contributing factor to his ongoing pain.

 

Dr. Drogt indicated also,

 

In my view, this mitigates the injury on or about October 13, 1993, as a substantial contributing factor to this current condition and in my opinion, given this observation, it is not a substantial contributing factor to the condition for which he was seen by me on September 25, 1998 and today.

 

The matter came on for formal hearing on July 11, 2001.  The issue at hearing was whether the employee=s October 13, 1993, work injury was a substantial contributing factor in the employee=s need for (1) treatment for his low back from June 29, 1998, through December 11, 2000, (2) his MRI on February 20, 2001, (3) his chiropractic treatment in June of 2000, and (4) out-of-pocket expenditures incurred on July 13, 1998.  The record was left open post hearing to permit the deposition of Dr. Drogt, which was taken August 16, 2001.  Although he had opined in his September 25, 1998, report that the employee=s low back problems were not referable to any work injuries, in his August 2001 deposition, as in his March 2001 report, Dr. Drogt opined that there were several work and non-work injuries, including ones in 1995 and 1996 and even 1998, that were responsible for the employee=s need for the medical treatment at issue.  By findings and order filed October 1, 2001, the compensation judge concluded in part that the employee=s low back pain from his October 13, 1993, work injury never completely resolved and that that injury was a substantial contributing factor in his need for all of the treatment at issue.  The judge also ordered the employer and insurer to pay the employee partial reimbursement of attorney fees pursuant to Minn. Stat. ' 176.081, subd. 7.  The employer and insurer appeal.

 

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

 

1.  Legal Standard and Causation

 

At issue in this case were medical expenses incurred by the employee from and after June 28, 1998.  In the third sentence of his memorandum, the compensation judge opened his explanation of his award of payment for those expenses by stating, Athe employee never fully recovered from his [October] 13, 1993, low back injury.@  Citing case law, the judge went on to assert that Aan employer and insurer is liable for every natural consequence that flows from a work-related injury, unless it is the result of an intervening cause attributable to the employee=s intentional conduct@ and that A[t]he chain of causation is broken when the aggravation arises from activities that are not customary for the employee in light of his condition.@  The judge then went on to enumerate the employee=s several post-June 29, 1998, aggravations and to identify them as results of only customary and normal and not at all unreasonable, negligent, or dangerous activity.  AThus,@ the judge concluded, Athe chain of causation has not been broken and the employer and insurer remain liable for the medical bills incurred after June of 1998.@

 

The employer and insurer argue first that the judge erred as a matter of law by applying an incorrect legal standard, contending that the judge improperly applied a standard applicable only to nonwork-related aggravations.  The more critical premise in the employer and insurer=s argument, however, is their assertion that A[t]he employee=s injury in this case had fully resolved.@  It was the clear conclusion of the judge in this case that Athe employee never fully recovered from his [October] 13, 1993, low back injury,@ and that is the material conclusion before us for review.  The issue is not, that is, whether the judge applied the correct legal standard, as to ongoing liability, but whether the judge=s decision meets the applicable factual standardBwhether substantial evidence supports the judge=s conclusion that the October 1993 work injury remained both unresolved by the date of the treatment at issue and a substantial contributing factor in the need for that treatment.  We conclude that substantial evidence supports the judge=s award.

 

In support of their position that the October 1993 work injury had fully resolved prior to 1995, the employer and insurer cite the following documents:  (1) the May 1994 report by Dr. Downs, in which the doctor rates the employee=s work injury as a lumbar pain syndrome under Minnesota Rules 5223.0390, subp. 3(B), which specifies that no radiographic abnormalities are present; (2) the July 1994 report of the employee=s pre-employment physical by Dr. Fowler, which certifies the employee=s spine to be normal and his condition to be without restrictions; (3) the September 1994 IME report by Dr. Barron, which contains Dr. Barron=s opinion that the employee had fully recovered from his lumbar sprain by that date; and (4) medical records of the employee=s doctor visits in September and October of 1994, which record no complaints of back pain or other problems at that time.  The employer and insurer argue that it was not until after suffering a work injury carrying a pail of water in January 1995 that the employee began once again to experience problems with his back.

 

With regard to Dr. Downs= rating, it is material to note that there were apparently no post-October 1993 lumbar radiographic findings in 1994 upon which Dr. Downs could have rated the employee=s work injury-related low back condition;^[2] the employee=s 1991, prework-injury lumbar x-rays had revealed no disc space narrowing, and the lumbar x-rays and MRI of 1995 had not yet been taken.  When they were eventually taken, those January 1995 studies revealed not only disc space narrowing at L4-5 and L5-S1 but disc protrusions at both of those levels that were possibly impinging on the L5 and S1 nerve roots.  Moreover, it is uncontested on appeal that that increased narrowing was most likely caused by the October 1993 work injury,^[3] and the employee=s apparently final MRI, in February 2001, was read by the radiologist to as revealing disc herniations that had Anot significantly changed@ since those same 1995 scans, conceded to reflect changes due to the 1993 work injury.  In light of this evidence, Dr. Downs=s conservative rating under a category requiring no radiographic abnormalities is not dispositive.

 

Dr. Fowler=s very cursory and undetailed pre-employment physical in July 1994 is similarly nondispositive.  No x-rays were apparently taken at that time, there is no narrative presentation or discussion of the findings, and there is no evidence that any findings were based on anything but a very cursory examination to accommodate the employee=s imminent employment objectives.  We acknowledge that Dr. Barron=s September 1994 examination was apparently more thorough than Dr. Fowler=s, and Dr. Barron does make reference to normal lumbar x-rays.  No corroborating radiologist=s report is in evidence, however, and there is no express evidence that the referenced x-rays were current at the time of the examination.  Moreover, it is also to be weighed that Dr. Barron himself acknowledges in his report that the employee Acontinues having pain in his . . . lower back,@ that A[h]is lower back is aggravated by extension, twisting and sitting,@ and that A[h]e has occasional pain down his right leg to both calves.@  Nor is there any suggestion in his report that Dr. Barron in any way discredits the authenticity of the employee=s complaints.  Finally, although the employee=s principal complaints to his own doctors in the fall of 1994 were of cervical rather than of lumbar problems, Dr. Barron=s report itself is evidence that the employee was continuing to complain also of low back pain in the fall of 1994.

 

Contrary to the employer and insurer=s arguments, substantial evidence does exist to support the compensation judge=s conclusion that the employee=s low back problems never fully resolved following his October 1993 work injury.  In March 1994, five months after his injury, the employee indicated, in response to questioning by the insurer, that he was continuing to have pain in his low back and legs, mainly the right, subsequent to his work injury.  In that same month, the employee=s nurse practitioner, upon conferring with Dr. Downs, recommended continuing physical therapy for the employee=s low back problems.  Two months later, in May of 1994, Dr. Downs issued restrictions requiring the employee to A[a]void twisting forcefully at the waist,@ noting in his May 16, 1994, MMI report that further treatment was advised because Aexacerbations of mechanical dysfunctions may occur.@  In late September, subsequent to his examination by Dr. Barron, in a deposition at which his low back injury was not the focus, the employee testified that he was still continuing to have radicular low back pain down into his legs and calves, particularly while sitting or riding.

 

We conclude that the testimony of record, together with the records of Dr. Downs and Nurse Granlund, the report of Dr. Barron, and later medical records, constitute evidence sufficiently substantial to support the judge=s conclusion that the employee=s October 1993 low back injury had not yet resolved prior to 1995 and remained a substantial contributing factor in the employee=s need for the treatment at issue.  Cf. Brening v. Roto-Press, Inc., 306 Minn. 562, 237 N.W.2d 383, 28 W.C.D. 225, (Minn. 1975) (the employee is the person most familiar with the severity of her symptoms and the limitations that her back places upon her physical activities, and therefore the employee's testimony alone is sufficient to support a finding of total disability, even in the face of unanimous contrary medical opinion); see also Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).  Therefore we will not reverse the judge=s decision on such evidentiary grounds.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

2.  Medical Opinion

 

The employer and insurer contend also that, in deciding as he did, the compensation judge ignored unopposed medical opinion.  They assert that Dr. Drogt=s opinions--that the employee=s 1993 work injury was not a substantial contributing factor in the employee=s need for treatment and that, instead, the employee=s subsequent injuries were the causes of that need for treatmentBwere detailed and well founded on two physical examinations and a review of all related medical records.  They contend that the employee, on the other hand, Adid not present evidence, either in the form of medical testimony or a report, that established the 1993 injury as a substantial contributing factor.@  They cite case law to the effect that A[u]nopposed medical expert testimony that supports a finding that the injury is not related to the requested care cannot be disregarded.@  See Flansburg v. Giza, 284 Minn. 199, 201-02, 169 N.W.2d 744, 746, 25 W.C.D. 3, 6 (1969).  We note, however, that, although under Flansburg unopposed expert medical testimony may not be disregarded, such testimony is not necessarily conclusive upon the trier of fact if it has been considered before being rejected.  See Tuomela v. Reserve Mining Co., 299 Minn. 203, 204, 216 N.W.2d 638, 639, 27 W.C.D. 312, 313 (1974).  On page 2 of his Findings and Order, the compensation judge expressly indicated that he had Areceived and considered@ (emphasis added) the transcript of Dr. Drogt=s deposition.  This court grants a trier of fact substantial deference in the weighing of expert opinion, see Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985), and we will not overturn the judge=s decision on grounds that he rejected Dr. Drogt=s opinion.

 

3.  Subdivision 7 Fees

 

In addition to awarding payment for the treatment at issue, the compensation judge concluded that the employee was entitled to attorney fees pursuant to Minn. Stat. ' 176.081, subd. 7.  That subdivision provides that, if an employer and insurer have contested payment of benefits and the employee succeeds in obtaining benefits through the assistance of an attorney, the court

 

shall award to the employee against the insurer or self-insured employer or uninsured employer, in addition to the compensation benefits paid or awarded to the employee, an amount equal to 25 percent of that portion of the attorney=s fee which has been awarded pursuant to this section that is in excess of $250.

 

Minn. Stat. ' 176.081, subd. 7 (1992) (emphasis added).  The employer and insurer contend that the judge erred in awarding additional fees under this subdivision, in that, on the date of the 1993 work injury here at issue, Minn. Stat. ' 176.081 contained no authority for an award of attorney fees on medical benefits and so no authority for payment of subdivision 7 fees on such fees Apursuant to this section.@  The employer and insurer cite Rodriguez v. ConAgra, slip op. (W.C.C.A. July 13, 2000), in support of their position.  In that case, this court acknowledged that, pursuant to the supreme court=s decision in Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), subdivision 7 fees are, contrary to earlier holdings of this court, awardable on Roraff-type fees, even though Roraff fees are paid by employer and insurers and not by employees under contingent fee agreements.  Nevertheless, we reversed in Rodriguez the award of the subdivision 7 fees at issue, in that  the date of the employee=s injury in Rodriguez was 1990 and the statute itselfBAthis section@--did not yet then contain a provision for attorney fees based on medical expenses prior to the 1995 amendment of section 081.^[4]  As was true in Rodriguez, the controlling date of injury in the present caseB1993Bpredates the 1995 amendment of the statute, and therefore no award of subdivision 7 fees is authorized based on Roraff fees awarded Apursuant to this section.@  Finding the Rodriguez decision dispositive in favor of the employer and insurer, and noting also that the employee has offered no argument to the contrary, we reverse the compensation judge=s award of additional attorney fees under subdivision 7.