TIMOTHY M. MICKLOS, Employee/Appellant, v. MONSON & SONS TRUCKING and TRI-STATE INS. CO./BERKLEY ADM=RS OF MINN., Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF MINN., SPIRIT LAKE MEDICAL CTR., and HEALTHPARTNERS, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 11, 2002

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s work activities did not substantially contribute to his respiratory condition.

 

Affirmed.

 

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

Compensation Judge: Penny D. Johnson

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s determination that the employee=s work activities with the employer did not substantially contribute to his respiratory condition.  We affirm.

 

BACKGROUND

 

This case is before the court following an issuance of Findings and Order on Remand.  Following a hearing held on this matter on September 11, 2000, Compensation Judge Gary Hall issued findings on November 13, 2000, in which he denied the claim brought by Timothy Micklos, the employee, determining that the employee had failed to prove a respiratory injury or disease arising out of his employment with Monson and Sons Trucking, the employer.  On appeal, this court vacated the compensation judge=s finding on causation and remanded the case to the compensation judge for reconsideration.  Micklos v. Monson & Sons Trucking, slip op. (W.C.C.A. Dec. 14, 2001).  This court determined that in view of the conflicting evidence concerning causation of the employee=s condition, adequate review was not possible without specific findings on the employee=s medical history, his work exposure, the development and nature of the employee=s condition and the causation of his condition.  This court asked the compensation judge to make findings that were adequate to resolve the dispute and to provide a reasonable basis for review.  In a Findings and Order served and filed on April 18, 2002, Compensation Judge Penny D. Johnson denied the employee=s claim, and determined that the employee had not proved that his work activities at the employer caused his respiratory condition.

 

The facts of the case are set out in the previous decision.  In summary, the employee claims that he sustained an injury in the nature of reactive airways dysfunction syndrome (RADS) on or about April 12, 1999, as a result of his employment with the employer.  The employee began working as a mechanic for the employer in April 1986, and continued working there until May 1999.  The employee testified that while working in the garage he was exposed to a variety of fumes and chemicals, and that while working for the employer, he noticed a gradual onset of respiratory symptoms.

 

The employee first sought medical treatment for shortness of breath on April 8, 1999,^[1] and since then has received ongoing treatment and has undergone consultations with respiratory specialists, including Dr. David Bonham, Pulmonary and Critical Care Associates. In a report dated February 2, 2000, Dr. Bonham stated that Ait seems more likely than not that the patient=s exposure to various respiratory irritants and other chemicals in his work environment [was] a contributing factor to at least some of his respiratory symptoms.@ 

 

On April 25, 2000, Dr. Ronald Vessey examined the employee at the request of the employer and insurer.  In his report dated May 26, 2000, Dr. Vessey concluded that the employee=s work for the employer was not a substantial contributing factor to his mild respiratory abnormalities.

 

On June 21, 2000, a representative of the Institute for Environmental Assessment conducted an air sampling at the employer=s location.  According to the report dated July 17, 2000, prepared by the testing company, all of the air sampling results were below the threshold limit values required by the American Conference of Governmental Industrial Hygienists (ACGIH) and below the permissible exposure levels required by the Minnesota Occupational Safety and Health Administration (MNOSHA).  Dr. Bonham reviewed the environmental assessment report, and concluded that the level of chemical exposure delineated by the testing was consistent with his opinion that the employee=s work significantly contributed to at least to some of the employee=s respiratory symptoms.  Dr. Vessey also reviewed the report, and concluded that

 

Basically, this environmental study was within normal limits, and certainly does not do anything but point out that the air quality, at Monson & Sons Trucking, most probably did not cause Mr. Micklos any significant pattern of pulmonary distress.

 

(Er. Ex. 1.)

 

The employee filed a claim petition on January 14, 2000, claiming entitlement to temporary total disability benefits from April 12, 1999, to the present and continuing, in addition to payment for medical expenses.  The employer and insurer denied primary liability for the employee=s April 12, 1999, injury.  In Findings and Order served and filed on November 13, 2000, and again after remand on April 18, 2002, the compensation judges denied the employee=s claims that his work activities had caused his respiratory condition.  The employee appeals.

 

DECISION

 

When an appeal is taken from a compensation judge=s factual findings, this court=s review on appeal is limited to a determination of whether the compensation judge's findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1(3) (1992).  If, on the other hand, the judge=s factual determinations are adequately supported by substantial evidence, and not clearly erroneous, we must affirm.  This court is not a finder of fact, and on appeal the court will not Aretry@ the factual issues which were before the lower court.  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 this 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.

 

On remand, Compensation Judge Johnson found that the employee had not established a respiratory injury or disease arising out of his employment with the employer.  She reviewed the various medical opinions and records to determine whether the employee=s exposure to various chemicals at work had caused a respiratory condition.  The compensation judge=s Findings and Order, and her memorandum, outline her review of the record, including the various medical records submitted into evidence, reports from air sampling testing done on June 21, 2000, and the testimony taken at hearing on September 11, 2000.  Upon review of the evidence, the compensation judge concluded that the employee had established various chemical exposures in the course and scope of his employment as a diesel mechanic for the employer.  However, she concluded that:

 

Despite the existence of workplace chemical exposure, the employee has failed to establish that the workplace exposures substantially contributed to the development of occupational asthma or reactive airways dysfunction syndrome.  Additionally, the employee has not established that he is disabled from working or in need of medical treatment for an occupational injury or disease.

 

The compensation judge concluded that the fumes to which the employee was exposed at work most likely resulted in some respiratory symptoms, but that the employee=s primary disabling condition, his shortness of breath, was a condition that had not been shown to be work-related.  The compensation judge also concluded that the employee had not been clearly diagnosed with occupational asthma or reactive airways dysfunction syndrome (RADS).  She found Dr. Bonham=s diagnosis of RADS to be equivocal and found the conclusions of Dr. Vessey, concerning the cause and duration of the employee=s disability, to be more persuasive.  The compensation judge found that Dr. Vessey had more thoroughly analyzed the employee=s complete history and findings, and had more thoroughly supported his conclusion.  As a result, and in reliance upon Dr. Vessey=s report, the compensation judge found that A[a]sthma or reactive airway dysfunction has not been clearly shown to be present and to be a substantial contributing cause of the employee=s symptoms.@

 

The question of whether there was a causal relationship between the employee=s alleged work injury and his respiratory condition is a question of fact.  Questions of medical causation fall within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).  Following his examination of the employee on April 25, 2000, Dr. Vessey prepared a report in which he expressed his opinion concerning the causation of the employee=s condition, outlining the history that he obtained from the employee and referring to the medical reports that he reviewed.  That history, as described by Dr. Vessey, is relatively consistent with the testimony presented by the employee and with the information in the medical reports.  To be of evidentiary value, a medical opinion must rest on a factual basis.  Zappa v. Charles Mfg. Co., 260 Minn. 217, 224, 109 N.W.2d 420, 424, 21 W.C.D. 459, 467 (1961).  Furthermore, the facts upon which the expert relies for his or her opinions must be supported by the evidence.  McDonald v MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff'd (Minn. July 13, 1990).  As the information contained in Dr. Vessey=s report is consistent with the evidence of record, his opinion is adequately founded.  As adequate foundation existed for Dr. Vessey=s opinion, the compensation judge did not clearly err in accepting his opinion over that of Dr. Bonham, as a compensation judge has considerable discretion in choosing among conflicting expert opinions.  See Nord v. City of Cook, 360 N.W.2d 337, 342-343, 37 W.C.D. 364, 372-73 (Minn. 1985).^[2]  

 

Where, as in this case, 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).  In view of the medical opinions offered by both parties, including Dr. Bonham=s opinions concerning the employee=s probable diagnosis and Dr. Vessey=s contrasting opinion that there is no causal relationship between the employee=s work activities and his respiratory condition, it was the compensation judge=s role to choose between the conflicting medical opinions.  As outlined in her findings and memorandum, the compensation judge found Dr. Vessey=s opinion to be more persuasive on the issue of causation.  Although there is evidence to support a conclusion contrary to that which the compensation judge reached, this court=s standard of review is very specific, and if there is substantial evidence of record to support the compensation judge=s conclusions, we must affirm.  Accordingly, we affirm the compensation judge=s denial of the employee=s claims.