JESSE NARVAEZ, Employee/Appellant, v. NEW FLYER OF AM. and AMERICAN INT=L/AIG CLAIM SERV., Employer-Insurer, and ALTRU HEALTH SYS., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 10, 2002

 

HEADNOTES

 

PRACTICE & PROCEDURE - TEMPORARY ORDER; PRACTICE & PROCEDURE - REMAND; MEDICAL TREATMENT & EXPENSE - SURGERY.  Where there was no statute or case law requiring that the last in a series of work injuries be arbitrarily held liable for subsequent medical care absent substantial evidence of a causal connection between that injury and the necessity of the care, where the only injury at issue before the compensation judge and on appeal was a single work injury, and where the judge had relied on well founded medical opinion that that particular injury was not a permanent injury or a substantial factor in the employee=s need for the surgery and related benefits at issue, the compensation judge=s denial of the surgery and related benefits at issue was not improper and the employer and insurer would not be ordered, as requested by the employee, to pay the benefits at issue at least temporarily pending a determination of possible other employer liability on remand.

 

CAUSATION - AGGRAVATION; MEDICAL TREATMENT & EXPENSE - SURGERY.  The factors identified in case law for determining whether an aggravation is temporary or permanent together constitute only a guide, and no single one or two of them are dispositive.  Where it was apparent that the judge looked carefully at all of the evidence and came to a reasonable conclusion based on that evidence, and where the treating surgeon=s nonspecific and undeveloped opinion was not entitled to more weight than the independent examiner=s well founded and far more developed opinion, the compensation judge=s conclusion that the injury at issue was only temporary and that the employer and insurer were therefore not liable for the surgery and related benefits at issue was not clearly erroneous and unsupported by substantial evidence, and the issue of the employer and insurer=s liability for potential consequences of a subsequent aggravation by a normal physical activity was moot.

 

Affirmed

 

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

Compensation Judge:  Jennifer Patterson

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's conclusion that the employee=s July 1998 work injury was a temporary rather than a permanent injury and so not a substantial contributing factor in the employee=s need for lumbar surgery in February 2001.  We affirm.

 

BACKGROUND

 

Jesus [Jesse] Narvaez has a long history of low back problems.  As early as late 1987, Mr. Narvaez received treatment for occasionally radicular low back problems apparently symptomatic subsequent to his helping a friend move an engine.  X-rays in November of that year revealed disc space narrowing at L5-S1.  In late 1989, Mr. Narvaez was treated for an acute back strain, and in November of the following year he sustained a work-related lower back injury that was diagnosed as an acute lumbosacral strain.  In January of 1991, Mr. Narvaez completed an AEmployee Questionnaire Regarding Pre-existing Impairments,@ on which he identified lower and upper back problems as a Aphysical impairment resulting in permanent disability.@  In October of 1992, he was treated for a work-related injury that was diagnosed as a lumbar strain with radiculitis.  In February of 1993 he was treated and placed on restrictions for yet another work-related onset of low back pain, this sharp and with spasm.  In the course of 1994, Mr. Narvaez was treated several times for low back pain, sometimes accompanied by spasm and by apparently radicular left foot numbness and pain.  X-rays revealed, in addition to previously evident findings at L5-S1, some disc space narrowing and a probable disc bulge at L4-5, both apparently new since the 1987 x-rays.  In July of 1996, Mr. Narvaez was still Ahaving a lot of trouble with his lower back,@ including muscle spasm, and had Anot ever had total resolution of this low back discomfort.@  Lumbar x-rays at that time revealed continuing evidence of disc space narrowing at L4-5 and L5-S1, together with some minimal Grade I retrolisthesis of L4 on L5.

 

On July 17, 1998, Mr. Narvaez sustained a work-related injury to his low back while lifting a bus bumper in the course of his job assembling busses with New Flyer of America.  Mr. Narvaez [the employee] was thirty-eight years old on that date and was earning from New Flyer of America [the employer] a weekly wage of $318.23.  Subsequent to the injury, the employee received treatment from chiropractor Dr. Steven Biermaier, under a diagnosis of acute low back pain and mild leg pain.  The employer and its insurer accepted liability for the injury and commenced payment of benefits.  The employee was released to return to light duty work with restrictions on July 21, 1998.  On October 27, 1998, Dr. Biermaier certified the employee to be at maximum medical improvement [MMI] without any permanent partial disability, and he released the employee to return to work at his former employment without restrictions attributable to his work injury.  The employee did not subsequently seek either chiropractic or medical treatment for his low back for about sixteen months, although he did thereafter, in October 1999, obtain chiropractic treatment for some thoracic and upper spinal problems that apparently had some effect on his lumbar range of motion.

 

On about February 28, 2000, the employee experienced another onset of low back and left leg symptoms, while getting out of his car in the parking lot at work.  He subsequently received treatment including physical therapy for his symptoms, which were diagnosed as indicative of a low back strain.  On April 10, 2000, he underwent a lumbar MRI scan, which was read to reveal a congenitally small spinal canal from L2 to S1, which condition was seen to be exacerbated at L3-4 by slight retrolisthesis and bulging of the intervertebral disc.  There also appeared to be a bulge or small herniation in the disc at the L4-5 level, possibly compressing the left L5 nerve root.  The employee was referred to neurosurgeon Dr. Daniel Schmelka, whom he saw on May 11, 2000.  Dr. Schmelka noted that the employee Acomes in with back pain and leg pain going on for some time after an injury at work.@  He diagnosed the employee=s condition as a lumbar radiculopathy at L4-5, possibly at L3, and the employee underwent four epidural steroid injections between the end of May and the beginning of August 2000.  On October 2, 2000, Dr. Schmelka noted that the employee was in Adire straights@ with his left leg pain and back pain, but he indicated that A[i]t is not Workers Comp.  He started working at [the employer] two years ago.  He was undergoing chiropractic treatments before he started working for them.  . . . .  Historically, it sounds like he has had the problem before he even started at [the employer].@  On October 10, 2000, under a diagnosis of L5-S1 disc herniation, left leg pain, and back pain, the employee underwent a lumbar CT scan and a myelogram.  These tests were read as revealing Adefinite@ congenital spinal stenosis at L3-4, bulging of the intervertebral disc at that level, along with an asymmetric bulging of the disc left of midline at L4-5, with apparent compression of the left L5 nerve root and possible compression of the left L4 nerve root.  On October 13, 2000, Dr. Schmelka diagnosed Aa little disk at L4-L5 on the left@ and recommended decompression surgery.  On November 17, 2000, Dr. Schmelka drafted a letter ATo Whom It May Concern,@ stating Acategorically that [the employee] has a disk@ and AI believe that it occurred while he was working.@

 

On January 17, 2001, the employee filed a claim petition, alleging entitlement to payment of certain medical bills in excess of $3,100.00 in addition to payment for an MRI scan, physical therapy, cortisone injections, a myelogram, and other medical expenses, all consequent to work injuries on July 17, 1998, October 20, 1999,^[1] and February 28, 2000.  In their answer on February 2, 2001, the employer and insurer specifically denied any work injury on February 28, 2000, and specifically alleged that any injuries sustained by the employee on July 17, 1998, and October 20, 1999, were low back strains that were temporary aggravations of a pre-existing condition from which the employee had recovered without any permanent partial disability or restrictions.  On February 22, 2001, the employee underwent a laminotomy, foraminotomy, and removal of disc at L4-5, performed by Dr. Schmelka. 

 

On May 10, 2001, the employee was examined for the employer and insurer by Dr. John Dowdle, who diagnosed (1) mechanical low back pain, with degenerative disc disease at L4-5 and L5-S1; (2) congenital spinal stenosis; and (3) persistent low back pain with a small disc herniation at the L4-5 level on the left, status post lumbar laminectomy and disc excision.  Noting especially the employee=s history of persistent back symptoms and intermittent left leg pain since the mid-1980s, together with his congenitally small spinal canal and long-present degenerative lumbar disc changes, Dr. Dowdle indicated as follows:

 

It is my opinion that the aggravations to [the employee=s] back condition occurring July 17, 1998, October 20, 1999, and February 28, 2000, were all aggravations of his preexisting condition.  It is my opinion that [the employee] did not have a permanent injury as a result of his employment activities.  I cannot find a specific injury specifically related to a permanent impairment.  [The employee] was born with a congenitally small canal in his lumbar spine and he has disc degeneration of the lumbar spine, both of which have caused him to have exacerbations over the years.  I cannot find any specific event that caused a permanent injury to his back condition; they were simply temporary manifestations of his underlying condition.

 

Dr. Dowdle recommended that the employee remain temporarily on certain work restrictions but indicated that Athe need for these restrictions was based upon [the employee=s] congenitally small spinal canal and degenerative disc changes in his lumbar spine, and not related to any specific injury.@  Dr. Dowdle indicated also his opinion that the underlying condition in the employee=s lumbar spine was the reason for his need for his recent surgery and that his work injuries in July 1998, October 1999, and February 2000 were only temporary exacerbations of that underlying condition.  He indicated further his opinion that the employee reached MMI from each of those injuries about three months after the injury and that the employee=s continuing time off work subsequent to the last of those injuries is related to the preexisting condition and not to the February 28, 2000, exacerbation of that condition.  In late May 2001, the employee returned to work with restrictions, and on June 2, 2001, he was served with Dr. Dowdle=s report that he had reached [MMI] with regard to his work injuries. 

 

The matter came on for hearing on July 12, 2001.  The only issues at hearing were whether the employee=s July 17, 1998, work injury was a temporary or a permanent one and whether that injury was a substantial contributing factor in the employee=s need for his lumbar surgery in February 2001 and related temporary total disability.^[2]  At hearing, the employee acknowledged that, before his July 1998 work injury, he had Ahad ongoing back problems since about >86 or so.  My lower back, I would always have some type of pain, and I would go to the chiropractor or see a doctor.@  He also testified that he continued to have low back and left leg symptoms subsequent to his work injury, between August 1998 and February 2000, but continued to work because AI had to pay the bills.@  Nevertheless, he suggested, he did not seek further chiropractic or medical attention for his low back during that time after October 1998 because, A[a]fter a while, the chiropractor just couldn=t do much for me,@ and, Awhen the doctor gave me pills, it just made my stomach nauseous.@  The employee also testified that the pain that he felt with his July 1998 work injury was in the same location and the symptoms of essentially the same nature, including numbness and difficulty walking, as the low back pain that he had experienced in the past, although more severe.  He also testified that the pain that he felt with his July 1998 work injury was of about the same severity as the pain that he felt getting out of his car in the parking lot in February 2000.  And he acknowledged that he had been taken off work temporarily after each of his low back flare-ups in 1991, 1992, 1993, 1994, 1995, and 1996.

 

By findings and order filed September 6, 2001, the compensation judge concluded in part that the July 1998 injury was temporary and not permanent and that that injury was not a substantial contributing factor in the employee=s low back and left leg symptoms beginning February 2000 or his need for surgery in February 2001.  The compensation judge indicated at Finding 4 of her decision that A[t]he employee is a poor historian@ and that, A[b]ecause of the employee=s poor memory, great weight has been placed upon information set out in contemporaneous health care treatment records in evidence, including, but not limited to, descriptions of symptoms and information about onset of those symptoms.@  In her memorandum, the judge indicated that she had found Dr. Dowdle=s opinion persuasive, that the July 1998 work injury was a temporary aggravation of a long-term preexisting condition, and that she had found Dr. Schmelka=s opinion, that  the employee=s surgically treated herniation Aoccurred while [the employee] was working,@ lacking of foundation, Abecause it neither refers to a specific work injury nor sets out the basis for concluding that the employee=s low back and leg symptoms changed on a permanent basis after his July 1998 work injury.@  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 compensation judge concluded that the employee=s July 1998 work injury was a temporary aggravation of a preexisting condition and that it was not a substantial contributing factor in the employee=s need for the surgery and related benefits at issue.  The employee contends initially, in effect requesting a temporary order, that the July 1998 work injury was the last in a series of injuries prior to the need for surgery and that the employer and insurer are therefore necessarily liable to pay for the surgery, at least pending a determination upon remand as to which employer and insurer is liable, among all of those on the risk for the employee=s several work injuries over the fifteen years of his low back condition.  In the alternative, the employee contends that the judge=s conclusion that the July 1998 work injury was a temporary one rather than a permanent one is unsupported by substantial evidence, the February 28, 2000, eventBstepping out of a car in a parking lot--being nothing more than a normal physical activity that aggravated a low back condition that had been permanently weakened as a result of the July 1998 work injury.  We are not persuaded.

 

1.  Temporary Order/Remand

 

We know of no statute or case law requiring that the last in a series of work injuries be arbitrarily found liable for subsequent medical care absent substantial evidence of a causal connection between that injury and the necessity of the care.  Moreover, the only injury at issue before the compensation judge and before us was and is the work injury of July 17, 1998Bnot any of those that preceded it or may have postdated it.  If any of those others should be alleged in a later proceeding to be a substantial cause of the employee=s need for the surgery at issue, liability might well be found, contrary to the employee=s argument, without joinder of the employer and insurer here found nonliable.  The mere occurrence of one work injury at the end of a series of injuries does not at all imply, as the employee has argued that it does, indefinite liability for any and all subsequent symptomology or permanent conditions.  While it is true that an injury need not be the sole cause of a subsequent disability or condition for liability to attach, the injury must be more than just a minimal or possible contributing factor in that disability; it must be a substantial contributing factor in it.  See Salmon v. Wheelbrator Frye, 409 N.W.2d 495, 497-98, 40 W.C.D. 117, 122 (Minn. 1987), citing Roman v. Minneapolis St. Ry. Co., 268 Minn. 367, 380, 129 N.W.2d 550, 558, 23 W.C.D. 573, 592 (1964).  Dr. Dowdle concluded that the employee=s 1998 work injury was not a substantial factor in his need for the 2001 surgery, and it was not unreasonable for the compensation judge to rely on that medical opinion.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence).  Because the judge was entitled to rely on the opinion of Dr. Dowdle, and because the judge was not legally required arbitrarily to impose liability on the insurer on the risk for the most recent work injury absent substantial evidence of a causal relationship, we will not, as requested by the employee, order the employer and insurer to pay the benefits at issue pending a determination of employer liability on remand.

 

2.  Permanent Aggravation

 

The employee=s principal arguments are based on six factors recommended in case law^[3] as considerations in determining whether an aggravation is temporary or permanent.^[4]  The employee states these factors as follows: (1) Athe nature and severity of the pre-existing condition and the extent of restrictions and disability resulting therefrom@; (2) Athe nature of the symptoms and extent of medical treatment prior to the aggravating incident@; (3) Athe nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom@; (4) Athe nature of the symptoms and extent of medical treatment following the aggravating incident@; (5) Athe nature and extent of the employee=s work duties and non-work activities during the relevant period@; and (6) Amedical opinions on the issue.@  The employee contends that the compensation judge did not adequately discuss the employee=s pre-July 1998 restrictions (factor one), that the judge failed to consider the innocuous nature of the February 2000 parking lot incident and placed too much emphasis on the gap in treatment between it and the July 1998 work injury (factor four), that the judge placed too much emphasis on the fact that the employee was able to get back to and continue in his job duties full time subsequent to his work injury (factor five), and that the opinion of Dr. Schmelka, as the employee=s treating surgeon, should have been granted more weight than the opinion of independent examiner Dr. Dowdle.^[5]  We do not agree.

 

The six factors identified by the employee together constitute a guide to assist a judge=s deliberation, and no single one of them is dispositive.  It is apparent to us that the judge in this case looked carefully at all of the evidence and came to a reasonable conclusion based on all of that evidence.  It is evident from her decision that the judge was fully aware of the employee=s lengthy and evolving medical record and so of the increase and decrease of the employee=s restrictions in the course of it, nor was she required to address in detail those fluctuations.  See Regan v. VOA Nat=l Housing, 61 W.C.D. 142 (W.C.C.A. 2000) (a compensation judge is not required to refer to or discuss every piece of evidence introduced at the hearing).  While it may be true, as the employee suggests, that neither the gap in treatment nor the employee=s continuing to work during the interim between late 1998 and early 2000 is necessarily dispositive in this case, both of those factors remain relevant, to the extent that need for care normally compels a search for care and to the extent that the treatment here at issue was for a permanent disability, compensable under the statute as a Afunctional loss of use or impairment of function.@  See Minn. Stat. ' 176.021, subd. 3.  Nor was Dr. Schmelka=s opinion, particularly given its lack of specificity, entitled to more weight in this case simply by virtue of that doctor=s familiarity with the employee=s condition.   See Caven v. Ag-Chem Equip. Co., Inc., slip op. (W.C.C.A. Sept. 14, 1993) (while a finder of fact may, in appropriate circumstances, choose to afford greater weight to the opinion of a treating physician, the judge is not required to do so).  Dr. Schmelka=s opinion could, after all, be as effectively used in support of a liability claim against an employer and insurer on the risk for any other of the employee=s work injuries as against the employer and insurer here a party, on the risk for the July 1998 injury.  It was not unreasonable for the compensation judge to credit Dr. Dowdle=s more developed opinion over such an unfocused opinion as Dr. Schmelka=s.   See Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73. 

 

The employee argues also, in conclusion, that the employee=s mere stepping out of his car in the parking lot on February 28, 2000, was no more than a normal physical activity and that therefore any exacerbation triggered by it is also compensable under any proximate earlier liability.  Because we are herein affirming the judge=s denial of liability against the employer and insurer on the risk for the July 1998 work injury, the only issue before us, the employee=s argument on this issue is moot.  Because it was not unreasonable, the judge=s decision herein is affirmed.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.