JILL M. OLK, Employee, v. REM HOME HEALTH and AMERICAN HOME ASSURANCE/AIG CLAIM SERVS., Employer-Insurer/Apellants, and CATHOLIC CHARITIES and AMERICAN COMPENSATION INS./RTW, Employer-Insurer, and GREAT WEST LIFE INS. CO., Intervenors.

 

WORKERS' COMPENSATION COURT OF APPEALS

MAY 20, 2002

                                                                              

HEADNOTES

 

CAUSATION - AGGRAVATION; APPORTIONMENT - EQUITABLE.  Substantial evidence, including expert medical opinion, lay testimony, and medical and vocational records supported the compensation judge=s finding that the employee=s June 4, 2000 work injury was a permanent aggravation of the employee=s neck condition following her November 1, 1994 work injury, and supported the judge=s equitable apportionment of benefits between the two injuries.

 

Affirmed.

 

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

Compensation Judge: Peggy A. Brenden

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

Employer REM Home Health and its insurer appeal from the finding that the employee=s June 4, 2000 work injury permanently aggravated the employee=s November 1, 1994 work injury.  They further appeal from the judge=s determination apportioning 50 percent of the employee=s disability and medical expenses to each of these work injuries.  We affirm.

 

BACKGROUND

 

The employee, Jill Olk, sustained an admitted injury while working for employer Catholic Charities as a personal care attendant on November 1, 1994.  Her job involved providing home care personal services to one of the employer=s disabled clients, a quadriplegic.  The injury occurred while she was attempting to lift the patient, who weighed about 200 pounds, with her arms wrapped around him.  She felt a Apop@ in her neck and developed neck pain and pain down the right arm. 

 

The employee sought medical treatment from a family practitioner, Dr. Melissa Stapp, M.D., at Central Minnesota Group Health on January 26, 1995.  She reported that her symptoms had improved somewhat following the injury but had recently worsened while working with her home health care patient.    There was mild tension in the employee=s right trapezius muscle but her neck was supple with a full range of motion.  Dr. Stapp diagnosed a cervical strain and recommended a cervical x-ray to rule out arthritic changes.  She temporarily restricted the employee from lifting more than 10 pounds and from excessive bending.  The employee was next seen at Group Health by Dr. Patrick B. Herson on January 31, 1995 and reported that she had been off work over the past week and that her discomfort had significantly improved.  The employee had full neck range of motion and no muscle weakness.  The doctor diagnosed a resolving cervical strain and released the employee to return to work without restrictions. 

 

The employee treated again for neck pain with pain into the shoulder with Dr. Herson at Group Health during February 1996.  She was given a prescription for Flexeril.  On March 2, 1996 Dr. Herson noted that the employee had palpable muscle spasm in her trapezius on the right side and going up into the occipital area.  The employee was referred to a chiropractor and had one chiropractic treatment.

 

The employee continued working for the employer and attending to the same client.  According to her hearing testimony, her symptoms never fully resolved and she continued to have intermittent periods of neck and arm pain which increased during her work activities but which would subside on her days off. 

 

The employee was seen a few times for her neck pain at the Centracare Clinic between September 11, 1996 and June 11, 1997 and had physical therapy treatment at Kinesis Physical Therapy on various dates between November 27, 1996 and April 23, 1997.  The treatment records for this period reflect that her neck mobility was good and there were no neurological symptoms.  Her diagnosis was chronic neck pain. 

 

In July 1998 the quadriplegic client the employee was assisting began receiving his care through REM Home Health rather than Catholic Charities.  The employee stopped working for Catholic Charities and started working for REM Home Health, in order to continue working with the same client.

 

The employee next returned to the Centracare Clinic for treatment for neck pain on November 4, 1999, where she was seen by Dr. Douglas Brew, M.D.  She gave a history of ongoing discomfort in the right neck for several years, related to her work as home health attendant, which typically got better off the job, but reported that over the last two weeks the pain had not gone away even on her days off.  She had now taken a week off work and over the last few days had started to feel better.  The paraspinous muscles on her right side and her upper trapezius muscles were uncomfortable and very knotted.  She was diagnosed with a right upper thoracic and cervical somatic dysfunction from overuse.   The doctor authorized her to return to work without restrictions on November 9, 1999.

 

The employee returned to work assisting the same home health care client, but arranged with him that she would no longer perform his housecleaning.  However, she continued to have problems with neck and arm pain which continued to worsen despite the change in her work activities.

On June 4, 2000 she felt a Apull@ in her neck while attempting to reposition the client in his chair.  Within a day of this occurrence she was experiencing severe pain in her neck and head. 

 

On June 7, 2000 the employee initiated treatment with a chiropractor, Dr. Susan M. Saetre.  Dr. Saetre diagnosed a post traumatic cervical and thoracic sprain/strain, complicated by cephalgia, intervertebral disc syndrome, segmental dysfunction and muscle spasms.  The employee was restricted to light lifting, with no bending, working overhead or twisting.  As her work duties exceeded these restrictions, the employee remained off work.

 

By June 13, 2000 the employee had not experienced significant improvement and Dr. Saetre scheduled a cervical MRI scan.   The scan, performed on June 14, 2000, revealed two-level cervical disc degeneration.  At C4-5 there was a small right paramidline C4-5 disc herniation indenting the thecal sac without cord compression, and bilateral foraminal stenosis.  At C5-6 there was a small left-sided herniation again indenting the thecal sac without obvious impingement, and moderate left-sided foraminal narrowing due to uncinate spurring and facet hypertrophy. 

 

The employee was seen by a physiatrist, Dr. Thomas F. Kraemer, MD, on referral from Dr. Saetre on July 17, 2000.   Dr. Kraemer diagnosed chronic cervical disc degeneration, acute cervical disc herniations at C4-5 and C5-6, bilateral neural foraminal stenosis at C4-5 and C5-6, possible radiculopathy secondary to the disc herniations and foraminal narrowing, and a chronic cervical and thoracic myoligamentous sprain/strain.  He expressed the view that the June 4, 2000 work injury had resulted in an acceleration of the employee=s pre-existing condition from the 1995 work injury.  He recommended that the employee remain off work and follow Dr. Saetre=s recommendations, and that when she did return to work she should be restricted from lifting more than 10 pounds, with no repetitive and static flexion or extension of the neck, no reaching above shoulder level and no repetitive use of the upper extremities in an outstretched position.  Dr. Kraemer opined that the employee had a permanent disability involving her cervical spine but had not yet reached maximum medical improvement. 

 

The employee attempted to return to work for the employer REM Home Health beginning on July 6, 2000, but on July 12, 2000 Dr. Saetre noted that the employee had experienced a flare up in pain, hypertonicity, muscles spasms and segmental dysfunction since returning to work and took her off all work duties for two weeks.  By August 22, 2000 the employee had still not been released to return to work and was referred for a neurological consultation.

 

On September 26, 2000 the employee was seen on referral by Dr. James C. Romanowsky, MD., at the  Neurology Clinic of St. Paul.   Dr. Romanowsky found no signs of serious neurological complications related to the employee=s disc herniations. 

 

The employee was seen by Dr. Michael D. Smith, MD on October 13, 2000 for an examination on behalf of the employer REM Home Health and its insurer.  Dr. Smith diagnosed cervical spondylosis with referred neck and arm pain.  He found the employee to be neurologically intact.  There was some restriction of neck motion which he considered consistent with a degenerative process, but in his view, the employee=s disability at the time of his examination had become primarily subjective in nature.  He saw no medical reason why the employee should not return to work.  While he did not impose restrictions as a result of the work injury, he considered that general restrictions appropriate for cervical degenerative disc disease might be in order.  He recommended that further treatment consist of aerobic conditioning and a cervical spine strengthening program. 

 

Dr. Smith further elaborated on his opinions in deposition testimony taken on February 15, 2001.  He attributed the employee=s continuing symptoms and permanent restrictions to intermittently symptomatic cervical degenerative disk disease which he concluded had pre-existed  the June 4, 2000 work injury.  In his view, that injury had resulted in a cervical sprain which would have resolved after about three months and which did not permanently aggravate the employee=s pre-existing condition.  Dr. Smith was reluctant to apportion liability for the employee=s condition to either work injury but testified that if compelled to render an apportionment opinion he would apportion all of the liability to the initial work injury.

 

On November 10, 2000 the employee discussed a return to work within restrictions with Jinae O=Connor, Human Resource Coordinator for the employer REM Home Health.  As of that date, the employer could not assure the employee of full time work.  The employee then accepted another job, with employer Ridgeview Place.  However, after starting that job the employee found that its actual physical demands involved heavier duty work than anticipated and she experienced severe neck pain.  She quit the job and again sought a return to work with REM Home Health.  In the interim, REM Home Health had identified full time work for the employee but after learning that the employee had taken another job had assigned some of this work to other employees, and only part-time work was still available.  The employee continued to work for the employer part-time through the date of hearing, September 11, 2001.  

 

Dr. Robert A. Wengler, M.D., saw the employee for an orthopedic consultation on January 10, 2001 at the request of the employee=s attorney.  He found generalized spasm of the cervical musculature.  There was focal tenderness with instability over the middle cervical segments.  Cervical motion was limited in all directions.  Dr. Wengler recommended continued conservative care and ongoing restrictions.  He apportioned liability equally between the two work injuries. 

 

On July 3, 2001 the employee was evaluated by Jack M. Drogt, M.D., on behalf of employer Catholic Charities and its insurer.  Dr. Drogt found that the employee had some limitation of cervical motion but was neurologically intact without evidence of spasm.  He diagnosed chronic neck discomfort with referred pain as a result of two-level degenerative disk disease.  He concluded, based on the change in the employee=s work restrictions and the ongoing rather than intermittent character of her symptoms following the June 4, 2000 work injury, that this latter injury had substantially aggravated her pre-existing condition. 

 

A hearing was held before a compensation judge of the Office of Administrative Hearings on September 21, 2001.  The issues presented included whether the employee=s June 4, 2000 work injury was temporary or permanent, and whether an apportionment of liability between the November 1, 1994 and June 4, 2000 work injuries was appropriate.^[1]  Following the hearing, the compensation judge found that the June 4, 2000 work injury had permanently aggravated the employee=s November 1, 1994 work injury, and that the employee=s wage loss, medical and permanency benefits should be apportioned equally between the two work injuries.  The employer REM Home Health and its insurer appeal.

 

DECISION

 

1. Permanent Aggravation or Temporary Injury

 

Several factors may be considered when determining whether an aggravation of a pre-existing condition is temporary or permanent, including:  (1) the nature and severity of the pre-existing condition and the extent of restrictions and disability resulting therefrom; (2) the nature of the symptoms and extent of medical treatment prior to the aggravating incident; (3) the nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom; (4) the nature of the symptoms and extent of medical treatment following the aggravating incident; (5) the nature and extent of the employee's work duties and non-work activities during the relevant period; and (6) medical opinions on the issue.  "Which of these factors are significant in a particular case and the weight to be given to any factor is generally a question of fact for the compensation judge."  Wold v. Olinger Trucking, Inc., slip op. (W.C.C.A. August 29, 1994).

 

The compensation judge found that the June 4, 2000 work injury was a permanent aggravation of the employee=s neck condition.  In her memorandum, the judge states that she based this determination primarily on the greater severity of symptoms, extended period of temporary total disability, imposition of formal restrictions, and ongoing temporary partial disability following that injury, as well as on the expert opinion of Dr. Kraemer.  She further accepted that physician=s opinion that the November 1, 1994 and June 4, 2000 work injuries were equally responsible for the employee=s disability and need for medical treatment subsequent to the June 4, 2000 work injury.

 

The appellants argue that substantial evidence fails to support the compensation judge=s finding of a permanent aggravation.  Specifically, they argue that none of the factors on which the judge relied clearly support that finding.

 

With respect to an increase in the severity of the employee=s symptoms, they point to parts of the employee=s testimony which suggested that her increased symptoms had subsided by the time of the hearing, and further contend that any increase in symptoms as compared to those exhibited directly following the 1994 injury were the result not of the June 4, 2000 work injury but of a gradual progression of symptoms since 1995.  Regarding the employee=s prolonged period off work following the June 2000 injury, they suggest that the employee could have returned to work earlier, but was inappropriately kept off work by her chiropractor.  Similarly, they argue that permanent restrictions  imposed after June 4, 2000 relate only to the employee=s pre-existing degenerative disk disease, which merely had not been diagnosed until after an MRI scan was performed, and thus do not demonstrate any aggravation of the employee=s condition as a result of the June 2000 injury.  As to temporary partial disability, they argue that this is unrelated to the employee=s physical condition after the June 2000 work injury and is solely the result of the unavailability of full time work when the employee returned to their employ after attempting another job with the employer Ridgeview Place.

 

We do not find the appellants= arguments persuasive.  While some of the employee=s testimony was equivocal, the tone of the testimony taken as a whole reasonably sustains the judge=s interpretation as establishing a greater level and frequency of symptoms following the June 2000 work injury.  For example, we note that the employee testified that, as of the date of hearing 15 months later, she still felt worse than she had prior to the June 2000 work injury.  While she described the symptoms she experienced at the time of that injury as similar to those after the first work injury, she testified that they had never been as severe.   The employee=s description of her symptoms at the time of the injury, which included a sensation Alike someone had a glove over my head@, which the employee characterized as very Ascary@, also reasonably supports the conclusion that this injury was a particularly significant event in the progression of the employee=s ongoing condition.  (See T. 52-60.)

 

Prior to the June 4, 2000 work injury the employee had been working about 45 hours per week without restrictions.  Since that injury the employee has been restricted to duties much lighter than those she had been performing.  The employee=s ability to work without restrictions until the June 4, 2000 work injury, albeit with a few short periods of time off work due to exacerbations of her symptoms, contrasted with her inability to perform the same duties since that injury, strongly suggests a significant worsening of her conditon as a result of the June 2000 injury.  The employee=s prolonged temporary total disability after the June 2000 injury, as contrasted with a relatively brief time off work after the initial injury in 1994, also supports the judge=s finding that the June 2000 injury was a significant aggravating event.  Similarly, a comparison of the medical records before and after the June 2000 work injury shows greater overall findings and more ongoing frequency of treatment after the second injury. 

 

The appellants argue, in essence, that these factors were not causally related to the work June 2000 work injury, but instead were simply the result of a continuing progression of the employee=s pre-existing neck condition.  It is true that the medical opinion over the causal relationship between the June 2000 injury and the increased disability and other factors considered by the judge was divided in the case.  However, as the judge accepted those opinions favoring a causal connection between the June 2000 work injury and the employee=s increased disability and restrictions, it was not clear error for her to rely on these factors in reaching her determination.  Based on the evidence in this case, the compensation judge was also entitled to conclude that the employers=s inability to provide full-time employment was affected by the scope of the employee=s restrictions, and was not solely the result of factors unrelated to her disability.

 

While different inferences could be drawn from the evidence about these factors, the conclusions reached by the compensation judge are not manifestly contrary to the weight of the evidence, nor is this court "left with a definite and firm conviction that a mistake has been committed."  Northern States Power Co. v. Lyon Food Prods., 304 Minn. at 201, 229 N.W.2d at 524.   The factors considered by the compensation judge in reaching her findings were reasonable under the circumstances of the case, and we do not find clear error in the weight which the compensation judge may have ascribed to these factors. 

 

Beyond this the matter was one largely hinging on the compensation judge=s choice between the various opinions of the medical experts.  This court will affirm a compensation judge=s choice between the divergent opinions of medical experts unless the opinion relied upon has inadequate foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  

 

The appellants contend that the compensation judge should not have accepted Dr. Kraemer=s opinion because that opinion was rendered too soon after the June 4, 2000 work injury to justify a conclusion that the effects of that injury would eventually fully resolve, and was rendered without knowledge of the employee=s subsequent symptomology, medical findings and testimony.  It is true that Dr. Kraemer=s opinion was rendered less than two months after the June 2000 work injury, and it is also true that the employee showed some further improvement in her symptoms after the date of Dr. Kraemer=s report.  However, Dr. Kraemer=s report states his view that the employee had not yet reached  of MMI, so it is clear that he anticipated further improvement.  No factual evidence in the employee=s later testimony or the subsequent medical history clearly contradicts the basis for Dr. Kraemer=s opinion.  In addition, two other physicians, who rendered opinions much later in the case and had access to records at least as recent as those considered by REM Health Care=s expert Dr. Smith, also concluded that the June 2000 work injury had permanently aggravated the employee=s pre-existing condition.  We cannot, therefore, conclude that the compensation judge erred in accepting the opinion of Dr. Kraemer.  

 

2. Apportionment.

 

Equitable apportionment is not purely a medical question, but is a question of ultimate fact for the compensation judge to determine based upon all of the evidence submitted.  Ringena v. Ramsey Action Programs, 40 W.C.D. 880, 883 (W.C.C.A. 1987), summarily aff'd (Minn. Mar. 28, 1988).  Equitable apportionment is not to be based on any precise formula but on all the facts and  circumstances of the case.  Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 226 N.W.2d 888, 27 W.C.D. 797 (1975).  In determining apportionment, factors to be considered include the nature and severity of the injuries, the employee's physical symptoms following each injury, and the period of time between injuries.  Id. at 200, 226 N.W.2d at 891, 27 W.C.D. at 800.

 

We have affirmed the finding that the employee=s June 4, 2000 work injury permanently aggravated the effects of her prior work injury.   Given that finding, equitable apportionment of the employee=s benefits following the second of the two injuries was appropriate.  The specific factors the compensation judge considered in deciding the extent of the apportionment were similar to those considered in deciding the issue of a permanent as opposed to a temporary aggravation.  We have discussed the appellants= arguments regarding those factors above and need not repeat that discussion here.  We conclude that the compensation judge considered the appropriate factors in this case and that her determinations were supported by substantial evidence. 

 

As to the specific apportionment ration reached by the judge, we note that the only specific ratio of apportionment offered by any of the physicians was that of Dr. Wengler, who opined that both injuries equally contributed to the employee=s current disability. Even if there had been no medical opinion as to the appropriate ration, this issue is one in which a compensation judge is not bound by the medical apportionment opinions.   Ringena, supra, 40 W.C.D. at 883.  Where the record will support numerous apportionment determinations this court will not substitute its judgment for that of the compensation judge.  Giem v. Robert Giem Trucking, 46 W.C.D. 409, 418 (W.C.C.A. 1992).   We conclude here that a 50/50 apportionment was reasonable and well-supported by the evidence as a whole as well as by expert medical opinion.    

 

We therefore affirm both the finding that the June 2000 work injury was a permanent aggravation to the employee=s pre-existing condition and the equitable apportionment found applicable by the compensation judge.