MARLOWE SCHULTZ, Employee/Appellant, v. CITY OF ST. PAUL, SELF-INSURED, Employer, and METROPOLITAN HAND SURGERY ASSOCS, P.A., and MEDICA/HEALTHCARE RECOVERIES, INC., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 21, 2002

 

HEADNOTES

 

CAUSATION - MEDICAL EXPENSE; EVIDENCE - EXPERT MEDICAL OPINION.  Where treating doctors= reports that the employee=s carpal tunnel syndrome symptoms were Arecurrent@ did not constitute opinions causally relating the symptoms to the work injury, the compensation judge=s denial of payment for carpal tunnel release surgery nearly twelve years after the work injury was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

Determined by Pederson, J., Rykken, J., and Wilson, J.

Compensation Judge:  Gary M. Hall.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge=s denial of medical expenses as unrelated to the employee=s work injury.  We affirm.

 

BACKGROUND

 

Marlowe Schultz [the employee] sustained work-related carpal tunnel syndromes bilaterally on October 26, 1989, while employed as a cement finisher by the City of St. Paul [the employer].  The employee was fifty-eight years old at the time.  Subsequent to the injury, on December 4, 1989, the employee underwent a right median nerve decompression and tenosynovectomy, and on January 15, 1990, he underwent a left carpal tunnel release.  The surgeries were performed by orthopedic surgeon Dr. Edward McElfresh.  Following his surgery in January 1990, the employee was released to his regular duties without restrictions.

 

The employee returned to see Dr. McElfresh on January 8, 1991, with complaints of bilateral pain, right greater than left, at the base of his thumbs, shooting into his thumbs, and in the area of the radial columns.  The employee also complained of awakening at night with numbness in his little fingers bilaterally after heavy use of his hands at work.  On physical examination, Dr. McElfresh noted a positive Tinel=s sign over the ulnar nerve at the wrist bilaterally.  The doctor felt that the employee=s Acarpal tunnel had pretty well settled down except for the radial column syndrome with mild parethesias on the right hand.@  He recommended night splints for Athe ulnar nerve symptoms.@

 

The employee continued working as a cement finisher for the employer but did not return to see Dr. McElfresh until January 19, 1993.  On that date, the employee complained of pain particularly in his palms and of having numbness into his ulnar nerve distributions.  He reported that these symptoms had started about eight months earlier and had gradually gotten worse.  The employee retired from his employment with the employer on February 3, 1993.  On June 11, 1993, he returned to Dr. McElfresh, complaining of increased symptoms in the ulnar nerve distribution whenever he used his hands for strenuous activity.  The doctor again concluded that the employee was showing signs of irritation of the ulnar nerve and referred the employee for an EMG of both hands.  An EMG and nerve conduction velocity study was performed on June 28, 1993, and interpreted as compatible with moderately severe bilateral carpal tunnel syndromes, more pronounced on the right than on the left.  When last seen by Dr. McElfresh on September 3, 1993, the employee did not wish to consider re-exploration of the carpal tunnel.

 

The employee did not seek further treatment for his hands until May 12, 1997, when he was seen for a general physical exam by his family physician, Dr. Endrie Kioski.  On that date, the employee described symptoms of his hands going to sleep, worse on the left than on the right, and Dr. Kioski referred him for another EMG, noting that an earlier EMG, apparently performed in June 1994, had revealed an apparently ideopathic polyneuropathy generally over most of the nerves and muscles tested in the body.  On June 17, 1997, neurologist Dr. Joel Gedan conducted the ordered EMG and concluded that it was most compatible with a mild to moderate polyneuropathy affecting all extremities, with a superimposed bilateral carpal tunnel syndrome more severe on the right side.

 

On July 7, 1997, the employee was examined by hand surgeon Dr. Paul Donahue.  The employee provided the doctor with a history of his work-related bilateral carpal tunnel conditions and surgeries performed by Dr. McElfresh.  Dr. Donahue recorded that the employee Ahad a marked improvement in symptoms following surgery however he has had a recurrence of symptoms, especially in the right hand over the past 2 years but worse over the past 2 months.@  Dr. Donahue concluded that the employee=s recurrent symptoms were most likely secondary to polyneuropathy and some degree of recurrent carpal tunnel syndrome.  He provided the employee with a cortisone injection into the right carpal tunnel to reduce the employee=s symptoms and to determine whether surgery would be helpful. 

 

About a year later, on August 10, 1998, the employee returned to see Dr. Donahue with a marked recurrence of his symptoms, and the doctor recommended a right carpal tunnel release.  In a work-activity status report dated August 24, 1998, Dr. Donahue reported that the cause of the employee=s recurrent carpal tunnel was unknown, that the literature states that 5% of carpal tunnels will recur after surgery, and that work did not appear to be an aggravating factor. 

 

On November 2, 1998, the employee filed a claim petition, seeking approval for the carpal tunnel release surgery recommended by Dr. Donahue.  The employer denied liability for the surgery, contending that it was not causally related to the admitted work injury of October 26, 1989.

 

On December 18, 1998, the employee was examined by orthopedist Dr. William Call at the request of the employer.  After obtaining a history and reviewing the employee=s medical records, Dr. Call concluded in a report dated January 11, 1999, that the employee had a bilateral sensory and motor polyneuropathy with some asymmetrical involvement of the median nerve at the wrist, Awhich could be consistent with a superimposed carpal tunnel syndrome.@  He opined that the cause of the polyneuropathy was idiopathic and that the worsening of the carpal tunnel syndrome was also idiopathic, Aassociated with the worsening of the polyneuropathy and not related to the patient=s work activities in 1989.@  In an addendum dated February 22, 1999, Dr. Call opined that the employee=s work-related carpal tunnel surgeries were not a substantial contributing cause of his present condition in his wrists or any need for further treatment.  The doctor also opined that

 

[t]he EMG on 1-19-93 was done for ulnar nerve symptoms, not median nerve symptoms.  The positivity identified in the bilateral median nerve prolonged latency was a result of the usual post surgical residual plus his polyneuropathy.  This position is supported all the more so because the symptoms were ulnar and not median.^[1]

 

On September 7, 2000, the employee underwent a right carpal tunnel release and limited flexor synovectomy performed by Dr. Donahue.  In his operative findings, Dr. Donahue noted that A[t]he flexor synovial tissue was seen to be fibrotic and scarred, surrounding the median nerve, with a very tight casing of fibrotic tissue surrounding the nerve of the carpal tunnel.@

 

Dr. Call issued a second addendum report on May 4, 2001, after reviewing additional records from Dr. Donahue=s office and the operative report of the employee=s 2000 surgery.  Dr. Call stated that he continued to hold to the positions he had expressed in his previous letters of January 11 and February 22, 1999.  He concluded that the employee=s problem was due to his polyneuropathy and that any scarring or fibrosis seen around the median nerve would not be responsible for the employee=s symptoms. 

 

The issue of whether the employee=s Acurrent carpal tunnel condition@ was related to the work injury of October 26, 1989, came before a compensation judge on May 18, 2001.  In a Findings and Order issued July 17, 2001, the judge concluded that the employee=s 1989 work injury was not a substantial contributing cause of the employee=s recurrent carpal tunnel syndrome or need for medical treatment.  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

 

In determining that the employee=s 1989 work injury was not a substantial contributing cause of the employee=s recurrent carpal tunnel syndrome, it is clear that the compensation judge was troubled by the employee=s subsequently diagnosed polyneuropathy and by the lack of any clearly stated medical opinion relating the employee=s work injury to his current condition.  This is apparent in the judge=s findings that on July 7, 1997, Dr. Donahue had diagnosed a recurrence of carpal tunnel symptoms Amost likely secondary to polyneuropathy@ and that on August 24, 1998, Dr. Donahue had concluded that the cause of the employee=s recurrence was unknown.  In a memorandum attached to his Findings and Order, the judge noted that, while there would seem to be a logical connection between the 1989 injury and the employee=s current condition, Athe treating doctors appear to believe the recurrent carpal tunnel syndrome is more likely a result of an idiopathic polyneuropathy.@

 

On appeal, the employee contends first that the compensation judge Aplaced too high a burden on the Employee to prove causation in this case.@  The employee argues that Drs. McElfresh and Donahue both diagnosed recurrent bilateral carpal tunnel syndrome and that implicit, though not express, in Dr. Donahue=s diagnosis and opinion is the conclusion that the employee=s 1989 injury was a significant contributing  factor to the employee=s recurrent need for surgery.  We are not persuaded.

 

In his Findings and Order, the judge determined that by January 8, 1991, the employee=s carpal tunnel syndrome was no longer a significant problem.  In his memorandum, the judge pointed out that the employee=s primary complaints from 1991 to 1997 were ulnar related.  Although Dr. McElfresh diagnosed moderately severe bilateral carpal tunnel symptoms on July 26, 1993, Dr. McElfresh did not offer a causation opinion.  Dr. Donahue=s opinions are set forth only in his office notes, and he offered no clarification of those opinions by way of narrative report or oral testimony.  We share the compensation judge=s concern, given the equivocal nature of Dr. Donahue=s opinions in the face of a complicating polyneuropathy.  Dr. Donahue=s use of the word Arecurrent@ in his diagnosis, without explanation or clear reference to the 1989 injury, is not sufficient to constitute even a reference to the work injury, much less a causation opinion.  This is true especially when viewed in conjunction with the doctor=s other remarks regarding the employee=s recurrent polyneuropathy of unknown cause.  We cannot conclude that the judge applied too high a burden of proof in this case.

 

The employee contends also that the judge failed to consider whether the employee=s need for further treatment was a progression of the original injury.  Citing Nelson v. American Lutheran Church, 240 N.W.2d 588, 40 W.C.D. 849 (Minn. 1988), the employee contends that,

 

[w]here a work injury creates a permanently weakened physical condition which an employee=s subsequent normal physical activities may aggravate to the extent of requiring additional medical care, such additional care is compensable.  If, however, a subsequent aggravation of the initial injury arises from an independent intervening cause not attributable to the employee=s customary activity in light of the employee=s condition, then such additional medical care for the aggravation is not compensable.

 

Nelson at 590, 40 W.C.D. at 851.  The employee reiterates that a work injury need not be the sole cause of the disability at issue in order for the disability to be compensable.  It is only necessary that the work injury have been a substantial contributing cause of the disability.  See Roman v. Minneapolis Street Ry., 268 Minn. 367, 129 N.W. 550, 23 W.C.D. 573 (1964).  The employee argues that there was no evidence presented that an independent injury caused the disability here at issue, and he contends that all evidence submitted supports the conclusion that the employee=s need for treatment was related to his initial bilateral carpal tunnel syndromes.  We do not agree.

 

First of all, at uncontested Finding 1 the judge noted that, subsequent to the 1989 and 1990 carpal tunnel surgeries, the employee continued to have symptoms in the radial column of his right wrist.  At uncontested Finding 3, the judge determined that by January 8, 1991, the employee=s carpal tunnel syndrome was not a significant problem.  There was no evidence of a subsequent independent intervening injury, but there is nevertheless evidence of an independent cause of the employee=s eventually returned pain--the employee=s polyneuropathy.  Without supporting medical opinion in this case, the judge was not compelled to conclude that the employee=s 1989 injury created a permanently weakened physical condition or that his subsequent normal physical activities aggravated such a condition.  In fact, there is better support, in the opinions of Dr. Call, that the employee=s carpal tunnel syndrome was related not to the injury in 1989 but to an intervening cause--the employee=s polyneuropathy.  The judge was not required to assume a causal relationship simply by virtue of an initial injury.  A[T]he claimant has the burden of proving, by a fair preponderance of the evidence, that he or she is entitled to workers= compensation benefits.@  Fischer v. Saga Corp., 463 N.W.2d 501, 501, 43 W.C.D. 559, 560 (Minn. 1990).  The employee has the burden of showing that a work-related injury is a substantial contributing cause of his disability.  Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 497-98, 40 W.C.D. 117, 122 (Minn. 1987).

 

Lastly, the employee contends that the opinions of Dr. Call are not based on adequate foundation, arguing that the doctor had neither initial information regarding the employee=s ongoing difficulties nor access to records documenting these difficulties.  The employee argues that the doctor=s later attempts to rectify the deficiencies in his foundation fall short.  We are not persuaded.

 

Dr. Call obtained a history, examined the employee, and reviewed pertinent medical records on December 18, 1998.  He subsequently was supplied with additional medical records and supplemented his January 11, 1999, report with reports dated February 22, 1999, and May 4, 2001.  We conclude that the information so gathered by Dr. Call constituted sufficient foundation for his opinions and the compensation judge was free to rely upon those opinions.

 

Given the record presented in this case, we cannot conclude that the compensation judge=s factual determination that the employee=s 1989 work injury was not a substantial contributing factor in his current condition was unreasonable or clearly erroneous.  It is the responsibility of the compensation judge, as trier of fact, to resolve conflicts in expert testimony.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Although the judge=s determination in this case may be based in substantial part on the lack of medical opinion clearly establishing causation, it is also supported by the opinions of Dr. Call.  The absence of a clear causation opinion from the treating physicians is all the more conspicuous in light of Dr. Call=s opinions clearly disputing causation.  Accordingly, the determination of the compensation judge in this case is affirmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).