SHARON SOBCZAK, Employee, v. WAL-MART STORES, INC., and INSURANCE CO. OF THE STATE OF PENN./CLAIMS MANAGEMENT, INC., Employer-Insurer/Appellants, and TARGET/DAYTON HUDSON CORP. and ITT HARTFORD INS., Employer-Insurer, and DULUTH CLINIC, POLINSKY REHAB CENTER, and  MN DEP=T OF LABOR & INDUS./VRU, Intervenors.

 

WORKERS' COMPENSATION COURT OF APPEALS

OCTOBER 23, 2002

 

HEADNOTES

 

APPORTIONMENT - EQUITABLE.  Substantial evidence supported the compensation judge=s decision denying apportionment of any part of the employee=s medical expenses for her low back condition following the employee=s March 28, 1997 work injury against prior work injuries sustained during the 1980s.

 

Affirmed.

 

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

Compensation Judge: Gregory A. Bonovetz

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

 Employer Wal-Mart and its insurer appeal from the denial of equitable apportionment for the employee=s medical expenses subsequent to March 28, 1997 against prior work injuries the employee sustained while working for employer Target in the 1980s.  We affirm.

 

BACKGROUND

 

The employee, Sharon Sobczak, sustained an injury to her low back on April 23, 1985 while stocking shelves at a Target store and lifting boxes of saline solution.  She experienced an acute onset of back pain, saw her family physician, Dr. P. S. Rudie, M.D., and was treated with physical therapy while continuing to work for Target.  In 1987, she began treating at the Duluth Clinic with Dr. P.L. Boman, M.D. for low back pain with radiation into her left leg.  Dr. Boman diagnosed an L5 disc syndrome.  Despite further conservative treatment the employee continued to experience pain in the left leg down to the foot.  On December 1, 1987, the employee underwent a laminectomy at the L5 spinal level at St.Mary=s Medical Center in Duluth.

 

Following the 1987 surgery the employee noted significant relief of her left leg pain though she continued to have the left leg pain at a reduced level on an intermittent basis.  Shortly after the surgery she also began to experience some intermittent pain in the right leg.  On March 2, 1988 Dr. Boman prescribed additional physical therapy followed by work hardening.   However, by July 25, 1988 the employee reported that the work hardening was no longer going well, leading Dr. Boman to speculate about the possibility of a recurrent disc.  Accordingly, the employee underwent an MRI examination of the lumbar spine on October 10, 1988.  The scan showed the expected postoperative changes at L5 but no recurrent disc at that level.  At L4-5 there was minimal obliteration of the epidural fat signal in the anterior left recess which was suggestive of the appearance of a herniated disc.  Dr. Boman recommended further physical therapy.  

 

On November 18, 1988 the employee was seen for an examination on behalf of the employer Target by Dr. Michael W. Davis, M.D.  Dr. Davis attributed the employee=s low back problems to the 1985 personal injury at Target and to a presumed Gillette^[1] injury at Target culminating in December 1987.  He believed the employee had reached maximum medical improvement and rated her permanency at 11 percent.  He advised that the employee avoid repetitive bending, significant twisting, lifting greater than 20 pounds, and standing or sitting for more than two hours at a time. 

 

The employee continued to treat with Dr. Boman about once a month through March 20, 1989.  On that date, Dr. Boman recommended a neurologic evaluation because the employee continued to have Asignificant@ symptoms.  The employee was seen for neurologic evaluation by Dr. W. S. Holt, M.D., on April 18, 1989.  Dr. Holt diagnosed a herniated disk on the left at L5, status post L5 laminectomy, with residual but stable left-sided S1 radiculopathy and chronic low back pain with bilateral sciatica and probable arachnoiditis.  He doubted that the L4-5 abnormality shown on the 1987 MRI scan represented a herniation at that level, and did not find surgical intervention to be indicated.  Dr. Holt recommended an ongoing program of stretching and strengthening exercises.  He also recommended work restrictions consisting of no repetitive lifting over 15 pounds above waist level, occasional lifting up to 25 pounds to waist level, no work involving rotatory movement of the spine, and no work in sustained postures where the employee could not move at will and change positions.

 

In a stipulation for settlement, approved on June 13, 1989, the employee agreed to a full, final and complete settlement of her claims against employer Target and its workers= compensation insurer, except for future medical expenses.

 

Medical records show little or no treatment to the employee=s low back over the next several years.  The employee=s low back condition is mentioned in the records during this period only a few times, and on February 21, 1992 Dr. Rudie characterized her condition as essentially unchanged, consisting of chronic low back pain Awhich she can control by markedly restricting her activities.@

 

On July 2, 1992, the employee returned to Dr. Boman reporting that her bilateral leg pain and low back pain had recently increased.  Dr. Boman again sought a new MRI scan to rule out the possibility of a recurrent disc.  The MRI scan, performed on July 8, 1992, showed Ano evidence of significant spinal canal or nerve root impingement.@  Dr. Boman advised the employee that her back pain was primarily mechanical in nature and recommended a weight reduction program and further physical therapy.  The employee apparently deferred initiation of the recommended treatment at that time.

 

After mid-1989, the employee had remained mostly off work, except for a couple of months working as a cashier at Walgreens in 1991.   On August 21, 1992, the employee returned to work in a part-time job for the employer Wal-Mart straightening merchandise and assisting customers in the housewares department.  In March 1993 she became a full time employee at Wal-Mart, working primarily in the greeting card department.  The employee testified that she was able to do this work without difficulty and without any lost time from work related to her ongoing back symptoms.

 

The employee returned to Dr. Boman on December 1993.  She told the doctor that she had finally decided to Ado something@ about her ongoing back pain.  Dr. Boman noted that the employee was currently experiencing only back pain, without radicular pain.  He prescribed a weight reduction program and a back exercise program.  The employee was evaluated for the proposed therapy program by a physical therapist on December 8, 1993, and told the therapist that she had continued to have chronic low back pain since her 1987 surgery.   She currently was experiencing low back pain about one day per week, together with some pain radiating down to her feet on both sides.  After the evaluation, the employee did not return for the proposed treatment.

 

The employee again returned to Dr. Rudie or to Dr. Boman for episodes of increased back pain two or three times in 1994 and once in February 1995.  She also had several sessions of physical therapy in October and November 1994.  The employee seems thereafter not to have sought any medical treatment specifically for her back problems until April 1997.

 

On March 28, 1997 the employee was on her hands and knees working on a greeting card display at Wal-Mart when a customer turning into the aisle struck her quite hard in the left leg and hip with a shopping cart, knocking her to the floor onto her right side.  She experienced immediate pain in her low back.  Over the next several days she failed to improve and on April 8, 1997 went to her family physician, Dr. Rudie for pain in her back and radiating primarily into the right leg but also into the left leg.  The employee could not perform straight-leg raising and could not lift either leg off the examining table without getting spasms in her low back.  She was tender over the SI joints bilaterally and had decreased range of motion of the lumbosacral spine.   Dr. Rudie noted that the employee=s pre-existing back problem had been stable and opined thatshe had sustained an exacerbation to her prior condition.

 

The employee thereafter began taking time off work on dates unspecified in the record due to her back problems and side effects from her medications.  She was not paid workers= compensation benefits and was told by her employer to use sick leave.

 

The employee returned to Dr. Rudie on April 22, 1997.  She had not improved and continued to have pain across the low back into the gluteal musculature, as well as radiation of pain in the right leg both laterally and medially as far as the knee and to a lesser extent as far as the foot.  There was also some minor radiation of pain from the left gluteal area into the left leg but not as often or severe as that affecting the right leg.  Dr. Rudie recommended physical therapy but the employee declined treatment because she did not feel that physical therapy had helped her in the past. She indicated that she would simply try to live with her symptoms with pain medications already being prescribed.

 

The employee returned to Dr. Rudie on October 27, 1997 reported that her lower back pain had been increasing to the point where she had difficulty sleeping.  Dr. Rudie suggested the employee see a psychiatrist, but it is not clear whether the employee followed up with this recommendation.  The employee next contacted Dr. Rudie=s office on April 30, 1998 seeking a prescription for something Astrong and quick@ to address her low back pain, which had been very painful over the past four to five days.  She was provided with a prescription for Ultram.  The medical records in evidence show no further treatment for the employee=s low back until September 2000.

 

The employee was discharged from her job at Wal-Mart on April 5, 2000.  Thereafter, she did not work through the date of the hearing, November 1, 2001.

 

On September 28, 2000 the employee saw Dr. Downs at the Duluth Clinic seeking evaluation of her back pain.  She told the doctor that she had experienced good relief of her leg pain following her surgery in 1987 but that she had been having new and markedly increased symptoms since being struck by a cart at work in April 1997, includingback pain extending farther up her back than formerly, occasional left leg symptoms with numbness into the toes, right leg pain different than that which she had previously experienced, and pain around her right side and abdomen.  She had been trying to manage her pain with ibuprofen but this was no longer helping very much.  Dr. Downs opined that while the employee=s pre-existing condition rated nine percent permanent partial disability, she had apparently sustained a substantial aggravation.  He recommended physical therapy.

 

On October 17, 2000 the employee was evaluated by Dr. Duane F. Person, M.D.  In his report to the employee=s attorney, Dr. Person opined that the employee now had a 23 percent permanent partial disability and that the injury at Wal-Mart had caused apermanent aggravation of the employee=s pre-existing condition.  Dr. Person further stated that the employee=s medical care since March 28, 1997 had been significantly caused by the incident at Wal-Mart on that date, and recommended further care for her low back problems, which he considered to result from that injury.  He recommended that the employee lift no more than 10 pounds and that she avoid repetitive lifting,  repetitive flexion, extension, lateral bending or rotation of the lumbar spine.

 

The employee continued treating with Dr. Downs and underwent bilateral L5-S1 facet blocks which provided only a temporary reduction in pain.  On January 10, 2001 Dr. Downs noted that the partial reduction of pain with facet blocks suggested that the employee had sustained arecurrent disc injury with internal disc disruption or incompetency with a component of facet involvement.  He recommended that the employee undergo a lumbar MRI scan and that she be referred for neurosurgical consultation. 

 

The employee was seen by  Dr. Paul A. Cederberg, M.D., on May 10, 2001 for an examination on behalf of the employer and insurer.  Dr. Cederberg opined that the March 28, 1997 work injury had been a contusion and strain of the lumbar spine, constituting a temporary aggravation of the employee=s preexisting degenerative disc disease, which had resolved by November 5, 1997.  Dr. Cederberg noted that the employee had not sought medical care for her back condition for several years after that date and found it to be apparent that Aher symptoms were not even severe enough to warrant even a repeat scan of her lumbar spine.@ He concluded that the employee=s medical care after November 5, 1997 was solely related to her condition prior to the March 28, 1997 work injury at Wal-Mart.  Dr. Cederberg apportioned all of the employee=s permanent partial disability to her injuries while working at Target.

 

On May 31, 2001 the employee returned to Dr. Downs, who noted that his recommendations had not been implemented due to a pending workers= compensation hearing.  The employee had also undergone a gastric bypass since her last appointment with him.  He  recommended that the employee now proceed with the lumbar MRI scan and neurosurgery consultation he had suggested in January 2001.  The MRI scan was performed on July 2, 2001.  It showed a small-to moderate-sized broad-based left posterior paracentral prolapse of the intervertebral disc at the level of the prior laminectomy, with some mild posterior displacement and swelling of the left L5 nerve root. 

 

The employee was seen on referral by Dr. Scott C. Dulebohn, M.D., on July 16, 2001.  The employee told Dr. Dulebohn that she had been able to work following her laminectomy until the injury in 1997 when she was struck by a cart at work, after which she had developed several new symptoms that she had not previously experienced, particularly pain in the right hip and knee area.  Dr. Dulebohn noted that the employee=s recent MRI showed a significant annular tear at the level of her prior surgery, as well as a possible fragment at the next higher spinal level.  The employee reported now being unable to sit, stand, walk or drive without significant difficulty.  Dr. Dulebohn considered her disabled from any employment.  He recommended a further facet block and possible focal rhizotomy.

 

On November 30, 2001, Dr. Cederberg prepared a supplemental report, which was submitted post-hearing, to address the MRI scan results from July 2001.  He noted that the recurrent disc herniation shown on the MRI scan warranted an additional 9 percent permanent partial disability rating.  He stated that the new information did not affect his opinion that the injury at Wal-Mart was merely temporary in nature.  Again noting the absence of treatment for almost three years after November 1997, he speculated that the employee=s recurrent disc had occurred spontaneously some time during this three-year gap in treatment, and that it was entirely referable to the employee=s pre-existing condition.  

 

A hearing was held before a compensation judge on November 1, 2001.  In addition to other findings from which appeal has not been taken, the judge found that the employee=s March 28, 1997 injury was a permanent aggravation of her pre-existing condition, that the employee had sustained an additional 12 percent permanent partial disability as a result of that injury, and that the employee=s prior injuries were not a substantial contributing cause of her need for medical care and treatment to the back subsequent to March 28, 1997.  The employer Wal-Mart and its insurer appeal.

 

DECISION

 

Denial of Apportionment Against Prior Injuries at Target

 

In reviewing a compensation judge=s determination of equitable apportionment, this court must affirm where the apportionment made is supported by substantial evidence in view of the entire record as submitted.  Sundquist v. Kaiser Eng=rs, Inc., 456 N.W.2d 86, 42 W.C.D. 1101 (Minn. 1990); DeNardo v. Divine Redeemer Mem. Hosp., 450 N.W.2d 290, 42 W.C.D. 626 (Minn. 1990).

 

Appellant employer Wal-Mart and its insurer assert that the compensation judge=s denial of equitable apportionment of liability for medical expenses is not supported by substantial evidence.  Specifically, the appellants point out that there was no expert medical opinion in evidence which placed responsibility for all of the medical expenses on the 1997 work injury.  Instead, those medical experts who rendered an opinion on this issue either divided responsibility between the injuries at Target and Wal-Mart or attributed responsibility on the injury or injuries at Target.  The appellants further contend that a failure to apportion was inherently unreasonable where the employee continued to have ongoing back pain and periodic flare-ups of leg pain during the entire interval between her 1989 laminectomy and the 1997 injury at Wal-Mart.^[2]

 

It is well-established that apportionment decisions are questions of fact committed to the compensation judge, and are not solely to be determined by medical opinion.  Goetz v. Bulk Commodity Carriers, 226 N.W.2d 888, 27 W.C.D. 797 (Minn. 1975).  Rather, "factors to be taken into consideration in reaching an appor­tionment decision include, but are not limited to, the nature and severity of the initial injury, the employee's physical symptoms following the initial injury and up to the occurrence of the second injury, and the nature and severity of the second injury."  Id., 226 N.W.2d at 891, 27 W.C.D. at 800.  Accordingly, a judge=s apportionment decision is not erroneous merely because no identical medical opinion on apportionment was in evidence.  The issue on review by this court is whether the judge=s decision was based on appropriate factors and whether, giving deference to the weight the judge gave to each factor, substantial evidence in the record taken as a whole reasonably supports the determination. 

 

The compensation judge specifically noted that, despite some ongoing symptoms, the employee=s condition for many years prior to the 1997 injury at Wal-Mart had been stable and required minimal maintenance treatment.  In contrast, the employee testified at the hearing, that her symptoms after the1997 injury were significantly changed in both kind and degree, particularly with respect to a worsening of the radiation of pain into her right leg.   The medical records were fully consistent with her testimony and further reveal that, after the 1997 injury, the employee required longer and more continuous periods of treatment largely related to the new symptoms.  The employee further testified that since the 1997 injury she had from time to time experienced her right leg Agiving out@ and had even occasionally passed out suddenly from intense pain, but had not reported these symptoms to her physicians.  Further, the judge noted that the employee was able to work at her job for Wal-Mart for several years preceding the 1997 injury with no time lost, while, according to her testimony, after the 1997 injury she began to require time off from work due to her increased back and leg pain.  The compensation judge accepted the employee=s testimony as to her symptoms and how they affected her ability to work before and after the 1997 injury. 

 

In addition, the compensation judge noted that the employee=s MRI scans subsequent to her surgery but prior to the 1997 work injury showed no impingement or recurrent disc herniation, while the scan done following that injury revealed a recurrent disc.  The compensation judge was entitled to conclude, contrary to the view of the employer and insurer=s expert, but consistent with the views of the employee=s treating physicians, that the 1997 injury was a substantial contributing cause of this recurrent disc and of the employee=s additional permanent partial disability. 

 

On review of the judge=s findings and memorandum, we are satisfied that the compensation judge based his apportionment decision on the appropriate factors and that substantial evidence supports the underlying facts on which the judge based his decision.  We therefore affirm.