KENT J. CHRISTENSEN, Employee, v. WEIS BUILDERS and CNA COMMERCIAL INS. CO., Employer-Insurer/Appellants, and WEIS BUILDERS and WESTFIELD COS. Employer-Insurer.

WORKERS= COMPENSATION COURT OF APPEALS

JULY 2, 2003

HEADNOTES

APPORTIONMENT; CONTRIBUTION & REIMBURSEMENT - SUBSTANTIAL EVIDENCE.  Where it was supported by expert medical opinion and not contrary to factors for consideration identified in Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 226 N.W.2d 888, 27 W.C.D. 797 (1975), the compensation judge=s denial of contribution/reimbursement and apportionment was not clearly erroneous and unsupported by substantial evidence.

Affirmed.

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

Compensation Judge:  Joan G. Hallock

OPINION

WILLIAM R. PEDERSON, Judge

The employer and CNA Commercial Insurance Company appeal from the compensation judge's conclusion that CNA is solely responsible for the employee=s January 27, 1999, work injury and for all benefits that CNA has paid under its July 29, 1999, temporary order.  We affirm.

BACKGROUND

On October 5, 1997, Kent Christensen sustained a work-related injury to both of his knees when he lost his balance as two co-workers lost their grip on a sheet of heavy metal corrugated decking that the three workers were carrying in the course of the employee=s work as a carpenter with Weis Builders.  On the date of the injury, Mr. Christensen [the employee] was thirty-eight years old and was earning a weekly wage of $867.45,^[1] and Weis Builders [the employer] was insured against workers= compensation liability by Westfield Insurance Company [Westfield].  The employee initially sought treatment for his right knee at Apple Valley Medical Center, where x-rays were normal.  Pain persisted bilaterally, however, particularly in the left knee, and on April 14, 1998, the employee saw Dr. Martin Waldron at the Albert Lea Clinic, who diagnosed A[c]hronic left knee pain, now six months@ and ordered an MRI scan.  The left knee scan, conducted April 29, 1998, was read to reveal Ahorizontal tears involving posterior horn and body of medial meniscus . . . with small bone bruises above and below the medial meniscus tears in the edge of the medial femoral condyle in tibial plateau.@  Dr. Waldron referred the employee to orthopedist Dr. William Shepard, who, upon examination of the employee on May 8, 1998, diagnosed A[t]orn medial meniscus of both knees,@ scheduled arthroscopic surgery in the left knee, and ordered an MRI scan of the right knee.  On May 18, 1998, the employee underwent the recommended left knee arthroscopy with medial meniscal shaving, and two weeks later, on June 3, 1998, he was reported to be doing well, with excellent range of movement and without any pain, swelling, or locking in the knee.  The right knee MRI scan had been read to reveal extensive tearing in the medial meniscus in that knee as well, and on June 22, 1998, the employee underwent a similar operation on his right knee.  The employee was evidently off work for about fourteen weeks due to his injuries, and on July 28, 1998, he was released to return to full work duties without restrictions, still feeling some discomfort with hyperflexing of his left knee but without sign of any acute problem. The employer and Westfield admitted liability for the injuries and paid benefits.  On September 21, 1998, Dr. Shepard completed a Health Care Provider Report, indicating that the employee had reached maximum medical improvement [MMI] on July 27, 1998, having sustained a 2% whole-body impairment in each of his knees.  Dr. Shepard saw the employee again two days later for occasional pain over the medial aspect of the left knee, diagnosing at that time A[b]ursitis, medial aspect of left knee.@

The employee next saw Dr. Shepard about four months later, on January 29, 1999, when he complained to the doctor of renewed pain in his left knee, which had developed in the course of his work two days earlier, as he stood up after kneeling on some ice for a long period of time.  Finding tenderness over the medial joint line and medial collateral ligament but no locking or effusion, Dr. Shepard diagnosed a left knee sprain, prescribed crutches, and restricted the employee from working, noting also Athe possibility that after kneeling down and then standing up again he could have had further damage to the remaining medial meniscus.@  On February 3, 1999, Dr. Shepard noted some improvement but continued the employee=s restriction from working, prescribed physical therapy, and reiterated Athe possibility that [the employee] may have retorn the medial meniscus.@  On February 15, 1999, with symptoms continuing, Dr. Shepard expressly diagnosed A[r]ecurrent torn medial meniscus, left knee,@ continued the employee=s no-work restriction, and anticipated recommending Are-scoping the left knee.@  On March 8, 1999, the employee reported some transient locking of the left knee and some discomfort going up and down stairs, and, again finding the employee=s symptoms indicative of a new meniscal tear of the medial meniscus related to the incident of January 27, 1999, Dr. Shepard released the employee to sedentary work but with a recommendation of repeat arthroscopic surgery on the knee and reshaving of the medial meniscus.  On March 11, 1999, the employee notified the employer of a work injury on January 27, 1999,^[2] which the employer identified on the first report of injury as a Acontinuation of left knee injury sustained 10/5/97.@  On January 27, 1999, the employee had been thirty-nine years old and earning a weekly wage of $892.75, and the employer had been insured against workers= compensation liability by CNA Insurance Company [CNA].

On May 5, 1999, in a letter to CNA claims representative Doreen Stepaniak, Dr. Shepard reported that he had originally believe the January 27, 1999, injury to be a sprain but had subsequently come to believe that the symptoms were related instead to Aa retear of the medial meniscus@ and that Athe [employee] actually has had two injuries to the left knee.@  On May 10, 1999, Dr. Shepard performed further arthroscopic surgery on the employee=s left knee, in the nature of a partial medial meniscectomy and medial meniscal shaving.  In a post-operative report on that date, Dr. Shepard reiterated that the employee had sustained a retorn medial meniscus of the left knee on January 27, 1999, and in treatment notes a week later, on May 17, 1999, he indicated that, during the surgery, he had Afound a flap tear in the edge of the medial meniscus, a little more anteriorly than his previous tear in the posterior horn area.@  Subsequent to his surgery, the employee was off work until about June 23, 1999, when he returned to work at light duty, and by July 22, 1999, he had been released to full duty without restrictions.  CNA commenced payment of benefits under a temporary order filed July 29, 1999, including $11,264.43 in wage replacement benefits for temporary disability from February 3, 1999, through June 27, 1999, and $6,237.07 in medical benefits for treatment from January 29, 1999, through July 30, 1999.  On August 6, 1999, Dr. Shepard indicated that the employee had reached MMI on July 21, 1999, with regard to his left knee injury of January 27, 1999.

On December 8, 1999, in reply to a letter from CNA=s attorney, Dr. Shepard stated in part that A[t]he original injury to the left knee in October of 1997 was a cause of the injury to the medial semilunar cartilage and was a contributing cause to Mr. Christensen=s disability and the need for the two arthroscopic procedures on the left knee.@  The doctor went on to explain, however, that Athe [employee] had a mild injury to the left knee on January 27, 1999 but did cause [sic] another tear in an already damaged medial semilunar cartilage of the left knee.@ Dr. Shepard indicated that he was Aunable to apportion a responsibility between the two injuries on a percentage basis@ but that he Abelieve[d] the initial injury of October of >97 was the most substantial injury.@  Dr. Shepard concluded that the employee had reached MMI from the 1999 injury and that the employee=s permanent partial disability related to his left knee remained rateable at 2% of the whole body, in that the employee still maintained fifty percent of the original semilunar cartilage in the knee.

On August 21, 2000, Dr. Peter Daly conducted a review of the employee=s medical records for CNA.  In his report dated August 28, 2000, Dr. Daly diagnosed A[s]tatus post October 5, 1997, bilateral knee injury with subsequent diagnosis of medial meniscal tearing and subsequent bilateral knee arthroscopy, partial medial meniscectomy,@ together with A[s]tatus post January 27, 1999, left knee strain.@  He concluded that the employee=s 1997 work injury had substantially contributed to his need for medical treatment after January 27, 1999, but that the work activities of January 27, 1999, had also contributed to that need.  Dr. Daly regarded the employee=s January 1999 work injury as a temporary aggravation of a preexisting knee condition caused by the October 1997 injury.  It was his opinion that that temporary aggravation had resolved by March 8, 1999, and that all treatment after that date, including the May 10, 1999, arthroscopic knee surgery, was related solely to the preexisting condition.  Dr. Daly concluded that disability and treatment between January 27, 1999, and March 8, 1999, were related to both the 1997 and the 1999 work injuries, seventy-five percent related to the 1997 injury and twenty-five percent related to the 1999 aggravation.  He concluded also that the employee was capable of returning to the work that he had been doing at the time of his January 1999 injury and that he was not subject to any permanent impairment as of result of either that injury or the May 1999 surgery.  Dr. Daly did restrict the employee from kneeling for more that sixty minutes a day and from doing any repetitive squatting or crouching, expressly indicating that those restrictions related solely to the left knee and the 1997 work injury.

On October 31, 2000, the employee was examined for Westfield by Dr. Mark Engasser, who diagnosed (1) a tear in the left medial meniscus, status post arthroscopic partial left medial meniscectomy, (2) a tear of the right medial meniscus, status post arthroscopic partial right medial meniscectomy, and (3) a recurrent tear of the left medial meniscus, status post arthroscopic partial left medial meniscectomy.  It was Dr. Engasser=s opinion that the employee had sustained a new injury to his left knee in January of 1999.  Dr. Engasser explained that, although the employee Awas not asymptomatic following his first surgery to his left knee, he was able to return to work without restriction and it was at that time that his knee became much more painful@ and A[h]e sustained a recurrent tear of the medial meniscus.@  Concluding that the employee=s work activity at the employer on January 27, 1999, was Athe substantial contributing factor in [the employee=s] disability and need for surgery on May 10, 1999,@ Dr. Engasser opined that the January 1999 injury was a permanent aggravation of the employee=s underlying condition, that the October 1997 injury did not represent a substantial contributing factor in the employee=s disability and need for surgery in May of 1999, and that one hundred percent of the employee=s treatment after the January 1999 injury was related to that injury alone.  Dr. Engasser concluded also that the employee had no physical restrictions related to his left knee and required no further medical treatment but that the employee was nevertheless subject to a 2% whole-body impairment related to each of his two left knee surgeries.

On December 4, 2000, CNA filed a Petition for Contribution, alleging entitlement to reimbursement from Westfield for temporary total disability and medical benefits paid to or on behalf of the employee under the July 29, 1999, temporary order.  Westfield objected, and the matter was eventually heard before a compensation judge on August 23, 2001.  At hearing, the employee testified in part that, immediately subsequent to his October 5, 1997, injury, AThe right knee was worse.  The left knee was just like you had bruised it.@  He testified that both knees eventually developed some swelling but that the left knee swelling was A[n]ot near as bad as the right.@  He testified that eventually, however, during the following winter, the situation reversed and the symptoms in the left knee became more severe than those in the right.  Following his knee surgeries in the summer of 1998, he had, he testified, no symptoms in the left knee prior to January of 1999 except for some slight stiffness or swelling or Acatching@ about once a week, usually the day after a lot of climbing.  He testified that, subsequent to his January 27, 1999, re-injury and prior to his May 10, 1999, surgery, his left knee never returned to its pre-January 27, 1999, condition and he had more constant and severe problems with the knee than he had had prior to that date, problems that kept him off work that entire period.  The employee did acknowledge, however, that, in his opinion, the 1997 injury was ultimately more severe than the 1999 injury, A[b]ecause it was more painful.@

By Findings and Order filed October 22, 2001, and in reliance on the opinions of Dr. Daly in combination with those of Dr. Shepard, the compensation judge concluded that the employee=s work injury of January 27, 1999, was merely a temporary aggravation that had resolved by March 8, 1999.  On that conclusion, the judge ordered Westfield to reimburse CNA for 75% of the benefits it had paid from February 3, 1999, through March 8, 1999, and for 100% of the benefits it had paid from and after March 9, 1999.  That decision was appealed to the Workers= Compensation Court of Appeals, which, by an opinion filed July 12, 2002, reversed and remanded the matter back to the compensation judge, Afor further consideration on the issues of causation and, potentially, apportionment.@  The court=s reversal was based primarily on a conclusion that the medical opinions upon which the judge had reliedBthose of Drs. Shepard and DalyBwere inconsistent and that the judge had Aevidently misapprehended Dr. Shepard=s opinions.@

Essentially reversing her previous decision, the compensation judge concluded on remand, at Finding 7 of her Findings and Order filed December 9, 2002, that the employee had sustained a new injury on January 27, 1999, in the nature of a new meniscal tear, rather than a temporary aggravation of his preexisting condition, as had been the judge=s previous finding.  The judge=s decision this time was in express reliance on the opinion of Dr. Shepard in combination with that of Dr. Engasser instead of that of Dr. Daly, which the judge now expressly found Aflawed and not accepted.@  At Finding 8 of her decision, the compensation judge concluded also, in express reliance on the opinion of Dr. Engasser, that, while the employee=s October 1997 injury was substantial, the January 1999 injury created a Anew tear@ and, A[f]or the specific period of time and the specific medical benefits paid under the Temporary Order, CNA has full liability.@  CNA 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 found CNA to be wholly responsible for the employee=s January 27, 1999, work injury and for all benefits that it had paid under its July 29, 1999, temporary order.  In her memorandum, the judge explained that A[i]t may be true that the 1997 injury was the more substantial of the two, as Dr. Shepard opines.  However, for the period of time in question and medical treatment at issue at present, the January 27, 1999 injury is wholly responsible.@  Emphasizing that it is Ain total contradiction to [the judge=s] October 22, 2001 findings and order,@ in which the judge had adopted Dr. Daly=s causation and apportionment opinions instead of Dr. Engasser=s, CNA contends that the judge=s conclusion on remand is clearly erroneous, in that the judge=s Areliance on the opinions of Dr. Engasser and Dr. Shepard cannot be reconciled to form the basis for the judge=s determination as to causation and apportionment.@  CNA argues that the judge

erred in disregarding Dr. Shepard=s opinion that the original injury to the left knee in October 1997 was a cause of the injury to the medial semilunar cartilage and was indeed a substantial contributing cause to employee=s disability and the need for the May 18, 1998 and May 10, 1999 arthroscopic procedures on the left knee.

CNA argues also that the judge Aignored@ Dr. Shepard=s opinion that the January 1999 injury was only a Amild@ injury, which caused a tear in an Aalready damaged@ medial semilunar cartilage of the left knee, and that even Aafter the alleged work injury of January 27, 1999, Dr. Shepard=s diagnosis remained unchanged, that of a torn medial meniscus.@  CNA argues that Dr. Shepard had Aopined that both injuries were substantial contributing factors as to the employee=s left knee condition, with the 1997 injury being the primary factor@ (emphasis in CNA=s brief), and that Dr. Shepard had opined that the 1997 injury Awas the most substantial injury that contributed to the Employee=s disability and need for medical treatment following the January 27, 1999 injury@ (emphasis in CNA=s brief).  We are not persuaded.

It is clear, we grant, that there are elements of Dr. Shepard=s records and opinions that support the positions of both parties in this dispute.  A compensation judge may rely on only part of a medical expert=s opinion, however, and is not obligated to accept either all or none of the expert=s opinions in order to rely on that doctor=s expertise.  See Johnson v. L. S. Black Constr. Co., slip op. (W.C.C.A. Aug. 18, 1994) (a compensation judge is free to accept a portion of an expert's opinion, yet reject other portions of that expert's opinions), citing City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980) (a factfinder generally "may accept all or only part of any witness' testimony").  In her previous decision, the compensation judge had expressly found Dr. Shepard to be in agreement with Dr. Daly=s conclusion that the employee=s January 27, 1999, injury was a temporary injury.  Dr. Shepard having expressly found the injury on that date to have been a new torn meniscus, the judge=s understanding of Dr. Shepard=s opinion was clearly erroneous.  Whatever her assessment of the evidence this time, and however she may have integrated the opinions of Drs. Shepard and Engasser, the compensation judge has revealed no similarly erroneous understanding now on remand.  Perhaps more importantly, the judge=s decision on remand is more in reliance on the more definitive opinion of Dr. Engasser over that of Dr. Daly than it is in reliance on the more equivocal opinion of Dr. Shepard.  The judge correctly notes, in Finding 7, that Dr. Daly failed to address at all the May 10, 1999, surgical finding that the meniscal tear in 1999 was in a location different from the tear after the 1997 work injury, perhaps for that reason failing also to find other than a temporary aggravation in 1999.  Dr. Engasser, on the other hand, did address that surgical finding, and the compensation judge accepted Dr. Engasser=s opinion regarding causation and apportionment, in light of elements of Dr. Shepard=s medical records and opinions.  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.  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  Finding Dr. Engasser=s opinion to have been based on no false premises, we conclude that it was not unreasonable for the judge to rely on the causation and apportionment opinion of Dr. Engasser.

Aside from the issue of the conflicting medical opinion, CNA cites three factors to be considered by the compensation judge in making any decision regarding apportionment, pursuant to the supreme court=s decision in Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 226 N.W.2d 888, 27 W.C.D. 797 (1975):  (1) the nature and severity of the injuries; (2) the employee=s symptoms following each injury; and (3) the period of time between injuries.  In Goetz, the supreme court actually identified four factors to be included in considerations regarding apportionment, stating that an

apportionment decision can, of necessity, be based on no predetermined and precise formulas, but must be determined based upon the facts of each case.  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,

together with A[t]he period of time between the injuries.@  Goetz, 303 Minn. at 200, 226 N.W.2d at 891, 27 W.C.D. at 800.  CNA argues that there is no evidence that Dr. Engasser even considered the Goetz apportionment factors, that application of these factors demonstrates that the 1997 injury is at least partially liable for the post-January 1999 benefits here at issue, and that A[s]ubstantial evidence in the record clearly indicates that apportionment is appropriate and necessary in the instant case.@  We conclude that there is substantial evidence to support the decision of the compensation judge.

To begin with, we would reiterate again that it is not this court=s function to assess whether substantial evidence might exist to support a conclusion contrary to that reached by the compensation judge; our function on factual review is only to assess whether substantial evidence exists to support the conclusion actually reached by the judgeBin this case, that apportionment is not appropriate and necessary.  See Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) ("Whether [the appellate court] might have viewed the evidence differently is not the point, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate.@).  With regard to the first of the factors identified in Goetz, CNA argues that the employee=s initial, 1997, injury was both traumatic and clearly severe, resulting from a specific twisting of his knee upon loss of control of a heavy piece of steel decking.  The injury resulted, CNA argues, in an immediate onset of significant pain, after which an MRI scan revealed horizontal tears to the medial meniscus as well as traumatic bone bruising.  We note, however, that, although symptoms appear to have been continuous for awhile immediately after the injury, the employee=s left knee was initially the least severe of his two injuries, and he was apparently able to work without repair or even MRI scan of the knee for over six months.  Moreover, following convalescence from both knee surgeries in May and June 1998, he returned to work without restrictions in July 1998 and had no further medical attention to the knee, except for bursitis, for another six months, until his January 1999 reinjury.  Given these facts, it would not have been unreasonable for the compensation judge to conclude that, as a factor for consideration, any severity of the initial left knee injury was at least substantially mitigated by its successful repair in May 1998.

CNA argues further that, regardless of the absence of ongoing formal restrictions, the employee=s physical symptoms following the initial injury were chronic and continuing right up to the occurrence of the second injuryBthat, indeed, Athe Employee never fully recovered symptomatically.@  Essentially all of the evidence cited by CNA to this end, however, is drawn only from the employee=s testimony.  There is little in the medical record to corroborate any such chronic symptomology, and the fact remains that the employee=s left-knee symptoms for at least four months preceding his January 1999 injury were evidently not Achronic@ enough to compel his seeking any medical attention.

CNA argues further that the employee=s second, 1999, injury, for which CNA was on the risk, was clearly much less severe than the first injury, that the employee Adid not experience any specific, acute injury; he experienced no popping; he did not develop the acute onset of severe pain.@  The acuteness of an injury, however, is not necessarily a measure of its severity, and the 1999 injury was obviously severe enough to precipitate the employee=s second arthroscopic meniscal repair surgery.  Moreover, the employee was evidently off work entirely from the occurrence of  that injury on January 27, 1999, right up until and through the occurrence of his surgery on May 10, 1999, over three months later.  Further, there is, after all, expert medical opinion that the work activities on the day of onsetBstanding up from kneeling on iceBwere problematic enough to have substantially caused  the injury  at issue, without contribution from the employee=s 1997 injury.

Finally, CNA argues that the period of time between the two injuries, less than sixteen months, was comparatively brief, further implicating the first injury in the employee=s condition following the second, aggravating injury.  As the supreme court indicated in Goetz, however, A[t]he period of time between the injuries is but one factor@ to consider in reaching an apportionment determination, and the judge=s determination in this case was certainly not unreasonable relative to this factor, given the relatively brief period of disability and medical care currently at issue.

Concluding that it was not unreasonable, we affirm the compensation judge=s denial of CNA=s request for contribution and/or reimbursement from Westfield for wage replacement and medical benefits paid to the employee by CNA under the temporary order here at issue.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.