BRADLEY W. DOESKEN, Employee, v. HINDING HEATING, and CNA COMMERCIAL INS., Employer-Insurer, and ALLIANCE ELECTRIC and FEDERATED MUTUAL INS. CO., Employer-Insurer/Appellants.

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 5, 2003

HEADNOTES

APPORTIONMENT - EQUITABLE APPORTIONMENT - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge=s apportionment of liability between the employee=s injuries and her award for reimbursement of benefits to the employer and insurer at the time of the employee=s second and third injuries.

Affirmed.

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

Compensation Judge: Joan G. Hallock

OPINION

MIRIAM P. RYKKEN, Judge

Hinding Heating and CNA Commercial Insurance appeal from the compensation judge=s order for reimbursement of benefits to Alliance Electric and Federated Mutual Group.  As the compensation judge=s decision is supported by substantial evidence of record, we affirm.

BACKGROUND

This claim for contribution and/or reimbursement arises from three admitted work-related injuries the employee sustained to his low back on January 10, 1989, May 19, 1998, and November 8, 2000.  On January 10, 1989, the employee was employed by Hinding Heating and Air Conditioning (Hinding), which was insured on that date for workers= compensation liability by CNA/Transcontinental Insurance Company (CNA).  On May 19, 1998, and November 8, 2000, the employee was employed by Alliance Electric (Alliance) which was insured on those dates for workers= compensation liability by Federated Mutual Insurance Company (Federated).

The employee=s initial injury occurred on January 10, 1989, while he was unloading a generator from his work van.  Born on August 15, 1954, the employee was 34 years old on that date and earned a weekly wage of $475.00.  The employee slipped and injured himself, sustaining an injury in the nature of a double inguinal hernia.  He also noted low back and radicular left leg pain.  The employee underwent hernia surgery on January 12, 1989.  A CT scan performed on that date to evaluate the employee=s low back symptoms revealed a mild central to slightly asymmetric bulge on the right side at the L5-S1 vertebral disc level.  It also revealed a mild to moderate central bulging at the L4-5 vertebral disc level, with mild narrowing of the canal at the L4-5 level as well.  Dr. Walter Bailey, neurosurgeon, initially diagnosed a lumbosacral strain and released the employee to return to work as of March 9, 1989.  However, the employee reported a flare-up of his symptoms in late March 1989, sought emergency treatment and was hospitalized for six days.   A repeat CT scan performed on March 31, 1989, showed a bulging disc at the L3-4 level, a broad posterolateral disk herniation on the left side of the L4-5 level and a broad central disc herniation at the L5-S1 level.  While hospitalized, the employee underwent physical therapy.  Based on the employee=s improved symptoms,  Dr. Bailey and Dr. Mary Dunn, also a neurosurgeon, determined no surgery was necessary.  They instead prescribed continued physical therapy.  The employee was released to return to light-duty work by at least May 17, 1989, and to his regular duties by August 8, 1989.  The employee continued to work as a journeyman electrician for approximately eight years, and received no further medical treatment for his low back condition between late 1989 and 1998.  The employee testified that his low back was pain-free during that period of time. 

Following his 1989 injury, Hinding and CNA paid the employee temporary total disability benefits, medical expenses and permanency benefits based on 9 percent disability of the body as a whole.^[1]

On May 19, 1998, the employee sustained another injury to his low back.  On that date, he was employed as an electrician for Alliance Electric, earning a weekly wage of $1,006.80.  While carrying an extension ladder in an upright position on his shoulder, he stepped into a low area or hole in the ground, lost his balance and fell to the ground.  He experienced pain in the lower right side of his back, a shooting pain into his right leg, and numbness in his right buttocks and hip.  The employee consulted his family physician, Dr. John Beall.  According to Dr. Beall=s chart note, the employee reported low back pain for the past 8 months that had worsened the past 1 2 months, and that lately he experienced pain extending into his thighs.  The employee continued to work, but eventually developed radicular pain in his right leg.  A CT scan taken on May 22, 1998, showed a moderate right sided disc herniation at the L4-5 vertebral level and narrowing of the disc space at L5-S1.  Dr. Max Zarling, neurosurgeon, examined the employee on June 17, 1998, and recommended conservative treatment, including physical therapy.  The employee=s low back and right leg pain persisted.  On September 1, 1998, the employee reported to Dr. Beall that his pain continued, and that physical therapy seemed to aggravate his pain.  The employee reported numbness and tingling on the base of both feet.  Dr. Beall diagnosed possible spinal stenosis, and restricted the employee from work for one week.  He referred the employee for a neurosurgical consultation with Dr. Jerome Kennedy, who examined the employee on September 5, 1998, and who recommended bed rest and then surgery based on the employee=s failed conservative treatment.  Dr. Kennedy performed surgery on the employee on September 11, 1998, in the nature of a right L4-5 hemilaminectomy and microdiskectomy.  By late November 1998, the employee returned to work on a light-duty basis, and by early December he returned to his regular work as an electrician, at full wage.

In a report dated January 5, 1999, Dr. Zarling opined that the employee=s herniated disc and his initial surgery in 1998 was due to the employee=s injury on May 19, 1998.  In a report dated January 18, 1999, Dr. Kennedy assigned a permanency rating of 11% permanent partial disability of the whole body,^[2] and concluded that the employee had reached maximum medical improvement (MMI) by December 3, 1998.

On November 8, 2000, the employee sustained an additional low back injury while installing a heating and air conditioning unit.  He continued to work for Alliance Electric on that date, earning a weekly wage of $1,303.16.  While installing the unit, he worked in cramped quarters, lying on his side, crawling in and backing out of a narrow duct space in a twisted fashion.  He noted an increase in his low back pain with radicular pain extending into his left hip and buttock and also noted aching and numbness in his left foot.  An MRI scan taken on November 29, 2000, showed a disc herniation centrally and to the left side of the L4-5 level.  Dr. Beall restricted the employee  from work and prescribed physical therapy.  His symptoms persisted, and on March 9, 2001, he underwent a left L4-5 hemilaminectomy and microdiskectomy, again performed by Dr. Kennedy.  Post-surgery he underwent physical therapy and work conditioning; by early July, Dr. Kennedy released him to part-time light-duty work and by July 30, 2001, to full-time work with restrictions.  The employee testified that he resumed his regular work duties.  In early September 2001 and again in November 2001, the employee reported recurring pain and numbness in his left leg after bending at work.  He was prescribed anti-inflammatory medication.  His left leg and low back symptoms persisted through November 1, 2002, the date of the last medical report in the record. 

The employee has undergone a series of independent medical examinations in part to address the issue of apportionment of liability between the employee=s three work-related injuries.  On March 4, 1999, Dr. David Boxall examined the employee at the request of Alliance Electric and Federal Mutual Group.  Dr. Boxall concluded that the employee sustained a Gillette^[3] injury which occurred as a result of his work activities in the spring of 1998 and that culminated when he went off work for his surgery in September 1998.  Dr. Boxall apportioned liability equally between the employee=s 1989 and 1998 injuries.  He based this, in part, on the employee=s initial disc protrusion following his 1989 injury being centrally located and at the same level as the surgery performed in September 1998.  Dr. Boxall concluded that the employee had sustained 11% permanent partial disability to the body as a whole,^[4] specifying that this rating represented the employee=s total rating and was not in addition to his previous permanency rating.  Dr. Boxall determined that the employee had reached maximum medical improvement from all injuries by December 3, 1998.

On September 22, 1999, Dr. John Dowdle examined the employee at the request of Hinding and CNA.  Dr. Dowdle also concluded that the employee sustained a Gillette injury culminating in September 1998, when he was taken off work for surgery.  As to the employee=s disability and need for medical treatment following his 1998 injury, Dr. Dowdle apportioned 100 percent liability to the employee=s 1998 injury.  Dr. Dowdle stated as follows:

It is my opinion that the need for care and treatment including surgery is related to [the employee=s] injury in 1998.  It is difficult to relate his current condition and disability to the 1989 injury.  He had an injury, was treated for it, and his symptoms resolved.  He was able to return to full and unrestricted work activities and did not seek medical care and treatment for approximately eight years.  He had a new injury in 1998, which caused a disc herniation and he underwent surgical treatment.  It is my opinion that 100% of his care and treatment for the 1998 injury is related to that event in 1998 and the 1989 injury is not a substantial contributing cause to his need for his care and treatment.

Dr. Dowdle concurred with Dr. Boxall=s assessment of the employee=s 11% whole body permanency rating and also concluded the employee had reached maximum medical improvement from his injuries.

Following the employee=s injury in 2000, he was re-examined by both Drs. Boxall and Dowdle, first by Dr. Boxall on September 16, 2001.  At that time the employee reported ongoing left leg complaints.  In his initial report issued in 1999, Dr. Boxall had assessed liability between the 1989 and 1998 injuries.  In his report of September 16, 2001, he advised that his previous apportionment, pertaining to the period of time between 1998 and 2000, remained unchanged.  However, Dr. Boxall concluded that after the employee 2000 injury, liability for the employee=s disability, wage loss and need for medical treatment should be apportioned only between the employee=s 1989 and 2000 injuries.  Dr. Boxall determined that there was no causal relationship between the employee=s 1998 injury and any disability and need for treatment following his 2000 injury.  Instead, he assigned 2/3 liability to the 1989 injury and 1/3 liability to the 2000 injury.  Dr. Boxall determined that the employee had reached maximum medical improvement as of August 1, 2001, when he returned to work on a regular-duty basis.  Dr. Boxall assigned restrictions and also determined that the employee had sustained 16% permanent partial disability of the body as a whole, based on his original assigned rating of 11%, and an additional 5% for the second surgery the employee underwent in 2001.

By contrast, Dr. Dowdle, who re-examined the employee on November 1, 2002, attributed the employee=s need for medical treatment and ongoing disability following his 2000 injury to that injury alone.  Dr. Dowdle concluded that,

The cause of Mr. Doesken=s disability is related to a herniated disc at the L4-5 level on the right, which occurred in 1998.  He had a gradual onset of symptoms and then persistent symptoms, ultimately requiring surgery.  It is my opinion that the November 2000 injury bears no relationship whatsoever to the 1989 injury. 

* * *

The need for care and treatment since the injury of November 2000 date is solely related to that injury.

Dr. Dowdle concurred that the employee had reached maximum medical improvement as of August 1, 2001.   He assigned a total permanency rating of 13% permanent partial disability of the whole body.^[5]

Following the employee=s injury on January 10, 1989, Hinding Heating and CNA admitted primary liability and paid worker=s compensation benefits including temporary total disability for a total of 15.6 weeks, medical expenses and benefits based on 9 percent permanent partial disability of the body as a whole.  Following the employee=s injuries in 1998 and 2000, Alliance Electric and Federated paid various workers= compensation benefits to and on behalf of the employee, including wage loss benefits, medical expenses, rehabilitation benefits and permanency benefits pursuant to a stipulation for settlement entered into with the employee in 2000.  In March 2001, Alliance Electric and Federated filed a petition of contribution and/or reimbursement, alleging that the benefits they paid to and on behalf of the employee following his 1998 and 2000 injuries (with the exception of the permanency benefits) were due all or in part to the employee=s injury in 1989.

This matter was heard before a compensation judge on December 18, 2002.  In Findings and Order served on February 20, 2003, the compensation judge apportioned responsibility for benefits paid during two periods of time.  The judge apportioned the responsibility for benefits paid after the second injury in May 1998, but before the third injury in November 2000, equally to the employee=s first two injuries in 1989 and 1998.  The compensation judge then apportioned responsibility for the benefits paid following the employee=s 2000 injury on the basis of 2/3 liability attributable to the first injury in 1989 and 1/3 liability to the third injury in 2000.  The compensation judge relied on the expert medical opinion of Dr. David Boxall in arriving at her conclusions.  Alliance Electric and CNA appeal.

STANDARD OF REVIEW

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

DECISION

The compensation judge found that the employee=s 1989 injury remains a substantial contributing cause of the employee=s condition, and apportioned liability between the employee=s  three injuries.  Hinding and CNA appeal, contending that substantial evidence does not support the compensation judge=s determinations.  Hinding and CNA=s primary argument with regard to causation of the employee=s current back problems is that Dr. Boxall=s opinion, on which the judge relied, lacks foundation.  They argue that Dr. Boxall=s opinions are not supported by the history taken from the employee at the time of his examinations, nor by his trial testimony nor by the employee=s contemporaneous medical records.  They contend that Dr. Dowdle=s opinions, on the other hand, are supported by adequate foundation, as Dr. Dowdle had available to him detailed information on the employee=s medical history, complete medical records, and scans for his review.  They also argue that Dr. Dowdle=s opinion is consistent with the employee=s testimony, that he was able to return to work post-1989, on a pain-free basis, and that the opinions of Drs. Dunn and Zarling are consistent with Dr. Dowdle=s opinions.

Adequate foundation is necessary for a medical opinion to be afforded evidentiary value.  Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991).  To be of evidentiary value, a medical opinion must rest on a factual basis.  Zappa v. Charles Mfg. Co., 260 Minn. 217, 224, 109 N.W.2d 420, 424, 21 W.C.D. 459, 467 (1961).  Furthermore, the facts upon which the expert relies for his or her opinions must be supported by the evidence.  McDonald v MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff=d (Minn. July 13, 1990).

Following his examinations of the employee on March 4, 1999, and September 16, 2001, Dr. Boxall prepared reports in which he expressed his opinions concerning the causation of the employee=s condition and his opinions as to the apportionment of liability for the employee=s condition between his various injuries.  Dr. Boxall outlined the history that he obtained from the employee concerning the location and severity of his pain and referring to the medical reports he had reviewed.  Those histories, as described by Dr. Boxall, are relatively consistent with the testimony presented by the employee at the hearing and with the medical evidence in the record, and we defer to the judge=s unique discretion to credit that evidence.  Dr. Boxall issued his opinions concerning apportionment of liability, relative both to the period between the employee=s 1998 and 2000 injuries, and after his 2000 injury, and the compensation judge found his opinions to be persuasive.

Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  As the information contained in Dr. Boxall=s reports is consistent with the evidence of record and the employee=s hearing testimony, his opinion therefore is adequately founded.  As adequate foundation existed for Dr. Boxall=s opinions, the compensation judge did not clearly err in accepting his opinion over that of Drs. Dowdle, Zarling or Dunn, as a compensation judge has considerable discretion in choosing among conflicting expert opinions.  See Nord v. City of Cook, 360 N.W.2d 337, 342-343, 37 W.C.D. 364, 372-73 (Minn. 1985).^[6]

Hinding and CNA=s additional argument with regard to causation of the employee=s  back problems since his 1998 and 2000 injuries, and apportionment of liability thereto, is that the employee=s testimony, as to his ability to work at his full duties as an electrician after his 1989 injury and as to the relief of his symptoms by mid-1989, establishes that the 1989 injury was not a  substantial contributing factor in the employee=s condition following his 1998 and 2000 injuries.  Hinding and CNA further argue that the WCCA=s standard of review requires the court to determine whether substantial evidence is contained within the record to support the compensation judge=s findings, and that A[i]n doing so, the court looks not only at the evidence which supports the compensation judge=s findings, but also at the opposing evidence and the evidence from which conflicting inferences might be drawn.@  Avenson v. State of Minnesota Ah-gwah-ching Nursing Home, 43 W.C.D. 660 (W.C.C.A. 1990). 

We acknowledge that there certainly was evidence that would have supported findings different from those reached by the compensation judge.  However, the issue on appeal is not whether evidence would support an alternative finding, but whether substantial evidence supports the compensation judge=s findings.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).  It is evident from her decision that the compensation judge was aware of the employee=s history of and treatment for symptoms since his 1989 injury and the employee=s ability to continue working for approximately eight years between that injury and his 1998 injury.^[7]  Having taken the evidence to that effect into account, the judge was nevertheless persuaded by the opinion of Dr. Boxall.  Nothing in Hinding Electric and CNA=s arguments provides any basis to overturn the judge=s choice between conflicting expert opinions.  While the judge could, certainly, have chosen to accept the opinion of Dr. Zarling, rendered on January 5, 1999, and the opinions of Dr. Dowdle, rendered in 1999 and 2002, that the 1989 injury no longer is a contributing factor to the employee=s condition and need for medical treatment after his 1998 and 2000 injuries, the judge was equally entitled to accept Dr. Boxall=s expert opinion to the contrary.  See, e.g., Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

The compensation judge=s conclusion, and her determination of equitable apportionment, are supported by substantial evidence, including the employee=s medical records.  Concluding that it was not unreasonable, we affirm the compensation judge=s award of Alliance and Federated=s request for contribution and/or reimbursement from Hinding and CNA for a portion of the wage replacement, medical benefits and rehabilitation expenses paid to the employee by Federated.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.