KENNETH L. EVANS, Employee, v. ASPHALT DRIVEWAY and HARLEYSVILLE INS. CO., INC., Employer-Insurer/Cross-Appellants, WIENSCH CONSTR. CO. and TRAVELERS PROPERTY & CAS. CO., Employer-Insurer, SEAHORSE CONDOMINIUM ASS=N and MINN. ARP/BERKLEY RISK ADM=RS, Employer-Insurer, and SEAHORSE CONDOMINIUM ASS=N and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 7, 2003

 

HEADNOTES

 

APPORTIONMENT - EQUITABLE; CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE.  Substantial evidence, including medical evidence, supported the compensation judge=s equitable apportionment of liability for the employee=s need for surgery and permanent total disability.

 

Affirmed.

 

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

Compensation Judge:  Paul V. Rieke.

 

OPINION

 

DEBRA A. WILSON, Judge

 

Seahorse Condominium Association and State Fund Mutual Insurance Company appeal from the compensation judge=s decision that the employee=s 2000 work injury is responsible for 75% of the employee=s disability.  Asphalt Driveway Company, Inc., and Harleysville Insurance cross appeal, arguing that the judge erred in concluding that the employee=s 1982 work injury was responsible for 15% of the employee=s disability.  We affirm.

 

BACKGROUND

 

The employee has a history of low back pain and treatment dating back to December 27, 1982, when he slipped on some ice in the course and scope of his employment with Asphalt Driveway Company, Inc. [Asphalt Driveway].  He received treatment for low back and radiating leg pain and was, according to medical records, off work for at least 12 to 14 weeks because he was unable to perform even light duty.[1]  One of his treating physicians, Dr. Daniel Gaither, initially diagnosed a low back strain but eventually came to suspect that the employee might Awell have a central disc or some aberrant form of disc.@  At the same time, in July of 1983, Dr. Gaither recommended that the employee return to a job Awith no repeated standing, twisting, or lifting@ and indicated that the employee had a 15% permanent partial disability of the back.  Several months earlier, another treating physician, Dr. Francis Denis, had indicated that the employee had, at minimum, a 5% permanent partial disability of the back.

 

In September of 1983, the employee entered into a stipulation for settlement with Asphalt Driveway and Harleysville Insurance, its workers= compensation insurer, closing out future wage loss claims for 100 weeks from the date of the award on stipulation and closing out permanent partial disability claims to the extent of 15% permanent partial disability of the back.  The award on stipulation was issued on September 15, 1983.

 

About a year after the settlement, in August of 1984, Dr. Denis wrote a letter ATo Whom it May Concern,@ indicating that the employee could Awork as a truck driver with no limitations.@  At some point, the employee obtained employment with a trucking line as a dispatcher and then began driving a truck owned by his then wife-to-be.  After a year or two of truck driving, the employee began a series of jobs in apartment maintenance.

 

Beginning in 1986, the employee sustained several work-related low back injuries while employed as a maintenance supervisor by Wiensch Construction.  He received chiropractic care following these injuries and his treating chiropractor eventually reported that he had a 10.5% whole body impairment due to multi-level degenerative disc disease.  The employee was subsequently involved in litigation with Weinsch over permanency and treatment expenses.  These claims were ultimately resolved by settlement.

 

In March of 1995, after working in several other apartment maintenance jobs, the employee became employed by Seahorse Condominium Association [Seahorse].  His duties there included taking care of the heating and cooling system, indoor swimming pool, lawn, and lawn care equipment.  The employee testified that the work involved a fair amount of lifting and that he did not recall having had any particular back problems when he began the job, despite his previous injuries.

 

On December 31, 1997, the employee sustained a work-related low back injury, while employed by Seahorse, when he slipped and twisted while carrying a bag of water softener salt.  The employee testified that he experienced severe low back pain and later leg pain after the incident, and he subsequently underwent extensive medical treatment, including epidural injections, over the course of the following year.  A lumbar MRI scan performed on January 28, 1998, disclosed degeneration at L4-5 and L5-S1, with no herniation, similar to results from a lumbar CT scan that had been performed in 1989, after the employee=s injuries at Wiensch.  Seahorse and its insurer on the date of the 1997 injury, the Minnesota Assigned Risk Plan [Assigned Risk], eventually paid the employee benefits for a 7% whole body impairment.  The employee did not miss any time from work following the 1997 injury but testified that his back remained sore, that he had to be very careful performing his job duties, and that his supervisor at Seahorse was very accommodating of his condition.

 

The employee=s last significant work-related low back injury occurred in June of 2000,[2] when the employee hit a dip in the ground while operating a riding lawn mower in his job with Seahorse, jarring his low back.  The employee experienced immediate low back and leg symptoms and sought treatment from Dr. Robert Heeter.  Conservative care failed to alleviate his symptoms, and, after a surgical consultation with Dr. Richard Salib, the employee underwent a two-level lumbar fusion, performed in January of 2001.  About a year later, in December of 2001, he underwent additional surgery to have hardware removed.  This procedure helped his symptoms somewhat, but the employee continued to experience significant low back and left leg pain, and most physicians offering an opinion on the issue have concluded that the employee is not capable of sustained employment due to his low back condition.[3]  Seahorse and State Fund Mutual Insurance Company [State Fund], the insurer on the risk for the 2000 injury, eventually paid the employee various benefits under a temporary order, including benefits for a 10% whole body impairment.

 

The matter came on for hearing before a compensation judge on April 22, 2003.  The primary issues were whether the employee was permanently and totally disabled due to his work-related low back condition, the extent of permanent partial disability attributable to that condition, and equitable apportionment of liability among the various employers and insurers.  Most, but not all, of the employers and insurers conceded the employee=s permanent total disability claim.  Evidence included the employee=s extensive medical records and causation and/or apportionment opinions from numerous physicians, including Drs. Paul Cederberg, Richard Hadley, Thomas Litman, John Dowdle, Mark Friedland, Sheila Seals, Jerry Reese, Richard Salib, and Robert Heeter.

 

In a decision issued on April 24, 2003, the compensation judge concluded that the employee was permanently and totally disabled as claimed.  Liability for the employee=s disability after the June 2000 injury was apportioned as follows:  15% to the employee=s 1982 injury (Asphalt Driveway and Harleysville); 10% to the employee=s 1997 injury (Seahorse and Assigned Risk); and 75% to the employee=s 2000 injury (Seahorse and State Fund).  Seahorse and State Fund appeal; Asphalt Driveway and Harleysville cross appeal.

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

 

1.  Causation - 1982 Injury

 

Asphalt Driveway and its insurer appeal from the compensation judge=s decision apportioning 15% of the employee=s disability to the employee=s 1982 work-related low back injury.  In support of their appeal on this issue, Asphalt Driveway and its insurer point out that none of the employee=s treating physicians apportioned any liability to the 1982 injury, that the employee testified that he could not remember having experienced ongoing low back symptoms after that injury, that the employee worked in physical jobs, without apparent symptoms or treatment, until his injuries working for Wiensch beginning in the mid 1980s, and that Dr. Denis had indicated in 1984 that the employee could work without restrictions as a truck driver.  Certainly this and other evidence would support the conclusion that the employee=s 1982 injury was not permanent and did not contribute to the employee=s later permanent total disability.  However, the issue on appeal is not whether the record might support some other determination but rather whether the judge=s decision is supported by evidence that a reasonable mind might accept as adequate.  See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).  In the case now before us, the record as a whole easily supports the judge=s decision on this issue.

 

Both Dr. Dowdle and Dr. Reese indicated that the 1982 injury was permanent and substantially contributed to the employee=s eventual need for surgery and resulting disability.[4]  And, contrary to Asphalt Driveway=s contention, we see no significant deficiencies in the factual foundation for either doctor=s opinion on this issue.  Moreover, it is evident from his decision that the compensation judge was well aware of the evidence tending to mitigate Asphalt Driveway=s potential liability, in that his finding on the issue reads in part as follows:

 

 

 

A preponderance of the evidence of record established that the effects of the employee=s December 27, 1982, work injury were permanent in nature.  As a result of this injury, the employee missed a significant number of weeks of work.  Ramsey County Hospital [sic] records indicate a working diagnosis of a herniated disk.  Dr. Gaither found the employee to have sustained permanent partial disability as a result of the injury and gave the employee permanent work restrictions.  Dr. Dowdle and Dr. Reese attribute a portion of the employee=s present low back problems to the employee=s work injury of 1982.  Medical records reflect the employee having occasional exacerbation and flare-ups of his low back condition.^[[5]]  The extent of this permanent injury is diminished in degree by the employee=s testimony indicating that his back was not a problem after the initial healing period for his 1982 injury; the fact that the employee was able to return to significant heavy-duty work activities; and the letter of August 18, 1984, from Dr. Denis indicating that the employee did not have ongoing physical restrictions.

 

A compensation judge=s choice between conflicting expert opinions is generally upheld unless the facts relied on by the expert are unsupported by substantial evidence in the record as a whole.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Dr. Dowdle, in particular, gave a thorough explanation of his opinion as to causation.[6]  We therefore affirm the judge=s decision on this issue.

 

2.  Apportionment - 2000 Injury

 

Seahorse and State Fund concede that the employee=s 2000 injury was permanent and substantially contributed to the employee=s need for surgery and permanent total disability status.  They argue, however, that the judge erred in concluding that the 2000 injury was responsible for 75% of the employee=s disability.  In support of this argument, Seahorse and State Fund note that none of the apportionment opinions offered into evidence attributed any more than 60% liability to the 2000 injury, and they argue that some of the apportionment opinions attributing a high percentage of liability to the 2000 injury were rendered without appropriate consideration of the responsibility of the 1982 injury.[7]  Seahorse and State Fund also argue that the compensation judge erred by failing to properly apply the equitable apportionment principles enunciated in Goetz v. Bulk Commodity Carrier=s, 303 Minn. 197, 266 N.W.2d 888, 27 W.C.D. 797 (1975).[8]  Accordingly, they argue that the judge=s decision should be modified to apportion liability for the employee=s disability as follows:  25% to the 1982 injury, 25% to the 1997 injury, and 50% to the 2000 injury -- an apportionment more in line with the opinions of Dr. Reese and Dr. Dowdle.  Again, we acknowledge that a different factfinder might have reached a different result, but we are not convinced that the judge=s decision is clearly erroneous or unsupported by substantial evidence.

 

In his finding regarding the nature of the employee=s 2000 work injury, the compensation judge noted that nearly all the experts indicated that the injury was permanent[9] and that the employee was not capable of working after that injury.[10]  The judge=s findings concerning the employee=s earlier work injuries explain why he chose to attribute less significance to those injuries and, by implication, more significance to the 2000 work injury.[11]  Other factors that support the judge=s decision include the fact that the employee was not a surgical candidate prior to the 2000 injury and the employee=s testimony that his symptoms were Aquite severe@ after the 2000 injury.

 

Equitable apportionment is not purely a medical question but is a fact question for resolution by the compensation judge.  Ringena v. Ramsey Action Programs, 40 W.C.D. 880 (W.C.C.A. 1987).  The fact that a particular apportionment decision is not based on a matching medical opinion is not grounds for reversal, Sobczak v. WalMart Stores, Inc., slip op. (W.C.C.A. Oct. 23, 2002), and, where the record would support almost any number of apportionment decisions, we will not substitute our judgment for that of the compensation judge, Giem v. Robert Trucking, 46 W.C.D. 409, 418 (W.C.C.A. 1992).  In the present case, the record, including expert opinion, amply supports the conclusion that the employee=s 2000 work injury was a very significant if not the most significant injury.  Accordingly, we affirm the judge=s decision to apportion liability for 75% of the employee=s disability to that injury.