CRAIG FARDEN, Employee/Appellant, v. GARELICK STEEL CO., INC., and VIRGINIA SURETY/CRAWFORD & CO., Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 6, 2003

 

 

HEADNOTES

 

CAUSATION - AGGRAVATION.  Substantial evidence, including expert opinion, adequately supported the judge=s decision that the employee=s need for total hip replacement surgery was not causally related to his alleged work injury.

 

Affirmed.

 

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

Compensation Judge:  Catherine A. Dallner.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s decision that the employee=s need for total hip replacement surgery is not causally related to the employee=s work activities on September 14, 2001.  We affirm.

 

BACKGROUND

 

The employee has a history of performing physically strenuous labor since leaving school, including fifteen or sixteen years as a steel salesman for several different employers.  He began working as a steel salesman for Garelick Steel Company, Inc., the employer herein, in February of 2000.  The employee testified that this job required him to be on his feet all day and to do a substantial amount of lifting, bending, and twisting to fill steel orders for customers.

 

Conflicting evidence was offered concerning events occurring on September 14, 2001, the date of the employee=s alleged work injury.  The employee testified that, at about 4:00 p.m., he slipped while climbing out of a bobcat at work, twisting his back, right hip, and right leg before catching himself.  He did not actually fall.  He further testified that he experienced immediate knee pain and that he reported the incident to his yard foreman and then to office personnel when his right hip Alocked up@ while he was waiting for a ride home from Vicki Stromgren, his then girlfriend.  Ms. Stromgren, with whom the employee had broken up by the time of trial, testified that she saw the employee slip from the bobcat when she met him for lunch that day but that he did not seem to have hurt himself at the time, that he went back to work after lunch, and that he then called her for a ride later, after work, at about 5:00, from a bar near the employer=s premises.  When she arrived to pick him up, she testified, the employee was crying from pain, and she took him to a hospital.  In any event, the employee was seen in the emergency room of North Memorial Hospital at 7:10 p.m. on September 14, 2001, complaining of right back and hip pain after Astepping off bobcat slipped twisted.@  The examining doctor diagnosed right hip and back strain and discharged the employee with crutches, medications, and instructions to remain off work for three days.

 

On September 19, 2001, the employee was seen at Lund Chiropractic for complaints of low back pain, especially on the right, which he reported had begun when he Aslipped while getting out of a bobcat . . . while at work, [d]evelop[ing] pain and stiffness in his [right low back] as the day progressed.@  The treating chiropractor noted right Aglut@ spasm, among other findings, and diagnosed acute lumbar and sacroiliac sprain/strain.  The employee subsequently received additional chiropractic treatment on September 21 and 24, 2001; notes from those visits indicate that his symptoms were beginning to improve.

 

However, also on September 24, 2001, the employee was seen by Dr. Jennifer Huebner, at North Memorial Clinic, complaining of right hip and right knee pain over the past ten days, which had become severe after he ran out of medication.  Dr. Huebner=s report from this evaluation describes the incident in which the employee slipped at work.  After examining the employee, Dr. Heubner restricted him to seated, part-time work, advised him to continue using crutches, and prescribed additional medication for Aright hip sprain@ and Aright knee medial collateral ligament strain versus medial meniscus tear.@  Dr. Huebner also noted that right hip and knee x-rays were normal on initial reading and indicated that the employee=s hip and knee conditions were work-related.

 

On September 27, 2001, the employee began physical therapy, on referral from Dr. Heubner, for low back, hip, and knee pain.  By October 10, 2001, the employee was reporting that his knee symptoms were much better but that he was still experiencing significant deep pain in his right hip joint.  Suspecting possible bursitis, Dr. Huebner referred the employee for an orthopedic  evaluation.  An MRI of the employee=s right hip, performed on November 12, 2001, disclosed avascular necrosis of the right femoral head with a Aslight flattening of the superolateral surface from subchondral fracture.@  Given the MRI results and the employee=s continuing severe hip symptoms, the employee=s physicians recommended a total hip replacement.  The surgery was scheduled for March of 2002 but then postponed when it was discovered during a pre-op exam that the employee had numerous broken teeth and possible dental abscesses; the employee=s surgeon wanted his dental condition, and any attendant infection, addressed prior to surgery.  At some point, the employer and insurer refused to pay for the recommended hip replacement.

 

The matter came on for hearing on October 2, 2002, for resolution of the employee=s claim that he required total hip replacement surgery as a result of a September 14, 2001, work injury.  Documentary evidence submitted at hearing included the employee=s medical records, the deposition and reports of Dr. Robert Wengler, the employee=s independent examiner, and the reports of Dr. Mark Engasser, the employer and insurer=s independent examiner.  Both doctors agreed that the employee=s underlying avascular necrosis was not causally related to the work injury but was instead probably caused by the employee=s alcohol abuse.  However, Dr. Wengler concluded that the slip at work had caused the subchondral fracture, while Dr. Engasser indicated that the fracture had occurred later due to gradual deterioration from the underlying avascular necrosis itself.  As such, the doctors differed as to whether the employee=s need for surgery was causally related to the September 14, 2001, work incident.

 

Both the employee and Ms. Stromgren testified at hearing.  In addition to raising questions about some of the employee=s account of the alleged September 14, 2001, work injury, Ms. Stromgren testified that the employee had injured his back a few days prior to September 14, 2001, while helping to shingle a friend=s roof, and that the employee had indicated at that time, in response to a question about his back symptoms, that he was Aundecided@ as to whether he was going to claim that the injury had occurred at work.  Ms. Stromgren also testified about the employee=s alcohol use and other subjects intended to cast doubt on the employee=s testimony on a variety of subjects.  The employee=s attorney, in turn, attempted to impeach Ms. Stromgren with certain evidence concerning the circumstances of her break-up with the employee in early 2002 and her subsequent decision to contact the employer about the employee=s worker=s compensation claim.

 

In a decision issued on November 8, 2002, the compensation judge denied the employee=s claim for total hip replacement surgery on causation grounds.  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, [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=s finding as to causation reads as follows:

 

4.  The employee=s work activities of September 14, 2001 were not a substantial or material aggravating, accelerating or precipitating cause/factor to the underlying condition of avascular necrosis to the point of causing a fracture and/or causing the condition to become symptomatic leading to the recommendation for a right total hip arthroplasty.  The employee has not met his burden of proving by a fair preponderance of the credible evidence that his work activities of September 14, 2001 were a substantial or material aggravating, accelerating or precipitating cause/factor to the underlying condition of avascular necrosis to the point of causing a fracture and/or causing the condition to become symptomatic leading to the recommendation for a right total hip arthroplasty.

 

In her memorandum, the judge went on to explain why she accepted the causation opinion of Dr. Engasser over that of Dr. Wengler, noting that Dr. Wengler had assumed that the employee had sustained the subchondral fracture when he twisted his leg while stepping off the bobcat, in apparent contradiction to the fact that initial x-rays were negative, whereas Dr. Engasser reported, more consistent with the x-ray evidence, that the fracture had occurred later, due, in his opinion, to microtrauma resulting from the employee=s underlying avascular necrosis.  The judge also discussed why she found the employee to be lacking in credibility with respect to when he traveled to do the roofing job for a friend and with respect to how much alcohol he consumed.  The employee contends that the compensation judge erred in her credibility assessments and in rejecting his claim on causation grounds, arguing that Ms. Stromgren was hardly a disinterested witness, that there is no evidence that the employee had ever experienced hip symptoms prior to the September 14, 2001, work incident, and that even Dr. Engasser=s opinion arguably supports a finding of compensability.  Although the employee=s arguments may have some merit, we cannot conclude that the judge=s decision is clearly erroneous or unsupported by evidence that a reasonable mind might accept as adequate.

 

We note initially that we are not entirely certain as to the judge=s purpose in discussing the employee=s credibility, especially in such detail.  Part of that discussion concerned the Aback@ pain that the employee had allegedly developed while helping on the roofing job, which the judge concluded occurred prior to September 14, 2001.  However, while it is possible that the judge intended to imply that she did not believe that the employee had actually injured his hip stepping off the bobcat, she made no finding or express conclusion to that effect in her decision.  Similarly, she made no findings rejecting the employee=s contention that the employee had never experienced right hip symptoms prior to September 14, 2001, nor did the judge indicate that the Aback@ pain related to the roofing incident was in reality hip pain, a possibility raised by Dr. Wengler=s testimony that low back and hip pain can easily be confused.^[1]  However, our concerns about the judge=s credibility discussion notwithstanding, we are satisfied that Dr. Engasser=s opinion reasonably supports the judge=s ultimate denial of the employee=s claim.

 

In his September 10, 2002, report, Dr. Engasser stated,

 

Certainly, given the mechanism of injury, I would not expect such an incident to cause, aggravate, or accelerate the condition of avascular necrosis.  Most likely the [the employee=s] symptoms on 9-14-01 are a manifestation of an underlying atraumatic condition not caused by the  work injury . . . .  I feel that at most he sustained a minor strain to his low back and right hip as a result of [that incident].

 

Later in that same report, Dr. Engasser wrote that the employee=s Adisability and restrictions are related to his avascular necrosis and not due to any specific incident of September 14, 2001,@ and that the findings shown on the November 2001 MRI Awould generally be expected to occur over a period of many months versus only approximately two months . . . . I do not feel that [the employee=s] right hip condition is due to trauma.@  In a follow-up report dated September 30, 2002, Dr. Engasser reiterated his opinion that the employee had experienced a progressive deterioration in his condition due to the underlying avascular necrosis and that the subchondral fracture was not caused by the alleged  work incident.  We concede that some statements in Dr. Engasser=s reports suggest that the work incident may have played some role in the employee=s hip condition.^[2]  However, it can reasonably be inferred, from the reports of Dr. Engasser and from the testimony of Dr. Wengler, that it is primarily the subchondral fracture that has necessitated the proposed total hip replacement surgery.^[3] Because the record reasonably supports the compensation judge=s determination that the subchondral fracture is not causally related to the employee=s alleged work injury, it follows that the requested operation is not compensable.  The fact that the work incident may have produced some pain does not necessarily mean that the incident was a substantial contributing cause sufficient to impose liability on the employer and insurer for the procedure in question.

 

A judge=s choice between conflicting expert opinions is generally upheld unless the facts assumed by the expert are unsupported by the record.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Because Dr. Engasser=s reports, as a whole, adequately support the judge=s decision that the employee=s need for total hip replacement surgery is not causally related to the alleged work incident of September 14, 2001, we affirm the judge=s denial of the employee=s claim.