ANITA HELGET, Employee, v. PIES, INC. and KEMPER INS. COS., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 30, 2003
HEADNOTES
CAUSATION - INTERVENING CAUSE; CAUSATION - MEDICAL EXPENSES; CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE. Where the facts in one case relied on by the appealing employer and insurer were distinguishable because the employee in that case was no longer being treated for the work injury, and where the other two cases relied on by the employer and insurer were merely affirmances of reasonable factual conclusions, the compensation judge=s implicit conclusion that the employee=s nonwork-related motor vehicle accident was not a superseding/intervening cause of the employee=s need for neck surgery was not clearly erroneous and unsupported by substantial evidence.
EVIDENCE - EXPERT MEDICAL OPINION. Where the information relied on by the doctors whose opinions were relied on by the compensation judge was reasonably complete, where those doctors had had ample opportunity to discuss with the employee her history of symptoms and care, and where the judge had indicated in his memorandum that he had carefully considered all documentary evidence submitted, the medical opinions on which the judge relied were not insufficiently founded, and the compensation judge=s choice of medical opinions on which to rely was not clearly erroneous and unsupported by substantial evidence, notwithstanding the judge=s failure to address expressly the adverse opinion in his findings and order.
Affirmed.
Determined by Pederson, J., Wilson, J., and Johnson, C.J.
Compensation Judge: Danny P. Kelly.
OPINION
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's award of payment for the employee=s neck surgery. We affirm.
BACKGROUND
On four successive occasions--June 8, 1989, August 30, 1990, October 1, 1990, and March 27, 1991--Anita Helget sustained work-related injuries to her cervical spine in the course of her employment with Pies, Inc. Ms. Helget [the employee] was twenty-nine years old on the date of the last of these injuries and was earning a weekly wage of $294.00. Pies, Inc. [the employer], and its insurer have admitted liability for all four of the injuries and have paid various benefits. In the early 1990s the employee sought treatment for her injuries at the Pilling Pain Clinic and evidently underwent three cervical MRI scansBon September 20, 1990, October 18, 1990, and October 9, 1992Ball of which were evidently read to reveal degenerated or bulging discs at C4-5 and C5-6.[1] By February 10, 1992, the employee=s family practitioner, Dr. Jerry Peterson, had restricted her to four hours of work a day and had referred her for a consultation with neurosurgeon Dr. Andrew Smith, who, on April 9, 1992, had reported to Dr. Peterson that he saw Ano clear and convincing evidence@ that the employee was a candidate for surgery for the time being but was able to Asay definitively . . . that [the employee] has the signs and symptoms consistent with a chronic cervical sprain syndrome.@ By July of 1992 the employee had commenced treatment with chiropractor Dr. Mark Brewer, with whom she continued to treat until March of 1993, when Dr. Brewer indicated that she had reached maximum medical improvement [MMI] with regard to her work injuries. The employee has never worked full time since the first of her work injuries, in 1989.
On July 12, 1993, the parties executed a Stipulation for Settlement, closing out on a full, final, and complete basis all claims for permanent partial disability benefits to the extent of 19% of the body as a whole, and a compensation judge=s award on that stipulation was filed on July 15, 1993. On October 28, 1993, the employee, still symptomatic, underwent a functional capacities evaluation [FCE], which confirmed her restriction to four hours of work a dayBor twenty hours a week--and restricted her also from lifting over ten pounds and from carrying over fifteen pounds. A year and a half later, in March of 1995, the employee underwent a second FCE, consequent to which she was restricted to working no more than twenty-seven hours a week and to lifting no more than about sixteen pounds. The report indicated also that the employee had had chronic cervical and shoulder pain for about four years and that her symptoms had worsened. About that same time, the employee recommenced treatment with Dr. Brewer.
The employee apparently continued to treat with Dr. Brewer on an as-needed basis through January 11, 2002. In his treatment records for the latter date, Dr. Brewer noted that the employee was at that time in Aobvious distress, moves body as unit, shuffling gate@ and that she had bilateral spasm and tenderness in her head and shoulder area. Having treated the employee with various treatment modes, including manual manipulation, electronic muscle stimulation, traction, trigger point therapy hot packs, and ice, and with the employee=s symptoms now having come to include radicular low back pain in addition to her neck and shoulder pain, Dr. Brewer prescribed a home exercise program and referred the employee to pain and rehabilitation specialist Dr. A. V. Anderson.
On January 12, 2002, the employee was involved in another nonwork-related car accident. She apparently returned to see Dr. Brewer on that same date, and three days later, on January 15, 2002, she saw Dr. Anderson, on referral from Dr. Brewer. Upon examination of the employee and review of her history and medical records, Dr. Anderson diagnosed acute sprain/strain of the employee=s left shoulder and all levels of the employee=s spine due to the January 12 motor vehicle accident [MVA], cervicogenic muscle contracture headaches, and A[s]ignificant aggravation of previous injury.@ Noting that the employee=s neck pain level had escalated dramatically since the accident, Dr. Anderson recommended that the employee continue with chiropractic care. With reference to the employee=s work injuries ten years earlier, Dr. Anderson concluded that it was Alikely that she is more susceptible to injury following the injuries a decade ago@ and that there had Amost likely been significant additional injury, as well as aggravation of previous injury.@ The employee was evidently off work for about a month following the accident, and on February 19, 2002, she underwent an MRI scan of her cervical spine, ordered by Dr. Anderson, due in part to continuing Asignificant problems@ in her head, neck, and left arm. The scan was read to reveal in part A[s]evere degenerative disc disease at C4-5 and C5-6 with broad based chronic moderate central disc protrusions which extend into the intervertebral nerve root canals and are associated with uncinate spurring,@ a condition read to result in certain mild to moderate spinal stenosis at both C4-5 and C5-6.
On February 26, 2002, the employee was examined for the insurer on the risk for the January 12 MVA by orthopedic surgeon Dr. Charles Hartz. Upon a detailed physical examination and review of medical records from Dr. Brewer and Dr. Anderson, Dr. Hartz diagnosed A[m]usculoligamentous sprain/strain injury of the lumbar spine due to the motor vehicle accident of January 12, 2002 and aggravating the pre-existing cervical spine chronic problem, still active at this point and unpredictable as to the extent or duration both in the cervical and lumbar spine.@ Dr. Hartz indicated in part that Athe limited movement of the cervical spine support[s] the pre-existing chronic problem with the neck,@ concluding that the employee should continue permanently to be restricted to thirty pounds lifting, noting that A[t]his is related to a pre-existing neck problem, and not the January 12, 2002 motor vehicle accident.@
On April 4, 2002, with the employee=s neck and low back symptoms continuing, Dr. Anderson prescribed continued use of various medications and referred the employee to orthopedic surgeon Dr. David Holte. On April 3, 2002, the employee underwent another MRI of her cervical spine, which was read to reveal small dorsal tears and minimal bulging from C3-4 to C5-6, but no disc herniation, pathological bulging, or neural compression. On April 9, 2002, upon examination and review of the employee=s MRI scan and other medical records, it was Dr. Holte=s assessment that, in addition to probable lumbar disc herniation at L4-5 secondary to the January 12 car accident, the employee was subject to degenerative discs at C5-6 and C4-5 Awith previous injury in 1989 and exacerbated by motor vehicle accident in 01-02 with chronic neck pain and some left arm radiculopathy.@ The doctor indicated that he was ordering copies of the employee=s old radiological studies, noting that the employee=s husband had grown concerned Abecause [the employee] has gotten significantly worse over time.@ When he saw the employee a second time on May 21, 2002, Dr. Holte diagnosed A[m]echanical neck pain with superimposed cervical sprain and strain secondary to motor vehicle accident and initial injury being a work related injury.@ Thereupon he recommended, Abecause of the longstanding nature of her symptoms and obvious disc abnormalities,@ that the employee undergo an anterior cervical discectomy and fusion at C4-5 and C5-6.
On June 10, 2002, the employee=s pain level was reported by Dr. Anderson to be still at a level 6 or 7 out of 10. On June 19, 2002, the employee was examined again by Dr. Hartz. In his report on that visit, Dr. Hartz indicated that the employee=s neck complaints were supported by MRI findings and findings of muscle weakness, limited range of motion, and spasm, Aall of which pre-existed the January 12, 2002 motor vehicle accident.@ AThe only condition resulting from the [January 12, 2002] motor vehicle accident,@ he went on, Awas a temporary aggravation of [the employee=s] cervical spine and also a temporary lumbar sprain/strain injury that has resolved.@ Further, AAny further medical or chiropractic treatment is related to the pre-existing work injuries of the cervical spine that were present before the motor vehicle accident of January 12, 2002.@ Dr. Hartz affirmed the employee=s current restrictions, including a restriction apparently to nine hours of work a week, indicating again that these restrictions were Adue to [the employee=s] pre-existing condition and not related to the January 12, 2002 motor vehicle accident.@ On July 16, 2002, the employee filed a Medical Request, seeking payment for the cervical discectomy and fusion at C4-5 and C5-6 that had been recommended by Dr. Holte. On August 5, 2002, the employee was examined again by Dr. Anderson, who noted that surgery was
an option at this point. It is my opinion that the work injury set this in motion, with a substantial aggravation by the accident of 1-12-2002. [The employee] does feel that she is nearly back to or close to the pre 1-12-2002 pain status, with the exception of some flareups that occur.
On September 30, 2002, the employee testified by deposition, in part that she continued to experience pain in the same area of her neck where her pain had been located prior to her January 2002 MVA. She testified that that pain had, however, increased from a level 4 or 5 before the accident, on a scale of 1 to 10, to a level 5 or 6 after the accident, to which level it had subsided from a more severe level by about two months after the accident. She testified that, subsequent to the accident, she could no longer lift weights over thirty pounds above eye level at all, whereas, before the accident, that activity had been growing increasingly difficult but was still possible.
On October 8, 2002, the employee was examined for the employer and insurer by neurosurgeon Dr. Mark Larkins. After examination of the employee and review of her medical records, Dr. Larkins concluded that the employee=s neck and other complaints were related to her January 12, 2002, MVA and were unrelated to any of her four work injuries with the employer.
On November 8, 2002, the employee=s attorney wrote to Dr. Holte, requesting his
specific opinion regarding whether in your opinion the August 3, 1990 and March 27, 1991 work injuries are a substantial contributing factor [in the employee=s] need for surgery. Note that the injuries do not have to be the only factor or even the most substantial contributing factor, but need only be a substantial contributing factor [in] her need for surgery.
(Italics in original.) Dr. Holte replied on November 22, 2002, reiterating his recommendation of the surgery and indicating also the following:
It is my opinion that the work-related injury was a significant contributing factor in [the employee=s] ongoing complaints of neck pain over the last 10 years. Therefore, it would be my opinion to a reasonable degree of medical certainty that her need for surgery at this time is also related to her work injury.
Dr. Holte indicated further that employee=s February 19, 2002,
MRI scan did not show any acute changes. The MRI scan only showed the chronic changes that had been probably present for the last ten years and would be more associated with [the employee=s] injuries of 1990 and 1991. In my opinion, to a reasonable degree of medical certainty, the motor vehicle accident was not a substantial contributing factor leading to her need for surgery.@
The matter came on for hearing on November 27, 2002. The sole issue at hearing was whether the anterior cervical discectomy and fusion at C4-5 and C5-6 recommended by Dr. Holte was causally related to the employee=s June 8, 1989, work injury, her August 30, 1990, work injury, her October 1, 1990, work injury, and/or her March 27, 1991, work injury. At hearing, the employee testified in part that there was never any time between about 1995 and September 2001 when she did not have any neck or left arm or shoulder pain. On direct examination she testified also that her symptoms following the January 12, 2002, accident returned to their pre-accident level about three or four weeks after the accident, and on cross examination she testified that they returned to that level about two months after the accident and then, after about two more weeks, gradually got worse again. By Findings and Order filed December 23, 2002, in express reliance on the opinions of Dr. Holte, the compensation judge concluded that the employee=s work injuries were a substantial contributing cause of her need for the recommended fusion surgery, and he ordered payment for that surgery accordingly. The employer and insurer 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
The compensation judge concluded that the employee=s work-related injuries with the employer were a substantial contributing cause of the employee=s need for the discectomy and fusion at C4-5 and C5-6 recommended by Dr. Holte. The employer and insurer contend on appeal (1) that substantial evidence does not support the judge=s implicit conclusion that the employee=s January 12, 2002, nonwork-related MVA was not a superseding/intervening cause of that need for surgery, and (2) that the medical opinion upon which the judge relied was inadequately founded and otherwise unreliable.
1. Superseding/Intervening Cause
The compensation judge concluded that the employee=s work injuries were a substantial contributing cause of her need for the fusion surgery recommended by Dr. Holte--in effect that the employee=s nonwork-related MVA on January 12, 2002, was not a superseding/intervening cause of that need. Emphasizing that the employee=s symptoms were substantially increased following the MVA, the employer and insurer contend that this latter conclusion was unsupported by substantial evidence, arguing from three precedents in case law. We are not persuaded.
The supreme court has held that, Awhere an industrial accident creates a permanently weakened physical condition which an employee=s subsequent normal physical activities may aggravate to the extent of requiring additional medical or hospital care, such additional care is compensable,@ except in Asituations where aggravation of the original injury requiring additional medical or hospital care is the result of such unreasonable, negligent, dangerous, or abnormal activity on the part of the employee that it can be said that such additional care was not a natural consequence flowing from the primary injury.@ Eide v. Whirlpool Seeger Corp., 260 Minn. 98, 102, 109 N.W.2d 47, 49-50, 21 W.C.D. 437 441 (1961) (citations omitted). The issue in intervening cause cases is not merely whether the intervening injury or condition is itself a substantial contributing cause of the employee=s subsequent disability but whether that intervening injury or condition has broken the causal connection between the employee=s work injury and that disability. See Hughes v. Karps Twin City Supply, slip op. (W.C.C.A. Nov. 27, 1996). If the work injury continues to be a substantial contributing cause of the employee=s disability, the intervening injury or condition will not relieve the employer and insurer of liability for benefits, and the burden of proving an intervening cause of the disability at issue is on the employer and insurer. Id.
The employer and insurer first cite the supreme court=s decision in Wallace v. Judd Brown Construction, 269 Minn. 455, 131 N.W.2d 540, 23 W.C.D. 362 (1964), in which the court reversed an award of benefits to an employee who had fractured his left femur in a nonwork-related fall, just above the area of his knee that had been rendered rigid due to a work-related injury five years earlier. In reversing a finding of causation by the work injury, the court in Wallace explained as follows:
[T]he subsequent [nonwork-related] injury was the result of the breaking of [a] two-by-four on which the [employee] stood. [The employee=s] previous [work-related] injury had absolutely nothing to do with the occurrence which caused his fall. If his stiff leg had caused him to fall, we might well have a different case, but no one contends that his disability had anything to do with the breaking of the two-by-four. The most that can be said is that the medical evidence will sustain a finding that once he had fallen he was more likely to sustain an injury because his stiff leg would not absorb a shock as well as a normal leg; but in determining causal relationship it would seem that we must look to the occurrence that made the injury possible rather than to the result that followed.
Id., 269 Minn. at 460-61, 131 N.W.2d at 544-45, 23 W.C.D. at 369-70 (footnote omitted). The mere fact, however, that the knee of the employee in Wallace was still rigid from the work injury at the time of the nonwork-related fall does not equate the facts in that reversal, in which the knee was otherwise fully healed and no longer being treated, with the facts in the present case, in which the employee, at the time of her nonwork injury, was still apparently unhealed and continued to be treated. The supreme court itself distinguished the facts in Wallace from those in Eide, in which benefits were held due, emphasizing that in Wallace, contrary to facts in the Eide, Atreatment [of the work-related injury] had come to an end.@ Id., 269 Minn. at 462, 131 N.W.2d at 545, 23 W.C.D. at 372.
The employer and insurer argue also from the cases of Gaspers v. Minneapolis Elec. Steel Castings Co. 290 N.W.2d 743, 32 W.C.D. 266 (Minn. 1979), and Austin v. Coca-Cola Bottling Midwest, slip op. (W.C.C.A. Aug. 6, 1991). In Gaspers, the employee had reinjured himself in a roller skating accident eight years after his work related back injury. The supreme court in that case affirmed a conclusion of this court that, because the employee=s back had stabilized subsequent to his work injury and the employee was able to live essentially normally for a several years thereafter, the compensation judge=s award of benefits was unsupported by the evidence. In Austin, the employee reinjured himself in a nonwork-related automobile accident six years after his work-related back injury, and two years later he required repeated back surgeries. In that case, this court affirmed a compensation judge=s finding that the automobile accident was a superseding/intervening cause of the employee=s need for the surgeries, in part because it was not until after the automobile accident that the employee showed evidence of possible nerve involvement. Superseding/intervening causation is a very fact-driven issue, however, and, both of these cases being merely affirmances of factual conclusions, neither Gaspers nor Austin are of much precedential value, particularly toward the end of reversing a contrary factual conclusion.
Finding the judge=s decision not unreasonable under the facts of this case, we affirm the implicit conclusion of the compensation judge that the employee=s January 12, 2002, MVA was not a superseding/intervening cause of her need for the surgery here at issue. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
2. Medical Evidence
The employer and insurer contend also that substantial evidence does not support the compensation judge=s reliance on the expert causation opinion of Dr. Holte and on the expert surgical opinion of Dr. Hartz in awarding payment for the employee=s cervical discectomy and fusion surgery. In support of their position, they cite the case of Palmquist v. Onan Corp., slip op. (W.C.C.A. Dec. 12, 1991), in which this court reversed a compensation judge=s award of benefits that had been made in reliance on an insufficiently founded and insufficiently explained expert opinion as to causation. The employer and insurer argue that, because the employee=s attorney=s solicitation of Dr. Holte=s causation opinion included the Alegal threshold analysis@ standard as to the causation in workers= compensation matters, Dr. Holte=s causation opinion was Acertainly flaw[ed]@ and Aof little evidentiary value.@ They argue further that the employee=s attorney=s background letter to Dr. Holte Amisrepresents and perverts the employee=s deposition testimony@ about the history of her symptoms. They contend that the employee=s documented medical history is not sufficiently referenced in either the reports of Dr. Holte or the reports of Dr. Hartz to adequately support their opinions. Finally, noting no reference to Dr. Larkins= opinion in the judge=s decision, they argue that the compensation judge apparently disregarded entirely the contrary causation and surgical opinions of Dr. Larkins, contrary to law. We are not persuaded.
In requesting the causation opinion of Dr. Holte, the employee=s attorney emphasized that, in order to be compensable, Ainjuries do not have to be the only factor or even the most substantial contributing factor, but need only be a substantial contributing factor [in the employee=s] need for surgery@ (underscoring in original). We see nothing in this communication that is in any way contrary to the standard that workers= compensation courts themselves have long applied in assessing causal relationship in Minnesota workers= compensation matters. We see no reason at all why doctors should not be aware of that standard as they make their own assessments; indeed, we find it quite appropriate that doctors be aware of it.
The employer and insurer contend also that, in his background letter, the employee=s attorney inaccurately informed Dr. Holte that the employee Arecently testified at her deposition that she experienced a temporary increase in symptoms but that within a few months of the date of her motor vehicle accident, her condition was back to where it was and has been since 1990.@ They argue that the employee=s deposition testimony placed this return to baseline symptomology at three to four weeks post accident, instead of within a few months post accident, and that this inconsistency is made still more suspicious by the employee=s later hearing testimony, that the return to baseline occurred between four and six weeks or A[p]robably two months@ after the accident. We consider these inconsistencies to be, after all, fairly minor, any of the various spikes in symptomology reflecting, indeed, the Atemporary@ increase in symptoms that the employee=s attorney represented to Dr. Holte.
The employer and insurer argue also that both Dr. Holte=s causation opinion and Dr. Hartz=s surgical opinion are without proper foundation in light of their reports= lack of reference to all four of the employee=s work injuries. In his reports prior to his November 22, 2002, formal causation opinion, Dr. Holte had referenced only the 1989 work injury, in his formal causation opinion he had referenced only a 1990 and the 1991 work injury, and the employee=s attorney, in his November 8, 2002, background information letter to Dr. Holte, mentioned only the August 3, 1990, and March 27, 1991, work injuries, not the other two. Given such facts, the employer and insurer argue, Dr. Holte=s causation opinion is without adequate foundation. Similarly, the employer and insurer argue, Dr. Hartz=s reports reference only the employee=s 1991 injury, review no medical records other than Dr. Brewer=s and Dr. Anderson=s records, inaccurately report the amount of time that the employee is currently working, and do not venture a causation opinion along with the surgical opinion. We conclude, however, that both Dr. Holte and Dr. Hartz had ample opportunity to review with the employee the history of her injuries, her condition, her care, and her symptoms. The employee testified that she discussed this history with Dr. Holte, and we accept the compensation judge=s conclusion that the employee=s entire testimony was credible. See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978). The fact that Dr. Holte and/or Dr. Hartz may not have mentioned every fact of which they were aware does not invalidate their opinions. See Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994) (while adequate foundation is necessary for a medical opinion to be afforded evidentiary value, the expert need not be made aware of every relevant fact).
The employer and insurer argue finally that the compensation judge appears to have entirely disregarded the adverse medical opinion of Dr. Larkins. The compensation judge stated in his memorandum, however, clearly and expressly, that he had Acarefully considered the entire record in this matter, including the testimony at trial, the documentary evidence submitted, and also the arguments ably presented by counsel for each of the parties@ (underscoring added), and we accept that assertion by the judge, particularly in light of the sufficiency of the remainder of the medical record as support for the judge=s decision. 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 the opinions relied on to have been based on no false premises, we uphold as reasonable the compensation judge=s decision to rely on Dr. Holte=s opinion that the employee=s 1989, 1990, and 1991 work injuries were substantial contributing causes of the employee=s need for the surgery to her cervical spine that is here at issue. Id.
Because it was not unreasonable for the judge to implicitly conclude that the employee=s January 12, 2002, nonwork-related MVA was not a superseding/intervening cause of the employee=s need for the surgery at issue, and because it was not unreasonable for the judge to rely on the expert opinions of Dr. Holte and Dr. Hartz, we affirm the compensation judge=s award of payment for the surgery here at issue. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.