DAVID A. JOHNSON, Employee/Appellant, v. WELLS CONCRETE PRODS. and TRAVELERS PROPERTY & CASUALTY, Employer-Insurer, and RAINBOW FOODS/FLEMING COS. and INSURANCE CO. OF N. AM., Employer-Insurer, and MN DEP=T OF HUMAN SERVS. and MAYO FOUND., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 24, 2003

 

HEADNOTES

 

CAUSATION - MEDICAL EXPENSES - SUBSTANTIAL CONTRIBUTING CAUSE.  Substantial evidence, including expert opinion, supports the compensation judge=s determination that neither his 1978 nor 1999 right knee injury substantially contributed to the employee=s need for surgery in 2001.    

 

Affirmed.

 

Determined by Rykken, J., Wilson, J., and Stofferahn, J.

Compensation Judge: Carol A. Eckersen

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s findings that neither his March 3, 1978, or claimed November 30, 1999, right knee injury represents a substantial contributing cause of the employee=s need for right knee surgery, and from the compensation judge=s denial of the employee=s claims for temporary total disability benefits and payment of medical expenses for treatment of his right knee.  We affirm. 

 

BACKGROUND

 

David A. Johnson, the employee, sustained multiple work-related injuries while employed by Wells Concrete Products (Wells Concrete) between 1978 and 1993.  Those injuries were to both knees, his low back, neck, right shoulder, right arm and right elbow.  The employee also claims that he sustained a work-related injury to his right knee on November 30, 1999, while employed by Rainbow Foods/Fleming Companies (Rainbow).  The employee=s claim on appeal concerns his admitted right knee injury which he sustained at Wells Concrete on March 3, 1978, and his right knee injury which he claims to have sustained on November 30, 1999, at Rainbow. 

 

The employee worked for Wells Concrete as a laborer for 18 years between 1976 and 1994.  On November 14, 1977, he consulted his treating physician, Dr. G. C. Wilcox, reporting a Acatch@ in his right knee.  Dr. Wilcox found no structural damage on examination, and diagnosed a bruised knee.  X-rays taken on that date were normal.  On March 3, 1978,^[1] as the employee stepped down off a piece of equipment at Wells Concrete, his right foot hit the side of a clump of dried concrete on the floor, and he twisted his right knee.  Dr. Wilcox noted in his chart note of March 6, 1978, that the employee=s medial meniscus very likely was dislodged or traumatized. He recommended an arthrogram and more definitive treatment if symptoms persisted.    The employer and insurer at that time, Home Insurance Company, accepted primary liability for this injury and paid medical expenses and temporary total disability benefits from March 9-13, 1978; Dr. Wilcox released the employee to return to work by March 14, 1978.

 

The employee eventually returned to his regular labor position.  Other than a 1991 medical chart note referring to bilateral knee pain, the record contains no references to further medical treatment for the employee=s right knee between 1978 and 1994.  In 1991, the employee underwent arthroscopic surgery to his left knee to repair a posterior medical meniscal tear.  He testified that since his 1978 injury, he has experienced intermittent ongoing symptoms and problems with his right knee, which he identified as pain and stiffness, a Alocking@ sensation, swelling, and a Agive-away@ feeling in his right leg.  By 1993, the employee was no longer able to work at Wells Concrete due to the effects of his multiple work-related injuries.

 

In 1994, the employee, employer, and the insurers who insured the employer for workers= compensation liability between 1978 and 1993, entered into a stipulation for settlement whereby the employee=s claim for benefits related to injuries at Wells Concrete between 1978 and 1993 were settled on a full, final and complete basis.  Under the terms of that settlement agreement, one of the insurers, Aetna Life and Casualty (predecessor company to Travelers Property and Casualty (Travelers)) assumed future liability for medical expenses to all injured body parts irrespective of the date of injury, subject to defenses it reserved as to the reasonableness, necessity and causal relationship of future medical treatment.^[2]

The employee testified that after he left the employ of Wells Concrete in 1993, he did not work for approximately four years, and that he has occasionally experienced stiffness, soreness and locking in his right knee and a sensation that his knee was Agiving way;@ he testified that he always has had Alittle aches and pains.@  The employee=s medical records since 1994 corroborate the employee=s report of ongoing symptoms. 

 

In May 1997, the employee began working for Nelson Foods, a predecessor company to Rainbow Foods.  He stocked groceries, primarily walking and standing during his work shift, and carrying 15-40 pound containers.  The employee noted increased stiffness, soreness and swelling in both knees.  While working at Rainbow, the employee=s right knee locked more frequently, he was more sore, and he noticed more grinding in his right knee.  By the time he had worked for Rainbow for three years, his right knee ached and locked on a daily basis. 

 

The employee testified, and his medical records confirm, that he noted two incidents or injuries to his right knee in November 1999.  On November 14, 1999, the employee awoke with increased right knee pain and swelling, and could not put weight on his leg.  Dr. E. R. Shaman, his treating physician at Albert Lea Medical Clinic - Mayo Health System, prescribed crutches, a long leg brace and medication, and also recommended an MRI scan to evaluate possible internal derangement in the right knee.  The employee remained off work for two weeks, and returned to work on November 29, 1999, but walked with a limp and sore right knee.   The next day, November 30, 1999, he fell approximately five feet off the back of a semi-trailer truck at a loading dock, landing on his feet and rolling to the ground on his right side and back.  He noted severe pain and swelling in his right knee.  He ultimately underwent an MRI scan on December 16, 1999, which showed a complete and complex tear involving the posterior horn of the medial meniscus.  At Dr. Shaman=s referral, the employee was examined by an orthopedic surgeon, Dr. Ciota, who recommended right knee surgery.  The employee testified that he requested authorization for payment of surgical expenses, but such authorization was denied by Travelers.  By approximately two weeks after his fall on November 30, 1999, the employee=s acute right knee symptoms had subsided somewhat, although he still felt a grinding sensation in his right knee.   In March 2000, the employee shifted to janitorial work, which he found to be physically easier than his previous grocery stocking position. He testified that he continued to work and delayed his surgery until March 28, 2001, due to the denial of payment by Travelers and his lack of personal health insurance coverage.  He ultimately underwent the surgery after obtaining insurance coverage through Minnesota Care.

 

On October 25, 2000, the employee filed a medical request against Wells Concrete and Travelers requesting payment for expenses related to his proposed right knee surgery.  On November 6, 2000, Wells Concrete and Travelers filed a medical response, stating that the employee had requested authorization to proceed with surgery but also had advised them that his need for surgery was related to an injury at Rainbow Foods.  Wells Concrete and Travelers also stated that before authorizing surgery, they needed to review the employee=s history and medical records generated since the 1994 stipulation for settlement.  Wells Concrete and Travelers also filed a petition for joinder, contribution and/or reimbursement as against Rainbow Foods/Fleming Cos. and its insurer, Insurance Company of North America, relying on Dr. Ciota=s opinion that the employee=s injury on November 30, 1999, substantially contributed to his need for right knee surgery. 

 

Dr. Cederberg, who had examined the employee in 1994 at Wells Concrete and Travelers= request, reexamined the employee on February 2, 2001, and diagnosed degenerative medial meniscus tear of the right knee.  He concluded that this condition was caused by age-related degenerative changes of the right medial meniscus, and that he found Ano evidence of any particular or permanent injury regarding his work activities at Wells Concrete or Nelson/Rainbow Foods.@

 

In a letter dated May 31, 2001, Dr. Ciota, the employee=s treating surgeon, stated his opinion that:

 

Findings in surgery included a large medial meniscal tear and some chondromalacia on a limited area of the medial femoral condyle.  It is my opinion that his current acute symptoms and reason for having surgery are related to his medical meniscal tear.  It is my belief that this medial meniscal tear is and/or was caused most likely by his fall from the truck/loading dock while working at Rainbow Foods.  It is my opinion that the chondromalacia changes of the medial femoral condyle are most related to his work at Wells Concrete.  However, it is again my opinion that his current symptoms are not related to the chondromalacia but more to the medial meniscus.  Thus once again, I think that the reason that he had surgery and that his acute pain and his pain which has resolved since the surgery was because of his medial meniscal tear and that this was caused while he was employed at Rainbow Foods.

On December 18, 2001, Dr. Wicklund examined the employee at the request of Rainbow Foods. He diagnosed a right medial meniscus tear and chondral calcinosis (calcium pyrophosphate disease), as well as a left medial meniscus tear, both surgically repaired.  Dr. Wicklund related the employee=s condition to a long-standing history of both right and left knee problems.  He concluded that:

 

The need for the surgery that was done in March of 2001 on his right knee was the medial meniscus tear which occurred when he got [out] of bed and rolled over in November of 1999 along with the pre-existing degenerative problems in the right knee.  He also had a nonrelated metabolic problem with calcium pyrophosphate deposits of crystals in the meniscus which also led to right knee pain and swelling.

 

The employee=s medical request and the petition were consolidated and both were addressed at hearing on April 2, 2002.  On May 31, 2002, the compensation judge issued Findings and Order, in which she denied the employee=s claim for payment of medical expenses related to his surgery on March 28, 2001, and denied his claim for payment of temporary total disability benefits post-surgery.  The compensation judge found that neither the employee=s March 3, 1978, injury at Wells Concrete nor his injury of November 30, 1999, at Rainbow, substantially contributed to his need for his right knee surgery in 2001.  The employee appeals.

 

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

 

Although the compensation judge found that the employee sustained a right knee injury on November 30, 1999, she found that it was a temporary aggravation of his degenerative joint disease, and that the duration of the aggravation extended until December 16, 1999. The compensation judge found that neither his  March 3, 1978, or November 30, 1999, right knee injury represents a substantial contributing cause of the employee=s need for right knee surgery.  The compensation judge denied the employee=s claim for temporary total disability benefits and payment of medical expenses for treatment of his right knee.  The employee appeals from these findings.

 

                        The record contains conflicting medical opinions concerning the causation of the employee=s injury.  Dr. Shaman opined that the employee=s surgery was necessitated by his 1978 injury.  Dr. Ciota concluded that the surgery was causally related to the employee=s November 30, 1999, injury.  Dr. Cederberg related the employee=s right knee condition to age-related degenerative joint disease, and Dr. Wicklund also concluded that the surgery was necessitated because of the long-standing problem that had developed in the employee=s right knee over years.  Dr. Wicklund did not specifically relate that degenerative condition to the employee=s 1978 injury, as he was unable to discern whether the meniscal tear resulted from that injury, but instead concluded that the tear was related to the November 14, 1999, incident when the employee reported pain and an inability to bear weight on his knee upon getting out of bed that day.

 

This court has long held that it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony and that a compensation judge=s choice between conflicting medical opinions is upheld, unless the opinion on which the judge relies is not based on adequate foundation or evidence and facts in the record.    Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  The employee argues that the compensation judge=s conclusions based on her choice between conflicting medical expert opinions must be reversed.  We are not persuaded.

 

Relying on Dr. Wicklund=s and Dr. Cederberg=s opinion, which the compensation judge found to be most persuasive, the compensation judge found that:

 

The employee=s testimony was credible that he sustained a temporary aggravation of his degenerative join disease in his right knee from November 30 through December 16, 1999.  The employee has not shown that his work activities at Wells or Rainbow were a substantial contributing cause or aggravation to his right knee medial meniscus tear and degenerative joint condition and his need for surgery.  The opinions of Drs. Wicklund and Cederberg are credible and are adopted by the court.

 

(Finding No. 18.)

 

The compensation judge elaborated on this finding in her memorandum, concluding that after he injured his right knee in 1978, Athe employee continued to work in a heavy duty job at Wells with few complaints of right knee problems and very little medical care.@  She referred to the employee=s testimony that he had occasional symptoms but did not miss time from work, and concluded that the Apreponderance of the evidence does not support that the 1978 injury was a substantial contributing cause or aggravation of the employee=s right knee condition.@  (Memo., p. 6.)  The compensation judge further concluded that the employee=s injury on November 30, 1999, was temporary in nature, or was a temporary aggravation of his right knee degenerative joint disease that resolved by December 16, 1999.  Concerning the employee=s need for surgery, the compensation judge found that the surgery was related to the employee=s Along standing right knee degenerative joint disease and the chronic tear for which he had surgery.@  Relying on Dr. Wicklund=s opinion, the compensation judge determined that the employee did not sustain a Gillette injury at Rainbow, and therefore that the Asurgery and temporary total disability are not causally related to the claimed work injury [of November 30, 1999].@ 

 

On appeal, the employee argues that the compensation judge erred by ignoring the express requirement of the 1994 stipulation for settlement that future medical treatment for the employee=s right knee injury be paid by Aetna/Travelers.  In conjunction with that argument, the employee argues that his 1978 right knee was an admitted injury and that the employee=s testimony and the opinions of Drs. Wilcox and Wicklund demonstrate the causal link between the employee=s 1978 injury and 2001 surgery.  The employee argues that the compensation judge Amay be free to discount the 11/30/99 episode as merely a symptomatic manifestation pursuant to the opinions of Dr. Wicklund,@ but that she is not free to ignore the Aclear chain of causation@ between the 1978 injury and the employee=s right knee surgery.  (Ee=s Brief, p. 15.)  The employee argues that Dr. Wicklund agreed that knee cartilage, once damaged, will worsen over time, regardless of activity, but that the damage could be related to physical activity and activities of work.  The employee argues that the inescapable conclusion from a complete review of Dr. Wicklund=s testimony is that the injury of March 3, 1978, could very well lead to the progression of symptoms that ultimately led to the findings documented by MRI scan in December 1999 and surgery on March 28, 2001.   

 

However, Dr. Wicklund also testified that these progressive changes can be unrelated to physical activity, and may instead be related to age.  The compensation judge could reasonably infer from Dr. Wicklund=s opinion that the employee=s 1978 injury did not substantially contribute to his need for right knee surgery.  It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W,2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).  AIf different inferences can justifiably be drawn from the evidence in the case, the inference drawn by the factfinder will not be disturbed on appeal."  Dille v. Knox Lumber/Div. of Southwest Forest, 452 N.W.2d 679, 681, 42 W.C.D. 819, 823 (Minn. 1990), citing Gerhardt v. Welch, 267 Minn. 206, 210, 125 N.W.2d 721, 724 (1964). 

 

Contrary to the employee=s assertion that Dr. Wicklund rendered an opinion solely concerning the 1999 injury, he also addressed the issue of  whether the employee=s March 3, 1978, right knee injury at Wells Concrete substantially contributed to the employee=s need for surgery.  Although he did not definitively state that the 1978 injury did or did not substantially contribute to the employee=s need for surgery in 2001, a close review of his testimony reveals his opinion that there was no specific documentation in 1978 of a cartilage tear, and that the diagnosed conditions of the employee=s knee, calcium pyrophosphate condition and varus condition, are unrelated to any work activity or inciting trauma.  Dr. Wicklund testified that Athe sole reason for this surgical procedure was because of a long-standing problem that had been developing in the right knee over years.@  Dr. Wicklund acknowledged that the employee had Awalked around on torn cartilage for quite a while@ and had worked with that condition.  He pointed out  that the findings on MRI in 1999 and the photographic images from surgery in 2001 indicated the tear in the employee=s right knee had been present for a long time, and that he was unable to discern when the tear occurred, and, specifically, whether that occurred as a result of his injury at Wells Concrete. When asked whether the wear on the cartilage could be aggravated by the employee=s work activity or injuries in 1978, Dr. Wicklund testified as follows:

 

Back in >78 it was recommended that he have an arthrogram, since we didn=t have MRIs then, because there was some suspicion of the possibility of a cartilage tear.  Nothing was ever documented to conclude that that was the diagnosis, unfortunately.  I=m not saying that the symptoms weren=t consistent with that diagnosis, but it was never proven.@

 

Questions of medical causation fall within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).  Based on Dr. Wicklund=s testimony, it was not unreasonable for the compensation judge to conclude that the employee=s 1978 injury did not substantially contribute to his need for surgery in 2001.  

 

As to the employee=s argument concerning the previous stipulation and Aetna/Travelers= requirement to pay for injury-related medical expenses, "[t]he burden is on the employee to prove by a fair prepon­derance of the evidence that [he] is entitled to workers' compensation benefits."  Fisher v. Saga Corp., 463 N.W.2d 501, 501, 43 W.C.D. 559, 560 (Minn. 1990).  Even though the stipulation for settlement requires Aetna/Travelers to assume all liability to pay future medical care for the employee=s work-related injuries, the stipulation also reserves Aetna/Travelers= defenses as to the reasonableness, necessity and causal relationship of claimed medical treatment and expenses.  As we have affirmed the compensation judge=s determination that the employee=s 1978 injury did not substantially contribute to the employee=s need for right knee surgery in 2001, we conclude that the wording of the stipulation, considered on its own, does not  require Travelers to pay for the claimed medical expenses.

 

The employee also argues that  Drs. Shaman and Ciota had substantial foundation for their opinions.  The compensation judge did not specifically state that she found otherwise.  That the compensation judge did not rely on either opinion was within her discretion, and such reliance will not be disturbed on appeal.  Nord, 360 N.W.2d at 342, 37 W.C.D. at 372.

 

The employee also argues that Dr. Cederberg=s opinion, outlined in his report of February 12, 2001, lacks foundation and therefore the compensation judge had no basis, as a matter of law, to rely on his opinion.  The employee argues that there is no evidence that Dr. Cederberg had an adequate factual foundation of the employee=s work for Wells Concrete and Rainbow, nor his continuity of symptoms and medical records.  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).  Dr. Cederberg examined the employee on two occasions, and had an opportunity to review his medical records generated prior to his March 2001 surgery.  His opinion was adequately founded, and therefore the compensation judge did not clearly err by relying, in part, on his opinion.

 

Finally, the employee argues that the compensation judge erred by failing to address the issue of the nature and extent of the employee=s 1978 right knee injury.  The employee argues that  the following factors all demonstrate that the 1978 injury was causally related to the 2001 surgery:  his medical records in 1978 include a diagnosis of a medial meniscus that may have been dislodged or traumatized, the parties stipulated that the employee=s personal injury of March 3, 1978, was permanent, and the employee testified to having experienced right knee symptoms since 1978.  We conclude that the compensation judge did address the dispositive issue concerning the employee=s 1978 injuryBwhether that injury substantially contributed to the employee=s need for surgery in 2001.  The issue on appeal is whether the compensation judge=s finding that neither the 1978 nor 1999 right knee injury substantially contributed to the employee=s need for surgery in 2001, was supported by substantial evidence of record and was not clearly erroneous.  As addressed above, we have affirmed the compensation judge=s findings on that issue, and it need not be addressed further.