Johnson v. Waseca ISD #829

RITA M. JOHNSON, Employee, v. WASECA ISD #829, and WESTERN NAT=L MUTUAL GROUP, Employer-Insurer/Appellants, and ORTHOPAEDIC & FRACTURE CLINIC, and BLUE CROSS/BLUE SHIELD AND BLUE PLUS OF MN, Intervenors.

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 21, 2003

HEADNOTES

CAUSATION - INTERVENING CAUSE. The compensation judge reasonably concluded that the employee=s activity in moving a couch that weighed more than her 15 pound lifting restriction, re-injuring her work-related arm fracture, was not an intervening and superseding cause of the employee=s need for further medical treatment and ongoing disability.

Affirmed.

Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.

Compensation Judge: Jane Gordon Ertl

OPINION

MIRIAM P. RYKKEN, Judge

The employer and insurer appeal the compensation judge=s finding that the lifting by the employee in excess of her restrictions was not a superceding, intervening cause of her ongoing disability and need for further medical treatment. We affirm.

BACKGROUND

On June 1, 2000, Rita Johnson, the employee, sustained a work-related injury to her left arm during a school field trip while working as a para professional teacher for Waseca Independent School District No. 289, the employer, which was insured for workers= compensation liability by Western National Mutual Insurance Company, the insurer. The employee fractured her left arm when she slipped while getting off a tour wagon. The employer and insurer admitted liability and paid various workers= compensation benefits.

The employee=s fracture was severe, in the nature of a comminuted impacted and dorsally angulated intra-articulated fracture of the distal radial metaphysis and a ulnar styloid fracture, and required three surgeries which were performed by Dr. Michael Kearney of the Orthopedic & Fracture Clinic. On September 7, 2000, Dr. Kearney performed a corrective osteotomy of the left distal radius with a left illiac crest bone graft; on May 3, 2001, he performed a fusion of the left distal radial joint and a resection of the distal ulnar; and on April 4, 2002, he removed an internal fixation plate. After the last surgery, Dr. Kearney advised the employee not to lift over 15 pounds with her left arm, indicating that the screw holes left after the plate removal would require a few months to fill in with bone and for the bone to strengthen.

On May 19, 2002, the employee refractured her left arm at the site of one of the screw holes. At the time of the re-injury, the employee was moving a couch away from a wall so she could unplug a lamp. After this incident, the employee required additional surgery, a left radius closed reduction of the fracture, which was performed by Dr. John Springer. Dr. Kearney concluded that in the future, a bone graft may be necessary at the site of the refracture. Dr. Kearney also opined that the refracture was not the result of a significant new injury, but was a complication of her initial injury.

On July 9, 2002, the employee filed a claim petition for wage loss benefits and medical expenses related to the refracture. The employer and insurer answered on September 6, 2002, disputing liability and alleging that the employee=s current condition was the result of a superseding and intervening cause. A hearing was held on November 22, 2002. The compensation judge found that the employee=s action in moving the couch was not an intervening cause of her ongoing disability and need for further medical treatment but instead resulted in an injury to the employee=s already injured left forearm and was a compensable consequence of the employee=s original work injury. 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 (2002). 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 found that the employee=s action in moving a couch was not an independent or intervening cause and was a compensable consequence of the original work-related injury. Generally, where an injury or condition is found to have arisen out of and in the course of employment, an employer and insurer are liable for every natural consequence that flows from the condition unless it can be shown that later disability is the result of an independent, intervening cause. Nelson v. American Lutheran Church, 420 N.W.2d 588, 590, 40 W.C.D. 849, 851 (Minn. 1988); Rohr v. Knutson Constr. Co., 305 Minn. 26, 29, 232 N.W.2d 233, 235, 28 W.C.D. 23, 26 (1975). Liability will continue despite an intervening, nonwork‑related condition if the work‑related injury remains a substantial contributing cause of the ongoing disability. Rogers v. Cedar Van Lines, 36 W.C.D. 125, 126‑27 (W.C.C.A. 1983) (interpreting Roman v. Mpls. Street Railway Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1964)). The burden of proving an intervening cause of the disability at issue is on the employer and insurer. See Hughes v. Karps Twin City Supply, slip op. (W.C.C.A. Nov. 27, 1996). The work injury need not be the sole cause of the employee's disability. Cole v. Hafner, Inc., 47 W.C.D. 314 (W.C.C.A. 1992); see also Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 40 W.C.D. 117 (Minn. 1987). However, if a subsequent aggravation of the initial injury arises from an independent intervening cause not attributable to the employee=s customary activity in light of the employee=s condition, then such additional medical care for the aggravation is not compensable. Rohr v. Knutson Constr. Co., 305 Minn. 26, 232 N.W.2d 233, 28 W.C.D. 23 (1975). The causal relationship between the work injury and the subsequent aggravation is broken when the aggravation is the result of "unreasonable, negligent, dangerous or abnormal activity on the part of the employee." Eide v. Whirlpool Seeger Corp., 260 Minn. 98, 102, 109 N.W.2d 47, 49‑50, 21 W.C.D. 437, 441 (1961).

The employer and insurer argue that the compensation judge erred by applying a subjective standard in determining whether the employee=s action was reasonable since she noted that the employee did not think her action was inappropriate and that she did not anticipate the results of her action. They also argue that the employee=s action in lifting the couch was an unreasonable activity given the employee=s condition and restrictions. The compensation judge indicated that the employee=s action was normal physical activity for taking care of a home and that while the weight of the entire couch may have been outside of her restrictions, the employee was not attempting to lift the couch with her left arm, but to move it away from the wall with both arms. Where 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).

Medical evidence also supports the compensation judge=s finding. After the employee=s plate removal surgery in April 2002, Dr. Kearney indicated that the only thing that would break the employee=s arm would be Aan impact injury such as a sudden fall and landing on the arm or a direct blow injury.@ After the refracture of the employee=s arm, Dr. Kearney indicated in his notes from the employee=s July 8, 2002, office visit:

While the fracture occurred at home, the reason that the fracture occurred is that she had the work related injury. There was no significant new injury such as a fall. She was merely stressing the forearm a little bit as she adjusted some furniture in her home. This fracture is a complication of her work-related injury and should be considered an ongoing part of her workers= compensation injury.