MARK LEVINGS, Employee, v. PARK INN INT=L and ACCEPTANCE INDEM. INS. CO., Employer-Insurer/Appellants, and HRI FOR MEDICA CHOICE, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 13, 2003

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE.  Substantial evidence, including expert opinion, minimally but adequately supported the judge=s decision that the employee=s November 1994 work injury substantially contributed to his need for total hip replacement surgery.

 

Affirmed.

 

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

Compensation Judge:  Donald C. Erickson.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge=s decision on remand that the employee=s November 29, 1994, work injury substantially contributed to his need for total hip replacement surgery.  We affirm.

 

BACKGROUND^[1]

 

On April 7, 1994, the employee sustained an injury to his right hip while working in a maintenance job for Park Inn International [the employer].  He was seen that same day in the emergency department of St. Mary=s Medical Center, and, according to records from that treatment, he reported having experienced intermittent right hip and knee pain since a twisting incident a year before.  Right hip x-rays performed on April 7, 1994, disclosed advanced degenerative changes, and the employee was scheduled for follow-up treatment on April 29, 1994.  However, the employee did not keep that appointment and received no further care for hip or knee symptoms for at least seven months.

 

On November 29, 1994, the employee experienced severe right hip pain again when he slipped on some ice at work.  He apparently reported the incident to the employer but did not seek treatment for his symptoms until December 7, 1994, when he was seen by Dr. Katherine Kostamo.  Dr. Kostamo=s notes from this consultation read, in part, as follows:

 

Mr. Levings presents for evaluation of right hip and back pain.  He reports that he was injured while at work on 11-29-94 when he was walking outside and slipped on ice.  He caught himself from falling, but twisted his right hip in the process.  He reports that if he sits too long, stands too long or walks too long, the right hip throbs.  He states that if he has been sitting for too long of a time, the pain will actually radiate down the lateral leg to the knee area.  He states this will occur after 15 minutes of sitting.  He states the leg occasionally gives way. . . .  His past medical history is remarkable for a strain of the right hip in April 1994.  He states he was pivoting suddenly and developed acute right foot pain.  He was evaluated in St. Mary=s Emergency Room with a large number of tests.  He states he was there all day long and was seen by an orthopedist who told him he would eventually need a hip replacement.  They made followup for him in the Orthopedics Department, but he never went to this because, he states, he did not have time.  He was unaware of the diagnosis.  All he recalls is that he was told he would need a hip replacement fairly soon.  He is not aware if he was told he has a fracture or avascular necrosis.

 

X-rays again showed moderately severe osteoarthritis of the right hip, and Dr. Kostamo released the employee to work his regular job but advised him to use Acommon sense@ in lifting, avoiding lifting more than twenty-five pounds, if possible.

 

Over the next several years, the employee was seen periodically by Dr. Kostamo and also by Dr. Peter Goldschmidt, an orthopedist, for continuing right hip and right knee symptoms.  Dr. Goldschmidt indicated that the employee would eventually need a total hip replacement but advised him to wait as long as possible given his relatively young age.  In late 1996, the employee left his job with the employer, indicating that his work was aggravating his condition.  He subsequently worked at one or two other jobs and also returned to school.

 

The matter initially came on for hearing before Compensation Judge Gregory Bonovetz in October of 1998 for resolution of the employee=s claim for wage loss benefits, medical  expenses, and permanent partial disability benefits allegedly due as a result of the April 7, 1994, injury and/or the November 29, 1994, injury.  The two insurers defending the case maintained that the alleged work injuries had aggravated an underlying condition only temporarily, at most.  Evidence included the employee=s medical records and causation opinions from Dr. Goldschmidt, Dr. Jed Downs, Dr. Thomas Litman, and Dr. Mark Engasser.  Drs. Downs and Engasser indicated that the employee=s hip condition was not substantially related to his work injuries; Dr. Litman deferred a final opinion on the issue pending his review of certain x-rays; and Dr. Goldschmidt reported that the employee=s underlying condition had Aprobably@ been aggravated by his work activities.

 

Judge Bonovetz concluded that the April 1994 work injury was merely temporary but that the November 1994 injury had substantially aggravated the employee=s preexisting hip condition, and he ordered the insurer on the risk for the November 1994 injury to pay wage loss benefits, medical expenses, and benefits for a 6% whole body impairment.^[2]  The judge=s decision to this effect was subsequently affirmed on appeal to this court.  Levings v. Park Inn Int=l, slip op. (W.C.C.A. Sept. 8, 1999).

 

The employee=s right hip condition continued to worsen after the 1998 hearing, and, by early January 2000, Dr. Goldschmidt and the employee had decided to proceed with a total hip arthroplasty.  The employer and insurer refused to approve the employee=s request for surgery, contending that the employee=s need for the procedure was due to causes wholly unrelated to the employee=s November 1994 work injury.  The employee then filed a claim petition, and the matter came on for hearing a second time, this time before Compensation Judge Donald Erickson.  Evidence submitted at this hearing included updated medical records and reports from Dr. Goldschmidt and another report and deposition testimony from Dr. Litman.  One of the primary issues before Judge Erickson was whether Judge Bonovetz=s previous decision as to causation was res judicata as to the employer and insurer=s liability for the recommended surgery.  By the time of this hearing, held on July 24, 2001, the employee had undergone the total hip arthroplasty, apparently paid for by his health insurer.

 

In a decision issued on October 16, 2001, Judge Erickson concluded that the employer and insurer were liable, essentially as a matter of law, for the costs of the employee=s total hip replacement, given Judge Bonovetz=s prior decision that the November 1994 work injury had significantly and permanently aggravated the employee=s right hip condition.  On appeal, this court reversed Judge Erickson=s decision and remanded for reconsideration, explaining, in part, as follows:

 

Review of the present matter discloses that the hearing in 1998 involved claims for wage loss benefits, permanent partial disability benefits, and a medical bill in the amount of $198.00.  The medical bill at issue appears to have been related to treatment for a right knee condition.^[]  Under the circumstances of this case, the fact that the employee=s 1994 work injury may have permanently aggravated the employee=s underlying right hip condition does not automatically mean that the surgery performed in 2001 was substantially necessitated by the work injury.  As that issue was not at stake at the 1998 hearing, the judge=s decision from that hearing is not res judicata as to liability for the subsequent right hip surgery or resulting disability.  See Lindberg v. J & D Enterprises, 543 N.W.2d 90, 54 W.C.D. 44 (Minn. 1996); Erickson v. Hulcher Emergency Servs., 50 W.C.D. 140 (W.C.C.A. 1994) (order opinion).

 

Levings v. Park Inn Int=l, slip op. (W.C.C.A. May 6, 2002) (footnote omitted).

 

In his decision on remand, issued December 17, 2002, Judge Erickson concluded that the employer and insurer were liable, on a factual basis, for the employee=s total hip replacement surgery and resulting disability.  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

 

It is undisputed that the employee suffered from a preexisting, degenerative hip condition unrelated to his work injuries.  It is also essentially undisputed that, given the advanced state of the degeneration, first disclosed by x-ray in April of 1994, and given the progressive nature of the condition, the employee was virtually certain to need total hip replacement surgery at some point in his life -- he had in fact been told as much at the time of his April 7, 1994, treatment, more than six months prior to the November 29, 1994, work injury at issue in this proceeding.  On appeal, the employer and insurer contend that these facts, coupled with the Auncontroverted@ opinions of Drs. Litman, Engasser, and Downs, compel the conclusion that the employee=s need for total hip replacement surgery is unrelated to the November 29, 1994, work injury.  We see this as a close case.  However, after review of the record as a whole, we are not convinced that the judge=s causation decision is unsupported by evidence that a reasonable mind might accept as adequate.

 

In a March 27, 1997, report, Dr. Goldschmidt wrote in part that the employee=s Awork activities probably aggravated a pre-existing condition.@  This report was submitted into evidence in the initial litigation in this matter and was cited by this court in affirming Judge Bonovetz=s decision on causation.  Subsequently, on June 12, 2001, the employee=s attorney wrote to Dr. Goldschmidt to obtain an updated causation opinion, asking in part as follows:

 

1.         Do you continue to stand by the position that you expressed back in March of 1997 that Mr. Levings= work injury was probably a substantial contributing factor to Mr. Levings= hip condition and need for total hip replacement?  In other words, did the work injury cause, aggravate, and/or accelerate the right hip condition.  That was the opinion that you expressed in March of 1997.  I want to confirm that that still remains your opinion.

 

The employee=s attorney also asked questions regarding the extent of the employee=s disability.  Dr. Goldschmidt=s reply, in a June 20, 2001, letter, reads, in its entirety,

 

In response to your letter dated June 12, 2001, regarding Mark Levings.  I have reviewed my notes to date and still feel that his fall in [1994] was likely a contributing factor to his hip condition.  In reviewing my notes I did also find a reference to Mr. Levings being a recovering alcoholic.  As you likely know, alcoholism is a risk factor for avascular necrosis and could have resulted in his arthritis.  With respect to disability, I think that the patient certainly could have performed sedentary activities throughout his care, including up to the time of surgery.  I do not think, however, that he could have performed significant walking or climbing activities as I suspect are necessary as a maintenance worker and would have disabled him when he was no longer able to perform these activities.

 

The employer and insurer contend that, through his reply, Dr. Goldschmidt clearly Arefused to render an opinion on causation@ regarding the employee=s need for a total hip replacement.  As we see it, however, Dr. Goldschmidt=s letter may as easily be seen as expressing an opinion that the employee=s work injury did in fact contribute to the employee=s need for the surgery, given the context of the attorney=s question to him.  We would also note that the fact that alcohol use may have caused the employee=s underlying condition is essentially irrelevant to the question of whether the employee=s work injury substantially aggravated or accelerated the underlying condition, which is all that is necessary to hold the employer and insurer liable for the benefits at issue.  See, e.g., Salmon v. Wheelbrator Frye, 409 N.W.2d 495, 497-97, 40 W.C.D. 117, 122 (Minn. 1987).

 

In his memorandum, the compensation judge explained his liability determination as follows:

 

[T]he issue is not whether the employee had a pre-existing condition; he most certainly did.  Nor is the issue whether he would have had total hip surgery without the November 1994 injury.  He most likely would have.  Rather, the issue is whether the work injury was an aggravating and/or accelerating condition to the pre-existing condition.  The Court specifically finds that the work injury did aggravate the condition making it symptomatic.  The Court notes that it remained symptomatic from and after the November 1994 work injury up through the date of the total hip replacement surgery.  The employee treated continuously until he was advised that he should not return to the doctors until he was ready to have the surgery.  Of course the employee ultimately did return and had the surgery. In other words, although the employee certainly had a pre-existing condition, it was the November 29, 1994 injury that made it so symptomatic to cause an uninterrupted course of symptoms and treatment until total hip replacement surgery was undertaken to relieve the symptoms.

 

Given Dr. Goldschmidt=s opinions, the employee=s testimony regarding the course of his symptoms, and Judge Bonovetz=s previous decision as to the nature and extent of the employee=s November 1994 work injury,^[3] we cannot say that Judge Erickson erred in concluding that the employee=s need for total hip replacement surgery was causally related to his November 1994 work injury.^[4]  As such, we affirm his decision in its entirety.