TROY R. LOCKBEAM, Employee/Appellant, v. ACOUSTICS ASSOCS., INC., SELF-INSURED, Employer, and MN DEP=T OF LABOR & INDUS./VRU, CARPENTERS & JOINERS H&W FUND, MIDWEST & ST. PAUL RADIOLOGY, ST. CROIX ORTHOPEDICS, LAKEVIEW MEMORIAL HOSP., and MN DEP=T OF HUMAN SERVS., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 6, 2003

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE.  Where it was not unreasonable for the judge to conclude that the employee=s fall at work was not serious, that there were many unexplained inconsistencies in the employee=s actions of record, and that the medical experts who had supported the employee=s claim had relied on a faulty symptom history, and where the judge=s decision was supported by other expert medical opinion, the compensation judge=s conclusion that the evidence did not establish that the employee=s fall at work was a substantial contributing cause of his disability and medical expenses beginning two months later was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

Determined by Pederson, J., Johnson, C.J., and Stofferahn, J.

Compensation Judge:  Peggy A. Brenden

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's conclusion that the employee had not demonstrated that his fall at work was a substantial contributing factor in his medical expenses and loss of earnings.  We affirm.

 

BACKGROUND

 

On June 29, 2000, Troy Lockbeam fell from some scaffolding about six feet above the floor while removing ceiling tile in the course of his employment as a carpenter=s apprentice with Acoustics Associates, Inc. [the employer].  In the act of falling, Mr. Lockbeam [the employee] caught his right foot on a bookshelf, which resulted in his doing the Asplits@ as his left foot touched down on the floor.  The employee was thirty-one years old on the date of this accident and was earning a weekly wage of $922.50.  After the accident, the employee took his lunch break and then returned to work and finished out the workday, and the following day he worked another six and a half hours.  Subsequent to June 30, 2000, the employee went on vacation for nine or ten days and then returned to his job with the employer.  The employee continued in that work thereafter until he terminated his employment in late August 2000, having by then also been self-employed for a month or two mowing lawns.  On September 25, 2000, the employee completed a First Report of Injury, giving the employer notice, for the first time, of a work injury to his back on July (sic) 29, 2000.  On that report, the employee indicated that his Aback didn=t hurt at the time of accident but started hurting about three weeks later.@

 

On October 9, 2000, the employee saw nurse practitioner Patricia Tomshine concerning Aa three-week history of low back pain,@ complaining that he was currently unable to bend at the waist without pain and had not worked for about a month.  The employee related his condition to the AJuly 29, 2000@ fall from the scaffold that resulted in his Adoing the splits.@  Nurse Tomshine reported that the employee had had Apain at the time of the incident but then was asymptomatic until the onset of [the] present episode.@  X-rays revealed no gross abnormality, and Nurse Tomshine diagnosed lumbar strain with radiation into the right thigh and prescribed an anti-inflammatory and physical therapy.  On follow-up on October 23, 2000, the employee Adescribe[d] very little improvement,@ although Nurse Tomshine indicated that A[h]is facial expression is inconsistent with the amount of pain that he describes.@  Nurse Tomshine concluded that she could Afind no contraindications to [the employee=s] resuming a normal work schedule,@ but she nevertheless ordered a lumbar MRI scan.  The MRI scan, conducted on November 1, 2000, was read to reveal degenerative changes in the employee=s lower lumbar facet joints and fairly advanced degenerative changes and moderate disc bulging at L5-S1 of the employee=s spine, but there was no evidence of any definite nerve root compression or significant canal narrowing.

 

The employee followed up on November 7, 2000, with Nurse Tomshine=s associate, Dr. Robert Florence, to whom the employee complained of primarily bilateral lower lumbar pain with some radiation into the buttocks but not into the legs.  The employee informed Dr. Florence that the pain in his back had come on three or four weeks after his fall at work.  Physical examination was essentially normal neurologically, and Dr. Florence diagnosed chronic lumbar strain and degenerative disc disease, noting that the employee was scheduled to see an orthopedist in a couple of days.

 

On November 9, 2000, the employee was examined by orthopedist Dr. Robert Knowlan, to whom the employee reported a history of being injured at work in the course of his fall on June 29, 2000.  In reporting the employee=s history, Dr. Knowlan stated that, following the employee=s injury, A[h]e had some back pain at that point.  Overall he did okay.  It was gone the next week.@  Dr. Knowlan diagnosed degenerative disc disease, prescribed more aggressive conservative treatment, and issued work restrictions.  On December 20, 2000, the employee filed a claim petition, alleging entitlement to rehabilitation benefits and to temporary total disability benefits continuing from October 1, 2000, both consequent to a work-related injury on July 29, 2000.  The employee=s pain persisted, and on December 28, 2000, Dr. Knowlan reportedly ordered a discogram.^[1]  Dr. Knowlan subsequently referred the employee to orthopedist Dr. Bruce Bartie, who examined the employee on January 9, 2001.  Dr. Bartie diagnosed significant L5-S1 spondylosis with collapse of the disc space and posterior prolapse, including in his history the employee=s Astanding split@ accident at work and noting that the employee was now Aalmost bedridden day to day in pain.@  Dr. Bartie prescribed an epidural steroid injection, which provided the employee only minimal relief.  On January 24, 2001, the employer and insurer filed their answer to the employee=s claim petition, denying that the employee had sustained a work injury on the date alleged and denying liability for any benefits stemming from such an injury.

 

On March 27, 2001, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Paul Wicklund, who, in his report on March 30, 2001, diagnosed degenerative disc disease at L5-S1, with possible right sacroiliac joint dysfunction.  Dr. Wicklund declined to attribute the condition to the employee=s June 29, 2000, accident at work as claimed by the employee, concluding instead that that condition preexisted that accident, in light of Athe significant degenerative changes and disk space narrowing[,] which would not have happened over a short period of time.@  It was Dr. Wicklund=s opinion that the employee=s low back problem had been a temporary aggravation of that preexisting condition and that it was difficult to determine whether or not there had been any permanent injury to the sacroiliac joint.  Dr. Wicklund concluded that the employee had not been totally disabled due to his low back condition continuing from October 1, 2000, that he was currently capable of working subject to a twenty-five-pound lifting restriction, and that A[o]nce he has finished his sacroiliac joint evaluation he will have reached maximum medical improvement.@  Dr. Wicklund=s report to that effect was served on the employee on May 1, 2001.  On May 7, 2001, in a letter to the employer and insurer=s attorney, Dr. Wicklund reiterated more definitively his opinion that the employee=s Acurrent complaints of low back pain and right sacroiliac symptoms are not causally related to the June 29, 2000 incident.@

 

On May 10, 2001, the employee was examined again by Dr. Bartie, who expressly related the employee=s condition to his Ascaffolding fall at work about eight months ago@ and recommended fusion surgery.  On June 18, 2001, the employee underwent the recommended anterior spinal fusion at L5-S1.  In the months that followed, the employee continued to receive treatment prescribed by Dr. Bartie, including physical therapy and a facet joint arthrography and therapeutic injection.  The latter, conducted on August 10, 2001, revealed mild to moderate degenerative changes at L4-5 on the right and resulted in a 90% initial change in the employee=s pain symptoms.  Dr. Bartie eventually referred the employee to Dr. Thomas Kraemer regarding the employee=s chronic low back pain.  The employee saw Dr. Kraemer on September 12, 2001, to whom he related his condition to his fall from the scaffolding at work in the summer of 2000.  Dr. Kraemer diagnosed L5-S1 spondylosis with status post anterior fusion, chronic sacroiliac joint dysfunction, chronic post-operative low back syndrome, and lumbosacral ligamentous strain/sprain with muscle deconditioning and referred the employee to a chronic pain program.  On October 10, 2001, the employee commenced treatment with chiropractor Dr. David Olson, with whom he would continue treating for at least four months.

 

On November 23, 2001, the employee saw pain specialist Dr. Todd Hess at United Pain Center, on referral from Dr. Bartie, Afor ongoing question of SI joint dysfunction with right SI joint pain status post a work-related injury.@  The employee said to Dr. Hess that Ahe had a lot of pain right away@ after his June 29, 2000, fall and that Ahis muscles were tight from hip to hip and across his back.@  He also informed Dr. Hess via a questionnaire that his current pain was Apounding, shooting, stabbing, cutting, tender, hurting, stinging.@  Dr. Hess prescribed a warm pool and a reconditioning program and ordered a urinalysis.  On December 4, 2001, the employee was informed that his urinalysis had come back positive for cocaine and marijuana.  He was referred for a chemical dependency evaluation, was prescribed Lidioderm patches and Neurontin, and was instructed to continue with his pool therapy.  On that same date, December 4, 2001, in a narrative report to the employee=s attorney, Dr. Bartie reiterated his opinion that the employee had sustained a permanent work injury on June 29, 2000, which had resulted in the employee=s fusion surgery.  Dr. Bartie indicated that it was likely that the employee would continue to suffer chronically and would be subject to long-term lifting, bending, and twisting restrictions on both work and leisure activities.  The employee was apparently last seen at the United Pain Center on February 5, 2002, when, in the presence of his QRC, he declined to submit to another urine sample, expressing substantial frustration at his continuing pain.

 

The matter came on for hearing on March 20, 2002.  Issues at hearing included whether or not the employee had sustained a work-related injury to his low back on June 29, 2000, and was entitled to temporary total disability, permanent partial disability, and medical expense benefits stemming therefrom in the total amount of some $76,000.00.  At the hearing, the employee testified in part that he had had low back tightness and numbness and Aa dead feeling from hip to hip@ in his lower back immediately after his fall on June 29, 2000, but that he did not have any low back Apain@ as such on that date, although his symptoms eventually Adeveloped into@ low back pain.  The employee also testified that, although he did not say so to the employer at the time, it was his back pain that ultimately motivated him to terminate his employment with the employer in late August 2000, because he was frustrated at being so slowed down by it in his work.  By findings and order filed April 8, 2002, the compensation judge concluded in part that the employee=s fall at work on June 29, 2000, had resulted in symptoms that persisted for only about a week before resolving.  Apparently on that basis, the judge concluded further that the evidence failed to establish that that fall was a substantial contributing factor in either the employee=s treatment expenses after October 9, 2000, or his loss in earnings after October 1, 2000.  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, 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

 

In the memorandum accompanying her decision, the compensation judge expressly indicated that she credited the employee=s account of injuring himself in the Astanding splits@ incident on June 29, 2000, as recounted to various physicians.^[2]  The judge also concluded, however, at Finding 9, that the employee=s low back symptoms related to that injury had resolved within about a week after the injury.  Apparently on this basis, the judge denied the employee=s claims to wage loss benefits after October 1, 2000, and to medical and chiropractic treatment after October 9, 2000.  The employee contends that the judge=s finding that the injury resolved within about a week is unsupported by the record, asserting that it is contradicted by the employee=s own testimony, by the First Report of Injury, and by medical histories of providers other than nurse practitioner Tomshine, on whose October 9, 2000, history the judge expressly relied.  The employee references only the histories of Dr. Bartie, and then only generally.  We are not persuaded.

 

Contrary to his argument on appeal, the employee=s testimony on this issue was at best equivocal, including as it did a repeated assertion that he had no pain immediately after the event on June 29, 2000Bthat he had only symptoms of low back tightness and numbness and Aa dead feeling from hip to hip@ which eventually developed into pain after an unspecified period of time.  More telling than the employee=s equivocation, however, is the fact that, subsequent to that June 29, 2000, event, the employee apparently lost no time from his work for the employer for about two months and was even able to continue during that time in the physical requirements of his second job mowing lawns.  Moreover, during the months of July, August, and September 2000, the employee evidently complained to no medical provider of record regarding any low back-related problems.  When he did eventually see Nurse Tomshine on October 9, 2000, regarding such problems, his complaints were of pain that had come on about three weeks earlierBor, about the middle of September 2000.  Prior to that onset, she reported, he had been asymptomatic at least for awhile since having had some initial pain immediately following the June 29, 2000, event.^[3]  Moreover, perhaps supporting the finding of the judge even better than the history taken by Nurse Tomshine are the histories taken by Dr. Florence on November 7, 2000, and Dr. Knowlan on November 9, 2000.  Dr. Florence reported expressly that the employee=s pain had not come on until about three or four weeks after his fallBi.e., about the end of July 2000, and Dr. Knowlan reported that the employee had had some back pain initially but that A[i]t was gone the next week.@  In our estimation, the First Report of Injury rebuts rather than supports the employee=s position, in that it clearly reports pain that didn=t even commence at all until about three weeks after the alleged injury; the causal connection implied in this report is arguably even more remote than that available in the facts as found by the compensation judge.

 

In her memorandum, the compensation judge explained that she had concluded that the June 2000 incident was not a substantial factor in the employee=s low back condition since October 2000, for three reasons:  (1) Athe fall appears not to have been particularly serious,@ as evident in the employee=s failure to need immediate treatment and his prompt return to lifting, twisting, bending, and scaffold-climbing activities; (2) Athere are too many unexplained inconsistencies in the record@--notably the employee=s puzzling failure to report the incident promptly and the unlikelihood that the employee would terminate a valuable year-long apprenticeship because of injury-related low back symptoms without exploring with the employer his reason for leaving work and the possibility of job modification and without then even seeing a doctor for another two months; and, finally, (3) Athe medical experts who support the employee=s claim have relied on a faulty symptom history@ in assuming that the employee=s symptoms in October 2000 were a continuation of symptoms that began in June 2000, given the apparent absence of reported symptoms from early July 2000 to mid September 2000.  We conclude that it was not unreasonable for the compensation judge to reach the decision that she did on these bases.  Moreover, the judge=s decision is further supported by the expert medical opinion of Dr. Wicklund, that the employee sustained at most a temporary aggravation of a preexisting condition on the date of the alleged injury.  Because the judge=s decision was supported by expert medical opinion and was not otherwise unreasonable, we affirm the judge=s denial of the benefits at issue.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (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); Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.