BRUCE MEACHAM, Employee/Appellant, v. INDUSTRIAL FINISHING SERVS. and AMERICAN HOME ASSURANCE/AIG CLAIM SERVS., Employer-Insurer/Cross-Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 24, 2003

 

HEADNOTES

 

CAUSATION - TEMPORARY AGGRAVATION.  Substantial evidence, including expert opinion, minimally supported the judge=s decision that the employee=s work injury was merely a temporary aggravation of the employee=s pre-existing condition.

 

WAGES - IRREGULAR.  Substantial evidence, including the employee=s testimony as to the terms of his hire, supports the compensation judge=s decision that the employee=s wage was not irregular.

 

Affirmed as modified.

 

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

Compensation Judge:  Carol A. Eckersen.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the judge=s decision that his work injury was a temporary aggravation that ended on May 9, 2002, and that fusion surgery was not causally related to the personal injury or reasonable and necessary.  The employer and insurer cross appeal from the judge=s finding as to weekly wage.  We affirm as modified.

 

BACKGROUND

 

The employee began work for Industrial Finishing Services [the employer] on August 29, 2001, at an hourly wage of $8.00.  About six weeks later, on October 8, 2001, the employee hit the back of his head on a wheel assembly at work.  The employer and insurer admitted liability for the injury.  In the six weeks prior to the injury, the employee worked a five-day work week only once, missing other scheduled days due to family illness or vacation.

 

The employee first treated for the injury on October 10, 2001, when he was seen by Dr. Aaron Larson complaining of neck and back pain, as well as upper left arm numbness.  The diagnosis at that time was a neck strain, and the employee was given a soft collar to wear for the next 24-48 hours.  When he returned to Dr. Larson on October 17, 2001, the employee was still wearing the collar most of the time.  Dr. Larson prescribed physical therapy and told the employee to discontinue use of the collar.

 

The employee returned to Dr. Larson=s office on October 22, 2001, still wearing the neck collar and complaining that his symptoms had worsened after a fall the day before.  Medications were continued.  When he saw the employee again on October 29, 2001, Dr. Larson noted that the employee needed the neck collar Aonly for exacerbation of the pain.@  On exam, there was no sensory loss down the arm and no weakness in the upper extremities, but the doctor recommended an MRI scan.

 

An MRI performed on November 1, 2001, showed chronic-appearing disc degeneration at C4-5 and C5-6 with disc space narrowing and some spurring, with some contact with the ventral surface of the cord at C4-5.  The cervical cord, however, was determined to be intrinsically normal.  After review of the MRI, Dr. Larson referred the employee to Dr. David Kaus, an orthopedist.

 

Dr. Kaus saw the employee for the first time on December 18, 2001.  At that time, the employee reported experiencing tingling at times in the left thumb and the index, long, and ring fingers of the left hand.  Dr. Kaus noted that the employee continued to rely on the cervical collar on a nearly full-time basis.  On examination, the employee exhibited diffuse discomfort to light touch and diffuse giveaway during testing of motor function throughout the left arm, not localized to any particular nerve root or radicular distribution.  Dr. Kaus asked the employee to discontinue use of the collar and recommended a trial of cervical traction.  An EMG of the left upper extremity, performed on February 27, 2002, was interpreted as normal.  Because the employee continued to complain of neck pain, Dr. Kaus administered a corticosteroid injection at C5-6 on the left.  When the employee reported little improvement with the injection, Dr. Kaus referred him Dr. Joel Shobe. 

The employee filed a claim petition on March 25, 2002, seeking an underpayment of temporary total disability benefits from October 9, 2001, and continuing, based on an average weekly wage of $380.  In their answer to the claim petition, the employer and insurer denied any underpayment and the claimed weekly wage. 

 

On May 9, 2002, Dr. Shobe told the employee that he might be a candidate for cervical fusion.  Subsequently, at Dr. Shobe=s request, a nerve block was attempted at C6, and the employee noted 75% improvement in the first 30 minutes.  When seen again by Dr. Shobe on August 8, 2002, the employee reported that, once the novocaine wore off from the nerve block, he felt 50% worse.  Dr. Shobe recommended a cervical fusion.

 

Dr. Joel Gedan performed an independent medical examination of the employee on July 10, 2002, and, in reports dated July 10, 2002, and July 24, 2002, he noted exaggerated pain behaviors upon examination, give-way weakness in the left arm, and the absence of muscle spasm.  Dr. Gedan opined that the employee demonstrated profound pain behaviors with exaggerated response to any type of movement Anot substantiated by any objective findings on his clinical examination.@  He further opined that there were no objective findings on the clinical examination or radiographic studies to suggest cervical radiculopathy or to explain the employee=s exaggerated clinical presentation.  It was Dr. Gedan=s opinion that the work injury was not a substantial contributing factor in the employee=s current condition.  He found no medical basis to place any restrictions on the employee=s activities and opined that the employee was at maximum medical improvement [MMI], that the employee had no evidence of any ongoing injury related to the October 8, 2001, injury, and that the employee would not benefit from cervical spine surgery.

 

At some point, the employee apparently also filed a medical request, seeking payment for the proposed cervical fusion,^[1] and the employer and insurer filed an answer on October 2, 2002, refusing to pay for surgery based on Dr. Gedan=s report.

 

The employee underwent a cervical fusion on October 11, 2002.  In a report dated November 26, 2002, Dr. Shobe diagnosed the employee as having cervical spondylosis at C4-5 and C5-6 with left-sided foraminal stenosis at C5-6, which he indicated was a degenerative condition aggravated by the employee=s work injury. 

 

On October 25, 2002, the employer and insurer filed a notice of intention to discontinue workers= compensation benefits, seeking to discontinue temporary total disability benefits as of October 23, 2002, because the employee was 90 days post-MMI based on Dr. Gedan=s report, which had been served and filed on July 22, 2002.  The employee objected, and the matter came on for an administrative conference.  In an order on discontinuance filed on December 3, 2002, a compensation judge accepted Dr. Shobe=s opinion that the work injury was a substantial contributing factor in the employee=s need for fusion surgery and that the employee was not at MMI at the time of service of Dr. Gedan=s report.  On December 9, 2002, the employer and insurer filed a petition to discontinue benefits and request for formal hearing.

 

Dr. Gedan subsequently reviewed additional medical records and issued a supplemental report on December 9, 2002, stating that the medical records he had reviewed and his examination results were not compatible with an aggravation or acceleration of degenerative changes in the employee=s cervical spine and that those degenerative changes may or may not have been related to any of the employee=s  symptoms.  Dr. Gedan also opined that the spinal fusion surgery was not reasonable or necessary to cure or relieve the effects of the October 8, 2001, work injury as there had never been any objective evidence for cervical radiculopahy or nerve root compression.         

The medical request came on for hearing on December 12, 2002, before a compensation judge of the Office of Administrative Hearings.  At that time, the parties agreed that the judge should resolve the issues raised by the employee=s claim petition, the medical request, and the employer and insurer=s petition to discontinue benefits.  In Findings and Order filed on February 10, 2003, the compensation judge found that the employee=s weekly wage on the date of injury was $391.45; that the employee had sustained a temporary aggravation of his underlying degenerative condition at the time of the work injury but had recovered from the temporary aggravation by May 9, 2002; and that the fusion surgery was not causally related to the work injury or  reasonable or necessary.  Both parties 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

 

1.  Weekly Wage

 

The compensation judge found that the employee was hired to work full time, forty hours per week, five days per week (with the possibility of overtime), at $8.00 per hour.  She then computed the employee=s daily wage, from wage records, and multiplied the result by five to arrive at a weekly wage of $391.45.

 

The employer and insurer contend that the employee=s wage was irregular because, in the six-week period preceding his injury, he only worked one five-day work week.  As such, they contend, the weekly wage calculation should include a determination as to the average number of days worked per week.  We are not convinced.

 

The employee only worked fifteen days in the six weeks he was employed by the employer prior to his work injury.  Wage records reflect that many of the missed days were due to illness of the employee=s son and wife.  Other days were missed due to a holiday and a vacation.  Variations in hours due to vacations, illness, and holidays are not cause for a finding that employment was irregular.  Johnson v. D.B. Rosenblatt, Inc., 265 Minn. 427, 122 N.W.2d 31, 22 W.C.D. 468 (1963); Noll v. Red Wing Shoe Co., 41 W.C.D. 767 (W.C.C.A. 1988).  In addition, the employee testified that he was hired to work full time, five days per week.

 

Wage records in this case reflect that the employee worked more than an eight-hour day on each of the fifteen days that he worked prior to the date of injury.  Overtime was therefore regular and includable in determining the employee=s weekly wage.^[2]  Rath v. Perlman Rocque Co., 384 N.W.2d 404, 38 W.C.D. 535 (Minn. 1986).  Given the employee=s regular overtime, the compensation judge correctly calculated the employee=s daily wage ($78.29) and then multiplied by five to arrive at a weekly wage of $391.45.  That finding is therefore affirmed.

 

2.  Nature of the Injury

 

The employee appeals from the compensation judge=s finding that the employee=s work injury was temporary in nature and had resolved by May 9, 2002, contending that undisputed facts require a reversal.  In support of this argument, the employee points to his lack of neck pain prior to the work injury, the specific nature of the work injury, his ongoing pain since the work injury, the MRI findings, the significant medical treatment, his work restrictions and inability to return to his pre-injury employment, the treating doctor=s opinion, the treating doctors= findings on examination, and his testimony that 95% of his arm symptoms were eliminated by the October 2002 surgery.  We acknowledge that there was certainly evidence that would have supported a finding of a permanent aggravation; however, the issue on appeal is not whether evidence would support an alternative finding, but whether substantial evidence supports the compensation judge=s findings.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

 

The compensation judge accepted the opinions of Dr. Gedan over those of Dr. Shobe.  Dr. Gedan noted that the employee=s exam was Amost remarkable for symptom magnification with profound pain behaviors including moaning, groaning, grimacing and screaming throughout the examination.  Mr. Meacham demonstrates almost  no movement of the cervical spine, which would be unexplainable on the basis of any diagnosis of pathology that might be present.@  Dr. Gedan=s diagnosis was Acomplaints of pain in the neck and left arm, and left arm weakness and numbness without objective findings on examination to explain his symptoms and markedly exaggerated pain responses and evidence of symptom magnification and nonorganicity.@  He went on to find that there were no objective finding on examination or the radiographic studies to suggest cervical radiculopathy or to explain the employee=s exaggerated clinical presentation.  Ultimately, Dr. Gedan concluded that there was no evidence of any ongoing injury related to the October 8, 2001, incident  and that the employee had reached MMI as of May 9, 2002.  A judge=s choice between expert opinions is generally 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, 37 W.C.D. 364 (Minn. 1985).

 

The employee contends that there are no facts to support Dr. Gedan=s medical opinion and that the May 9, 2002, date was Aplucked out of thin air.@  We note that May 9, 2002, was the date of the employee=s first examination with Dr. Shobe.  However, at that time, Dr. Shobe noted decreased motor strength on the left and a tremor with any type of motion-resistant motor strength activities.  In his report of November 2002, Dr. Shobe addressed what evidence there was of a cervical disc injury or radiculopathy by stating,

 

[H]e did on my initial examination have weakness in his left upper extremity in the brachioradialis, biceps and triceps musculature, as well as diminished brachioradialis reflexes on the left.  These do not specifically demonstrate evidence for disk injury, but do demonstrate evidence to suggest radicular irritation at least, and possibly even to the extent of radiculopathy.

 

(Emphasis added.)  Although Dr. Shobe examined the employee again on August 8, 2002, he did not reference any findings on that exam that would support his causation opinions.^[3]

  

Dr. Shobe=s reliance on examination findings from May 9, 2002, rather than from subsequent exams, combined with Dr. Gedan=s examination on July 10, 2002, with no positive objective findings on examination, is minimally adequate evidence to support the judge=s conclusion that the employee=s work injury was temporary.  Substantial evidence does not, however, support the conclusion that the temporary injury ended on May 9, 2002.  Admittedly, Dr. Gedan opined in his report of July 10, 2002, that the employee=s wage loss, rehabilitation benefits and medical treatment were related to the work injury Athrough May 9, 2002, or earlier.@  However, Dr. Gedan also noted in his report of July 10, 2002, that the employee=s Acurrent and ongoing presentation is no longer based on any injury that may have occurred on October 8, 2001" and that A[p]resently, [the employee] demonstrates no objective findings other than markedly exaggerated pain responses@ (emphasis added).  These comments, when combined with the evidence of a tremor on examination on May 9, 2002, lead us to modify the date of the resolution of the temporary injury to July 10, 2002, the date of Dr. Gedan=s examination.

 

3.  Surgery

 

Given our affirmance of the judge=s temporary injury finding, as modified to reflect a resolution date of July 10, 2002, we also affirm the judge=s decision that the employee=s October 11, 2002, fusion surgery was not necessitated by the work injury.