BRIAN J. MIDTLING, Employee, v. SCHWAN=S SALES ENTERS. and CNA INS. CO./RSKCO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 22, 2003

                                                                             

HEADNOTES

 

EVIDENCE - MINN. STAT. ' 176.238, SUBD. 6.  The compensation judge judge did not err or abuse her discretion by leaving the record open beyond 30 days and admitting into evidence the post-hearing report of the employee=s medical expert.

 

EVIDENCE - EXPERT MEDICAL OPINION.  The employee=s medical witness had sufficient knowledge about the matter at issue to render an expert opinion.  Any failure to comment upon or explain the mechanism of the injury may go to the persuasiveness or weight of the opinion, but does not render the opinion without foundation.  A compensation judge is not required to refer to or comment upon every piece of evidence introduced at the hearing.  The judge clearly stated which medical opinion she found persuasive, and there was no lack of foundation for that opinion.

 

Affirmed.

 

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

Compensation Judge:  Jennifer Patterson.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s decision denying their request to discontinue payment of workers= compensation benefits to the employee.  We affirm.

 

BACKGROUND

 

Brian J. Midtling, the employee, sustained a personal injury on September 23, 1998, while working for Schwan=s Sales Enterprises, then insured by CNA Insurance Company.  The employee=s injury was to the L4-5 level of his spine.  The employer and insurer admitted liability for the employee=s work injury. 

 

In 1993, the employee was injured in a motor vehicle accident when he struck a herd of bulls that had walked onto the highway.  The employee was treated for low back, left hip and left shoulder pain following the accident.  A CT scan in October 1993 showed mild bulging discs at L3-4, L4-5 and L5-S1, without nerve root or thecal sac compression.  Dr. Thomas A. Bergman, a neurosurgeon, examined the employee in March 1994 and concluded the employee was suffering from musculoskeletal low back spasm and pain which was responding to physical therapy.  The doctor concluded the employee was not a surgical candidate.

 

Following his work injury, the employee went to the Hutchinson Medical Center.  A CT scan showed a small herniation at L3-4, a left-sided disc herniation at L4-5 producing stenosis and a small herniation at L5-S1.  The employee was referred back to Dr. Bergman.  An MRI scan showed a moderate-sized central and left-sided disc herniation at L2-3 without evidence of stenosis and mild posterior disc bulging at L3-4 which effaced the ventral aspect of the thecal sac without evidence of stenosis.  At L4-5, the scan showed a moderate-sized central and left-sided disc herniation with impingement of the left L5 nerve.  The L5-S1 level showed mild posterior disc bulging which extended into the neural foramina without evidence of impingement of the nerve roots.  On September 24, 1998, Dr. Bergman performed a left L4-5 lumbar microdiscectomy.

 

Initially, the employee improved significantly after the surgery.  In October 1999, however, the employee returned to Dr. Bergman complaining of low back and leg pain.  A second MRI scan showed a very small disc bulge at L4-5 without evidence of compression of the nerve root and minimal disc bulging at L2-3 and L3-4 with marginal spurring.  The previously noted disc herniation at L5-S1 was no longer present, and the previously noted disc herniation at L2-3 had regressed.  Dr. Bergman recommended conservative treatment, including physical therapy and epidural steroid injections.

 

In July 2000, the employee went to the Mayo Clinic with complaints of persistent back and leg pain.  Dr. W. Richard Marsh ordered an MRI scan and myelogram and diagnosed a recurrent disc herniation at L4-5.  In August 2000, Dr. Marsh performed a repeat lumbar laminectomy with excision for a recurrent disc herniation at L4-5.  The employee reported significant improvement following the second surgery.

 

On October 3, 2002, the employee returned to see his family physician, Dr. Thomas P. Kleinkauf, complaining of low back and left leg pain.  A lumbar MRI scan showed a small right paracentral L3-4 disc herniation, with extrusion of disc material, and post operative changes at L4-5 on the left without recurrent disc herniation, but with a disc protrusion which appeared to produce moderate foraminal stenosis.  At L5-S1, the scan showed a small recurrent disc herniation producing moderate to marked left foraminal stenosis and moderate right foraminal stenosis.  The employee returned to see Dr. Marsh on November 27, 2002.  A CT myelogram showed a central and left-sided disc protrusion at L5-S1, with moderate to severe narrowing of the left neural foraman abutting the L5 nerve root.  The L4-5 level showed post-operative changes but no new problems.  On December 2, 2002, Dr. Marsh noted Athe myelogram from last week I have reviewed.  It shows changes as described on the MRI scan.  Of significance, however, the S1 nerve root is cut off and appears compressed on the CT.  I think this is the most likely cause for this gentleman=s problems.  At the L4 segment, I see only post operative changes.@  The doctor went on to state: 

 

I discussed the results with Brian.  He asks me if this L5 disk could be related to the old injury.  I explained to him that as it was a different disk, I could not say that it was.  He clearly had degenerative changes at the L5 disk even going back to the time of my surgery, but as these were not causal for his problems, it appears to me on the surface to be a second injury.

 

Dr. Marsh discussed with the employee the possibility of additional surgery, which the employee declined.  Thereafter, the employee obtained chiropractic care at Team Health Care.

 

On October 18, 2002, the insurer commenced payment of temporary total disability benefits.  On December 10, 2002, the insurer served and filed a Notice of Intention to Discontinue Workers= Compensation Benefits (NOID).  Based upon the December 2, 2002 note of Dr. Marsh, the insurer asserted the employee=s current problems were unrelated to his personal injury and were due to a new injury.  The employee requested an administrative conference, and a compensation judge allowed the discontinuance effective January 10, 2003.  The employee then filed an objection to discontinuance.  See Minn. Stat. ' 176.238, subd. 4.

 

Dr. Robert A. Wengler examined the employee on January 29, 2003.  The doctor diagnosed a chronic lumbar disc syndrome, status post decompressions for an extruded L4-5 herniation.  Dr. Wengler opined the employee=s current symptoms were related to deformities of the discs contiguous to the original disc herniation at L4-5.  Dr. Wengler opined the L3-4 and L5-S1 discs deteriorated and deformed as a function of the stresses to which they were subjected by virtue of the injury to the L4-5 disc.

 

Dr. John Dowdle examined the employee on February 27, 2003.  His diagnosis was mechanical low back pain and a degenerative disc at the L4-5 level which was chronic and unchanged.  The doctor opined the employee=s current problems were due to a disc herniation and compression at L5-S1 on the left which was a new condition which began in September 2002.  The doctor opined the employee=s current problems were not caused by or related to the September 23, 1998 personal injury.  The doctor further stated he had reviewed the reports from Dr. Marsh and agreed with his opinion that the employee=s current condition was due to a new injury.

 

The employee=s objection to discontinuance was heard on March 5, 2003.  The issue before the compensation judge was whether the employee=s current disability and need for medical care was causally related to the 1998 personal injury.  At the outset of the hearing, the judge ruled that the record would remain open for 30 days to allow the employee to file a supplemental report or a deposition of Dr. Wengler and for the employer and insurer to file additional medical records and obtain a supplemental report from Dr. Dowdle.  By letter dated March 6, 2003, counsel for the appellants filed with the court supplemental medical records and stated the employer and insurer would not be submitting a supplemental report from Dr. Dowdle.  On April 15, 2003, the employee filed with the court a supplemental report from Dr. Wengler dated March 26, 2003.  In that report, Dr. Wengler stated he disagreed with the opinions of Dr. Dowdle.  Dr. Wengler opined there was Aabsolutely no question but that Mr. Midtling=s current back problems and the need for ongoing treatment, be it at L4-5, L5-S1, or even L3-4, is causally related to the September 1998 injury.@  (Pet. Ex. F.)

 

In a Findings and Order filed April 28, 2003, the compensation judge stated the record closed on April 16, 2003, with the approval of Assistant Chief Administrative Law Judge Hagen allowing the reopening of the record to receive the March 26, 2003 report of Dr. Robert A. Wengler.  The compensation judge concluded the 1998 injury to the L4-5 level of the employee=s spine changed the body mechanics and stresses on the adjacent levels at L3-4 and L5-S1 and caused consequential injuries to these two levels of the employee=s lumbar spine.  Accordingly, the judge denied the request to discontinue compensation benefits.  The employer and insurer appeal.

 

DECISION

 

The appellants first argue the compensation judge erroneously admitted the March 26, 2003 medical report of Dr. Wengler.  The appellants contend the judge=s decision to keep the record open beyond 30 days is prohibited by Minn. Stat. ' 176.341, subd. 5,[1] and is contrary to the intent and policy of Minn. Stat. ' 176.238, subd. 6, to resolve litigation in a timely manner.  The appellants ask this court to reverse the decision of the compensation judge and remand the case for reconsideration, excluding the March 26, 2003 report of Dr. Wengler.

 

This case was instituted by a NOID filed by the employer and insurer.  Following an administrative decision under Minn. Stat. ' 176.239 allowing the discontinuance, the employee filed an objection to discontinuance.  Discontinuance hearings are governed by Minn. Stat. ' 176.238.

 

Minn. Stat. ' 176.238, subd. 6, provides:

 

Absent a clear showing of surprise at the hearing or the unexpected unavailability of a crucial witness, all evidence must be introduced at the hearing.  If it is necessary to accept additional evidence or testimony after the scheduled hearing date, it must be submitted no later than 14 days following the hearing, unless the compensation judge, for a good cause, determines otherwise.

 

While Minn. Stat. ' 176.341, subd. 5, allows the compensation judge to leave the record open for no more than 30 days, Minn. Stat. ' 176.238, subd. 6, contains no such limitation.  Rather, Minn. Stat. ' 176.238, subd. 6, gives the compensation judge the discretion to leave the record open for more than 14 days so long as there is good cause to do so.  The issue is, therefore, whether good cause existed in this case.

 

In Scalf v. LaSalle Convalescent Home, 481 N.W.2d 364, 46 W.C.D. 283 (Minn. 1992), the supreme court held that Minn. R. 1415.1900 did not bar the admission into evidence of a medical report not disclosed at the pretrial.  The court cited Minn. Stat. ' 176.155[2] which expressly permits the submission of medical reports both before and after the hearing.  The court stated that Athe purpose of the proceeding is disclosure of the true facts, a purpose better served by acceptance of all competent, relevant and material evidence.@ 

 

The compensation judge admitted into evidence Dr. Dowdle=s report over the employee=s objection that it was untimely, but kept the record open for 30 days to allow the employee to obtain a supplemental report from Dr. Wengler.  The appellants did not object to nor do they appeal this ruling.  Neither did the appellants request the right to provide additional evidence in response to any report of Dr. Wengler filed within the 30-day period.  We see no evidence, nor do the appellants assert, they were somehow prejudiced by the compensation judge=s decision to receive into evidence Dr. Wengler=s March 26, 2003 report.  The compensation judge=s decision to receive that report into evidence is, therefore, affirmed.

 

The appellants next argue the causation opinions of Dr. Wengler lack foundation.  The employer and insurer argue Dr. Wengler failed to explain his theory that the work injury to the L4-5 disc level increased stress on the L3-4 and L5-S1 discs causing them to deform and degenerate, contributing to the employee=s current condition.  Further, the appellants argue Dr. Wengler failed to consider a 1993 CT scan documenting bulging discs at L3-4 and L5-S1, the exact levels currently at issue.  Accordingly, the appellants argue the opinions of Dr. Wengler could not reasonably be relied upon by the compensation judge.  We disagree.

 

An expert medical opinion must be based on adequate foundation.  Welton v. Fireside Foster Inn, 426 N.W.2d 883, 41 W.C.D. 109 (Minn. 1988).  The competence of a witness to render expert medical testimony depends upon both the degree of the witness=s scientific knowledge and the extent of the witness=s practical experience with the matter at issue.  Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983).  Dr. Wengler obtained a history from the employee, reviewed all of the relevant medical records and tests, and performed a physical examination.  As a general rule, this level of knowledge establishes a doctor=s competence to render an expert opinion.  See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988).  We acknowledge Dr. Wengler did not explain the mechanism of injury, that is, how the initial injury at L4-5 caused injury to the adjacent spinal levels.  An expert medical opinion does not lack foundation because the doctor fails to explain the mechanism of injury or the underlying reasons for the expert opinion.  Rather, the presence or absence of such testimony goes to the weight that may be afforded the opinion by the compensation judge.  All that is required, under the facts of the case considered as a whole, is that it appears a competent medical witness opined the injury causally contributed to the disabling condition.  See, e.g., Goss v. Ford Motor Co., 55 W.C.D. 316 (W.C.C.A. 1996); Darnick v. Swett & Crawford, slip op. (W.C.C.A. Oct. 29, 2002).  Here, Dr. Wengler clearly expressed his opinion that the 1998 injury caused injury to the L3-4 and L5-S1 disc levels resulting in disability.

 

The appellants next argue Dr. Wengler=s opinions lack foundation because he inaccurately stated the Aabnormalities of these discs [L3-4 and L5-S1] were noted as early as a first CT scan and MRI done in September 1998.@  (Pet. Ex. F.)  They contend the doctor failed to take into account the 1993 CT scan which specifically showed bulging discs at L3-4 and L5-S1, the exact levels involved in this dispute.  Again, we disagree.

 

In his report, Dr. Wengler specifically noted a ACT scan done following that [1993] injury reportedly showed some degenerative changes at L3-4, L4-5 and L5-S1 but no nerve root or thecal sac compression.@  The doctor further noted the employee was able to return to work without restrictions after recovering from the 1993 injury.  Clearly, Dr. Wengler considered the medical records and reports prior to 1998 but disagreed with the opinions of Dr. Marsh and Dr. Dowdle.  We find no lack of foundation and conclude the compensation judge could reasonably rely on Dr. Wengler=s opinions.

 

Finally, the employer and insurer argue the compensation judge failed to consider the opinion of Dr. Marsh that the employee sustained a new injury unrelated to the 1998 personal injury.  This omission, the appellants argue, requires a reversal of the judge=s decision.  We disagree.

 

Although the compensation judge did not specifically refer to Dr. Marsh=s opinion in the Findings and Order, a compensation judge is not required to relate or discuss every piece of evidence introduced at the hearing.  Braun v. St. John=s Univ., slip op. (W.C.C.A. July 20, 1992); Wickham v. Metropolitan Transit Comm=n, slip op. (W.C.C.A. Oct. 10, 1997).  The judge did, however, discuss the opinions of Dr. Dowdle which mirrored those of Dr. Marsh.  The compensation judge then concluded she found the opinion of Dr. Wengler more persuasive.  It is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The decision of the compensation judge is affirmed.