PAUL POLZ, Employee/Appellant, v. JACKSON COUNTY SHERIFF=S DEP=T, and SELF-INSURED/ALEXSIS-RSKCO, Employer-Insurer, and BLUE CROSS AND BLUE SHIELD OF MINNESOTA, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 29, 2003

 

HEADNOTES

 

ARISING OUT OF AND IN THE COURSE OFBCAUSATIONBSUBSTANTIAL CONTRIBUTING CAUSE B Where the employee experienced  a right hip dislocation while at work as he started to lean against a retaining wall, and where the employee had a pre-existing history of medical treatment related to his right hip, substantial evidence of record supported the compensation judge=s determination that the employee=s injury did not arise out of employment with the employer and that there was no causal connection between the employee=s injury and his employment.

 

Affirmed.

 

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

Compensation Judge: William R. Johnson

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s finding that the employee=s injury to his right hip on June 22, 2000, did not arise out of his employment with Jackson County Sheriff=s Department.  We affirm.

 

BACKGROUND

 

On June 22, 2000, Mr. Paul Polz, the employee, was employed as a jailer/dispatcher with the Jackson County Sheriff=s Department, the self-insured employer, earning a weekly wage of $830.00.  On that date, the employee was 39 years old, and also was employed part-time with the City of Jackson Police Department and the Jackson fire and ambulance service.  On the morning of June 22, 2000, near the end of his 12-hour shift, the employee walked outside to take a cigarette break.  As he backed up to lean against a four-foot tall retaining wall, located on the employer=s premises, he felt a pop in his right hip.  He noticed an immediate onset of severe pain in his right hip, and radioed the dispatcher for help.  The employee then telephoned his brother, who picked him up and transported him to Dickinson County Memorial Hospital in Spirit Lake, Iowa.  He underwent an internal reduction (relocation) procedure, performed by Dr. Jerome Perra, a surgeon with whom the employee had earlier treated.  The employee returned to work at his scheduled shift the following evening.  After that date, however, he was placed on medical leave by the employer and did not return to work for the employer.

 

Before this incident, the employee had undergone considerable medical treatment for his right hip.  In 1975, at age 13, he was hit by an automobile while he rode his bike.  He fractured his right tibia, and noticed an achy feeling in his right hip after that incident.  His medical records since 1975 reflect that he periodically noted symptoms in his right hip; walking and lifting caused his hip to ache, as did changes in the weather.

 

The employee began working with the Jackson County Sheriff=s Office in 1986.  In 1994 and 1995, the employee obtained chiropractic treatment for his low back and right hip symptoms.  In October 1994, he consulted Dr. L. T. Donovan, an osteopath with Iowa Lakes Orthopaedics, due to increased right hip pain aggravated by activity.  Dr. Donovan prescribed anti-inflammatory medication, which did not relieve the employee=s symptoms, and diagnosed Legg-Calve-Perthes disease of the right hip with near total destruction of the right femoral head.[1]  Dr. Donovan discussed the option of total hip replacement surgery with the employee but recommended that the employee defer surgery due to his young age.  He suggested that the employee could request a second opinion from the Mayo Clinic or at least wait until July 1995 when Dr. Perra, an orthopedic surgeon, would be joining Iowa Lakes Orthopaedics. 

 

By 1995, the employee noticed increased pain in his right hip, and obtained a second opinion from Dr. Perra, who diagnosed the employee with severe right hip deformity, leg length discrepancy, right hip arthritis and right hip degenerative joint disease. Dr. Perra initially recommended conservative treatment.  The employee=s symptoms persisted; he reported significant pain with ambulation more than 15-20 minutes.  Dr. Perra discussed the option of total hip arthroplasty or arthrodesis of the hip, and the employee chose to proceed with total right hip replacement surgery, which Dr. Perra performed on March 27, 1996.  In addition, according to the surgical report, Dr. Perra detected a small longitudinal crack in the proximal femur at the time of surgery that was secured with a circlage cable.

 

The employee continued to work as a dispatcher, within work restrictions.  He testified that the achiness in his right hip improved by approximately 70 percent following that surgery.  According to the employee=s medical records, he reported Aalmost no residual discomfort@ by nine months following the surgery, and reported that he continued to do well until September 12, 1998.  On that date, his right hip dislocated after he picked up the bride=s mother at a wedding to give her a hug.  He reported to Dickinson County Memorial Hospital, where he underwent a closed reduction procedure to relocate his hip.  Within a few days, while performing his therapeutic exercises, he experienced a recurrent right hip dislocation, which again was reduced.  He was placed in a protective abduction brace for three months, and reported anterior groin pain that he apparently had not experienced before these dislocations.  Dr. Perra eventually released the employee to work as a dispatcher and other lighter duty jobs, but restricted him from his duties as a jailer and also restricted him from certain activities with the Jackson fire and ambulance service.

 

The employee=s thigh pain continued, and he underwent periodic evaluations with Dr. Perra who continued to assign work restrictions.  In August 1999, at the request of the employer, Dr. Perra reviewed the description of the employee=s job with the sheriff=s department, and  concluded that the employee could continue working as a dispatcher and jailer, but advised that he may be at some increased risk of injury if knocked to the ground or twisted into an awkward position.

 

At a March 24, 2000, appointment with Dr. Perra, the employee reported that his symptoms had not really changed, and that he had a dull ache in the anterior groin and thigh region, although never severe in nature.  His pain increased with prolonged sitting.  A bone scan was performed in March 2000 to assess changes in the employee=s hip; the scan was interpreted to show either early loosening of the femoral stem or a stress reaction at the tip due to the differential between the stiffness of the prosthesis and stiffness of bone.  Dr. Perra noted that surgery might be necessary if the employee=s symptoms worsened.

 

After his hip dislocation that occurred on June 22, 2000, the employee eventually underwent surgery to his right hip on July 12, 2000, in the nature of a revision of his previous right total hip replacement.  At the time of the 2000 surgery he was also diagnosed with a stress fracture of his right femur, and during surgery underwent placement of allograft femoral cortical struts onto his right femur. 

 

Dr. Perra released the employee to return to work at a sedentary job in early August 2000, and by September 26, 2000, released him to return to his usual work activities within work restrictions of no jumping more than 1 foot, no running, and no kicking above 30 inches off the floor.  Dr. Perra=s chart notes reflect extensive discussions and correspondence with the employer concerning the employee=s ability to perform the requirements of the jailer position and to undergo required training for that job.  The employee apparently was unable to return to his previous position with the employer, due to his physical work restrictions.  However, he continued to work part-time in the records department of the  Jackson Police Department.  He also worked as a billing clerk for a local trucking firm from April 1 through May 2, 2001, when he was laid off from that job.  By the time of the hearing held on December 2, 2002, the employee was employed full-time as a jailer/dispatcher with the Cottonwood County Sheriff=s Department, and worked at his previous part-time position for the Jackson Police Department and also worked part-time as an administrator for the city=s fire and ambulance department.

 

On May 17, 2001, the employee underwent an independent medical examination by Dr. Robert Wengler.  The employee reported to Dr. Wengler that he noted ongoing proximal hip and thigh pain after his July 2000 surgery, as well as pain in his right groin.  He reported that it was painful to internally rotate his right leg, that it was painful for him to lie on his right side, and that he could walk comfortably only 3-4 blocks.  Dr. Wengler referred to the employee=s hip dislocations in September 1998 and June 2000, and stated that the Adislocation in 1998 occurred as a function of a fairly strenuous physical event.  The second occurred almost spontaneously and apparently with no physical effort, a function of orientation of the acetabular cup and laxity of the anterior joint pseudocapsule.@  Dr. Wengler concurred with the physical work restrictions assigned by the employee=s treating surgeon, and provided the following opinion concerning causation:

 

The dislocation that occurred on June 22, 2000 resulted in subsequent work disability, need for medical treatment and physical restrictions and an increase in the rateable impairment.  I defer to the legal judgement of the trier of fact as to whether its occurrence at work meets the criteria for Asubstantial contribution.@

 

On August 27, 2001, the employee filed a claim petition, claiming entitlement to temporary total disability benefits, permanent partial disability benefits and medical expenses related to his injury on June 22, 2000.  The self-insured employer denied primary liability for the claimed injury.  On January 10, 2002, the employee was examined by Dr. James Johanson at the employer=s request, for purposes of an independent medical examination.  Dr. Johanson concluded that the employee=s condition was causally related to his pre-existing condition and not to his claimed injury of June 22, 2000.  He further determined that the employee had reached maximum medical improvement from his total hip revision surgery of July 12, 2000, recommended work restrictions to the employee and also advised him that he should continue to be followed by Dr. Perra for his orthopedic condition.

 

The employee=s claim petition was heard before a compensation judge on December 3, 2002.  In Findings and Order served and filed on January 10, 2003, the compensation judge found that the employee=s injury did not arise out of his employment with the employer and denied his claims for workers= compensation benefits.  The employee appeals from those findings.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

 

DECISION

 

The compensation judge found that the employee=s injury did not arise out of his employment with the employer.  A personal injury is defined as an Ainjury arising out of and in the course of employment.@  Minn. Stat. ' 176.011, subd. 16.  For an injury to Aarise out of@ the employment, there must be a causal connection be­tween the employment and the injury.  Lange v. Minneapolis-St. Paul Metro. Airport Comm=n, 257 Minn. 54, 99 N.W.2d 915, 21 W.C.D. 61 (1959).  The requisite causal connection Aexists if the employment, by reason of its nature, obligation or incidence may   reasonably be found to be the source of the injury-producing hazard.@  Nelson v. City of St. Paul, 249 Minn. 53, 55, 81 N.W.2d, 272, 275, 19 W.C.D. 120, 123 (1957).  In this case, the compensation judge concluded that the employee=s injury did not arise out of his employment with the employer, as there was no increased risk resulting from employment. 

 

In Bohlin v. St. Louis County/Nopeming Nursing Home, 61 W.C.D. 69 (W.C.C.A. 2000), summarily aff=d (Minn. Jan. 16, 2001), this court reviewed Minnesota case law and discussed the increased risk test and the positional risk test, two tests utilized to analyze whether an injury Aarose out of@ employment.  The primary test for determining whether an injury arises out of the employment is the increased risk test.  This test requires a showing that the Ainjury was caused by an increased risk to which the claimant, as distinct from the general public, was subjected by his or her employment.@  1A. Larson and L.K. Larson, Workers= Compensation Law ' 3.00 (1999).  In Minnesota, the supreme court has stated, A[t]he >arising out of= requirement refers to the causal connection between the employment and the injury.  This requirement requires a showing of some hazard that increases the employee=s exposure to injury beyond that of the general public.@  Kirchner v. County of Anoka, 339 N.W.2d 908, 911, 36 W.C.D. 335, 337 (Minn. 1983).  The injury need not be peculiar to the employment, so long as the injury-producing risk or hazard has its origin or source in the employment.  See Larson, ' 3.00; Breimhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719, 15 W.C.D. 395 (1949).

 

This court also referred to the increased risk test in Khani v. Mesaba Aviation, Inc., slip op. (W.C.C.A. May 21, 2002), cited by the compensation judge, in which we affirmed a judge=s finding that the employee=s injury, which occurred when his knee twisted and he fell onto an airport tarmac, was compensable.  We referred to previous case analyses of the positional risk and increased risk tests and stated that

 

the primary test for determining whether an injury arises out of the employment is the increased risk test.  As this court stated in Bohlin v. St. Louis Co., 61 W.C.D. 69 (W.C.C.A. 2000), if an unqualified positional risk doctrine were adopted, A[e]very injury would be presumptively compensable so long as it occurred at work.  Under such a standard, all an injured employee need prove is that the injury occurred while the employee was on the work premises.  The employer would then be obligated to introduce evidence to rebut the pre­sump­tion of compensability.  Such a result would remove from the employee proof of the >arising out of and in the course of= requirement of Minn. Stat. ' 176.011, subd. 16 and place the burden of proof on the employer.  This is contrary to Minn. Stat. ' 176.021, subd. 1.@

 

The employee argues that those cases that are the source of the Aincreased risk@ test involve idiopathic injuries, those that occur with no known cause, and that such analysis is inapplicable here since the mechanism of the employee=s hip injury is known.  We disagree.  The phrase Aarising out of employment,@ which connotes a causal connection between the employment and the injury, is required for a finding of compensability.  The Aarising out of@ and Ain the course of@ requirements of Minn. Stat. ' 176.011, subd. 16, are not independent, but are elements of a single test of work-connection.  United Fire & Casualty Co. v. Maw, 510 N.W.2d 241 (Minn. Ct. App. 1994).  This court previously has adopted Larson=s balancing test which requires that in any given case, a certain mini­mum level of work-connection must be established.[2]  Under that analysis, if the Acourse@ test is weak but the Aarising@ test is strong, the necessary minimum quantum of work-connection will be met, as it is also if the Aarising@ test is weak and the Acourse@ factor is strong.  But if both the Acourse@ and Aarising@ elements are weak, the minimum connection to the employment will not be met.  Larson, ' 29.01. See e.g. Schreier v. Bruning Constr., 61 W.C.D. 507 (W.C.C.A. 2001); Cauwels v. Schotts, Inc., 61 W.C.D. 285 (W.C.C.A. 2001); Bohlin, 61 W.C.D. 69; and Otto v. Midwest of Cannon Falls, 59 W.C.D. 25 (W.C.C.A. 1999).  As this court stated in Bohlin, A[w]hen a line is drawn, there are always cases very close to each side of the line.  No absolute rule can be derived, since there are too many factual variables that could affect the result.@  Bohlin, 61 W.C.D. at 81.[3]

 

The employee argues that the compensation judge applied an erroneous legal standard when he concluded that there must be an Aaggravating workplace effect@ shown in order for an injury to be deemed compensable.  The employee argues that no such test is articulated in previous case law, and that the phrase Aarising out of@ simply means there must be some causal relationship between the injury and the employment, and does not mean the employment must be the proximate cause of the injury.  See Gibberd v. Control Data, 424 N.W. 2d 776, 40 W.C.D. 1040 (Minn. 1988).  The employee argues that the employee=s injury was work-related, asserting that he was on the work premises, engaging in an activity incident to his employment, that the work premises were not an active accessory in causing the injury but the employee=s presence thereon increased the risk of such an injury, and further that there is uncontested medical evidence that the June 22, 2002, work incident injured the employee=s right hip. 

 

From the judge=s analysis in his findings and memorandum, it is apparent that his reference to a Aworkplace effect@ is part of his factual analysis of whether there was any causal connection between the employee=s injury and his employment.  He found that there was no increased risk resulting from employment here, that the employee did not hit the retaining wall and that there was no allegation the nature of the ground contributed in any way to the employee=s injury, and that the employee simply dislocated his hip much like he had in 1998.  More crucial to the ultimate determination, the compensation judge found no causal connection between the employee=s work and the onset of his symptoms in 2000, stating that A[g]iven his long history of hip problems dating back to 1975 and his subsequent hip surgeries and continued problems and restrictions there is no indication that the work contributed in any way to the onset of these problems in June of 2000.@

 

For an injury to arise out of employment, there must be a connection between the work activity and the injury.  Generally, this causation connection may be made by a medical opinion.  Here, Dr. Wengler does not provide the requisite connection.  In his report, he said the dislocation Aoccurred almost spontaneously and apparently with no physical effort, a function of orientation of the acetabular cup and laxity of the anterior joint pseudocapsule.@  There is no opinion that the physical activity involved in leaning against the retaining wall resulted in the dislocation.

 

Applying Larson=s balancing test to this case, therefore, and considering the lack of a medical opinion that the employee=s injury was causally related to his employment, we conclude that the compensation judge reasonably determined that the employee=s injury did not arise out of his employment with the employer.  See Larson, ' 29.01.  As we concluded in Bohlin, whether there exists the requisite causal connection between the work activities and the injury  is a question of fact.   In view of the unique facts in this case, we conclude that substantial evidence of record supports the compensation judge=s determination that the employee=s injury did not arise out of employment with the employer and that there was no causal connection between the employee=s injury and his employment.  That finding is supported by evidence which a reasonable mind would accept as adequate, is not clearly erroneous, and therefore we affirm.