ROGER RASMUSSEN, Employee/Appellant, v. WAL-MART STORES, INC., and INSURANCE CO. OF THE STATE OF PENNSYLVANIA/AIG, ADMIN=D BY CLAIMS MANAGEMENT, INC., Employer-Insurer, and RICE COUNTY DIST. ONE HOSP., MINNESOTA DEP=T OF LABOR & INDUS., and MEDICARE, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 30, 2003

 

 

HEADNOTES

 

CAUSATION - AGGRAVATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including medical records and expert medical opinion, supports the compensation judge=s finding that the employee=s 1998 work injury represented a temporary aggravation of his pre-existing condition, and that  the work injury no longer contributed to his disability and need for medical treatment or rehabilitation assistance.

 

Affirmed.

 

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

Compensation Judge: Kathleen Behounek

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s determination that his November 25, 1998, injury was a temporary aggravation of his pre-existing condition, and from the  compensation judge=s denial of the employee=s claim for wage loss benefits, medical expenses and rehabilitation assistance.  We affirm.

 

BACKGROUND

 

Roger Rasmussen, the employee, sustained an injury to his low back on November 28, 1998, while employed by Wal-Mart Stores, Inc., the employer, which was insured for workers= compensation liability by Insurance Company of the State of Pennsylvania/AIG, the insurer.  At the time of his injury, he was 50 years old and earned a weekly wage of $290.00.  Prior to that injury, the employee had a long-standing history of medical and chiropractic treatment for low back symptoms.  At age 14,  he injured his back when he fell off a burro or horse.  He received chiropractic treatment for low back symptoms between 1965 and 1984 and again in 1996 and 1997.  The employee also injured his low back in 1976 while lifting a garage door, and in 1978 while lifting a heavy can at work. He also treated at the Mayo Clinic in 1981 for chronic recurrent mechanical low back pain.

 

In December 1996, the employee injured his low back as a result of a motor vehicle accident that occurred when he apparently lost consciousness, drove through an intersection and struck a van.  He was hospitalized for evaluation of his low back injury, which was diagnosed by Dr. William Laney as chronic low back pain, and for evaluation of a potential seizure condition.  Although he initially was diagnosed with a compression fracture at the T12 and L1 levels as a result of the accident, x-rays showed that the deformities at those levels were of an undetermined age.  Upon the employee=s discharge from the hospitalization, Dr. S. Frank Ogle referred him for a further neurological evaluation, and also stated that the employee=s Aback injury appears to be doing very well and anticipate no major problems or disability from that.@  After his motor vehicle accident, the employee periodically consulted Dr. Kenneth Sansome, Cannon Valley Clinic, primarily for his seizure condition.  He also consulted a neurologist in February 1997, Dr. Eric Sorenson, relative to his seizure condition, and was restricted from driving for six months due to that condition.  The employee sustained another seizure in November 1997, was again prescribed anticonvulsive medication and was restricted from driving for another six months.

 

In November 1998, the employee commenced work for the employer.  His initial duties included setting up fixtures at a store and performing assembly work, including installing conveyor track systems and channel I-beams.  On November 25, 1998, the employee sustained an injury to his low back while he and a co-worker lifted a conveyor track to which a heavy electrical motor was attached.  He felt a severe muscle or ligament strain and, by the next morning, had great difficulty getting out of bed.  He consulted Dr. Ogle, Cannon Valley Clinic, who restricted the employee from work until November 29, and released him work within physical work restrictions thereafter.    X-rays showed degenerative disc disease of the employee=s lumbar spine, most notably at the L5-S1 level.  The employee attempted to return to work within restrictions but was unable to continue due to low back symptoms.  On December 4, 1998, Dr. Ogle again released the employee to work within restrictions, and by January 8, 1999, Dr. Ogle reduced his restrictions to a lifting limit of 30 pounds.

 

The employer and insurer admitted liability for the employee=s November 25, 1998, work injury, and commenced temporary partial disability benefits as of December 4, 1998.  The employee continued working for the employer until March 1999.^[1] Thereafter, he worked for various employers, and the employer and insurer continued to pay temporary partial disability benefits for various periods of time through December 22, 2000.

 

Following his work injury, the employee continued to consult Dr. Ogle and Dr. Sansome for his low back condition and his seizure condition.  In March 1999, the employee consulted Dr. Bradley Wille, Orthopedic and Fracture Clinic, who diagnosed a chronic lumbar sprain/strain, and recommended physical therapy, continued medication, and continued work restrictions until his symptoms improved.  In May 2000, he again treated at the Cannon Valley Clinic for low back symptoms; Dr. Ogle restricted the employee to 20 hours of work per week, with no heavy lifting.  On October 24, 2000, the employee returned to the Orthopedic and Fracture Clinic, and consulted Dr. Laney, who diagnosed chronic low back pain due to degenerative disc and facet disease.  Dr. Laney recommended restrictions, physical therapy and an MRI scan.  That MRI scan, taken on April 2, 2001, showed degenerative disc disease from the L2-S1 vertebral levels and a large posterior disc bulge at the L4-5 level compatible with central spinal stenosis, but no definite intervertebral foraminal stenosis.

 

On December 8, 2000, Dr. Joseph Tambornino examined the employee at the request of the employer and insurer.  Dr. Tambornino diagnosed ongoing symptoms of lower back and leg pain, unsubstantiated by abnormal findings on physical examination.  He concluded that the employee had reached maximum medical improvement within a few weeks following his November 25, 1998, low back strain.  Dr. Tambornino concluded that no further medical treatment was necessary as a result of the employee=s work injury, and that the employee would be capable of working at his former job without physical work restrictions, as long as he employed proper back mechanics.

 

On December 21, 2000, the employer filed a Notice of Intention to Discontinue Workers= Compensation Benefits, advising that benefits would be discontinued after December 22, 2000, based on Dr. Tambornino=s medical report.  On January 4, 2001, the employer and insurer filed a rehabilitation request, requesting that the employee=s rehabilitation plan, which had provided for rehabilitation assistance during 2000, be terminated.  They contended that the employee was no longer statutorily eligible to receive rehabilitation assistance, as he had fully recovered from his low back strain and had no residual effects or any restrictions related to his 1998 work injury.  The employee objected to the discontinuance of temporary disability benefits and the proposed termination of the rehabilitation plan.  Following an administrative conference on February 26, 2001, a compensation judge found that the employee had reached maximum medical improvement, without restrictions related to his work injury, and therefore ordered that the employer and insurer=s discontinuance of temporary partial disability benefits be granted.  Based on that decision, the employee=s rehabilitation plan was closed as well.

 

The employee last consulted Dr. Sansome on May 14, 2001, at which time Dr.  Sansome diagnosed degenerative back disease and back strain and provided work restrictions for the employee.  On September 10, 2001, the employee filed a claim petition for temporary partial disability benefits and payment of medical expenses.  On December 18, 2001, Dr. Tambornino reexamined the employee, who reported continued symptoms in his low back. Dr. Tambornino diagnosed a  mild lumbosacral strain and concluded that the employee=s injury on November 25, 1998,  was a temporary aggravation of a pre-existing degenerative condition in his lower back.  Dr. Tambornino concluded that the employee=s low back strain resolved within six weeks of his work injury, that he has no permanent or temporary restrictions as a result of that injury, and that  he had reached maximum medical improvement from his November 25, 1998, injury. 

 

Dr. Sansome issued a report dated December 24, 2001, outlining his opinion as follows:

 

. . . Mr. Rasmussen has no history that I am aware of of ongoing persistent back disability or complaints prior to the end of 1998.  It is my understanding that he was working and productive to that point.  I am reasonably certain that he had degenerative changes in his back at that point in time; it would not be reasonable to believe his current MRI findings developed only in three years.  His work injury of 1998, in my opinion, contributed to his current situation, and the contribution could be by way of any or all of the following factors - causation, aggravation, or acceleration. 

 

Dr. Sansome also stated that he was not qualified to render a maximum medical improvement rating and that it would be most appropriate for the employee to be involved in a rehabilitation program prior to a maximum medical improvement determination.

 

The employee=s claim petition and the employer and insurer=s rehabilitation request were consolidated and both were addressed at a hearing held on March 15, 2002.  In her Findings and Order, served and filed on July 2, 2002, the compensation judge found that the employee=s work injury of November 25, 1998, resulted in a temporary aggravation of the employee=s pre-existing low back condition.  The compensation judge denied the employee=s claims for wage loss benefits, medical expenses and rehabilitation assistance, concluding that none were causally related to the employee=s 1998 work injury.  The compensation judge also concluded that the employee had reached maximum medical improvement from his 1998  injury by December 21, 2000.  The employee appeals.

 

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 employee appeals from the compensation judge=s denial of his claim for benefits related to his November 25, 1998, low back injury.  The employee argues that the compensation judge=s findings were clearly erroneous and not supported by substantial evidence of record.  He argues that although he had received medical treatment for his low back before his 1998 injury, he had received no medical treatment for his low back between January 1997 and November 1998,  was not experiencing ongoing or continuous low back symptoms at the time of his work injury, was fully capable of utilizing his low back for heavy labor and was not physically restricted as a result of his low back at the time of his 1998 injury. 

 

The employee also disputes the compensation judge=s conclusion that the history outlined by Dr. Sansome was incomplete, arguing that the history outlined by Dr. Sansome was more complete than the history outlined in Dr. Tambornino=s reports.  The employee argues that the compensation judge should not rely on Dr. Tambornino=s medical opinion for numerous reasons; he contends that Dr. Tambornino cited no medical records that suggested a resolution of the employee=s symptoms by January 1999, did not properly cite to findings on examination, did not adequately explain the numbness reported by the employee, and did not adequately explain the employee=s history that he continued to experience low back pain since his 1998 injury and has never returned to his pre-injury condition.  The employee alleges that the only reasonable conclusion to be made by the compensation judge is that his work injury still contributes to his current disability.  In summary, the employee argues that the compensation judge=s adoption of Dr. Tambornino=s opinion, as opposed to Dr. Sansome=s opinion, is manifestly contrary to the evidence of record, and that the compensation judge=s conclusions, as based on her choice between conflicting medical expert opinions, must be reversed.  We are not persuaded. 

 

Adequate foundation is necessary for a medical opinion to be afforded evidentiary value.  Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991).  To be of evidentiary value, a medical opinion must rest on a factual basis.  Zappa v. Charles Mfg. Co., 260 Minn. 217, 224, 109 N.W.2d 420, 424, 21 W.C.D. 459, 467 (1961).  Furthermore, the facts upon which the expert relies for his or her opinions must be supported by the evidence.  McDonald v MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff'd (Minn. July 13, 1990).  In her Findings and Order, the compensation judge outlined the employee=s medical history and the medical records generated since 1965.  The compensation judge concluded that the preponderance of evidence in the case supported the opinions of Dr. Laney and Dr. Tambornino.  Dr. Laney had examined the employee while he was hospitalized following his motor vehicle accident in December 1996.  Dr. Laney again examined the employee on October 24, 2000, recommended additional x-rays, and concluded that the employee=s work injury was a temporary aggravation of his pre-existing back problems.  Dr. Tambornino outlined his diagnosis and conclusions in two reports, issued following his examinations of the employee in December 2000 and December 2001.  Dr. Tambornino=s reports outlined the examination he conducted of the employee, medical records that he reviewed and the history he obtained from the employee.  The compensation judge could reasonably rely on Dr. Tambornino=s and Dr. Laney=s opinions in reaching her conclusions as to the nature of the employee=s 1998 injury.

 

In her memorandum, the compensation judge stated that the Ahistory assumed by Dr. Sansome is contrary to the evidence in this case,@ as he Awas not aware and had not reviewed the employee=s medical and chiropractic treatment records prior to the 1998 work injury, detailing the extent of treatment and employee=s complaints of lower back pain.@  (Memo., p. 6.)  The compensation judge also refers to the inconsistencies between the employee=s testimony concerning his recovery from his 1996 accident and his medical records.  She concluded that

 

Accordingly, the compensation judge finds that Dr. Sansome=s opinion is based on a history which is inconsistent with the evidence of employee=s significant and longstanding complaints of low back and radicular complaints prior to the work injury, and is unpersuasive. 

(Memo., p. 7.)

 

The record indicates that both Dr. Sansome and Dr. Tambornino were provided with copies of medical records documenting the treatment the employee received for his low back before his 1998 work injury.  However, it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony and a compensation judge=s choice between conflicting medical opinions is upheld, unless the opinion on which the judge relies is not based on adequate foundation or evidence and facts in the record.    Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  As Dr. Tambornino=s and Dr. Laney=s opinions are adequately founded, we will not disturb the compensation judge=s choice between conflicting medical expert opinions.

 

"[I]n order to recover workers' compensation benefits, the employee must establish that his work-related injury is a substantial contributing factor to his current disability."  Steinhaus v. F.B. Clements, 47 W.C.D. 22, 30 (W.C.C.A. 1992).  In addition, questions of medical causation fall within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).  In this case, the compensation judge concluded that the employee=s 1998 work injury no longer contributed to his disability and need for medical treatment or rehabilitation assistance.  Based on the record as a whole, we conclude that the compensation judge=s findings are supported by substantial evidence and are not clearly erroneous, and therefore affirm.