GERALDINE RICHARDSON, Employee/Appellant, v. HENNEPIN CO. MED. CTR., SELF-INSURED, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 18, 2003

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s 1995 work injury was not a substantial contributing cause of the employee=s condition, need for surgery, or disability after February of 1997.

 

Affirmed.

 

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

Compensation Judge:  Jeanne E. Knight.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s determination that the employee=s 1995 work injury was not a substantial contributing factor in her condition, need for surgery, or disability after February of 1997.  We affirm.

 

BACKGROUND

 

The employee sustained an admitted work-related injury to her low back on April 17, 1995, while working for Hennepin County [the employer] as a food service worker.  She subsequently treated for this injury at Hennepin County Medical Center [HCMC] in the Occupational Medicine Clinic, complaining of low back, left buttock, and left leg pain.  She was taken off work and prescribed physical therapy.  On April 25, 1995, a Aworkability report@ was completed, indicating that the employee could return to work four hours a day, with a five-pound limitation on lifting and carrying and no bending, twisting, or turning.  An MRI of the lumbar spine, conducted on June 23, 1995, showed mild degenerative changes, particularly at L2-3 and L5-S1, with a mild broad-based bulge and right-sided protrusion at L5-S1, although the employee was having no symptoms on the right.  Narrative notes from HCMC for June 26, 1995, indicate Ano surgical lesion present,@ and the employee=s diagnosis thereafter was Alumbar strain.@  The employee continued in physical therapy and eventually began work hardening. 

 

HCMC notes for July 26, 1995, reflect that the employee had a sore back but no leg pain, numbness, or weakness.  The employee=s QRC was noted to be present at that examination and reported that the employer had no work available for the employee.  Treatment notes for August 15, 1995, indicate that the employee had quit her work hardening program, had asked for a six-month leave of absence from the employer, and was moving to Bemidji to live.  On August 17, 1995, a discharge functional evaluation was performed.  On that date, the employee complained of low back and left lower extremity pain but indicated that packing to move Acould be contributing to pain symptoms.@  Results of the functional testing revealed that the employee could lift and carry up to 25 pounds.  An R-33 was completed, indicating that the employee could work with restrictions of occasional lifting and carrying of 25 pounds, no squatting, and occasional bending and stooping.  A healthcare provider report prepared on October 2, 1995, indicated that the employee had reached maximum medical improvement [MMI] from the April 17, 1995,[1] injury on August 15, 1995, and that the employee had a 3.5% permanent partial disability of the whole body pursuant to Minn. R. 5223.0390, subp. 3B.

 

In August of 1995, the employee, a member of the Red Lake Band of Chippewa, moved to Red Lake, Minnesota.  Following her move, the employee treated at the Red Lake Public Health Service Hospital and Clinic, where on September 20, 1995, she sought pain medication for low back pain going into the left leg to the knee.  The diagnosis at that time was lumbosacral strain, and the employee was prescribed physical therapy.  The employee was seen again on September 25, 1995, Arequesting doctor=s statement stating that she cannot work so that she can qualify for general assistance.@  There is no evidence as to whether that statement was given.  On October 6, 1995, the employee returned to the clinic, relating that she had experienced minimal improvement since commencing physical therapy.  The employee had six physical therapy treatments between September 20, 1995, and November 27, 1995.  At the time of her last treatment, she reported that her pain had decreased to only an ache in the left lumbar region, and straight leg raising was negative for the first time.  While she returned to the hospital or clinic on eight occasions between November 27, 1995, and February of 1997, she did not complain of low back pain or left leg pain during those visits.

 

The employee took a part-time job as a cashier at the Red Lake Trading Post in February of 1996.  On February 6, 1997, she was taken to the hospital by ambulance when she experienced low back pain and right leg pain with twisting while lifting a box at work.  An MRI performed on February 25, 1997, showed a large disc herniation at L5-S1 on the right.  About six weeks later, on April 9, 1997, a right L5-S1 hemilaminectomy and microdiscectomy was performed.  The employee has not worked since February 6, 1997, and she moved back to the Twin Cities in 1998.  She filed a workers= compensation claim with the Red Lake Band of Chippewa, but that claim was denied. 

 

On March 16, 2000, the employee filed a claim petition, seeking permanent total disability benefits from November 13, 1999, and continuing, as a result of a herniated L5-S1 disc sustained on April 17, 1995.  The matter came on for a hearing before a compensation judge at the Office of Administrative Hearings on February 5, 2003.  In findings filed on April 3, 2003, the compensation judge found, in part, that the employee had not proved that the April 1995 injury was a substantial contributing factor in her disability after February 1997, or her need for surgery in March of 1997, and that the employee had not proved that she was permanently totally disabled.  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

 

The employee contends that the compensation judge ignored the vast majority of the evidence concerning the severity of the employee=s 1995 injury, including the fact that the injury resulted in a documented herniated disc and that surgery had been recommended for the employee before the 1997 incident at the Red Lake Trading Post.  We note initially that many of the allegations contained in the employee=s brief are inaccurate.  There is, for example, no evidence that the 1995 injury Aresulted@ in a documented herniated disc.  While there was no evidence of a herniated disc prior to 1995, the employee had never had an MRI before that time.  The herniated disc that appeared on the 1995 MRI  was on the right side, although the employee=s symptoms, following the 1995 injury,  were all on the left.  An October 9, 1995, note from HCMC to the employer stated, A[r]adiographic findings do not appear to be related to this injury.@  Dr. John Dowdle, who performed an independent medical examination years later, and reviewed the medical records from that earlier period, reported that the herniation was not clinically significant in 1995,  was not consistent with the employee=s physical findings or complaints after the 1995 injury, and therefore did not occur on April 17, 1995.  In fact, the employee offered absolutely no medical opinion indicating that she sustained a herniated disc at the time of the 1995 injury.  In addition, there is no evidence to support the employee=s allegation that surgery was Arecommended@ prior to the 1997 incident.  While the May 31, 1995, narrative notes of HCMC state, Aif no improvement will schedule MRI for surgical workup,@ the narrative notes of June 26, 1995, written after the MRI, indicate Ano surgical lesion.@

The employee also alleges in her brief that she was never released to return to work after the 1995 injury.  This allegation is contrary to the evidence, as the HCMC records beginning on April 25, 1995, indicate that the employee was capable of working and listed restrictions within which the employee could work.  Each Aworkability report@ was either signed by the employee or otherwise marked as having been reviewed with the employee.  While medical records suggest that the employee had a QRC and was working towards a return to work with the employer,[2] it is simply inaccurate to state that the employee was not released to return to work at all after the 1995 injury.

 

It was Dr. Dowdle=s opinion that the 1995 work injury did not result in the L5-S1 disc herniation, and that the 1995 injury was not a substantial contributing factor in the employee=s onset of symptoms and resulting surgery in 1997.  The only opinion to the contrary appears to be the March 12, 1997, opinion of chiropractor Dr. David Nelson, who, while completing a healthcare provider report asking whether there was evidence of a pre-existing or other condition that affected this disability, responded Ainjury to LB dated 4-16-95.@  A compensation 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).  While the compensation judge found that the employee did not meet her burden of proof, it appears from her memorandum that the judge also relied on the opinion of Dr. Dowdle in denying the employee=s claim.  The employee has not established in any way that Dr. Dowdle=s opinion was based on facts not supported by the evidence.

 

Other factors that support the judge=s causation decision includes the fact that the employee received no treatment whatsoever for her back after November 1995, until February of 1997.  While the employee testified that she has had low back pain and left leg pain ever since the 1995 injury, the records indicate that she went without treatment for over a year, during a period in which she was apparently eligible to receive physical therapy at no cost. 

 

The employee also points to the fact that permanent partial disability was paid after the 1995 injury as evidence that that injury was a substantial contributing factor in her disability after the 1997 incident.  We note, however, that the assigned rating was for lumbar pain syndrome with decreased  range of motion in the lumbar spine but without radiographic abnormality.  This rating is not necessarily evidence that the L5-S1 disc was injured in 1995.

 

Because substantial evidence supports the compensation judge=s conclusion that the employee=s 1995 work injury was not a substantial contributing factor in her condition, need for surgery, or disability after 1997, we affirm the compensation judge=s findings in their entirety.[3]