JOSEPH SCHELONKA, Employee/Appellant, v. WAITE PARK MFG. and STATE FUND MUT. INS. CO., Employer-Insurer, and MN DEP=T OF LABOR & INDUS./VRU, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 21, 2003

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s work injury was merely temporary.

 

Affirmed.

 

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

Determined by William R. Johnson.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s determination that the employee=s February 9, 2000, work injury resolved with no residual impairment.  We affirm.

 

BACKGROUND

 

In November of 1990, the employee began working for Waite Park Manufacturing [the employer], a manufacturer of large overhead cranes.  The employee=s job as a machinist for this employer required him to lift parts weighing ten to fifteen pounds on a frequent basis; hoists were used to move the heavier parts.

 

The employee received sporadic chiropractic care both before and after beginning his job with the employer.  For example, chiropractic records reflect treatment in 1990 for thoracic symptoms after an injury at a previous employer, as well as treatment for neck and/or mid back symptoms in 1993 and 1994.  In the spring of 1996, the employee sought both chiropractic and medical care for a variety of complaints, including throat pain, left rib pain, right chest pain, arm pain, headaches, lightheadedness, hand tremors, weight loss, tingling in the little fingers, back pain, neck pain, and facial tingling.  In a pain diagram completed for purposes of an MRI scan, the employee indicated that he was experiencing pain on the left side of his neck down his mid back to about the T7 or T8 spinal level, as well as left arm pain.  The cervical MRI, performed on June 4, 1996, was interpreted as normal.  Despite an extensive work-up, physicians were unable to definitively diagnose the cause for most of the employee=s complaints, but it was thought that some of the symptoms were attributable to thyroiditis and anxiety.  A few years later, in December of 1999, the employee apparently received chiropractic treatment again for neck and low back symptoms.  The employee testified that his occasional chiropractic treatments over the years were just Atune-ups@ and that he never had any significant ongoing complaints.

 

On February 9, 2000, the employee sustained an admitted cervical and upper thoracic injury when the forklift he was driving came to a dead stop upon hitting a raised seam in the floor.  The employee testified that the force of the impact threw him up over the steering wheel, causing him to hit his head on the roll bar in front of him, snapping his neck back.  He received treatment that day at the local emergency room for pain in his neck and between his shoulder blades.  Cervical and thoracic x-rays were viewed as normal, and the diagnosis was cervical strain.  The employee was subsequently off work for about four days before returning to light-duty and then regular work.  He testified that other employees would help him with his job when necessary.  He attended three sessions of physical therapy.  As of the date of the third physical therapy visit, March 5, 2000, the employee=s headaches had resolved and, while some cervical findings were still noted, no further treatment was scheduled.

 

The employee continued to work for the employer until June of 2000, when he obtained a better-paying job as a machinist with another company.  The record indicates that the employee=s duties in the new job were similar to his duties in the old, and he testified that his job change had nothing to do with his physical condition.  However, he also testified that, within about two months of the February 9, 2000, incident, his neck pain began radiating into his arms, and that, five or six months after that, he began experiencing numbness and tingling in his arms.

 

On August 29, 2001, a year and a half after his work injury, the employee sought chiropractic treatment from Dr. Michael Schleicher, one of the chiropractors from whom he had received care in the past.  Dr. Schleicher=s notes from that visit indicate that the employee was complaining of severe neck and mid back pain as well as numbness and tingling in both arms, symptoms which the employee Asays he has had since he sustained an injury while at work on February 9, 2000.@  Effective September 4, 2001, Dr. Schleicher took the employee off work, to avoid further damage, and subsequently referred him for cervical and thoracic MRI scans, which were performed on September 10, 2001.

 

The cervical MRI scan was interpreted by the radiologist as showing multilevel cervical and upper thoracic spondylosis, and evidence of Aan old tear@ of the supraspinous ligament at C7-T1 with associated avulsion of the tip of the T1 spinous process, a condition later described by some physicians as a possible Aclay shoveler=s fracture.@  However, at the end of the interpretation section of the report, the radiologist stated, AComparison with the previous examination of 6/04/96 shows no significant interval change.@  The thoracic MRI scan disclosed disc bulging or herniations at several thoracic disc levels.

 

On October 3, 2001, the employee was seen by neurosurgeon Anthony Bottini, on referral from Dr. Schleicher.  Dr. Bottini=s examination findings included restricted range of cervical motion; reflexes and other findings were recorded as normal or unremarkable.  Commenting on the 2001 cervical MRI scan, Dr. Bottini wrote,

 

RADIOGRAPHIC REVIEW:  I reviewed the patient=s cervical MRI scan obtained on September 10, 2001.  This study shows no evidence of focal disk disease, herniation, neural impingement, or spinal stenosis.  Cervical alignment is normal.  There is noted to be some increased T2 signal in the interspinous spaces between the C6-C7 and C7-T1 spinous processes.

 

The portions of Dr. Bottini=s report concerning his assessment and treatment plan read as follows:

 

ASSESSMENT:  Possible cervical interspinous ligamentous injury and/or clay-shoveler fracture as a result of this work-related injury.

 

PLAN:  I discussed the situation with the patient in the clinic.  I obtained lateral cervical spine, flexion and extension views, which were also reviewed while the patient was in the office.  This study demonstrated no fanning of the cervical spinous process nor evidence of spinal instability.  The ligaments appear to be structurally intact, although possibly partially disrupted.  There is no evidence of fracture.  The T1 level is not well seen, however.  Cervical MRI scan does not suggest the possibility of marrow edema or fracture into the upper thoracic spine.

 

I believe the patient suffers from primarily ligamentous injury with significant soft tissue component.  There is no evidence clinically or radiographically of neurologic compression.  I have discussed this at length with Mr. Schelonka, including management alternatives for this problem.  I have told him that I do not believe that surgical intervention of any type would be effective.  I would not recommend cervical epidural steroids or other invasive procedure.  I have suggested the use of nonsteroidal antiinflammatories on a trial basis and continue conservative management of his symptoms.  I anticipate that his symptoms should improve with time but do not believe that there will likely be a single effective intervention which will diminish or alleviate his symptoms.

 

In January of 2002, Dr. Schleicher released the employee to work with certain restrictions.  Later that year, in August of 2002, the employee was offered and accepted a job with the employer as an inspector.  He continued to receive chiropractic care from Dr. Schleicher on an as-needed basis.

 

The matter came on for hearing before a compensation judge on November 7, 2002, for resolution of the employee=s claim for wage loss benefits, medical expenses, and permanent partial disability benefits allegedly related to the February 9, 2000, work injury.  The employer and insurer admitted liability for a cervical injury and an upper thoracic injury but alleged that those injuries had completely resolved, with no residual impairment.

 

Evidence submitted at hearing included the employee=s treatment records, including treatment notes indicating that the employee had received chiropractic care for neck and upper back symptoms, from a relative, at two family gatherings in the year and a half between his work injury and his appointment with Dr. Schleicher in late August of 2001.  Also submitted as evidence were reports from Dr. Robert Wengler, Dr. Joel Gedan, and Dr. Lanning Houston.  The reports of Drs. Wengler and Gedan concerned primarily causation and the nature of the February 9, 2000, work injury -- Dr. Wengler supported the employee=s claim, while Dr. Gedan supported the employer and insurer=s temporary injury defense.  The report by Dr. Houston, a neuroradiologist, indicated that he saw no significant differences between the 1996 and 2001 cervical MRI scans.  Dr. Houston=s deposition was also taken and submitted to the compensation judge post-hearing.  The witnesses at hearing consisted of the employee, the employee=s wife, Dr. Schleicher, and the employee=s date-of-injury shop supervisor.

 

In a decision issued on February 6, 2003, the compensation judge concluded that the employee=s February 9, 2000, work injury was merely temporary and had resolved by April of 2000.  Accordingly, the judge denied the employee=s claim for benefits.^[1]  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

Dr. Gedan examined the employee on the employer and insurer=s behalf on May 13, 2002.  According to his report of that same date, the employee exhibited Asome variability with cervical range of motion testing and decreased voluntary movement of the cervical spine@; the remainder of the examination was normal.  Dr. Gedan also reported that he had reviewed the 1996 and 2001 cervical MRI scans and saw no Aobvious injury at the C7-T1 level or other significant differences between the two studies,@ noting that Dr. Houston had essentially concluded the same thing after his review.  With regard to the nature and extent of the employee=s February 9, 2000, injury, Dr. Gedan wrote, in part, as follows:

 

Mr. Schelonka, by history and review of medical records, has intermittent symptoms of neck and back pain for which he has sought chiropractic treatment over many years.  In my opinion, Mr. Schelonka=s treatment for neck and back pain relates to activities of daily living and spontaneously occurring pain, but not to any specific injury to the C7-T1 level.

 

In my opinion, Mr. Schelonka sustained an injury as a result of the February 9, 2000 work injury.  In my opinion, this was a temporary injury relating in a cervical and upper thoracic strain.  This injury would have resolved on or around April 2000.

 

The injury was relatively mild despite the circumstances that caused it.  Mr. Schelonka was out of work only a few days and then returned to his regular job without restrictions.  Mr. Schelonka continued to perform heavy-duty work involving a large amount of forces with pushing and pulling and overhead work.  He performed this job through September 2001.

 

Mr. Schelonka treated on only two occasions between April 2000 and August 2001, and this was not at a regularly scheduled chiropractor, but by a family member or friend at family gatherings.  One treatment occurred in December 2000 and another in July 2001.  These sporadic treatments for neck and back pain are no different than Mr. Schelonka=s prior treatments for neck and back pain that go back to 1979.  The records do not show ongoing chiropractic treatment until August 29, 2001, which is more than 1-1/2 years after the initial injury.  In view of the fact that Mr. Schelonka continued performing heavy labor without seeking any medical treatment, it is my opinion that the medical records do not document an ongoing injury after April 2000.

 

The compensation judge expressly accepted Dr. Gedan=s opinion on causation, explaining that he had chosen the opinion of Dr. Gedan over the opposing opinion of Dr. Wengler because Dr. Wengler had Afail[ed] to account for the fact that the employee had these same finding[s] in 1996.@  The judge also indicated that Dr. Gedan=s opinion was supported by the report of Dr. Bottini and the opinion of Dr. Houston.

 

On appeal, the employee argues that the judge mischaracterized Dr. Bottini=s report, that, contrary to the judge=s analysis, the 1996 and 2001 MRI scans are not identical, and that the judge improperly ignored the testimony of the employee, the employee=s wife, and the employee=s supervisor as to his continuing symptoms.  Furthermore, the employee contends, Dr. Gedan=s opinion is foundationally flawed because Dr. Gedan erroneously relied on Dr. Houston=s initial report of his MRI comparison, rather than his later, corrected deposition testimony, because Dr. Gedan ignored his own examination results when he reported that the employee had no objective findings, and because Dr. Gedan based his opinion on the erroneous assumption that the employee=s post-injury work was heavy.  We are unpersuaded that the judge=s decision is unsupported by evidence that a reasonable mind might accept as adequate.

 

The determinative issue here is whether the judge erred in accepting Dr. Gedan=s opinion that the February 9, 2000, work injury had resolved by about April of 2000.  We find no error in this regard.  Dr. Gedan reviewed the 1996 and 2001 cervical MRI scans himself and found no particular differences; we do not read his report to indicate that he was relying entirely on Dr. Houston=s opinion on the issue.   Moreover, contrary to the employee=s suggestion, we do not think that Dr. Houston=s opinion changed in any material respect.  In his May 10, 2002, report, Dr. Houston indicated that the 2001 scan was within normal limits, with no abnormalities at C7-T1 and no change from the 1996 scan.  While he subsequently testified in his post-hearing deposition that the 2001 cervical MRI showed dehydration, he explained that dehydration is normal with aging and in fact Avaries so much that I tend not to even comment on it in imaging.@  Dr. Houston estimated that he has read more than 100,000 spinal MRI scans, and the compensation judge was clearly entitled to rely on his conclusions.^[2]

 

Also contrary to the employee=s argument, we do not think that Dr. Gedan Aignored@ his cervical range of motion findings when issuing his opinion; rather, it is clear from Dr. Gedan=s report that he viewed the employee=s restricted range of cervical motion as voluntary -- therefore, not an objective finding. 

 

Finally, we are not convinced that Dr. Gedan=s opinion was based on any erroneous impression as to the nature of the employee=s post-injury work activities.  While the employee may have testified that his job was Amuch lighter@ after he changed employers in June of 2000, his description of the new job duties, and the weights involved, was very similar to his description of his date-of-injury employment.  Furthermore, he testified that Dr. Schleicher removed him from work in September of 2001 because it was Aa physical job . . . . You know, many times, 20, 30 pounds, that=s not uncommon in a machine shop to be lifting.@^[3]

 

By his own admission, the employee sought periodic chiropractic care for back and neck symptoms, for a Atune-up,@ in the years prior to his February 9, 2000, work injury.  However, other than three initial physical therapy visits and two chiropractic adjustments from a relative during family gatherings, he sought no treatment for neck or mid back complaints for nearly a year and a half after the work injury, and he continued to perform his usual job.  Both Dr. Gedan and Dr. Houston indicated that there was no significant difference between the employee=s pre-injury and the employee=s post-injury cervical MRI scans.  Given these circumstances, and because there were no objective findings on examination, Dr. Gedan concluded that the February 2000 work injury was merely temporary.  While there is also evidence to the contrary, including the lay testimony and the opinions of Drs. Wengler and Schleicher, we cannot conclude that the judge erred in accepting Dr. Gedan=s opinion on this issue.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  We therefore affirm the compensation judge=s decision in its entirety.