SANDRA M. VIGOREN, Employee/Appellant, v. JOSEPH CATERING and FREMONT COMPENSATION INS. GROUP, Employer-Insurer/Cross-Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 27, 2003

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s coccyx pain was not causally related to the employee=s work injury or resulting surgery.

 

COSTS & DISBURSEMENTS.  The compensation judge erred in awarding reasonable costs and disbursements where the employee did not prevail.

 

Affirmed in part and reversed in part.

 

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

Compensation Judge:  Ronald E. Erickson.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s finding that the employee=s coccygeal pain was not causally related to her admitted work injury.  The employer and insurer cross appeal from the judge=s award of costs and disbursements.  We affirm in part and reverse in part.

 

BACKGROUND

 

The employee sustained an admitted work-related injury to her low back on July 30, 1999, while working for Joseph=s Catering [the employer].  Following the injury, the employee had complaints of low back and right leg pain and radiculopathy.  An MRI scan completed on August 17, 1999, revealed a large central and right-sided disc herniation at the L5-S1 level with L5 nerve root impingement.  Degenerative disc disease was identified at L4-5 and L5-S1.  

 

In October of 1999, the employee was referred to neurosurgeon Dr. Christine Cox for a consultation.  Dr. Cox determined that the employee=s signs and symptoms were consistent with a right L5-S1 herniated disc and performed a right L5-S1 hemilaminectomy and microdiscectomy on November 15, 1999.  Both the L5 and S1 nerve roots were decompressed.  By December 15, 1999, the employee was reporting that her back pain was different, that she had an achiness on the right that made it difficult to sit or stand for long, and that there was no change in her leg pain.  An MRI scan performed on January 14, 2000, showed no canal stenosis or nerve root compression.  On March 20, 2000, Dr. Cox released the employee to return to work two hours per day with no heavy lifting, twisting, or bending, indicating that she should change positions as needed.  At that time, the doctor noted that the employee was reluctant to return to work.

 

On March 26, 2000, the employee started treating with Dr. Andrew Will.  Dr. Will recorded a history of pain in the employee=s tailbone and down her right leg, which the employee stated had begun at the time of her work injury.  By April 13, 2000, the employee was complaining of primarily tailbone pain.  Dr. Will released the employee to work three hours a day, three days per week on May 12, 2000, and the employee was able to do that.  On January 8, 2001, Dr. Will stated, A[t]here is a possibility that [the coccygeal pain] is a referred pain from her back where the surgery had been . . . .@

 

Dr. Joel Gedan performed an independent medical examination of the employee on May 25, 2000.  In reports dated May 25, 2000, and June 13, 2000, Dr. Gedan stated that the employee=s primary complaint was lower sacral and coccygeal pain, which was made worse by sitting and pressure in that area.   It was Dr. Gedan=s  opinion that the coccygeal pain was not related to the work injury.  He also stated that there was Ano reasonable connection between the lumbar spine surgery and the development of pain in the coccyx.@  Dr. Gedan further reported that the employee could work full time with a fifty-pound weight restriction and no excessive flexion or extension of the lumbar spine and that Dr. Will=s restriction on hours was related solely to the employee=s coccygeal pain.^[1] 

 

The employer and insurer made the employee a written offer of full-time employment that would not require lifting over ten pounds or repetitive bending and sitting and would allow the employee to change positions as necessary.  Subsequently, on August 23, 2000, the employer and insurer filed a notice of intention to discontinue benefits based on Dr. Gedan=s opinion that the employee was capable of full-time work.  That notice advised the employee that temporary partial disability benefits would be paid based on the difference between the employee=s pre-injury wage and the wage of the offered job.  The employee filed an objection to discontinuance, seeking temporary partial disability benefits based on the difference between her pre-injury wage and her earnings working three hours per day, three days per week.

 

On November 28, 2000, following a motion by the attorney for the employer and insurer, a compensation judge issued an order authorizing a neutral examination.  The objection to discontinuance went to hearing on February 16, 2001, and the record was left open for the  employee to be examined by neutral examiner Dr. Robert Hartman on February 20, 2001.  Dr. Hartman subsequently reported that the employee was suffering from chronic low back pain and inflammation of the coccyx.  He stated that there was no injury to the coccyx on the date of injury, that the Apathophysiology of an L5-S1 herniated nucleus pulposus cannot explain . . . coccygeal pain and persistent, >extreme= low back pain,@ and that there was Ano pathophysiologic mechanism which could reasonably explain coccygeal pain based on an L5-S1 discectomy.@  It was Dr. Hartman=s opinion, based on the objective medical evidence, that the employee could work full time with no lifting, pulling, or carrying greater than fifty pounds from floor to waist height, and no lifting, pushing, pulling, or carrying greater than twenty-five pounds from waist to chest height.

 

In a decision filed April 17, 2001, the compensation judge found that the employee was capable of working full time within Dr. Hartman=s restrictions and was capable of performing the light-duty job offered to her by the employer.  However, the judge made Ano decision or finding as to the causal relationship between the employee=s claimed coccyx or tailbone problem and the original work injury.@  The employee appealed, and, on appeal, both parties agreed that a determination as to causation for the coccygeal pain was necessary.  On December 27, 2001, this court remanded the case to the compensation judge to determine whether the employee=s coccygeal pain was causally related to the work injury and/or her subsequent surgery and, if so, what the employee=s restrictions were with regard to both her low back and coccyx condition and whether the employee was capable of working full time in the offered job.

 

In his Findings and Order on Remand, filed August 30, 2002, the compensation judge found that the employee=s coccygeal pain was not related to the work injury or the subsequent surgery, and he reiterated that the employee was able to work full time within the restrictions authorized by Dr. Hartman.  The compensation judge also awarded reimbursement of reasonable costs and disbursements.  Both parties appeal.

 

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 substantial evidence does not support the judge=s determination that the employee=s coccygeal pain is not related to the work injury.  We are not persuaded.

 

Three doctors rendered opinions as to causation for the employee=s coccygeal pain.  Dr. Will was the employee=s treating doctor as of March 26, 2000, and in his office note of January 8, 2001, he stated that Athere is a possibility that this is a referred pain from her back where the surgery had been.@  Later, in his deposition taken on February 7, 2001, Dr. Will testified that he was not familiar with anyone having tailbone pain for an unknown reason, stating, AI always have a suspicion or explanation for the pain.@  He testified that the nerves to the coccyx Acould be@ disrupted during surgery, but it was his theory that a nerve was pinched at the time of the work injury and that, while the decompression surgery Aunpinched@ the nerve, Athat doesn=t make [it] entirely normal again.@

 

Independent medical examiner Dr. Gedan stated that he has treated patients with coccygeal pain and that A[s]ometimes there is a history of direct trauma to the tailbone causing the pain . . . . However, other patients have presented with no identifiable precipitating cause.@  It was his opinion that Ait is most unlikely@ that the coccygeal pain was caused by the lifting injury at work.  He also did not think that the coccygeal pain was related to the surgery, stating, A[t]here was no surgical procedure performed anywhere near the region of the coccyx and the nerves to the coccyx were not involved in the decompressive lumbar spine surgery.@  Finally, he opined,

 

Based on the medical records which document pain consistent with a lumbar radiculopathy, as well as the presentation of coccygeal pain sometime after the lumbar spine surgery, it is my opinion within a reasonable degree of medical certainty . . . that the pain in the coccyx is of uncertain etiology at this time, but not reasonably related to the work injury of July 30, 1999 or the lumbar spine surgery of November 15, 1999.

 

Finally, the neutral examiner,  Dr. Robert Hartman III, testified in his deposition that the most common cause of coccyx pain was direct trauma to the coccyx.  From his review of the medical records, it was his opinion that the employee=s first complaints of tailbone pain came on after the surgery and therefore could not in any way be attributed to what happened on July 30, 1999.  He also testified that the nerve rootlets from L5 and S1 do not innervate the tailbone and that there was no evidence that anything happened to any other nerve rootlets during the surgery that would account for the employee=s coccyx pain.  In his 17 years of practice he had never seen a case where an L5-S1 hemilaminectomy caused pain in the coccyx, and it was his opinion that the surgery performed by Dr. Cox Aabsolutely@ was not the cause of the employee=s coccyx pain.

 

The employee suggested in her brief and at oral argument that  Athere was a blunt trauma some time during the surgical procedure@ which led to the employee=s coccygeal pain.  However, there is no medical record or doctor=s report to support this theory, and we are not persuaded by the employee=s arguments.^[2]

 

The compensation judge found that the most common cause for pain in the coccyx is direct trauma to the coccyx and that there was no evidence that the employee sustained a direct trauma at the time of injury.  The employee=s testimony, medical records and specific opinions of Drs. Gedan and Hartman provide substantial evidence to support this finding.  The compensation judge also found that there was no evidence that the employee sustained any trauma to the coccyx secondary to the surgery performed by Dr. Cox.  Again, the medical records and the opinions of Drs. Gedan and Hartman support that finding.

 

Finally, the judge found that the employee failed to establish that the coccygeal pain arose out of and in the course of her employment with the employer.  In his memorandum, the judge specifically pointed to the deposition testimony of Dr. Hartman as support for this finding.  Dr. Hartman stated that he had no explanation for the employee=s coccygeal pain but explained why it could not be related to the work injury or the surgery performed by Dr. Cox.  In addition, Dr. Gedan had stated in his report that the coccyx pain was Aof uncertain etiology.@  Only Dr. Will offered the opinion that the coccygeal pain was related to the work injury.  A compensation judge=s choice of expert opinions is usually 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).  The employee has pointed to no facts assumed by Drs. Gedan or Hartman that are not supported by the evidence.

 

The employee also argues that she did not have coccyx pain before the work injury but has had it since and Athat alone is sufficient to support a strong inference of cause and effect.@  In support of this argument, the employee cites Kelly v. C.M.I. Refrigerator Co., 231 N.W.2d 490, 27 W.C.D. 951 (Minn. 1975), in which the Minnesota Supreme Court held that Awhere an employee is asymptomatic prior to an injury but begins to experience symptoms in the area of the trauma shortly after the injury, and in a short time suffers disability for which he claims benefits, that alone is sufficient to support a strong inference of cause and effect.@  Id. at 491, 27 W.C.D. at 952.  In Kelly, the employee had the onset of left eye problems immediately after being hit with a pressurized spray on the left side of his face.  In the instant case, while the employee testified that the coccyx pain came on immediately after the work injury, both Drs. Gedan and Hartman noted that there was no evidence of coccyx pain in the medical records until some time after the surgery, three and a half months after the injury.  Kelly is distinguishable from the instant case on this factual basis.  We also note that Kelly was also based on medical opinion evidence and was an affirmance by the supreme court.

 

Based on the medical records, the reports of Dr. Gedan, and the report and deposition testimony of Dr. Hartman, we find substantial evidence to support the compensation judge=s finding as to causation of the employee=s coccygeal pain.  While the employee also appealed from the judge=s findings regarding restrictions related to the work injury and her ability to perform the offered work, those issues were not briefed and are therefore deemed waived.^[3]

 

The employer and insurer cross appealed from the judge=s award of reasonable costs and disbursements.  At oral argument, counsel for the employee agreed that, if he did not prevail on appeal, the employee would not be entitled to costs and disbursements as awarded by the compensation judge.  As we have affirmed the judge=s findings as to causation, we reverse the judge=s award of costs and disbursements.