PHILIP M. WEILAND, Employee/Appellant, v. TIEDEMANN FARMS and STATE FUND MUT. INS. CO., Employer-Insurer, and DAKOTACARE, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 3, 2003

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Where the employee sustained an admitted work-related injury to his low back on December 31, 1995, but sought no medical treatment for his low back until January 1997, and where the evidence included conflicting medical opinions on the causation of the employee=s current disability, substantial evidence of record supports the compensation judge=s findings that the employee=s work injury was not a substantial contributing factor to the disability for which he earlier was paid benefits, his need for surgery in 1999 and 2000, any additional permanent partial disability, and his permanent total disability.

 

Affirmed.

 

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

Compensation Judge: Jeanne E. Knight

 

Attorneys: John A. Winters, Winters Law Office, Crookston, MN, for Appellant.  Andrew W. Lynn, Lynn, Scharfenberg & Associates, Minneapolis, MN, for Respondents.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s finding that his admitted work injury on December 31, 1995, was not a substantial contributing factor to his permanent total disability, his need for surgery in 1999 and 2000, any additional permanent partial disability, or disability for which he has already been compensated.  We affirm.

 

BACKGROUND

 

On December 31, 1995, Philip Weiland, the employee, sustained an admitted work injury to his low back while working for Tiedemann Farms, Inc., the employer, which was insured for workers= compensation liability by State Fund Mutual Insurance, the insurer.  The employee testified that he attempted to move a heavy truck ram or hoist, and experienced a sharp pain.  He  did not seek treatment for the injury until January 1997.  Between his injury and January 1997, the employee obtained medical treatment for other conditions, but his medical records include no reports of low back symptoms by the employee between 1995 and January 1997.  On January 15, 1997, the employee consulted Dr. Colleen Breske, reporting low back pain for the past two years, especially during the past two to three months.  Later in January, 1997, the employee was hospitalized for approximately one week, related to alcohol use and an overdose of amitriptyline.

 

At Dr. Breske=s referral, the employee consulted Dr. Robert Suga on February 11, 1997, for an orthopedic evaluation.  The employee reported that his low back symptoms began about three years earlier, and more specifically the previous spring.  The employee advised Dr. Suga that he did not recall any specific low back injury but that he felt his symptoms were related to a lifting injury.  The employee also advised Dr. Suga that he has had back pain since his military service in the 1970's but that his pain had steadily worsened over the years.  Based on examination and radiographic findings, Dr. Suga concluded that the employee would be a candidate for surgery.

 

The employer was notified of the employee=s work injury on February 13, 1997.[1]  The employer and insurer accepted primary liability and paid temporary total disability benefits from January 15, 1997, through July 23, 1998, benefits based on ten percent permanent partial disability of the whole body, rehabilitation benefits from March 19, 1997, through September 25, 2001, and medical expenses.

 

At the referral of the insurer, the employee was examined on April 15, 1997, by Dr. Daniel Schmelka, neurosurgeon.  Dr. Schmelka advised that he would not consider surgery until the employee quit smoking for at least three months and that he desist from drinking any alcohol, explaining that he believed a fusion surgery would have minimal success unless the employee quit smoking.

 

After reviewing results from a discogram administered in January 1998, Dr. Suga concluded that the employee was not Areally a great candidate for surgery.@  On March 31, 1998, Dr. Suga performed an impairment assessment of the employee, assigned a 10% permanency rating, concluded that the employee could work full-time in a light-duty capacity, and determined that the employee had reached maximum medical improvement (MMI). 

 

On June 15, 1998, the employer and insurer filed a notice of intention to discontinue workers= compensation benefits, based on the employee=s attainment of MMI.  The employee objected to the discontinuance on the basis that he might  require surgery in the future.[2]  Pursuant to an order on discontinuance, served and filed July 7, 1998, the employer and insurer were allowed to discontinue payment of temporary total benefits effective July 23, 1998, based on a finding that the employee had reached 90 days post-MMI.

 

The employee consulted Dr. Mark Fox on July 20, 1998, to obtain a second surgical opinion.   Dr. Fox initially recommended conservative treatment, including a back brace, physical therapy and an epidural injection.  He ultimately recommended surgery and on April 7, 1999, performed surgery in the nature of an anterior/posterior fusion of the L4 to L5-S1 vertebral levels.  The Social Security Administration determined that the employee was disabled as of April 7, 1999, the employee=s surgery date, and commenced disability benefits by October 1999.  In addition, the employee is paid benefits by the U.S. Department of Veterans Affairs for a military service-connected post-traumatic stress disorder.

 

On May 5, 2000, the employee filed an objection to discontinuance of benefits, objecting to the order on discontinuance filed on July 7, 1998.  On August 22, 2000, Dr. Nolan Segal examined the employee on behalf of the employer and insurer.  Dr. Segal diagnosed the employee with functional overlay and chronic pain.  In his report, Dr. Segal outlined the history provided by the employee and stated in his report that he relied solely on the employee=s report of an injury on December 31, 1995, since there was nothing in the medical records to suggest a work injury on that date.  Dr. Segal also stated that he found nothing in the records until January 1997 that even suggested back problems.  Dr. Segal found numerous inconsistencies in the history as given by the employee, and concluded that the employee=s claimed injury of December 31, 1995, was not a substantial contributing factor in the employee=s current back problems nor to the surgery he underwent in 1999.  Dr. Segal assigned a permanency rating of 20% whole body impairment, and recommended physical work restrictions for the employee, but concluded that the rating and restrictions were unrelated to the employee=s 1995 injury.

 

 The employee underwent a second surgery to his low back on October 31, 2000, in the nature of a hemilaminectomy at the L4 and L5 levels, foraminotomy at the L4-L5 and L5-S1 levels, and disc excision at the L4 and L4 levels.  Dr. Fox performed that second surgery as well.  In a letter dated November 30, 2000, in response to inquiries submitted by the employee=s attorney, Dr. Fox stated that he believed the employee=s surgery was related to his 1995 injury and that it constituted reasonable and necessary medical treatment; Dr. Fox disputed Dr. Segal=s opinion that the surgery was not reasonable or necessary and that it was unrelated to the employee=s 1995 work injury.  Dr. Fox also concluded that the employee=s permanent partial disability and work restrictions were related to his 1995 injury.  On the causation issue, however, Dr. Fox referred to the employee=s ongoing pain syndromes, and stated as follows:

 

In summary, I would state that Mr. Weiland has a chronic back and leg pain syndrome which may or may not be related to a 12/31/95 work related injury.  My notes reflect that something happened during that time period, and his symptoms have persisted.  I have no reason to deny Mr. Weiland=s claim of a work-related injury, although the substantiation of that injury is very weak, I would admit.

 

As to the 1995 injury, Dr. Fox stated that AI have no reason to deny that Mr. Weiland had a work-related injury on the Dec. 31, 1995, alleged injury date.  With regards to whether this is a substantial contributing factor, I cannot state with certainty.   The patient had told me that this was the time when his injuries occurred, and again - I have no reason to deny that.@

 

On October 11, 2001, the employee filed a claim petition alleging permanent total disability since July 23, 1998.  The claim petition and the objection to discontinuance were consolidated, and a hearing was held on October 31, 2002.  Before the hearing, the employee underwent an independent medical examination on August 16, 2002, with Dr. Seth Rosenbaum, evidently at the referral of his attorney.  In his report dated August 30, 2002, Dr. Rosenbaum concluded that the employee had no significant injury to his lumbar spine before December 31, 1995, that he had a work related injury on that date, and that he has sustained 20% permanent partial disability to the body as a whole as a result of that injury.

 

At the hearing, although the parties agreed that the employee was permanently and totally disabled as of July 23, 1998, the employer and insurer claimed that all benefits had been paid under a mistake of fact and that the admitted work injury was not the cause of the employee=s disability and need for medical treatment.  In Findings and Order, served and filed January 28, 2003, the compensation judge found that the employee=s admitted work injury was not a substantial contributing factor to his permanent total disability, his need for surgery in 1999 and 2000, any additional permanent partial disability, or that disability for which he had already been compensated.  The employee appeals.

 

STANDARD OF REVIEW

 

In reviewing cases 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, "[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, "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."  Id.

 

DECISION

 

The compensation judge found that the employee sustained a work-related injury to his low back on December 31, 1995, but that the work injury did not substantially contribute to the  the disability for which the employee already had been compensated, his need for surgery in 1999 and 2000, any additional permanent partial disability beyond the amount already paid, nor his permanent total disability.  A[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).  An employee need not prove that the employment was the sole cause, only a substantial contributing cause of the disability for which benefits are sought.  Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989). 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).  Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.  Redgate v. Sroga=s Standard Service, 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  It is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).

 

The employee first argues that the employer and insurer should be estopped from denying primary liability for the benefits already paid for the December 31, 1995, injury since the employer and insurer=s delay in disputing a causal relationship between the employee=s work injury and his disability could have prejudiced his ability to present evidence on that issue.  At the hearing on October 31, 2002, the employer and insurer=s attorney specifically asserted a claim that benefits had been paid under a mistake of fact.  Although the employer and insurer did not assert a claim for a credit for an overpayment, they remained entitled to assert that benefits had been paid under mistake of fact.  See Minn. Stat. ' 176.179.  The compensation judge did not err by allowing the employer and insurer to dispute whether the benefits earlier paid to the employee were paid under a mistake of fact.  Further, the employee did not raise this estoppel issue at the hearing below.  Issues raised for the first time on appeal are not properly before this court and will not be addressed.  See Ruether v. State,  Mankato State Univ., 455 N.W.2d 475, 479, 42 W.C.D. 1118, 1124 (Minn. 1990); Malinoski v. North American Cable Sys., slip op. (W.C.C.A. Dec. 14, 1989).

 

The employee also argues that the compensation judge=s decision was arbitrary and capricious because the judge did not specify the medical opinion on which she relied in reaching her conclusions on causation.  The employee further argues that Dr. Segal erroneously assumed that there was no December 31, 1995, injury, and therefore his opinion must be rejected since the compensation judge found that the employee had injured his low back on December 31, 1995.  We disagree.  It is clear from her findings and memorandum that the compensation judge thoroughly reviewed the evidence.  Her memorandum suggests that she based her decision primarily on the absence of medical treatment for 12 months following the employee=s personal injury, not on the opinion of Dr. Segal.  The fact that the compensation judge did not recite all the evidence favoring the employee's position does not establish that she overlooked that evidence, as a compensation judge is not required to specifically mention in a decision every piece of evidence or opinion that is part of the record.  See Rothwell v. Minnesota Dep't of Natural Resources, slip op. (W.C.C.A. Dec. 6, 1993); see also Pelto v. USX Corp., slip op. (W.C.C.A. Dec. 16, 1993).

 

In this case, the compensation judge indicated that she reviewed all of the evidence of record.  Included in that record were the employee=s medical records and testimony of the employee and his wife.  Included in the medical records was the report issued by Dr. Segal, in which he opined there was no indication in the employee=s medical records that any incident on December 31, 1995, substantially contributed to the employee=s disability and need for treatment or the surgery in 1999.  The compensation judge could reasonably rely upon the medical evidence of record, including Dr. Segal=s opinion, when reaching her conclusions on causation.

 

 In addition, as noted by the compensation judge, the employee claimed that he sought no medical treatment for a year after December 31, 1995, because he had no medical insurance.[3]  However, he was treated for unrelated medical conditions during that time period without reporting any back pain to his treating doctors.  The compensation judge also noted that the employee had reported low back complaints in 1991 and 1992, and obtained treatment and underwent diagnostic testing for his low back in 1992 at the VA Medical Center in Sioux Falls, South Dakota.  His treating doctors there ordered a CT scan, which was taken on January 13, 1992, and showed degenerative disc disease at L4-5 with bulges at L4-5 and L5-S1.  The employee was again seen at the VA Medical Center on June 24, 1992, for low back pain and pain radiating from his right buttock to his right knee.  In addition, the employee=s records refer to the employee=s frustration due to his inability to receive compensation for a back injury sustained while serving in Vietnam, although there are no medical records in evidence documenting a service-related low back injury.

 

While there is evidence in the record to support the employee=s claim, the question for this court on review is not whether there is substantial evidence to support a result contrary to that reached by the compensation judge, but rather, whether the result the compensation judge did reach is supported by substantial evidence.  We conclude that the record provides ample support for  the compensation judge=s finding that the employee=s December 31, 1995, work injury was not a substantial contributing factor to his disability for which he has already been compensated, his need for surgery in 1999 and 2000, any additional permanent partial disability, nor his permanent total disability.  Accordingly, we affirm.