DANIEL P. WERMERSKIRCHEN, Employee, v. UNITED PARCEL SERV., and LIBERTY MUTUAL INS. COS., Employer-Insurer/Appellants, and MISC DRIVERS HELPERS & INSIDE EMPLOYEES, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 7, 2003

 

HEADNOTES

 

CAUSATION.  Substantial evidence supports the determination of the compensation judge that the work activity of the employee in descending stairs was a substantial contributing factor in the employee=s knee condition.

 

ARISING OUT OF.  The employee=s work activity placed him at increased risk of a knee injury and his injury was one Aarising out of@ employment.

 

Affirmed.

 

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

Compensation Judge: Peggy A. Brenden

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal from the decision of the compensation judge that the employee=s disability was due to an injury to his right knee which arose out of and in the course and scope of his employment.  We affirm.

 

BACKGROUND

 

Daniel Wermerskirchen, the employee, claimed that he sustained an injury to his right knee on September 14, 2001, while working as a package car driver for UPS, the employer.  While descending three flights of stairs after making a delivery, the employee felt his right knee give out and he had a burning sensation in his knee.  The employee completed his work that day but by the end of the day had soreness, stiffness, and a feeling of hotness in his knee. 

 

The employee began working for UPS in August 1981, starting as an unloader of semi-trucks.  In approximately 1985, he became a full-time employee and began working as a package car driver, picking up and delivering packages for UPS customers.  The employee worked in that capacity thereafter and described the job as being very physical.  He made over 100 stops daily, delivering about 300 packages which weighed between 25 and 45 pounds on the average.

 

On April 19, 1986, the employee consulted with a doctor at Park Nicollet Medical Center with complaints of pain in his right knee for the past two weeks which he associated with a change in his work duties which now required driving and climbing in and out of his truck.  The exam showed minimal tenderness over the medial collateral ligament and significant crepitation with flexion.  X-rays taken on that date showed narrowing of the medial compartment to the right knee joint.  The impression was of probable mild to moderate chondromalacia patellae.[1]  Strengthening exercises were recommended and the employee was given a sample of an anti-inflammatory drug.

 

On March 8, 1991, the employee visited the foot clinic at Park Nicollet, requesting new orthotics.  He complained of knee and heel pain which had responded to orthotics in the past.  His symptoms in the knees were of burning with occasional clicking since the previous summer which had worsened over the previous six months.  The physical examination was limited to the feet.  The diagnosis made on that date was heel spur syndrome.  No treatment for the knees was recommended.

 

In March 1993, the employee consulted with Dr. Jody Hargrove, rheumatologist.  The employee=s primary complaint was of heel pain, although he also had symptoms of swelling in both knees, redness and inflamation in both eyes, and some burning during urination.  On exam, the knees were moving well with no tenderness or instability.  Dr. Hargrove diagnosed Reiter=s syndrome and treated the employee with anti-inflamatories.[2]  The employee apparently treated with Dr. Hargrove thereafter but no additional records from Dr. Hargrove are in evidence.

 

On July 30, 2001, the employee visited the Park Nicollet Medical Center and presented with Amultiple complaints@ including shortness of breath, coughing, heartburn and pain in his knees which were swollen and felt hot.  The assessment was of knee pain with a history of gout.  A prescription for Indocin was provided for the knee pain and he was given medication for the heartburn also. 

 

The employee testified that after the occurrence on September 14, 2001, he continued to have symptoms in his knee for the rest of the day, although he finished his work day.  His symptoms worsened over the next few days and on September 19, 2001, the employee went to the Airport Medical Clinic where he saw Dr. John Kipp.  Dr. Kipp took a history from the employee of his knee going out as he was going down stairs at work.  The employee had swelling and discomfort thereafter.  The examination showed visible swelling of the right knee cap and ankle.  The assessment was of right knee strain with hamstring tendon strain combined with patellar bursitis.  The employee was given work restrictions and medication.

 

The employee continued to have symptoms in his right knee and decided to see an orthopedist.  On September 25, 2001 he visited Dr. T. Bradley Edwards at Metropolitan Sports Medicine Clinic.  Dr. Edwards diagnosed a possible meniscus tear and scheduled an MRI to evaluate the knee.  The MRI was done on October 24, 2001 and showed a tear of the medial meniscus as well as chondromalacia in the medial joint space and the patellofemoral compartment. 

 

Dr. Bradley did arthroscopic surgery on November 7, 2001 on the employee=s right knee.  A partial medial menisectomy and a chondroplasty of the right patella and trochlea were performed.  The employee saw Dr. Bradley on November 16, 2001 and reported no complaints with his right knee.  On examination, there was minimal effusion and full range of motion.  When he returned to see Dr. Bradley on December 14, 2001 the employee noted some mild pain with stairs but otherwise had no complaints about his right knee.  There was no effusion and the employee had full range of motion.  He had patella femoral crepitus.  The employee was returned to work without  restrictions as of January 7, 2002.

 

The employee was seen by Dr. Paul Wicklund on behalf of the employer and insurer on February 12, 2002.  Dr. Wicklund=s diagnosis was of Adegenerative arthritis right knee superimposed on medial meniscus tear right knee, status-post debridement medial compartment and medial menisectomy right knee.@  Dr. Wicklund concluded that the meniscus tear was longstanding and that the pain the employee experienced while walking down the stairs after delivery was a manifestation of the underlying degenerative knee problems.  Dr. Wicklund believed that the employee=s Reiter=s syndrome was not a causative factor in the his need for medical treatment of the right knee.

 

The employee=s attorney wrote Dr. Edwards, forwarding a copy of Dr. Wicklund=s report, providing a brief summary of the employee=s work duties and asking for Dr. Edward=s opinion on whether the employee=s right knee condition was related to his work activity.  In his response of March 18, 2002, Dr. Edwards stated that he believed the employee=s knee condition Awas directly related to injury he sustained on September 14 while performing his job as a UPS driver.@  Dr. Edwards added Aprior to that day he had had no previous knee problems@ and indicated that he did not think that chondromalacia caused the majority of the employee=s symptoms.

 

In a follow-up letter, the employee=s attorney asked Dr. Edwards whether walking down stairs was more stressful than walking on a flat surface, whether the employee=s work duties put him at greater risk of a knee injury, and whether the employee=s work over the years was a substantial contributing factor.  In reply, Dr. Edwards stated that descending stairs puts more stress on the knee, that the employee was at a greater risk of a knee injury because of his job and that, while the work activity over the years was a contributing factor to the right knee condition, he was unable to determine the significance of the factor.

 

The employee=s claim petition was heard by a compensation judge on February 14, 2003.  The only issue for the compensation judge was whether the employee=s right knee condition arose out of and in the course of employment.  In her Findings and Order, served and filed March 6, 2003, the compensation judge found that the employee=s right knee condition was a result of a work injury on September 14, 2001.  The employer and insurer appeal.

 

DECISION

 

1. Causation

 

The compensation judge determined that the employee=s work activity on September 14, 2001 was a substantial contributing factor in the employee=s right knee condition.  She cited three reasons for her decision:

 

1. the acute onset of right knee pain immediately following the incident suggested a causal relationship,

 

2. the severity and unrelenting nature of the symptoms after the incident were indicators that the incident changed the condition of the employee=s knees,

 

3. the opinion of Dr. Edwards.

 

The employer and insurer argue on appeal that the compensation judge erred in relying on the opinion of Dr. Edwards which, they contend, lacked foundation.  Specifically, the employer and insurer point to the sentence in Dr. Edwards= March 18, 2002 report in which he stated that the employee had had no previous knee problems.  The employer and insurer argue that this indicates that Dr. Edwards was not aware of the employee=s previous medical history and that his opinion lacks the requisite foundation.

 

An expert medical opinion must be based on adequate foundation.  Welton v. Fireside Foster Inn, 426 N.W.2d 883, 41 W.C.D. 109 (Minn. 1988).  That foundation may be provided by personal knowledge of the case, testimony heard during the trial or a hypothetical question.  Scott v. Southview Chevrolet Company, 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978). 

 

Here, Dr. Edwards was the treating doctor and had personal knowledge of the employee=s case.  More importantly for this issue, Dr. Edwards had been provided a copy of Dr. Wicklund=s report which detailed previous knee complaints and which concluded that the employee=s right knee condition was the result of a degenerative process.  The fact that Dr. Edwards was aware of this report when he wrote his March 18 letter is evidenced by his reference to chondromalacia and his dismissal of that condition as a causal factor.  Dr. Edwards chose not to characterize the employee=s previous complaints, which had been diagnosed as chondromalacia, heel spurs, Reiter=s syndrome, and gout, as knee problems.  While that characterization may be disputed, the dispute goes to the weight to be provided to Dr. Edwards= opinion and not to foundation for that opinion.

 

It is the function of the compensation judge to consider competing medical opinions and to choose between those opinions.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Dr. Edwards opinion, combined with the other factors referred to by the compensation judge in her memorandum, provide substantial evidence to support the compensation judge=s decision on causation.

 

2. Arising out of Employment

 

The employer and insurer also argue that the employee=s claim does not meet the Aarising out of@ requirement for a compensable injury.  Minn. Stat. ' 176.011, subd. 16.  According to the argument, the employee=s job did not expose him to a risk of harm greater than that of the average person. 

 

As the employer and insurer point out in their reply brief, this state follows the Aincreased risk@ test of determining whether an injury arises out of employment.  That test requires that the employment increases the employee=s exposure to injury beyond that experienced by the general public.  Kirchner v. County of Anoka, 339 N.W.2d 908, 36 W.C.D. 335 (Minn. 1983).  It is not necessary, however, that the risk be unique to employment.  Breimhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719, 15 W.C.D. 395 (1949).  The increased risk test is met if the injuries are the result of a Anatural incident of work.@  Foley v. Honeywell, 488 N.W.2d 268, 272 (Minn. 1992).  Whether the employee has met the burden of proving that the injury arises out of employment is a question of fact for the compensation judge.  Schreier v. Bruning Const., 61 W.C.D. 507 (W.C.C.A. 2001); Kaisershot v. Earthworks Excavating, slip op. (W.C.C.A. July 23, 2003).

 

The employee in this case made in excess of 100 delivery stops in a day.  He testified that he had just completed a delivery on the third floor of an office building and was returning to his vehicle by stairs, in accordance with what he described as AUPS=s method that if the elevator is not handily available then you use the stairwell.@  The employee=s treating doctor stated in his report that ascending and descending stairs puts more stress on the knee than simply walking on a flat surface.  Substantial evidence supports the conclusion that the employee=s job as a package car driver put him at an increased risk of knee injury.  The determination of the compensation judge that the employee=s injury arose out of his employment is affirmed.