TROY M. BOEGEMAN, Employee, v. VALLEY PLUMBING CO., INC., and FEDERATED MUTUAL INS. CO., Employer-Insurer/Appellants, and VALLEY PLUMBING CO., INC., and STATE FUND MUT. INS. CO., Employer-Insurer/Cross-Appellants, and CENTER FOR DIAGNOSTIC IMAGING, UNIVERSITY OF MINN. PHYSICIANS, MN. DEP=T. OF ECON. SEC., Intervenors.

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 25, 2004

HEADNOTES

CAUSATION - CONSEQUENTIAL INJURY.  In this particular case, given the absence of supporting medical opinion, substantial evidence did not support the judge=s decision that the employee sustained a right foot and ankle injury as a consequence of his work-related left foot and ankle injury.

CAUSATION - GILLETTE INJURY.  Substantial evidence, including the employee=s testimony and expert opinion, supported the judge=s conclusion that the employee sustained Gillette injuries to both feet and ankles as a result of his work activities.

EVIDENCE - EXPERT MEDICAL OPINION.  The compensation judge did not err in admitting into evidence a report of a treating physician obtained the day before hearing, where the opposing parties did not ask to depose the doctor and were given the opportunity to have their experts comment on the report.

ATTORNEY FEES - .191 FEES.  Given the position of the parties, the judge did not err in concluding that the dispute was primarily between the insurers for purposes of awarding attorney fees pursuant to Minn. Stat. ' 176.191.

Affirmed in part and reversed in part.

Determined by  Wilson, J., Rykken, J., and Johnson, C.J.

Compensation Judge:  Gary P. Mesna.

Attorneys:  Scott H. Soderberg, Soderberg & Vail, Minneapolis, MN, for the Respondent.  Karen R. Swanton, Fitch, Johnson, Larson, Walsh & Held, Minneapolis, MN, for the Appellants.  Lynn, Mark S. Lorentzen, Scharfenberg & Assocs., Minneapolis, MN, for the Cross-Appellants.

OPINION

DEBRA A. WILSON, Judge

Federated Mutual Insurance Company appeals from the compensation judge=s decision that the employee sustained a consequential injury to his right foot and ankle as a result of his admitted work-related injury to his left foot and ankle, that the employee had not closed out claims for the right foot and ankle in a 1990 stipulation for settlement, and that attorney fees under Minn. Stat. '176.191 were warranted.  State Fund Mutual Insurance Company cross appeals from the judge=s admission into evidence of the September 3, 2003, report of Dr.Michael Castro, from the judge=s finding that the employee sustained Gillette injuries^[1]  to his left and right foot and ankles culminating on August 28, 2001, and from the judge=s apportionment of responsibility for the employee=s left and right foot and ankle condition.  We affirm in part and reverse in part.

BACKGROUND

The employee sustained an admitted work-related injury to his left leg, foot, and ankle on July 20, 1988, while working for Valley Plumbing Company, Inc. [the employer], which was then insured for workers= compensation liability by Federated Mutual Insurance Company [Federated].  On approximately July 24, 1988, the employee underwent surgery to have a rod placed in his left leg from knee to ankle.  On September 23, 1988, the employee had a second surgery to remove bone chips.  Then, on August 25, 1989, he underwent another operation to remove the rod, and, about two months later, on October 13, 1989, he underwent additional surgery in the form of a side-to-side anastomosis of the posterior tibial tendon and common flexor tendon of the left leg.

The employee was off work for about a year following the injury.  He used crutches for a significant period, which caused him to put more weight on his right foot, and, when he stopped using crutches, he had a limp or altered gait.^[2]

After his fourth left lower extremity surgery, the employee continued to treat for left leg, foot, and ankle complaints.  In March of 1990, the employee was examined by Dr. Lowell Lutter, on referral from Dr. David Boxall.  Dr. Lutter opined that the employee had Aprobable posterior tibial tendon dysfunction@ of the left leg and that Ait would be reasonable to consider a subtalar fusion.@

In July of 1990 the employee returned to Dr. Boxall, who reviewed Dr. Lutter=s evaluation and noted that the employee did not wish to go forward with a subtalar fusion at that time.  Dr. Boxall concurred with the employee=s decision and advised the employee Ato continue with shoe inserts.@

In September of 1990, the employee entered into a stipulation for settlement with the employer and Federated, wherein he accepted $30,875 in full, final, and complete settlement of all past, present, or future claims arising out of the 1988 injury, with the exception of medical treatment expenses for the left leg.

The employee was seen again by Dr. Boxall for persistent complaints in his left foot and ankle on February 11, 1991.  Dr. Boxall advised him that surgical fusion would be his only option at that time.

On July 26, 1991, the employee received treatment for the first time for tenderness in his right ankle.  At that time, he gave a history of having sprained his right ankle two to three days earlier.  When he treated with Dr. Boxall in January of 1994, the employee gave a history of having been off work for two days due to increasing pain.  Dr. Boxall recommended a new set of molded arch inserts.^[3]  The employee=s next treatment for his right ankle was on May 6, 1994, when he was seen by Dr. Boxall with complaints in both ankles.^[4]  Dr. Boxall indicated that, A[a]s he takes the stress off his left ankle more, he develops more pain in the right ankle.  In January, he sustained a sprain to the right ankle from which he has not quite recovered.@  Dr. Boxall=s assessment was A[r]esiduals of right lateral ankle sprain with mild instability and mild peroneal muscle weakness,@ and he referred the employee to physical therapy for right ankle treatment.  In July of 1994, x-rays of the employee=s right ankle were unremarkable, and Dr. Boxall advised that arthroscopic evaluation of the joint would be a Alast resort or option.@  On December 14, 1994, Dr. Boxall noted that,

[i]f indeed there was some problem with his left foot or ankle which led to the right ankle sprain, then we could relate that to his work injury on the left and if not, I don=t believe there is a good case for relating his complaints in the right ankle to those of the left leg and hence his work comp injury.

On January 13, 1995, Dr. Boxall saw the employee again regarding his right ankle, diagnosed a chronic right ankle sprain, and advised the employee that he had no further suggestions for treatment.

In April of 1996, the employee began treating with orthopedic surgeon Dr. David Carlson, who ordered MRI scans of both ankles, which showed Abilateral large accessory naviculars.@  Dr. Carlson theorized that the employee Atends to drop down into a flat foot deformity when he stands, and these navicular prominences are causing him pain with shoe wear.@  He prescribed new orthotics.  The employee treated with Dr. Carlson, or his partner,  again in September of 1997 and April of 1998 for symptoms in both ankles.

From 1991 until 1999, the employee worked for Rosemount, Inc., at a job which allowed him to sit much of the time, and in 1999, he returned to work for the employer.  Initially he performed mostly office work, which allowed him to sit 60-70% of the time, but in 2000, his job duties changed, requiring him to be on his feet 60-70% of the time and to perform much heavier work, lifting 30 to 100 pounds.  He worked 10 hours per day, five days per week.  With the change in work duties, he had a significant increase in symptoms in both feet and ankles.

On December 13, 1999, the employee was seen by his family doctor, Theodore Groskreutz, for complaints of persistent pain in his right ankle.  The doctor noted that the employee A[f]eels that it is related to a MVA a few years ago but it has not been directly connected.@  The employee also indicated that he was at a job where he had to be on his feet a lot and that it was making his ankle worse.  The employee returned to Dr. Carlson with left ankle complaints on June 28, 2001, and September 4, 2001, and Dr. Carlson referred the employee to the University of Minnesota for evaluation.  In August of 2001, the employee was terminated by the employer.

The employee began treatment with Dr. Michael D. Castro, at Fairview-University Medical Center, on September 27, 2001.  Dr. Castro=s treatment at that time focused on the employee=s left foot and heel.  His initial assessment was AGrade 2 posterior tibial tendon insufficiency with traumatic etiology@ and Aleft foot pain.@  An MRI of the left foot ordered by Dr. Castro failed to demonstrate any evidence of mechanically based pain to the left hindfoot.  It was the doctor=s opinion that the employee=s heel pain was related to nerve entrapment of the calcaneal branch of the tibial nerve.  The doctor reported that the treatment for this condition would consist of nerve decompression as well as correction for the employee=s pes planal valgus deformity.  The employee returned to Dr. Castro on November 15, 2001, to discuss surgery.  At that time, the employee related complaints regarding his right foot and ankle.  Dr. Castro ordered an MRI to determine the extent of the pathology on the right as Aas this will have a significant bearing on his upcoming surgery.@

On April 3, 2002, the employee underwent an arthroscopic debridement of the right ankle.  Examination of the anterior medial aspect of the body of the talus demonstrated a bony prominence consistent with the employee=s complaints.  Surgery on the left foot/ankle  was performed on October 2, 2002.^[5]

The employee filed a claim petition on June 10, 2002, claiming a left leg injury with consequential left and right foot injuries on July 20, 1988, and a left leg/foot and right leg/foot Gillette injury culminating on August 28, 2001, while State Fund Mutual Insurance Company [State Fund] was on risk.  The employee sought benefits for temporary total disability continuing from August 28, 2001, and the services of a QRC.

Federated had the employee examined by Dr. Edward Kelly on September 18, 2002.  In his report of that date, Dr. Kelly opined that the cause of the employee=s hyperpronated left foot was closed fractures of the junction of the middle and lower one-third of the left tibia and fibula with a subsequent nonfunctional posterior tibial tendon.  Dr. Kelly further concluded Athat the injury of July 20, 1988, is still a substantial contributing cause of [the employee=s] painful feet and that the employee Adid not sustain a new Gillette injury.@

On August 7, 2003, Dr. Kelly issued an additional report based on a file review.  In that report, he specifically outlined treatment that the employee had received for his right  ankle and opined that the employee=s right ankle sprain in 1994, and subsequent right ankle problems in 1996, necessitated the right ankle surgery, and that any treatment of the right ankle was not related to the July 20, 1988, injury.  It was also his opinion that the 1988 injury Awas a substantial need for treatment of the left foot since August 2001.@

State Fund had the employee examined by Dr. James Johanson on December 16, 2002.  The history taken by Dr. Johanson included the employee=s belief that his problems with his right foot and ankle were aggravated by his need to use crutches on multiple occasions due to his left foot and leg condition.  It was Dr. Johanson=s opinion that the employee did not sustain Gillette injuries to his right or left lower extremity in 2001; that the 1988 work injury was a contributing factor in the employee=s continued left leg and foot problems; and that the employee=s frequent use of crutches, which required most of the weight-bearing on the right side, Acould have resulted in a temporary sprain/strain situation@ aggravated by a previous pes planus and accessory navicular situation.

On May 30, 2003, Dr. Castro opined that the employee had been unable to work from April 3, 2002, through April 17, 2003.

The claim petition proceeded to hearing on September 4, 2003.  At that time, the employee offered into evidence a September 3, 2003, report of Dr. Castro, wherein Dr. Castro stated that the employee=s activities at the employer from 1999 through August 2001 were a substantial contributing factor in his need for the surgery performed on his left foot in October of 2002, and the changes seen in his right ankle.  Counsel for State Fund objected to the introduction of Dr. Castro=s report as untimely, alleging also that it was the first report to allege causation against his client relative to the employee=s right foot.  Counsel for State Fund admitted that Dr. Johanson had addressed causation for the right foot and ankle in his report but asked that he be allowed to send Dr. Castro=s report to Dr. Johanson for further comment on causation.  The judge then allowed Dr. Castro=s report into evidence with the understanding that the record would be left open for Dr. Johanson to comment on Dr. Castro=s report.  Counsel for State Fund asked that his objection to Dr. Castro=s report be preserved for appeal.  An addendum report of Dr. Johanson was received into evidence on September 23, 2003, and the addendum report of Dr. Kelly was received on October 3, 2003.^[6]  Dr. Johanson=s addendum indicated that the employee=s right foot and ankle condition was aggravated by the use of crutches but that that aggravation Awould be classified as a mild temporary aggravation that would have resolved within two months of the second surgery.@

In findings and order filed on October 24, 2003, the compensation judge found that the employee had sustained a consequential injury to his right foot/ankle in about 1994 that was a direct and natural consequence of the 1988 work injury to the left foot/ankle and not the result of unreasonable, negligent, dangerous or abnormal activity on the part of the employee.  The judge also found that the employee had sustained a Gillette aggravation injury of both feet and ankles as a result of his work activities from 1999 to 2001, which culminated in disability in August of 2001 and which was a substantial contributing cause of the employee=s increased pain, disability, and need for surgery.  The judge apportioned liability for medical benefits relative to the employee=s left foot/ankle, after August of 2001, 75% to the 1988 injury and 25% to the 2001 Gillette.  The judge apportioned liability for medical benefits for the right foot/ankle 25% to the 1988 injury (consequential injury) and 75% to the 2001 Gillette injury.  Liability for wage loss and rehabilitation benefits after the 2001 injury was apportioned on a 50/50 basis.  The judge also found that the 1990 stipulation for settlement did not preclude claims related to the employee=s right foot and ankle; that the employee was entitled to temporary total disability benefits from April 3, 2002, to July 14, 2003, and temporary partial disability benefits from July 14, 2003, to date of hearing; that medical bills for treatment of the employee=s left and right foot and ankle were compensable; and that the employee was entitled to a rehabilitation consultation.  Federated and State Fund appeal.

STANDARD OF REVIEW

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.  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, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201 N.W.2d 521, 524 (1975).

DECISION

1.  Consequential Injury

Federated contends that the compensation judge erred in determining that the employee=s right ankle problems were a consequence of his left foot and ankle injury in that there is no medical support for that determination.  We agree that substantial evidence does not support the judge=s decision on this issue.

The only medical support for any consequential right ankle injury is the September 16, 2003, addendum report of Dr. Johanson, wherein he opined that the employee=s right foot and ankle were aggravated by his need to use crutches while in post-rod status.^[7]  Dr. Johanson went on to state that Athis would be classified as a mild temporary aggravation that would have resolved within approximately two months of the second surgery.@  While Dr. Boxall=s May 6, 1994, report suggests that the employee developed increased right ankle pain due to favoring his left foot, the doctor later stated that unless some problem with the left foot or ankle had led to the employee=s right ankle sprain in January of 1994, he could not relate the problems on the right to the problems on the left.  There is no medical evidence that the left foot and ankle problems caused, aggravated, or accelerated the right ankle sprain for which Dr. Boxall treated the employee. There is also no medical opinion that the employee=s right ankle problems in Aabout 1994" and beyond were brought on by the employee=s use of crutches or favoring of his right foot and leg.

A medical opinion does not have to express absolute certainty, but the employee must still sustain his or her burden of proving a causal relationship by a preponderance of the evidence.  See Schopf v. Red Owl Stores, Inc., 323 N.W.2d 801, 803, 35 W.C.D. 216, 220 (Minn. 1982).  In the instant case the employee presented no medical opinion and no medical records that would support a finding of a consequential injury occurring in about 1994.  Under these particular circumstances, the employee=s testimony alone is not enough to establish causation.  We therefore reverse the judge=s finding.^[8]

2.  Admission of Dr. Castro=s Report

State Fund contends that the compensation judge erred in receiving into evidence the report of Dr. Castro, which was issued one day prior to the hearing.  We are not persuaded.

State Fund does not cite to a specific statute or rule mandating exclusion of Dr. Castro=s report, nor could we find one.  In Scalf v. LaSalle Convalescent Home, 481 N.W.2d 364, 46 W.C.D. 283 (Minn. 1992), the Minnesota Supreme Court held that the remedy for late submission of a report is to allow opposing parties the opportunity to cross examine the doctor.  While State Fund contends that A[t]he practical effects of the parties, however, rendered that an impossibility,@ at oral argument, counsel for State Fund acknowledged that he did not request an opportunity to cross examine Dr. Castro and never attempted to schedule such a deposition.^[9]  At hearing, counsel requested the opportunity to present Dr. Castro=s report to Dr. Johanson for comment.  That request was granted, and the judge received the addendum report of Dr. Johanson into evidence.

State Fund contends that it was somehow prejudiced because Dr. Castro=s September 3, 2003, report was the first to opine that the employee had sustained a Gillette injury to his right foot and ankle during State Fund=s coverage.  The employee, however, had claimed this injury in his claim petition, and Dr. Johanson was specifically asked by State Fund to address the issue.

The compensation judge clearly acted within his discretion in allowing into evidence the September 3, 2003, report of Dr. Castro.  We will not disturb that decision.

3.  Gillette Injury

State Fund contends that the judge erred in finding that the employee had sustained Gillette-type injuries to his left foot and ankle and right foot and ankle as a result of his work activities at the employer, culminating on or about August 28, 2001.  We are not persuaded.

To prove a Gillette injury an employee must prove a causal connection between ordinary work and ensuing disability.  Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).  The question of a Gillette injury depends primarily on the medical evidence.  Marose v. Maislin Transp., 413 N.W.2d 507, 512, 40 W.C.D. 175, 182 (Minn. 1987).

In his report of September 3, 2003, Dr. Castro opined that the employee=s work activities at the employee from 1999 through August 2001 were substantial contributing factors in his need for reconstructive surgery on the left foot in October of 2002 and to the changes seen in the employee=s right ankle.

Medical exhibits establish the severity and ongoing nature of the employee=s left foot and ankle problems after the 1988 work injury, as pointed out by State Fund in its brief.  This does not mean, however, that the employee could not further aggravate or accelerate his left foot and ankle condition by weight-bearing activities in his job with the employer from 1999 to August of 2001.  Dr. Castro=s opinion, while not a model of clarity, provides substantial support for the judge=s finding that the employee=s work activities were a substantial contributing factor in his need for reconstructive surgery.  The employee testified that his ankle was Afair@ when he returned to work for the employer in 1999 but that he had constant ankle swelling, ankle pain, and heel pain by August of 2001, which he attributed to Aall the lifting and labor@ on the job.  The employee also testified that, had he not been terminated from his job in August of 2001, he did not believe that he could have continued working because of his ankle problems.  The fact that neither independent medical examiner found a Gillette injury is in no way binding on a judge.  A judge=s choice between expert opinions whose testimony conflicts 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).  State Fund has pointed to no facts assumed by Dr. Castro that are not supported by the evidence.  The employee=s testimony and Dr. Castro=s opinion provide substantial evidence to support the judge=s finding of a Gillette injury to the left foot and ankle culminating in August of 2001.

With regard to the employee=s right ankle and foot condition, Dr. Groskreutz=s office note of December 13, 1999, indicates that the employee reported having experienced persistent right ankle pain over the last several years; however, that note also mentions that the employee Ais at a job where he has to be on his feet a lot and it is making his [right] ankle worse.@^[10]  This treatment was rendered while the employee was working for the employer.  In addition, the employee specifically testified that he had right ankle pain prior to 1999 Abut it wasn=t killing me@ but that when he returned to work for the employer the pain eventually became excruciating Ajust being on my feet all the time.@  In his report of September 3, 2003, Dr. Castro explained how the painful osteophyte for which the employee was treated was likely caused by the employee=s antalgic gait and the increased load on the right lower extremity.  Dr. Castro further expressly opined that the employee=s work from 1999 through 2001 was a substantial contributing factor to the changes in the employee=s right ankle seen in 2002. Again, the employee=s testimony and Dr. Castro=s opinion provide substantial evidence to support the judge=s finding of a Gillette injury to the right foot and ankle, and we affirm.

4.  Apportionment

State Fund contends that the compensation judge erred in apportioning 75% liability for the employee=s right foot and ankle condition and 25% liability for the employee=s left foot and ankle condition to the 2001 Gillette injuries.  In support of this argument, State Fund again relies on the opinions of the two independent medical examiners and the fact that both feet and ankle conditions preexisted State Fund=s period of coverage.  We are not persuaded.

While State Fund is correct in noting that the employee had a severe disability to his left foot and ankle prior to 1999, this court has affirmed the judge=s finding of a Gillette injury culminating in August of 2001, for the reasons stated above.  No doctor in this matter rendered an apportionment opinion.  However, equitable apportionment is not purely a medical question but rather is a question of fact for the compensation judge to determine based upon all of the evidence submitted.  Fideldy v. Deer River Health Care Ctr., slip op. (W.C.C.A. Jan. 7, 2002).  Given the severe nature of the employee=s condition prior to 1999, the employee=s testimony about how that condition worsened from 1999 to 2001, and Dr. Castro=s opinion regarding causation, we cannot say an apportionment of 75/25 was unreasonable.

The 1990 stipulation for settlement between the employee and Federated, however, closed out all claims against Federated with the exception of medical expenses.  Federated is liable therefore only for its proportional share of medical expenses related to the employee=s left foot.  Moreover, as this court has reversed the judge=s finding of a consequential right foot and ankle injury, but affirmed the judge=s finding of a Gillette injury, liability for the right foot and ankle now lies entirely with State Fund.  The judge=s finding as to apportionment of responsibility for the right foot and ankle is therefore reversed.  Similarly, given the 1990 settlement, State Fund is liable for all wage loss and rehabilitation benefits awarded by the judge.

5.  Attorney Fees

Federated argues that, because they denied primary liability for a right foot and ankle injury, and State Fund denied primary liability for any injury at all, the compensation judge erred in awarding attorney fees under Minn. Stat. '176.191.  We are not persuaded.

In opening statements at hearing, State Fund argued that the employee did sustain a consequential injury to the right foot and ankle during Federated=s coverage, and Federated argued that, if there was a Gillette injury to the right foot and ankle in 2001, there could be no apportionment between any consequential injury that the judge might find and that Gillette injury.  In addition, State Fund=s strongest argument against the claim of a Gillette injury to the left foot and ankle was that the employee had ongoing problems from the 1988 work injury.  Clearly these arguments may be characterized as disputes between the insurers.

Minn. Stat. '176.191 fees are appropriate where the issue of which insurer should pay is a primary issue of real importance.  The dispute between the insurers need not be the sole issue.  Sundquist v. Kaiser Eng=rs, Inc., 456 N.W. 2d 86, 42 W.C.D. 1101 (Minn. 1990).  Given the positions of the parties, we cannot conclude that the judge erred in awarding fees pursuant to Minn. Stat. ' 176.191, and we therefore affirm that award, to be paid by State Fund.