BRUCE A. CAMERON, Employee/Appellant, v. METRO TRANSIT/METROPOLITAN COUNCIL, SELF-INSURED, Employer, and FAIRVIEW HEALTH SERVS., HEALTHPARTNERS, CICH CHIROPRACTIC, MINNEAPOLIS RADIOLOGY ASSOCS., and INSTITUTE FOR ATHLETIC MEDICINE, Intervenors.

WORKERS' COMPENSATION COURT OF APPEALS

OCTOBER 1, 2004

No. WC04-143

HEADNOTES

CAUSATION - AGGRAVATION.  Substantial evidence of record, including expert medical opinion, supports the compensation judge's finding that the employee's work-related  injury of May 10, 1999, was a temporary aggravation that resolved within three months.

CAUSATION - GILLETTE INJURY.  Substantial evidence of record, including expert medical opinion, supports the compensation judge's finding that the employee did not sustain a Gillette injury, culminating on April 3, 2002, as a result of his work activities as a bus driver.

EARNING CAPACITY; TEMPORARY PARTIAL DISABILITY.  Where it is not clear from the limited evidence of record whether the employee's wage loss after July 5, 1999, was causally related to his 1999 work injury, the compensation judge reasonably denied the employee's claim for temporary partial disability benefits.

Affirmed.

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

Compensation Judge: Gary P. Mesna

Attorneys: D.G. Fernstrom, Fernstrom & Assoc., Maple Grove, MN, for the Appellant.  Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, Minneapolis, MN, for the Respondents.

OPINION

MIRIAM P. RYKKEN, Judge

The employee appeals from the compensation judge's finding that his work-related  injury of May 10, 1999, was a temporary injury that resolved by approximately August 10, 1999, and from the finding that the employee did not sustain a Gillette^[1] injury, culminating on April 3, 2002, as a result of his work activities as a bus driver.  We affirm.

BACKGROUND

In 1975, Mr. Bruce A. Cameron, the employee, began working full time as a bus driver for Metro Transit/Metropolitan Council, the self-insured employer.  His duties as a bus driver required him to spend most of his work day sitting in the driver's seat of a bus.  The employee continued working as a bus driver until 2002, and received multiple commendations for his service and assistance with public safety and crime prevention. 

In spring, the city streets where the employee drove bus were often rough and contained potholes that caused the bus to Abottom out@ and the bus driver's seat to bounce.  On May 10, 1999, when the employee turned and twisted to get out of his driver seat of the bus, he experienced severe pain in his low back and pain extending to his right leg and foot.  As a result of that incident, he consulted Dr. Glenn Schiffler at Camden Physicians, was referred to Dr. Paul Crowe for orthopedic consultation and was hospitalized for five days.  While hospitalized, the employee underwent conservative treatment to his low back and right leg, including physical therapy.^[2]  MRI scans taken in June 1999 showed degenerative disc disease at multiple levels and severe bilateral neural foraminal narrowing at the L5-S1 level, due to Grade I spondylolisthesis, with nerve root compression. 

In late June 1999, after his release from the hospital, the employee obtained chiropractic treatment which he credited for enabling him to return to work because of the resulting relief of his pain.  The employee remained off work until approximately July 5, 1999, when he was released by Dr. Crowe to return to work, initially at reduced hours. The employer denied primary liability for the employee=s May 10, 1999, injury, contending that the injury did not occur in the course of the employee=s employment as a bus driver.

On October 27, 1999, Dr. Gary Wyard examined the employee at the employer=s request.  Dr. Wyard diagnosed low back pain with resolved right leg pain as well as degenerative disc disease at multiple levels and anterolisthesis and stenosis at L5-S1.  Dr. Wyard expressed his opinion that the employee=s employment as a bus driver neither caused nor substantially contributed  to his condition, and specifically stated that the employee had not sustained a Gillette injury culminating on May 10, 1999.  He concluded that the employee=s condition had resolved within three months after the injury, that the employee had reached maximum medical improvement from his May 10, 1999, injury, and that the injury was a myofascial sprain/strain which was a temporary aggravation of his pre-existing condition. Dr. Wyard assigned work restrictions of no lifting over 50 pounds and limitations on repetitive and prolonged stooping, squatting, bending, twisting, lifting, pushing and pulling.

After his return to work in July 1999, the employee continued to work at his regular job as a bus driver.  On April 3, 2002, the employee experienced severe low back pain while driving his bus on rough city streets, which he again attributed to the bouncing and jarring caused by numerous potholes.  Following the employee=s injury on April 3, 2002, he sought treatment at the emergency room at North Memorial Medical Center and was prescribed pain medication.  Due to his intractable pain, he also received chiropractic treatment from Dr. Cich on an emergency basis on April 6, 2002.  Dr. Cich=s treatment note of that day advises that the employee reported a major flare-up of his low back pain with sharp pain radiating into his right leg.  Dr. Cich warned the employee concerning potential development of cauda equina syndrome.

On April 15, 2002, the employee consulted Dr. Schiffler, who restricted the employee from work.  Dr. Schiffler also recommended an MRI scan, which was performed on April 24, 2002, and which showed a large left paracentral disc extrusion at the L2-3 level with impingement on the left L3 nerve root.  On April 22, 2002, Dr. John Dunne evaluated the employee on behalf of the employer, and concluded that the employee was totally disabled as of April 4, 2002. While addressing the cause of the employee=s symptoms in his chart note, Dr. Dunne stated that the employee reported an increase in pain while driving bus, but reported no specific episode Aother than the fact that it was a bouncy bus with poor shocks.@  In a later chart note, Dr. Dunne commented that AI cannot state that this is related to work.  It happened while he was on the bus, he says, but there was no precipitating event.  Nothing specifically happened.@ 

The employee received continued chiropractic treatment from Dr. Cich after his April 2002 injury.  Dr. Cich advised that the employee should not continue working as a bus driver due to the sitting and jarring nature of his work.  He restricted the employee to no prolonged periods of sitting and no lifting over ten pounds, advising that these restrictions were permanent in nature. On July 18, 2002, the employee was again examined by Dr. Dunne, who confirmed the restrictions imposed by Dr. Cich and added restrictions including no bending at the waist, carrying a maximum of ten pounds, and pushing and pulling a maximum of ten pounds.  Dr. Dunne placed the employee on these light-duty restrictions between July 18 through September 18, 2002.  Dr. Dunne again stated in his chart note that it was Aundetermined@ whether the employee=s injury was work-related. 

The employer attempted to place the employee on light-duty work.  Although in October 2002 Dr. Dunne released the employee to work on a light-duty basis with an anticipated  gradual return to full-time work, by November 2002 Dr. Dunne recommended that the employee be considered Amedically disqualified@ from work.

Dr. Wyard again examined the employee on November 13, 2002.  He diagnosed longstanding lumbar degenerative disc disease with Grade I spondylolisthesis at the L5-S1 level, a longstanding bulging disc at the L2-3 level.  He again commented that the employee=s prognosis was guarded because of his longstanding degenerative disease and the above diagnosis.  Dr. Wyard concluded that both the employee=s May 10, 1999, and April 3, 2002, injuries had aggravated his pre-existing condition and that they were temporary in nature and had resolved within three to six months after each injury.

Dr. Wyard again assigned physical work restrictions to the employee, and concluded that, in his opinion, the employee could return to his employment as a bus driver provided that he had an air-cushioned seat and had Asome flexibility in getting up and about on occasion.@  Dr. Wyard concluded that the medical care and treatment the employee received to-date had been reasonable and appropriate, but  felt that only three months of chiropractic treatment following the 1999 injury was appropriate, recommended no additional medical care or treatment, and recommended against surgical intervention.

Dr. Wyard also concluded that, based upon the employee=s contemporaneous medical records, that the employee=s April 3, 2002 injury Amay not have occurred at work.@  He referred, in part, to the lack of reference in the employee=s April 4, 2002, chart note to complaints of hitting potholes while driving.

Dr. Dunne examined the employee again on November 11, 2002, at which time he recommended medical disqualification from work, and diagnosed depression and low back pain.  The employer eventually determined that the employee was medically disqualified from continuing work as a driver, and removed the employee from the seniority and employment rolls effective January 31, 2003.  The employee accepted disability retirement from the employee effective on that date, and also became eligible for social security disability insurance as of November 1, 2002. 

 The employee filed a claim petition seeking various workers= compensation benefits relative to both his 1999 and 2002 injuries.  The employer denied liability for the employee=s claims, contending that the employee=s disability resulted solely from his pre-existing congenital degenerative disc disease, and alternatively contending that the employee=s injuries were merely temporary aggravations of the employee=s pre-existing degenerative disc disease which did not cause or contribute to the employee=s disability.  This matter was heard before a compensation judge on November 21, 2003, and the record closed on December 17, 2003, following submission of written closing arguments and post-trial briefs by the parties.

In Findings and Order, served and filed on February 5, 2004, the compensation judge found that the employee=s low back injury of May 10, 1999, arose out of and in the course of the employee=s employment but that this injury was temporary in nature and was fully resolved by August 10, 1999.  The compensation judge also denied the employee=s claim that he sustained a Gillette injury as a result of his work activities as a bus driver, and therefore denied claims related to the employee=s alleged April 3, 2002, injury.  The compensation judge awarded payment of chiropractic and medical expenses incurred between May 10 and August 10, 1999.  The judge also awarded payment of temporary total disability benefits between May 12 and July 4, 1999, when the employee remained off work following his 1999 injury, but denied the employee=s claim for temporary partial disability benefits claimed after July 5, 1999. The employee appeals.

STANDARD OF REVIEW

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 (2004).  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, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

DECISION

Nature of May 10, 1999, Injury

The compensation judge found that the employee=s work injury of May 10, 1999, was temporary in nature and that it fully resolved by approximately August 10, 1999.  The compensation  cited to the employee=s testimony that after he returned to work, he eventually felt Apretty good@ and that within about three to four months after the incident, his condition had returned to normal.  The compensation judge concluded that although the employee continued to treat thereafter with Dr. Cich, any ongoing treatment was for his underlying degenerative condition as opposed to his May 10, 1999, work injury.  The compensation judge also cited to Dr. Wyard=s opinion that the employee sustained a temporary aggravation of his pre-existing condition and that this aggravation resolved within three months after the injury.

The compensation judge concluded that although both Dr. Cich and Dr. Wyard had sufficiently accurate and adequate foundations for their opinions, he was more persuaded by Dr. Wyard=s opinion on the issue of causation of and nature of the employee=s 1999 injury.  The choice between competing medical opinions is within the province of the compensation judge and findings based upon that choice will generally not be reversed by this court.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Expert medical opinion, that of Dr. Wyard, supports the compensation judge's 1999 injury was temporary in nature. 

The compensation judge also reviewed other information in the record, including the employee's medical and chiropractic records and his testimony, when determining whether the employee's aggravating injury in 1999 was temporary or permanent.  See Reimer v. Minnit Tool/M.I.T. Tool Corp., 520 N.W.2d 397, 51 W.C.D. 153 (Minn. 1994); see also Burth v. St. Paul Collision Ctr, slip op. (W.C.C.A. Nov. 23, 1994).  The employee testified that by about three or four months after his May 1999 injury, his back was Apretty much normal,@ but he later explained that he meant his back was not as good as it had been before May 1999, but that his pain was reduced and he got back to some facsimile of normal activities.

Although there is evidence that the employee's low back condition did not return to his pre-injury condition, including evidence presented by the employee's testimony, there is substantial evidence in the record, including medical opinion, supporting the compensation judge's findings that the employee's work injury had caused a temporary aggravation of his pre-existing low back condition.  We therefore affirm.

Temporary Partial Disability Claim

The compensation judge awarded the employee temporary total disability benefits between his injury on May 10, 1999, and his return to work on July 4, 1999.  However, the compensation judge denied the employee=s claim for temporary partial disability benefits after July 4, 1999, concluding that although the employee had a slight wage loss after he returned to work on July 5, 1999, he had not proven that this wage loss was causally related to the 1999 work injury. We conclude that this finding is adequately supported by the record and therefore affirm that denial.

Evidence on this issue is not definitive.  One of the employee=s treating physicians, Dr. Paul Crowe, released the employee to return to work as of July 6, 1999, limited to four hours per day for the first two weeks he was back at work.  By contrast, the employee testified that once he returned to work, he did not lose time from work due to his low back condition.  Although the employment records in evidence show that the employee worked less than full-time hours during some of the pay periods after July 1999, it is not clear from the record whether that time loss was due to the employee=s low back condition.  The wage records in evidence designate the type of earnings as sick leave, holiday, regular and overtime pay, but do not designate whether days listed as sick leave pertain to the employee=s low back condition.  (Employee=s Exhibit B.)  Although the employee testified that he used sick leave and vacation to cover days that he missed work due to his low back symptoms, his sick leave application forms in 1999 do not specify whether he requested sick leave on particular dates due to his low back condition.  (Employee=s Exhibit H-6.)

Based on the limited evidence of record, it was not unreasonable for the compensation judge to conclude that there was no proof that the employee=s wage loss after July 5, 1999, was causally related to his 1999 work injury.  We therefore affirm the compensation judge=s denial of temporary partial disability benefits.

Claimed Injury of April 3, 2002

The compensation judge denied the employee=s claim that he sustained a Gillette injury on April 3, 2002, as a result of his work activities.  He found that

The employee did not sustain a Gillette injury as a result of his work activities as a bus driver.  The employee=s low back and leg symptoms and disability are the result of degenerative disc disease. Except for the temporary injury in 1999, the employee=s work activities from 1975 to 2002 were not a substantial contributing cause of the low back problems and the resulting disability from 2002 to the date of hearing.

The compensation judge relied upon the opinion of Dr. Wyard who had concluded that the employee=s work activities as a bus driver did not cause or substantially contribute to the condition of his lumbar spine after April 3, 2002.  He believed that the employee=s symptoms at that point were related to his pre-existing condition.

A Gillette injury is a personal injury caused not by a specific event but by the effects of minute trauma over time.  To es­tablish a Gillette injury, an employee must "prove a causal connection between [his or her] ordinary work and ensuing disability . . . . Whether given by testimony or written report, an opinion by a medical expert as to the causal link between the claimant's disability and the job must be based on adequate foundation.@  Steffen v. Target Stores, 517 N.W.2d 579, 582, 50 W.C.D. 464, 467 (Minn. 1994).  While evidence of specific work activities causing specific symptoms leading to disability "may be helpful as a practical matter," the court stated that determination of a Gillette injury "primarily depends on medical evidence."  Id. at 581, 50 W.C.D. at 466-67.

In this case, numerous doctors have rendered an opinion on the causation of the employee=s low back condition, and there is conflicting medical evidence on that issue.  Dr. Schiffler, one of the employee=s treating medical doctors, and who examined the employee on April 15, 2002, concluded that the employee=s low back problems were Adirect[ly] related to driving a bus from the constant jarring and bouncing motions that he undergoes.@  The employee=s treating chiropractor, Dr. Cich, concluded that the employee=s low back condition was work-related. However, there is no reference in Dr. Cich=s April 2002 chart notes, contemporaneous to the employee=s 2002 injury, to the employee=s work or development of symptoms at work.   Dr. Dunne found no causal relationship between the employee=s work and his low back condition. Dr. Wyard concluded that the employee=s low back condition was related to his pre-existing medical condition.  The compensation judge explained that he accepted the opinion of Dr. Wyard.

As noted above, it is within the province of the compensation judge to choose between competing medical opinions, and findings based upon that choice will generally not be reversed by this court.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364,372 (Minn. 1985). In addition, A[w]here more than one inference may reasonably be drawn from the evidence, the compensation judge's findings shall be upheld."  Id.  As Dr. Wyard had foundation for his opinion, the compensation judge could reasonably rely on his opinion when reaching his conclusions concerning the nature of the employee=s injuries.  We therefore affirm the compensation judge=s finding that the employee did not sustain a Gillette injury on or about April 3, 2002, and accordingly affirm his denial of the employee=s claims for any disability and treatment expense thereafter.

Claim for Permanent Partial Disability

Based on our affirmance of the compensation judge=s findings concerning the nature and causation of the employee=s injuries, we also affirm the denial of the employee=s claim for permanent partial disability benefits relative to those injuries.