BONNIE M. CULL, Employee, v. WAL-MART STORES, INC., and INSURANCE CO. OF THE STATE OF PA./AIG/CLAIMS MANAGEMENT, INC., Employer-Insurer/Appellants.

 

WORKERS' COMPENSATION COURT OF APPEALS

APRIL 1, 2004

 

HEADNOTES

 

EVIDENCE - EXPERT MEDICAL OPINION.  An expert=s alleged lack of information goes to the weight of his or her opinion, rather than to its foundation.  The expert medical opinions which the compensation judge relied upon in this case had adequate foundation.

 

CAUSATION - AGGRAVATION.  Expert medical opinion is not the only factor to consider when determining whether an aggravation of a pre-existing condition is temporary or permanent.  Substantial evidence supports the compensation judge=s findings that the employee=s work injury had caused a permanent aggravation of her pre-existing low back condition and that the proposed surgery is causally related to the employee=s work injury.

 

Affirmed.

 

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

Compensation Judge: Jane Gordon Ertl

 

Attorneys:  Christopher E. Sandquist, Gislason & Hunter, Mankato, MN, for the Appellants.  John R. Malone, Malone & Atchison, St. Cloud, MN, for the Respondent.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal the compensation judge=s findings that the employee had sustained a permanent aggravation of her pre-existing low back condition and that the employee=s proposed low back surgery was causally related to her work injury.  We affirm.

 

BACKGROUND

 

On December 8, 1998, Bonnie M. Cull, the employee, sustained a work-related injury to her cervical spine, low back, and shoulder^[1] while working for Wal-Mart Stores, Inc., the employer, which was insured for workers' compensation liability by Insurance Company of the State of Pennsylvania/AIG,^[2] the insurer.  Medical records indicate that the employee had experienced occasional low back pain for approximately 27 years before her 1998 injury and leg pain for four years before that injury.  The employee testified that her back pain did not cause her any difficulty with her work before December 8, 1998, except that she was careful with lifting and that she might have occasional twinges in her low back.  The employee's injury occurred when she tripped on a mat on the employer's floor and fell forward, stumbling, but did not hit the floor.  Following her injury, the employee experienced pain in her neck, right shoulder and low back, and later experienced pain radiating into her right leg.  The employee testified that her radicular pain in her right leg has persisted since her 1998 work injury.

 

The employee treated with Dr. Timothy Novick, who noted that the employee reported hip pain two days after the injury and again a few days later.  Dr. Novick concluded that the employee had mild inflammation of the hip and that her back had significant symptoms of radiculopathy or lumbar palpation tenderness.  On December 28, 1998, Dr. Novick opined that the employee had bulging lumbar discs which were exacerbated and that she had an exacerbated lumbar disc disease related to this injury with "possibly a long term sequelae."  The employee continued to experience neck and low back symptoms, and underwent physical therapy at Dr. Novick's referral.

 

Dr. Novick referred the employee for cervical and lumbar spine MRI scans and referred the employee to an orthopaedic surgeon, Dr. Glenn Buttermann, for consultation.  Dr. Buttermann recommended additional physical therapy.  A cervical MRI scan taken on January 26, 1999, indicated a posterior annual tear to the right at C5-C6 and a lumbar MRI scan taken that same date indicated multi-level degenerative disc disease of the lumbar spine with severe disc space narrowing and dehydration of the L4-5 disc and mild central stenosis and mild bilateral subarticular recess stenosis at the L4-5 level as well as mild to moderate right-sided lateral spinal stenosis and mild impingement of the exiting right L4 nerve root ganglia.  Based upon these radiographic findings, Dr. Buttermann recommended cervical surgery. 

 

The employee filed a medical request for authorization of this surgery, which the employer and insurer denied.  The employee was examined by Dr. Robert Fielden at the employer and insurer'>s request on September 9, 1999.  Dr. Fielden opined that the employee had sustained a cervical injury at the time of the work injury, but that she was not a surgical candidate.  Dr. Novick opined that the employee's cervical injury and lumbar injury "started acutely with an event at work."  He also indicated that he hoped cervical surgery would improve the employee's working ability but that lumbar surgery was likely to follow.

 

A hearing was held on March 8, 2000, to address the employee's claim for medical expenses related to her cervical spine injury.  In her March 23, 2000, Findings and Order, the compensation judge found that the employee had sustained a permanent cervical spine injury as a result of her work injury and that the proposed surgery was reasonable and necessary.  The employee underwent a cervical fusion and decompression at C5-6 on May 16, 2000, but the fusion failed and the employee developed pseudoarthrosis, for which Dr. Butterman recommended posterior spinal fusion at the C5-6 level.  The employee was examined by Dr. Paul Cederberg at the employer and insurer's request on September 24, 2001.  Dr. Cederberg opined that the proposed repair of the fusion was reasonable and necessary.  He also opined that the employee had pre-existing degenerative disc disease of the lumbar spine, with a resolved strain to the low back that occurred as a result of the work injury.  The employee's cervical spine fusion was repaired on November 21, 2001.

 

In March 2002, the employee reported progressive low back pain to Dr. Buttermann, as well as a history of low back pain which had resolved.  Dr. Buttermann recommended an MRI scan, which was completed on April 3, 2002, and which indicated degenerative changes and a small central disc herniation at L4-5, but no significant changes in the lumbar spine compared to the  January 1999 MRI scan.  The employee was treated with a series of lumbar injections with some relief.  On January 13, 2003, the employee treated with Dr. Buttermann, who stated that the employee's low back pain was limiting and that she had L4-5 degeneration with a small disc herniation and lateral recess stenosis.  Dr. Buttermann opined that the lateral recess stenosis was probably chronic, "but the small disc herniation is probably what tipped her over the edge consistent with her work injury."  Dr. Buttermann recommended a lateral recess decompression at L4-5 on the right without fusion.

 

The employee's medical records document that the employee had previous problems with her low back.  The employee testified that she injured her low back in 1971, that she received chiropractic treatment following that injury, and that her chiropractor advised her, following his review of x-rays, that she may have sustained a compression fracture as a result of that 1971 injury.^[3]  The employee also testified that while she worked on her family's farm between approximately 1977 and 1991, performing farm chores, she occasionally felt twinges in her low back depending on the type of chores she performed, but that she did not receive any medical treatment for her low back for those occasional symptoms.

 

 The employee also had treated with Dr. Novick on February 20, 1996, and March 18, 1996, for an earlier slip and fall incident.  At her February 20 appointment, the employee reported right knee pain, and by her March appointment reported low back pain.  Dr. Novick diagnosed a  lumbosacral strain with likely degenerative disc disease and degenerative arthritis of the lumbar area with significant chronic pain syndrome and "likely disability from ambulatory work positions at this point in time particularly [including] her heavy duties of carrying trays and etc."  Dr. Novick stated his concern that the employee would not be able to continue that type of work, and advised that he may recommend x-ray and orthopedic assessment if the employee's low back pain continued.  The employee testified that she was off work for a few days after her 1996 slip and fall, and then returned to her regular job as a waitress, where she continued working until she left that position to commence working for Wal-Mart in 1997.  The next reference to the employee's medical treatment for low back symptoms is contained in medical records generated following her December 8, 1998, work injury.

 

The employee was again examined by Dr. Cederberg at the employer and insurer's request on June 19, 2003.  Dr. Cederberg opined that the employee had a pre-existing low back condition which was temporarily aggravated by her work injury of December 8, 1998, and which would have resolved two months after that work injury.  He concluded that the employee had sustained no permanent partial disability as a result of her work injury, and recommended no further medical treatment for that injury. 

 

On March 13, 2003, the employee filed a medical request for the proposed low back surgery recommended by Dr. Butterman.  The employer and insurer denied the request.  A hearing was held on July 2, 2003.  The record was left open post-hearing for submission of a medical report and response from Dr. Buttermann after his review of Dr. Cederberg's most recent report.  The record closed on August 6, 2003, and the compensation judge served and filed her findings and order on September 5, 2003.  The compensation judge found that the employee had sustained a permanent lumbar spine injury as a result of her work injury of December 8, 1998, and that the employee's need for the proposed surgery is causally related to her work injury.  The employer and insurer appeal.

 

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.  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

 

The employer and insurer argue on appeal that Dr. Buttermann's and Dr. Novick's opinions lack foundation, and therefore that the compensation judge erred by relying on those opinions in determining that the employee sustained a permanent aggravation of her pre-existing low back condition.  The employer and insurer argue that Dr. Buttermann's opinion lacked foundation because he did not have a proper history of the nature and extent of the employee's low back condition before the work injury, in part because the employee admittedly did not report her 1996 slip and fall incident to Dr. Buttermann during his course of treatment for the employee's post-1998 low back symptoms.  The employer and insurer also argue that Dr. Novick's opinion lacked foundation because the employee had stopped treating with him and he was not aware of the employee's additional treatment, diagnostic treatment, and the employee's more current condition.

 

Foundation is an admissibility standard which determines a witness's ability to testify on matters.  "The competency of a witness to provide expert medical testimony depends upon both the degree of the witness's scientific knowledge and the extent of the witness's practical experience with the matter which is the subject of the offered testimony."  Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).  An expert's alleged lack of information goes to the weight of his or her opinion, rather than to its foundation.  Crosby v. University of Minnesota, slip op. (W.C.C.A. Mar. 2, 1995); see also Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994) (while adequate foundation is necessary for a medical opinion to be afforded evidentiary value, the expert need not be made aware of every relevant fact).  Further, Dr. Buttermann was aware of the employee's chronic low back pain.  Dr. Novick opined that the employee would need further care for her back after the cervical condition was treated.  Dr. Buttermann's and Dr. Novick's opinions had adequate foundation, and the compensation judge could reasonably rely upon them.

 

In addition, expert medical opinion is not the only factor to consider when determining whether an aggravation of a pre-existing condition is temporary or permanent.  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).  Other factors which may be considered beyond medical opinions include (1) the nature and severity of the pre-existing condition and the extent of restrictions and disability; (2) the nature of the symptoms and the extent of medical treatment prior to the aggravating incident; (3) the nature and severity of the aggravating incident and the extent of the restrictions and disability; (4) the nature of the symptoms and extent of medical treatment following the aggravating incident; and (5) the nature and extent of the employee's work duties and non-work activities during the relevant period.  "Which of these factors are significant in a particular case and the weight to be given to any factor is generally a question of fact for the compensation judge."  Wold v. Olinger Trucking, Inc., slip op. (W.C.C.A. August 29, 1994). Questions of medical causation are within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).  In this case, the compensation judge noted that in spite of her pre-existing condition, the employee continued to work without ongoing medical care or lost time from work until after her work injury on December 8, 1998.  After that work injury, the employee has needed ongoing medical care, including the proposed surgery to her lumbar spine.  Substantial evidence supports the compensation judge's findings that the employee's work injury had caused a permanent aggravation of her pre-existing low back condition and that the proposed surgery is causally related to the employee's work injury, and we affirm.