JOHN PAUL MILLER, Employee/Appellant, v. MARIGOLD FOODS and KEMPER INS. CO., Employer-Insurer, and HEALTH AND WELFARE, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 23, 2004
HEADNOTES
CAUSATION B SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical testimony, supports the compensation judge=s finding that the employee=s October 23, 2000, work injury was not a substantial contributing factor to his ongoing disability and need for treatment after a non-work-related incident on March 27, 2001.
PRACTICE & PROCEDURE - INDEPENDENT MEDICAL EXAMINATION EXPENSES. Where the employer and insurer did not reimburse the employee for his expenses incurred when attending the IME, and where that claim was before the compensation judge at the hearing, the compensation judge=s denial of reimbursement of out-of-pocket expenses is reversed as it was clearly erroneous.
Affirmed in part and reversed in part.
Determined by: Rykken, J., Stofferahn, J., and Wilson, J.
Compensation Judge: Paul V. Rieke
Attorneys: Luke M. Seifert, Quinlivan & Hughes, St.Cloud, MN, for the Appellant. Deborah K. Sundquist and Kyle T. Kustermann, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for the Respondents.
OPINION
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge=s finding that the employee=s October 23, 2000, work injury was not a substantial contributing factor to his ongoing disability and need for treatment after a non-work-related incident on March 27, 2001, and from his denial of reimbursement for expenses incurred when he attended an independent medical examination. We affirm in part and reverse in part.
BACKGROUND
On October 23, 2000, John P. Miller, the employee, sustained an admitted work-related injury to his low back while working for Marigold Foods, the employer. The employer was insured for workers= compensation liability by Kemper Insurance Company, the insurer, at the time of the injury. The employee was injured when he lifted a 50 to 60 pound box off of a pallet and wrenched his low back. The employee treated at Olmsted Clinic and was restricted from work for two days. He returned to light duty for five days, and then resumed his regular job. The employee=s job required him to lift boxes weighing 50 to 60 pounds every fifteen to twenty minutes in order to load the contents into a machine, which involved repetitive twisting movements. The employee obtained help from co-workers with lifting after his injury, and continued working his regular job. The employee testified that after his injury he noted continuing pain in his buttocks and left leg, and that his ongoing symptoms in his back and leg did not clear up as they had in the past before this injury. His physical capabilities changed after his October 2000 injury; he had difficulty with snow shoveling, lifting heavy items, playing with his children, sitting and standing.
The employee has a history of injuries to his lumbar spine and underwent medical treatment for his low back in 1996 and 1997. In 1999, he was involved in an automobile accident and noted low back and left leg pain after that accident. The employee testified, however, that his prior low back conditions all healed without any ongoing problems.
Following his injury on October 23, 2000, the employee sought medical treatment only once, on the date of injury, at the Olmsted Medical Center in Rochester, Minnesota. At the emergency room, a consulting physician=s assistant prescribed pain medication and advised the employee to obtain follow-up medical treatment if his condition did not improve; he also advised the employee that he should contact the emergency department if he noted significant numbness or tingling in his legs. However, the employee sought no further treatment for his low back until March 27, 2001. On that date, he injured his back when he lifted his lawn mower out of a van. The employee felt pain in his left leg extending down to his foot and was unable to walk, and reported to the emergency room at St. Mary=s Hospital in Rochester. The employee was off work for two days, returned to light duty for a week, then resumed working without restrictions.
After this injury in 2001, however, the employee required more extensive medical treatment than he had needed after his 2000 work injury. He obtained massage therapy in May and June 2001 which provided no symptom relief. In May 2001, the employee underwent an MRI and EMG and was diagnosed with an L5-S1 disc herniation. He was restricted from work on June 16, 2001 and underwent surgery on July 20, 2001, in the nature of a left-sided hemilaminectomy and medial facetectomy involving the L5-S1 region, as well as a diskectomy of the L5-S1 region. The employee remained off work until September 16, 2001, and received short-term disability payments relating to his low back and left leg symptoms and condition between June 14 and September 17, 2001. The employee originally returned to work on a part-time, light-duty basis, but within one week, he returned to his regular job without restrictions. By January 2002, the employee transferred to a different, light-duty job with the same employer.
The employee=s treating doctor, Dr. Goeffrey Dixon, opined that the employee=s disability and need for surgery was causally related to the employee=s work activities. On March 7, 2002, the employee filed a claim petition for temporary total disability benefits between June 16, and September 16, 2001, temporary partial disability benefits from September 17 to 23, 2001, payment of permanent partial disability benefits and medical expenses primarily related to his July 2001 surgery. On June 28, 2002, the employee was examined by Dr. Paul Hartleben at the employer and insurer=s request. Dr. Hartleben opined that the employee had a degenerative condition of his spine and a disc herniation at the time of the examination but that the employee=s October 23, 2000, work injury was not a substantial contributing cause of the employee=s disability and need for surgery after March 27, 2001. Dr. Hartleben concluded that the employee=s Asymptoms and pattern of recovery following the October 23, 2000 injury were similar to his chronic history of regional back pain exacerbations and, thus, not a significant episode.@
A hearing was held on May 7, 2003, to address the employee=s claim petition, and in his findings and order served and filed on May 12, 2003, the compensation judge found that the employee=s work injury was not a substantial contributing factor in the employee=s ongoing disability and need for medical treatment after March 27, 2001. 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. 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
Claimed Temporary Disability Benefits and Medical Expenses
The employee argues that the evidence of record does not support the compensation judge=s finding that the employee=s October 23, 2000, work injury was not a substantial contributing cause of the employee=s disability and need for surgery after March 27, 2001. 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). The supreme court has stated, A[u]ntil the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining injury or disease will have to remain in the province of the trier of fact.@ Id. at 459, 50 W.C.D. at 184 (quoting Ruether v. State, 455 N.W.2d 475, 478 (Minn. 1990), and Golob v. Buckingham Hotel, 244 Minn. 301, 304-05, 69 N.W.2d 636, 639 (1955)).
The compensation judge noted that the employee received little medical treatment after his October 23, 2000, work injury and returned to his regular job after that injury. The employee testified that his co-workers had to assist him with his lifting after that injury even though he had been released to work without restrictions, and that he was physically restricted after his injury. Other witnesses corroborated the employee=s testimony concerning the limitations he experienced after his 2000 injury. However, it is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990). The employee argues that the employee=s symptoms after March 2001 were similar to his prior symptoms. The compensation judge noted, however, that once he returned to work after his 2000 injury, the employee lost no additional time from work before the March 2001 incident and that he required more extensive medical treatment after that non-work-related injury, including an MRI, an EMG and surgery.
The compensation judge also specifically accepted Dr. Hartleben=s opinion that the employee=s October 23, 2000, work injury was not a substantial contributing cause of the employee=s disability and need for surgery after March 27, 2001. Although medical evidence in the record supports the employee=s claim, it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony and a compensation judge=s choice between conflicting medical opinions is upheld, unless the opinion on which the judge relies is not based on adequate foundation or evidence and facts in the record. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). Substantial evidence supports the compensation judge=s finding that the employee=s October 23, 2000, work injury was not a substantial contributing cause of his disability and need for surgery after March 27, 2001. Accordingly, we affirm that finding.
Reimbursement of IME Expenses
Although the compensation judge found that the employee incurred out-of-pocket expenses related to his attendance at the independent medical examination with Dr. Hartleben, in his order he denied the employee=s claim for reimbursement of those expenses. The employee appeals from that denial, arguing that he is entitled to such reimbursement. We agree.
Minn. Stat. ' 176.155 requires an employer to pay reasonable travel expenses incurred by the employee in attending an examination with a physician chosen by the employer including mileage, parking, necessary lodging and meals, and lost wages resulting from attendance at the examination. The employee argues that although he had earlier requested reimbursement of those expenses, they had not been paid prior to the hearing and therefore that expense claim was presented as an issue before the compensation judge. At the hearing, the employer and insurer conceded that they should reimburse the employee for those expenses. However, it appears that no payment was made before the findings and order were issued, but was finally made after the employee filed his brief on appeal. The compensation judge=s denial of the IME expenses may have been an oversight, but in any event that denial was clearly erroneous and contradicts Minn. Stat. ' 176.155. We therefore reverse that portion of the judge=s order denying payment of the employee=s expenses incurred when he attended the examination with Dr. Hartleben.