STEPHEN J. MURPHEY, Employee/Appellant, v. DAKOTA ELEC. ASSOC., SELF-INSURED/COMPCOST, INC., Employer-Insurer, and FEDERATED MUTUAL INS. CO., and FAIRVIEW HEALTH SERVS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 23, 2004
HEADNOTES
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the decision of the compensation judge that the employee=s need for surgery and resulting disability was not the result of his work injury.
Affirmed.
Determined by: Stofferahn, J., Rykken, J., Pederson, J.
Compensation Judge: William R. Johnson
Attorneys: James T. Hansing, Attorney at Law, Minneapolis, MN, for the Appellant. George W. Kuehner, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Respondents.
OPINION
DAVID A. STOFFERAHN, Judge
The employee appeals from the determination of the compensation judge that he failed to establish that his work injury was a substantial contributing factor in his need for hip replacement surgery and the disability which followed. We affirm.
BACKGROUND
On October 25, 1995, Stephen J. Murphey, the employee, was employed as a cable locator/meter reader by Dakota Electric Association, the employer. On that date, the employee slipped in a ditch as he was on a cable location job and reported an immediate onset of right hip pain. The employee had gone to work for the employer in 1985. In 1994 he became a cable locator/meter reader. As a cable locator he would mark proposed utility routes and after the construction season he would work as a meter reader. The employee testified that he had not had any pain or problems with his hips before he became a cable locator and a functional capacity evaluation done in August 1994 allowed him to work at a medium/ heavy exertional level. The employee testified that he first noted pain in his right hip in March 1995. He associated his pain with his work activity which required being on his feet for a significant part of the work day, climbing in and out of his truck numerous times in the day, and walking outside in all types of weather on all types of terrain.
The employee first obtained medical care for his right hip pain on November 7, 1995 when he saw Dr. David Maas, his family doctor at Apple Valley Medical Center. He gave Dr. Maas a history of right hip pain and aching for several weeks which had worsened after slipping in a ditch in October. The employee noted that sometimes he had intense pain with difficulty walking and other times he had only minimal discomfort. Dr. Maas diagnosed arthritis, provided the employee with medication, and released him to work without restrictions. The employee returned to Dr. Maas on November 13, 1995 and advised him that the medication had not provided him with any significant help. Dr. Maas referred the employee to an orthopedist, Dr. David Boxall.
Dr. Boxall first saw the employee on November 13, 1995 and then saw him on three occasions in 1996. When he saw the employee in 1995, Dr. Boxall took a history of the employee=s right hip pain as beginning with the employee=s slip in October. Dr. Boxall had x-rays taken which he described as showing moderately advanced degenerative arthritis. Dr. Boxall diagnosed degenerative arthritis of the right hip, recommended continued use of oral anti-inflammatories, and sent the employee for a steroid injection of the hip. The employee testified that he was told that his hip would only get worse and that he would need to have it replaced eventually. In follow-up appointments, the employee noted continued symptoms with some improvement. In May 1996, Dr. Boxall determined the employee was at maximum medical improvement and rated his permanent partial disability at 4 percent. The employer through its insurer, Minnesota Rural Electric Trust paid the rating.
The employee returned to Dr. Boxall in November 1996 indicating that his right hip symptoms were recurring. Dr. Boxall injected his right hip with steroid medication. The employee did not return to Dr. Boxall for treatment and did not receive any other medical care for his right hip until 2000. The employee testified that in 2000 he decided he needed to get the right hip problem fixed because of the continuing pain.
The employee consulted with Dr. Paul Dworak on October 27, 2000. He provided Dr. Dworak with a history of severe pain in his right hip after slipping in a ditch five years previously. He indicated to the doctor that he had difficulty getting out of a chair and sleeping at night because of right hip pain. X-rays taken at Dr. Dworak=s orders were read as showing Aseverely advanced osteoarthritis of his right hip with total obliteration of the joint space, subchondral sclerosis and cystic formation. There is marked flattening of the superior lateral aspect of his femoral head with increased density, indicating a high probability of avascular necrosis.@ Dr. Dworak=s impression was of Aextremely advanced osteoarthritis and questionable avascular necrosis involving his right hip.@ Dr. Dworak concluded that the employee had reached Aend stage degenerative changes@ and his treatment recommendation was for a right total hip arthroplasty.
The employee was seen by Dr. Mark Friedland on behalf of the employer and insurer on December 20, 2000. Dr. Friedland diagnosed Asevere right and moderately severe left hip arthrosis with bilateral femoral head avascular necrosis (right worse than left).@ It was Dr. Friedland=s conclusion that the avascular necrosis was not the result of any traumatic event and that the avascular necrosis had led to the osteoarthritis and the need for surgery. Dr. Friedland concluded that the injury of October 25, 1995 was a temporary aggravation of his pre-existing arthritis and that the temporary aggravation had resolved by May 1996 when Dr. Boxall indicated the employee was at maximum medical improvement.
On January 12, 2001 the employee returned to Dr. Dworak who addressed the question of whether the hip condition was work related. Dr. Dworak stated AI informed Steve that based upon his history as provided, I concur with Dr. Boxall that he did have an aggravation of a pre-existing condition - the osteoarthritis - and that the repeated falling episodes could possibly have contributed to a Gillette type injury to his right hip.@ (Emphasis in original).
The employee was seen for a second opinion by Dr. Richard Kyle on February 8, 2001. Dr. Kyle agreed with Dr. Dworak=s recommendation for a total hip replacement. Dr. Kyle also concluded that the employee had osteoarthritis of the right hip which had been aggravated by his work activities. Dr. Kyle had obtained a history that the employee had sustained multiple falls on the job in the winter of 1995 and that these multiple falls had accelerated the hip disease and had led to the need for the surgery.
The employee had a right total hip arthroplasty performed by Dr. Dworak on February 14, 2001. The employee was off work for about two months before returning to employment with restrictions with Dakota Electric.
The employee filed a claim petition on January 17, 2002 alleging that he was entitled to various benefits as the result of bilateral hip injuries sustained on October 25, 1995. The employer filed its answer, admitting a temporary injury on that date but denying liability for any benefits. The employee=s claim was heard by Compensation Judge William Johnson on June 6, 2003.
At the hearing, the employee introduced a report from Dr. Dworak dated May 29, 2002. In that report, Dr. Dworak indicated that the employee developed severe pain in his right hip in 1995 after slipping in a ditch at work. Dr. Dworak stated that the employee had no problems with his right hip before that time. The report also had a history that the employee had repetitive falling episodes on the job in the winter of 1995, sometimes as many as five in a day, sustained direct blows to his lower extremities and buttocks. It was Dr. Dworak=s opinion Athat Mr. Murphey has advanced osteonecrosis. I am not convinced that he has avascular necrosis. He essentially had a pre-existing condition to his right hip (osteoarthritis). The repetitive falls that he sustained from 1995 did aggravate and accelerate his osteoarthritis of his right hip. The falls most likely did not cause the osteoarthritis but did aggravate his pre-existing condition of osteoarthritis of the right hip and were a substantial contributing cause to the necessity of his undergoing a right total hip arthroplasty.@
Dr. Friedland testified by deposition for the hearing. Dr. Friedland testified that the flattening of the femoral head as shown on the x-rays was a classic finding of avascular necrosis. Dr. Friedland stated that avascular necrosis could be traumatic in origin if there were a femoral fracture or hip dislocation. Dr. Friedland noted that there was neither a fracture or dislocation in the present case. Dr. Friedland did not believe that avascular necrosis could be brought about by repetitive activity or falls that did not result in fracture or dislocation. It was Dr. Friedland=s opinion that the employee=s osteoarthritis was the end stage of the necrosis. He did not believe that the employee=s injury of October 25, 1995 or his work activity generally were causative factors in the development of the employee=s osteoarthritis. Finally, he indicated that osteonecrosis, the word used by Dr. Dworak to diagnose the employee=s condition, was the same as the avascular necrosis that he had diagnosed.
The compensation judge served and filed his Findings and Order on August 5, 2003. He determined that the employee had failed by a preponderance of the evidence to establish that his hip injury and eventual need for surgery arose out of his employment. The compensation judge specifically adopted the opinion of Dr. Friedland on causation. The employee=s claims were denied. The employee appeals.
DECISION
On appeal, the employee argues that the compensation judge erred in not accepting the opinion of the employee=s treating doctors that his osteoarthritis was aggravated by his slip and fall at work. The employee contends the compensation judge failed to determine whether the employee had osteoarthritis and so did not make findings on the crucial issue in the case. We disagree.
The issue in this case was not whether the employee had osteoarthritis. All of the doctors, including Dr. Friedland, were of the opinion that the employee had osteoarthritis or degenerative arthritis which had pre-existed his work injury in October 1995. The issue was whether the work injury was a substantial contributing factor in aggravating that condition, leading to the need for the employee=s surgery.
On that issue there were competing medical opinions. Dr.=s Kyle and Dworak found a causal relationship between the work injury and the need for the hip replacement surgery. However, both doctors were apparently under the impression that the employee=s right hip pain began with the work injury in October 1995 when the employee=s symptoms had actually begun some seven months before that. Both Dr. Kyle and Dr. Dworak also referred to multiple falls in the winter of 1995 and there is no reference to multiple falls in Dr. Boxall=s records from that time. Dr. Dworak does not explain the role played in the employee=s condition by the osteonecrosis that he diagnosed. The second opinion in this case was that of Dr. Friedland who opined that the osteoarthritis was the end result of avascular necrosis and that the work activity was not a causal factor either in the development of the necrosis or on the course of the osteoarthritis. In adopting the opinion of Dr. Friedland, the compensation judge made findings on the central issue in this case. The question for our review is whether the decision of the compensation judge is supported by substantial evidence. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
We would note first of all the number of doctors on each side of a dispute is not the determinative factor in establishing substantial evidence. Twa v. Lund Boat Co., slip op. (W.C.C.A. Jan. 16, 2004). It is the function of the compensation judge to consider the competing medical opinions and the compensation judge=s decision in that regard will not be reversed so long as the accepted opinion has adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003). There is no argument here that Dr. Friedland=s opinion lacks foundation. We find substantial evidence in the record as a whole to affirm the compensation judge=s determination on causation.
The employee also argues on appeal that the compensation judge erred in allowing the employer to change its position as to the extent of the employee=s injury of October 1995. The employee characterizes this change in his brief as being a denial of primary liability. A review of the record clearly indicates that the employer did not deny primary liability for the October 1995 injury but instead alleged, based on Dr. Friedland=s opinion, that the work injury was a temporary one. Whether or not primary liability for a work injury is admitted, it is still the employee=s burden to establish a causal connection between the injury and the claimed benefits. Salmon v. Wheelbrator Frye, 409 N.W.2d 495, 40 W.C.D. 117 (Minn. 1987). The compensation judge in this case found that the employee failed to meet that burden and we have indicated that there is substantial evidence in the record to support that conclusion.
Prior to the hearing, the employee served a subpoena on Dr. Friedland for the production of his financial records including his tax returns. Dr. Friedland filed a motion to quash the subpoena which was granted by Compensation Judge Johnson. The employee argues on appeal that the compensation judge erred in doing so. We can assume the purpose of the subpoena was to establish Dr. Friedland=s earnings from his independent medical examination business but on cross examining Dr. Friedland in his deposition, the employee=s attorney had Dr. Friedland admit that he had done 292 independent examinations in the preceding twelve months. Accordingly, we see no prejudice to the employee in the compensation judge=s ruling and the employee has not argued how this issue had an adverse impact on his case. Finally, the employee did not raise this issue either at the time of Dr. Friedland=s deposition or when that deposition was introduced into evidence at the hearing.
The decision of the compensation judge is affirmed.