DOUGLAS MURPHY, Employee/Appellant, v. ROAD RESCUE, INC., and VIGILANT INS. CO./CHUBB & SON GROUP, Employer-Insurer, and ROAD RESCUE, INC., and PACIFIC INDEM. CO./CHUBB & SON GROUP, Employer-Insurer, and MN DEP=T OF HUMAN SERVS. and MN DEP=T OF ECON. SEC., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 20, 2004

 

HEADNOTES

 

CAUSATION - TEMPORARY AGGRAVATION.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s October 3, 1988, work injury was merely temporary and did not substantially contribute to the employee=s subsequent disability and need for treatment for the period at issue.

 

Affirmed.

 

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

Compensation Judge: Kathleen Behounek

 

Attorneys: George H. Smith, Trawick & Smith, Minneapolis, MN, for the Appellant.  Thomas P. Kieselbach, Cousineau, McGuire & Anderson, Minneapolis, MN for the Respondents.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s decision that his disability and need for treatment for the period at issue were not causally related to his October 3, 1988, work injury.  We affirm.

 

BACKGROUND

 

The employee has an extensive history of low back symptoms and treatment dating back to 1981, when, at age 19, he was involved in a serious motor vehicle accident.  In that accident, the employee=s car was broadsided by another vehicle, and the force of the collision was sufficient to throw the employee=s passenger through the windshield.  Diagnostic tests subsequently revealed disc bulges or herniations at several levels of the employee=s lumbar spine.  In July of 1983, the employee underwent chemonucleolysis to treat a bulge or herniation at L4-5.  Several months later, in January of 1984, he underwent a decompressive laminectomy at L3-4.  Litigation over this accident ensued, and the employee received a settlement in the neighborhood of $50,000.

 

The employee was involved in another serious accident in May of 1985; this time, a truck Aran over@ him as he was riding his motorcycle.  He again received treatment for low back and leg symptoms and underwent another surgical procedure, a laminectomy at L4-5, in November of 1986.  He also again commenced litigation over the accident and again received about $50,000 in settlement.

 

The employee began working as a welder for Road Rescue, Inc. [the employer], an ambulance manufacturer, in 1987.  On October 3, 1988, he apparently sustained a work-related injury to his low back.  Evidence as to the circumstances of the injury is somewhat conflicting, but contemporaneous treatment records from Airport Medical Clinic indicate that the employee had re-injured his low back while lifting an ambulance floor.  The examining physician, Dr. John Kipp, diagnosed lumbar strain Awith underlying significant degenerative disc disease post surgery times two.@  Dr. Kipp took the employee off work and prescribed ice and heat and medication.  On follow-up on October 6, 1988, Dr. Kipp noted that the employee had not improved but that he had no symptoms of radiculopathy as of yet.  At that point, a CT scan was ordered and was later performed on October 13, 1988.  In the meantime, on October 11, 1988, Dr. Kipp noted that the employee had returned to work in a supervisory capacity and that his back symptoms had significantly improved.

 

On October 18, 1988, Dr. Kipp wrote that the CT scan had shown Apostoperative fibrosis with no recurrent disc herniation.@  Noting that the employee reported having regained Aas much flexibility as he has ever had after his most recent surgery,@ Dr. Kipp indicated that the employee=s acute myoligamentous lumbar strain had resolved and that the employee had returned to Abaseline.@  Dr. Kipp therefore allowed the employee to return to work with no limitations.

 

In March of 1989, the employee was involved in an altercation at Kenny=s Pub in which he was struck in the head or neck by a pool cue and then physically removed from the premises by an employee of the pub.  The employee subsequently sued Kenny=s Pub, alleging injury to his neck as well as an aggravation of his low back condition.  The employee eventually received a monetary settlement in relation to this claim.

 

In January, April, and August of 1990, the employee received additional treatment for back symptoms.  In September of 1990, he was terminated by the employer for excessive absenteeism and tardiness.  At hearing, the employee explained that some of his work attendance problems stemmed from his low back condition but that some were due to events such as his marriage, his purchase of a house, and his involvement in legal proceedings.

 

In April of 1991, the employee again sought additional treatment for low back and left leg pain that medical records indicate had occurred after sneezing episodes over the past several days.  Diagnostic tests eventually disclosed a herniated disc at L4-5 with a large free fragment impinging the L5 nerve root.  On August 23, 1991, the employee underwent another laminectomy at L4-5.

 

In March of 1994, the employee was involved in another bar fight in which he was allegedly kicked and beaten by several people in the bar parking lot.  He later filed suit against the bar, claiming that he had recovered from his back surgeries prior to this incident, that the incident had damaged his already weakened back, and that he was now totally unable to work.  He eventually received about $12,000 in settlement of this claim.

 

In October of 1995, the employee underwent another laminectomy, this time at L2-3.  He has worked only sporadically, if at all, since that surgery and has been approved for social security disability benefits.  Some physicians have recommended multilevel lumbar fusion surgery, but the employee has so far declined that treatment option.

 

Procedurally, the first claim petition against the employer, related to the employee=s low back condition, was filed in 1992, listing a September 4, 1990, date of injury.  That claim petition was dismissed for lack of medical support.  A subsequent claim petition, alleging a back and neck injury occurring on April 5, 1988, was struck from the trial calendar, in part, again, for lack of medical support.  Later, another claim petition was filed, alleging injury dates of April 5, 1988, and October 3, 1988, and by the time the matter came on for hearing before a compensation judge in May of 2003, the alleged dates of injury were October 3, 1988, and April 9, 1990.  At that time, the employee was seeking temporary total or permanent total disability benefits continuing after the employee=s last day of work for the employer.^[1]  The employer and insurer denied primary liability, denied timely notice of injury, alleged that the statute of limitations had expired, denied medical causation, and denied that the employee had been totally disabled during the period claimed.  Evidence submitted at hearing included the employee=s extensive treatment records, the reports of several independent examiners, and certain documents and depositions from the litigation over the employee=s bar altercations in 1989 and 1994.

 

In a decision issued on July 29, 2003, the compensation judge concluded, in part, that the employee did not sustain a work-related injury on April 9, 1990, and that the injury of October 3, 1988, was merely temporary, resolving as of October 18, 1988.  As such, the judge denied the employee=s claim in its entirety.  The employee appeals.

 

STANDARD OF REVIEW

 

In reviewing cases 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 (1992).  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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  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.@  Id.

 

DECISION

 

The employee=s appeal brief is somewhat difficult to follow.  However, the gist of the employee=s argument appears to be based on his contention that the judge erred in concluding that the October 1988 CT scan, performed shortly after the employee=s October 3, 1988, back injury, showed no indication of recent or acute injury, and that the judge erred in rejecting the causation opinion of Dr. Richard Gregory.  In essence, the employee is arguing that substantial evidence does not support the judge=s conclusion that the October 3, 1988, injury was merely temporary and had resolved by October 18, 1988.  We are not persuaded.

 

With regard to the October 13, 1988, CT scan, it is true, as the employee alleges, that the scan report describes a Amoderate central bulging of the disc annulus at L4B5.@  However, that same report describes the bulge as Aresidual or persistent,@ supporting the inference that the bulge was left over from the 1986, pre-injury laminectomy.  More importantly, Dr. Kipp, who treated the employee after his 1988 work injury, viewed the CT scan as showing no new herniation, and Dr. Paul Wicklund, the employer and insurer=s independent examiner, testified that Anothing on the [1988] CT scan. . . would indicate any recent injury.@  This evidence clearly supports the compensation judge=s decision as to the significance of the CT.

 

We also find no error in the judge=s decision to reject the opinion of Dr. Golden, whose May 30, 2001, report on causation reads, in its entirety, as follows:

 

I reviewed the office notes from Airport Medical Clinic on the date of visit of 10/03/88.  On 10/03/88, Douglas Murphy was seen at Airport Clinic.  He was doing some lifting at work and felt something pull in the central low lumbar region.  He was taken off work completely at that time.

 

In my opinion, within a reasonable degree of medical certainty, the injury of 10/03/88 is a substantial contributing factor toward his current disability.

 

As the compensation judge noted, Dr. Gregory=s own treatment records indicate that the employee reported a spontaneous onset of low back and leg symptoms occurring in October of 1988, rather than attributing his symptoms to a particular incident at work.  Moreover, as the employer and insurer point out, there is no indication in Dr. Gregory=s records that he was aware of all of the employee=s prior history of accidents and low back care.  As such, it was not unreasonable for the compensation judge to find Dr. Gregory=s opinion unpersuasive.

 

Contemporaneous treatment records indicate that the employee=s low back condition had returned to baseline within about two weeks of the October 3, 1988, work injury.  In addition, after reviewing the employee=s voluminous treatment records, Dr. Wicklund testified in great detail as to why he thought the October 1988 injury was merely temporary, and the compensation judge was entitled to accept his opinion in that regard.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Other factors that may have influenced the judge include the fact that the employee described the October 3, 1988, work injury differently at different times,^[2] the fact that the employee=s medical records describe other potentially significant incidents beyond those already described in this opinion, including an incident in which the employee fell Aon@ or from his motorcycle and an incident in which the employee fell out of a car supposedly going 60 miles per hour; the fact that the employee did not list the October 3, 1988, injury in response to interrogatories from his civil suits requesting information about previous injuries; and the fact that all of the employee=s claims for both motor vehicle accidents and both bar fights have been settled.  In any event, given the employee=s extensive history of low back injury, the treatment records relating to the work injury, and the opinion of Dr. Wicklund, substantial evidence easily supports the compensation judge=s decision that the October 3, 1988, work injury was merely temporary, and we affirm that decision in its entirety.