Richards v. UMI-Spantek Div.

DANNY L. RICHARDS, Employee/Appellant, v. UMI-SPANTEK DIV. and FIREMAN=S FUND INS. CO., Employer-Insurer/Cross-appellant.

CAUSATION - MEDICAL EXPENSES; MEDICAL TREATMENT & EXPENSE - SURGERY. Where the expert medical opinion relied on by the compensation judge was not based on premises unsupported by substantial evidence, and where the judge=s decision was not otherwise unreasonable, the compensation judge=s denial of payment for the surgery at issue on grounds that the need for it was not causally related to the work-related injury was not clearly erroneous and unsupported by substantial evidence.

Attorneys: Edward F. Rooney, Attorney at Law, Minneapolis, MN, for Appellant. Deborah L. Crowley and Nancy E. Lamo, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for Respondents.

The employee appeals from the compensation judge's conclusion that the surgery at issue is not causally related to the employee=s work injury. The employer and insurer cross appeal from the judge=s finding that that surgery, while not causally related to the work injury, is reasonable and necessary treatment for the employee=s condition. We affirm on the appeal, and we decline to address the cross-appeal.

On March 10, 1984, Danny Richards sustained a work-related injury to his low back while helping to carry a heavy piece of metal in the course of his employment as a machine operator with UMI - Spantek Division. Mr. Richards [the employee] was thirty-two years old on that date and was earning a weekly wage of $329.20. The employee was initially diagnosed by Dr. Bienvenido Briones with a lumbosacral sprain strain syndrome, but his symptoms continued, and Dr. Briones referred him to orthopedic surgeon Dr. Michael Davis. After examining the employee on April 9, 1984, Dr. Davis recommended hospitalization, but the employee did not improve, and a lumbar CT scan and myelogram on April 11 and April 13, 1984, eventually revealed a herniated disc at L4-5 and a midline bulge of doubtful significance at L5-S1. By May 10, 1984, the employee was feeling Aa lot better,@ however, and Dr. Davis released him to return to work at a lighter duty job with UMI - Spantek Division [the employer], subject to restrictions against repetitive bending or lifting over about fifteen pounds. The employee=s symptoms deteriorated, however, and Dr. Davis restricted the employee on June 7, 1984, from working at all for four days and thereafter from working any overtime or doing more than minimal bending and lifting. The employer and insurer admitted liability for the injury and commenced payment of benefits. The employee=s complaints continued, and on November 16, 1984, he was seen regarding low back and left leg pain by orthopedic surgeon Dr. Peter Strand, who concluded that the employee would probably require surgery.

On February 11, 1985, the employee was admitted to a hospital to undergo a myelogram, which was read to reveal an A[e]xtradural defect@ at L4-5, Aconsistent with a herniated disc.@ The employee had been drinking a case a beer a day upon admission, however, and the following day, in concurrence with neurologist Dr. Bruce Idelkope, Dr. Davis concluded that the employee was not a candidate for surgery, due to psychological problems and a history of alcohol abuse. On March 1, 1985, Dr. Davis indicated to the insurer=s rehabilitation consultant that Ait might be a good idea for [the employee] to go back to work at this time, on a part time basis,@ with restrictions against lifting more than twenty-five pounds and against doing much repetitive bending and twisting. On May 22, 1985, Dr. Davis concluded that the employee had sustained a permanent partial disability to 14% of his whole body relative to his March 1984 work injury, and on December 16, 1986, he indicated that the employee had reached maximum medical improvement [MMI] with regard to that injury Aif no surgery is to be done in the future.@

The employee eventually moved to Gresham, Oregon, where, on May 15, 1987, he saw Dr. John Harris regarding continuing back pain that was radiating into his left leg. Upon physical examination, and without benefit of having reviewed any x-rays, Dr. Harris diagnosed lumbosacral strain, noting that the employee was doing reasonably well without surgical treatment. On that assessment, Dr. Harris recommended that the employee resume exercises that had been taught to him previously by a physical therapist and that he take Advil for discomfort. Subsequently, in August of that same year, the employee requested an EMG, Ato find out whether the nerves or muscles in the legs are deteriorating.@ Dr. Harris referred him to neurologist Dr. Patrick Radecki, who reported on September 22, 1987, that the employee=s electrodiagnostic studies had been essentially normal except for some evidence of S1 radiculopathy. On January 19, 1988, Dr. Harris concluded that Athere is no particular urgency to give any further consideration to surgical treatment at this point since [the employee] is functioning reasonably well@ and A[t]here is no evidence of progressive weakness in his leg.@

In April of 1988, the employee complained to Dr. Harris that he was continuing to have occasional severe back pain radiating down his leg, and, upon the employee=s request in June 1988, Dr. Harris referred him to neurosurgeon Dr. Julio Ordonez, whom the employee saw on June 29, 1988. Dr. Ordonez ordered an MRI scan, which was conducted on July 5, 1988, and was read to reveal mild congenital stenosis at L3-4 and bulging discs at L4-5 and L5-S1, without evidence of any nerve impingement. Dr. Ordonez reported on July 12, 1988, that the employee was feeling better, but ten days later he reported that the employee had had an acute recurrence of his back pain again. On August 8, 1988, the parties entered into a full, final, and complete settlement of all claims arising out of the employee=s March 1984 work injury except future medical benefits.

On October 31, 1989, the employee was involved in a head-on car accident, following which he experienced immediate neck pain. He underwent a cervical myelography on December 21, 1989, and on February 26, 1990, he underwent an anterior cervical discectomy and fusion in treatment of the injury. Hospital records do not suggest that the employee was experiencing any low back pain at the time of the procedure, but on March 12, 1990, the employee returned to his surgeon, Dr. Darrell Brett, with complaints of a sudden flare up of his low back pain consequent to no particular precipitating event. A lumbar MRI scan conducted on that same date was read to reveal a congenitally narrow spinal canal and protruding discs at L4-5 and L5-S1, together with an apparent disc fragment effacing the thecal sac projecting between the S1 nerve roots. There is no record of the employee having received any treatment for his low back for over eleven years after that date, although there are one or two general references to ongoing low back problems in the context of treatment for his chronic alcoholism over that periodBincluding one on August 10, 1993, when treatment notes make reference to Aa history of back problems that does not seem to [be] bothering him at the present time.@

In early 2001, the employee moved to Wyoming, where he began work as a care attendant at the Wyoming State Training School [WSTS], evidently a nursing home for severely disabled patients. On April 10, 2001, the employee began seeing Dr. Terry Donaldson, who noted that the employee was Ain because he needs some medicines renewed,@ although A[h]e really has no complaints and states that he feels good.@ The employee did not complain to Dr. Donaldson of any back pain until about two months thereafter, when, on June 14, 2001, again requesting additional medication, he reported to Dr. Donaldson that lifting requirements of his work were aggravating his low back, which he said had Abeen bad for many years after it was injured on a job in about 1978@ [sic]. Upon physical examination, Dr. Donaldson diagnosed back pain with probable radicular neuropathy, prescribed medications, and ordered an MRI scan. The scan, conducted on July 24, 2001, was read to reveal moderate to severe spinal stenosis at L3-4 with possible nerve root impingement, mild spinal stenosis at L4-5 with no evidence of definite nerve root impingement, and disc bulging and degenerative changes at L5-S1 with no definite evidence of nerve root impingement.

Dr. Donaldson eventually referred the employee to neurosurgeon Dr. Robert Narotzky, whom the employee first saw on August 17, 2001. In office records on that date, Dr. Narotzky noted in part that the employee was there Afor evaluation of back and leg pain,@ that A[h]e relates that he has had difficulty with his low back for the last 17 years and has had leg pain for that length of time as well,@ and that A[t]his has gotten progressively worse.@ Dr. Narotzky began treating the employee=s pain with epidural injections at L4-5, which were generally successful, but relief was always temporary, and Dr. Narotzky began increasingly to contemplate surgical options. On October 12, 2001, Dr. Narotzky noted expressly that the employee=s Acurrent back problems stem from an initial injury that occurred on March 10, 1984,@ and that A[t]here have been no new injuries and his problems relate to that old injury.@

On November 19, 2001, the employee brought a claim for Wyoming workers= compensation benefits. The following day, he requested a confirmation of his restrictions by Dr. Donaldson, which the doctor issued on November 27, 2001, but by the end of the month the employee had been terminated from his job at the WSTS. On December 10, 2001, the employee wrote to a Ms. Martin of the Wyoming Workers= Compensation Division, explaining the bases of his claim against the WSTS. His opening assertion in that hand-written letter was that A[t]he[re] are no medical records for any injury to my back as far back as the late 1980's until June 14, 2001.@ The employee=s Wyoming workers= compensation claim was initially denied nevertheless, by letter of the Wyoming Workers= Safety & Compensation Division dated January 14, 2002.

On January 15, 2002, at the request of Dr. Narotzky, the employee underwent a lumbar MRI scan that was read to reveal stable but severe central canal stenosis at L3-4, mild to moderate central canal stenosis with a diffusely bulging disc and a small annular tear at L4-5, and a mild diffuse disc bulge with a new small annular tear and some nerve root impingement at L5-S1. On January 24, 2002, Dr. Narotzky concluded, AI think [that the employee] is going to need surgery.@ On February 4, 2002, the employee underwent a lumbar CT scan and discogram, which was read to reveal abnormal morphology at all levels, with spinal canal stenosis at L3-4, milder canal narrowing at L4-5, and partially concordant pain responses from L3 through S1.

On February 22, 2002, the employee was hospitalized with pancreatitis secondary to alcohol abuse, together with chronic back pain, but three days later he became agitated, discontinued his own IV, insisted on leaving, and was discharged against medical advice. On March 5, 2002, the employee saw Dr. Donaldson again, requesting more medication, which Dr. Donaldson did prescribe for him, although feeling Aapprehensive@ about doing so because A[h]e=s got such an addictive personality.@ On April 2, 2002, Dr. Narotzky informed the employee that the surgery that he was recommending would be a fusion and decompression from L3 to the sacrum.

On April 25, 2002, the employee was examined on referral from Dr. Narotzky by neurologist Dr. Tuenis Zondag. The employee reported to Dr. Zondag Athat he has had no major difficulties with his back until he started a new job as a Mental Health Worker doing total care at WSTS@ and that, although Ahe had back problems before. He had a 14-year-asymptomatic period.@ Upon examination and review of the employee=s radiological records, Dr. Zondag concluded that the employee had sustained a new injury at WSTS,

based upon the fact that he has not only had changes of the discs with degenerative discs, but also now has stenosis. In addition to this, at L4-5 and L5-S1, he has findings of annular tears, which are most consistently found with acute injuries with lifting or twisting or some other type of injuries that relate acutely to the back.

The employee had contested the denial of his Wyoming workers= compensation claim, and eventually, by an agreement filed June 26, 2002, and an order filed July 1, 2002, he accepted $14,000.00 in full and final settlement of that claim. In the context of that settlement agreement, the employee alleged that he had suffered a work-related injury to his back on or about November 19, 2001, while employed by the WSTS, whereas the Wyoming Workers= Compensation Division and the WSTS had disputed the occurrence of such an injury, contending instead that the employee=s back problems pre-existed November 19, 2001.

On August 26, 2002, the employee was examined by physiatrist Dr. Celia Stenfors-Dacre, who recommended, in consultation with Dr. Donaldson, the implantation of an intrathecal morphine pump in treatment of the employee=s Aunremitting low back pain,@ which Dr. Stenfors-Dacre appears to relate both to the employee=s March 10, 1984, work injury and to Afurther disc herniations@ at the WSTS. Later that year, on November 23, 2002, Dr. Zontag noted that recent MRI scan findings were Aa progression from [the employee=s] last scan.@ On November 26, 2002, the employee filed a medical request against the employer, seeking payment of $1,214.18 in medical bills, payment of unspecified medical mileage expenses, and a trial implant of the morphine pump recommended by Drs. Donaldson and Stenfors-Dacre. On January 25, 2003, Dr. Narotzky reiterated a recommendation to the employee that the employee should also undergo a decompression and fusion from L3 to S1, in treatment of what Dr. Narotzky described as severe back and bilateral leg pain consequent to severe spinal stenosis at L3-4 and L4-5.

In a letter dated March 19, 2003, Dr. Zondag wrote to the employee=s attorney, asserting that, A[b]ecause [the employee] did not have a new acute herniated disc, but really showed changes from chronic degenerative discs, it is felt that the present spinal stenosis from L3-S1 is a direct result of the injury he sustained to his back in 1984.@ Also in March of 2003, the employee learned that, as a result of a defective heating system at home, he had been exposed for several months to carbon monoxide poisoning that had resulted in brain damage, which in turn has in part necessitated his residence in an assisted living retirement home. On March 31, 2003, the employee filed a second medical request, this one seeking payment for the decompression and fusion surgery recommended by Dr. Narotzky.

On May 13, 2003, the employee was examined for the employer and insurer by orthopedic surgeon Dr. David Cook. In his report on that date, Dr. Cook diagnosed the following: chronic alcohol/polysubstance abuse; a herniated nucleus pulposus at L4-5 dating to 1984; a herniated nucleus pulposus at L5-S1 dating to 1984; an extruded disc at L5-S1 dating to 1990; mild congenital stenosis and facet hypertrophy at L3-4 dating to 1988; a new annulus tear at L5-S1 dating to 2001; increased stenosis since the employee=s last scan dating to 2002; and degenerative disc disease diagnosed by lumbar discogram in 2002. It was Dr. Cook=s opinion that the substance abuse diagnosis was primary and that the employee should not proceed with any surgery until he was psychologically stable and substance free.

With regard to the causal relationship of the employee=s current condition to his 1984 work injury, Dr. Cook noted that the employee=s recent MRI scan had revealed no decrease in the disc space at the work-injured L4-5 level, with a Amild to moderate@ disc protrusion at that level superimposed on a nonwork-related central canal stenosis, and only Amild narrowing@ at L3-4. He noted also that the facet joint osteophytosis and the flaval ligament thickening evident throughout the employee=s lumbar spine were most likely unrelated to the employee=s work injury but Asecondary to [the employee=s] activities of daily living and aging process.@ He found it reasonable to conclude that, since they were associated with all of the joints in the employee=s low back, the most likely cause of these hypertrophies was repetitive motion and microtrauma to the joints, rather than any acute disc injury. He found Ano evidence of any current L4-5 disc specific problems either by imaging or examination, concluding that the employee=s Aprimary diagnosis is spinal stenosis and foraminal stenosis.@ He noted that arthritis in the employee=s spine from L3 to the sacrum had caused canal stenosis in the upper of those levels, Abut [not] as a direct result of the 1984 injury.@ Dr. Cook noted also that one radiologist had referred to the spinal stenosis as congenital and that the employee=s most recent MRI scan, dated November 21, 2002, had attributed the employee=s stenosis to degenerative changes and arthritis, not to any bulging discs or disc fragments. In the end, Dr. Cook concluded that

[t]he evidence chain from the 1984 L4-5 disc injury fails to lead to [such] spinal and foraminal stenosis. All of [the employee=s] work activities, activities of daily living, injuries, and aging must be considered as sources of the degenerative changes reported. The discs are least likely to be responsible for his symptoms and disability, as the discogram did not elicit radicular pain at any level.

Dr. Cook concluded further that there was a high probability that the evident stenosis would be present even absent the employee=s 1984 work injury and was thus not attributable to that injury. It was Dr. Cook=s opinion that no further care or treatment was reasonably necessary to cure or relieve the effects of that work injury and that any surgery was Aeven more contraindicated now than it was in 1985," when it was contemplated only in the event that the employee could become psychologically stable and substance-abuse free.

On June 10, 2003, the employee=s November 26, 2002, medical request and his March 31, 2003, medical request were consolidated, but when the matter actually came on for hearing, on September 5, 2003, the sole issue was whether the proposed L3-S1 decompression and fusion was reasonable, necessary, and causally related to the employee=s admitted work injury. By findings and order filed October 8, 2003, the compensation judge concluded in part that there was sufficient objective medical evidence to support a finding that the surgery at issue was reasonable and necessary treatment for the employee, although the judge found that conclusion Acomplicated@ by the surgery=s low probability of success, given the employee=s history of substance abuse. Relying on the opinions of Dr. Cook, however, the judge nevertheless denied the employee=s medical request, concluding that the employee had not shown that his work injury was a substantial contributing cause of his need for the surgery at issue. In support of this conclusion, the judge cited the employee=s lack of credibility, his history of intervening physical trauma, and the absence of any record of treatment for ten to fourteen years, concluding that the need for the surgery apparently stemmed from spinal stenosis and foraminal stenosis unrelated to the 1984 work injury. The employee appeals from the judge=s findings as to his credibility and the causation of his need for the surgery at issue and from the judge=s consequent denial of payment for the surgery. The employer and insurer cross-appeal from the finding that the treatment at issue is reasonable and necessary.

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.

The compensation judge found that the decompression and fusion surgery here at issue was reasonable and necessary treatment for the employer, but, relying on Dr. Cook=s expert medical opinion, he concluded also that the necessity for that surgery was not causally related to the employee=s 1984 work injury. The employee contends on appeal that the judge=s conclusion is not supported by substantial evidence. He argues that Dr. Cook=s opinions as to causation are the only expert medical opinions supporting the judge=s decision, that those opinions Aare based on conjecture, application of an erroneous legal standard and disregard of undisputed facts in the record,@ and that they must therefore be disregarded, rendering the contrary opinions of Drs. Narotzky and Zondag dispositive. We are not persuaded.

With regard to his argument that the opinion of Dr. Cook, adopted by the compensation judge, applied an improper legal standard, the employee contends that Dr. Cook appears to have erroneously presumed that work must be the sole cause of an injury, rather than just a substantial contributing cause of it, for the injury to be compensable. He suggests also that Dr. Cook focused erroneously on certain nonwork factors that merely could have caused the employee=s need for surgery as found by the judge, rather than focusing on and attempting to rebut continuing evidence that the employee=s work injury actually did contribute to that need. In support of his contention, the employee quotes at length several passages of Dr. Cook=s detailed report.^[1] We have reviewed Dr. Cook=s report carefully, however, and we conclude that, while it does appear, as the compensation judge noted, to advocate excessively for the employer and insurer=s position, the report does not disqualify itself by application of an improper legal standard.

We acknowledge initially that evidence or opinion as to possible nonwork-related causes of the employee=s need for surgery is ultimately not importantly relevant to the issue before us. However, the burden nevertheless remains on the employee to prove that his work injury substantially contributes to that need, and the employee has made little showing to that effect, either to his own doctors, or to Dr. Cook, or at hearing. Indeed, the employee himself emphasized, in his own hand-written letter of December 10, 2001, to the Wyoming Workers= Compensation Division that A[t]he[re] are no medical records for any injury to my back as far back as the late 1980's until June 14, 2001.@ Also, he expressly reported to Dr. Zondag, in April of 2002, that he had Ano major difficulties with his back until he started a new job@ at the WSTS in early 2001 and that he Ahad a 14-year-asymptomatic period@ prior thereto. Absent the employee=s revised personal history of continuous ongoing symptoms since 1990, which neither Dr. Cook nor the compensation judge credited, it was not at all unreasonable for Dr. Cook to conclude that there was no causal relationship between the employee=s 1984 work injury and his need for surgery nineteen years later. The employee=s most immediately post-injury CT scan and myelogram, in April of 1984, had revealed a herniated disc at L4-5 and a bulging disc of doubtful significance at L5-S1. A subsequent myelogram ten months later had still revealed only an Aextradural defect@Aconsistent with@ a herniated disc at L4-5. Upon examining the employee in May 2003, Dr. Cook noted that recent MRI scans had revealed no disc space narrowing at L4-5 and still only Amild to moderate@ disc protrusion at that level.

Upon those findings, Dr. Cook ultimately concluded affirmatively that there was Ano evidence of any current L4-5 disc specific problems.@ He concluded expressly that the employee=s Aprimary diagnosis is spinal stenosis and foraminal stenosis@ and that A[t]he evidence chain from the 1984 disc injury fails to lead to spinal and foraminal stenosis.@ He noted that the employee=s stenosis had been classified by a radiologist as Acongenital@ rather than as consequential to any disc compression, expressly concluding that the employee=s work-injured Adiscs are least likely to be responsible for his symptoms and disability, as the discogram did not elicit radicular pain at any level.@ We conclude that these conclusions by the Dr. Cook are not merely hypothetical conjectures as to possible other causes of the employee=s current symptoms, nor do they imply that he was assuming that the original disc injury must be the sole cause of any later condition for that condition to be compensable. Instead, they are sufficiently affirmative assessments of the causal relationship between those symptoms and the employee=s 1984 work injury itself to be relied on by the judge as a basis for his own finding of no causation of the later condition by the 1984 work injury.

The employee also contends that Dr. Cook=s opinion was improperly relied on by the judge in that, particularly with regard to the employee=s diagnostic testing, its premises were repeatedly contrary to the evidence. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld A[unless] the facts assumed by the expert in rendering his opinion are not supported by the evidence"). The employee argues, for instance, that Dr. Cook, while referencing three epidural spinal injections undergone by the employee at L4-5, failed to report that the employee had reported pain relief after two such injections in 2001, reporting only the absence of such relief after a third in 2002. He argues, from Dr. Narotzky=s 2001 assertion that his purpose in the injections was in part Ato see if there is a single disk level that is the main pain generator,@ that ADr. Narotzky obviously viewed both the epidural injections and the discogram he was contemplating as having the potential to shed light on whether lumbosacral discs were a source of the employee=s back pain.@ The employee asserts also that his February 4, 2002, four-level discogram Ashowed morphological damage to discs at all 4 levels examined - L3 through S1," arguing that, Aalthough the testing did not reproduce the employee=s leg pain, it did reproduce his back pain, at a level of 7 on a scale of 10 at both the L4-5 and the L5-S1 levels,@ although that pain was described as only Apartially@ and Anot totally concordant@ pain. We are not, however, persuaded.

That the employee may have reported relief from two epidural injections in 2001 does not negate the fact that he reported no relief in 2002, nor does Dr. Narotzky=s asserted hope to identify the disc level of the employee=s pain obligate Dr. Cook to conclude that the employee=s pain was disc-generated rather then stenosis-generated. Nor did the February 2002 discogram finding of multilevel damage to the employee=s lumbar discs in any way obligate the Dr. Cook to conclude either that the employee=s pain was disc-generated or, more importantly, that that pain was consequent to or otherwise related to the employee=s L4-5 work injury eighteen years earlier. The employee has submitted a multipage reply brief, listing several more alleged misstatements of the medical record, but virtually all of these pertain to the reasonableness and necessity of the treatment at issue, not to its causal relationship to the work injury some eighteen years earlier.

Because Dr. Cook=s opinion does not appear to us to have been based on premises unsupported by substantial evidence, because it was therefore not unreasonable for the compensation judge to rely on that opinion in concluding that the employee=s need for the surgery at issue is causally unrelated to the employee=s 1984 work-related injury, and because that conclusion of the judge was not otherwise unreasonable, we affirm the compensation judge=s denial of payment for the surgery at issue. Id.; Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239. Concluding that our decision on this causation issue essentially renders moot the judge=s conclusion that the proposed surgery is otherwise reasonable and necessary, we will not address the employer and insurer=s cross-appeal on the reasonableness and necessary issue.

^[1] The referenced passages from Dr. Cook=s report are at pages 13, 16, 19, 20, and 21 of Dr. Cook=s report and are block quoted at length on pages 9 through 11 of the employee=s brief.