Russ v. SAS Institute, Inc.

LOWELL E. RUSS, Employee, v. SAS INSTITUTE, INC., and CHUBB & SON GROUP, Employer-Insurer/Appellants, and IHLE ORTHOPEDIC CLINIC, AMERIHEALTH, UNIVERSITY of MINN. PHYSICIANS, and MAYO FOUND., Intervenors.

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including medical opinion and the employee=s testimony, supported the compensation judge=s decision that the employee injured his knee at work as claimed.

NOTICE OF INJURY - TRIVIAL INJURY RULE. Where the employee did not seek treatment or miss work for more than three months after the injury and testified that he had assumed that the intermittent knee pain would resolve, the compensation judge did not err in applying the trivial injury rule in considering the issue of notice of injury.

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Substantial evidence, including expert opinion, supported the compensation judge=s decision that the disputed treatment expenses were reasonable, necessary, and causally related to the employee=s work injury.

Attorneys: Thomas F. Coleman, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Appellants. Timothy J. McCoy, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Respondent.

The employer and insurer appeal from the compensation judge=s findings that the employee sustained a work related injury to his left knee, that the employee provided timely notice of injury to the employer, and that medical treatment the employee received on and after March 12, 2003, was reasonable, necessary and causally related to the work injury. Finding substantial evidence to support the judge=s decision, we affirm.

The employee began work for SAS Institute [the employer] on January 16, 2002, as a senior account executive. On February 4, 2002, he allegedly injured his left knee at work when he tripped and jammed his left leg. The employee reportedly had acute pain for a short time but continued working without lost time or medical treatment. On May 6, 2002, the employee injured his right knee at home, and he sought medical treatment for the right knee the next day. At the emergency room on May 7, 2002, the employee asked the doctor to also look at his left knee because it was still hurting. The employee was told to make an appointment with an orthopedist. The employee contacted the employer on May 9, 2002, to inquire as to insurance coverage and spoke with Jamie Mason, a benefits specialist. A first report of injury, regarding the February 4, 2002, incident, was completed on May 13, 2002.

On May 13, 2002, the employee began treatment with Dr. Edgar Hicks, who recorded a history of the employee having sustained a left knee injury at work on February 3, 2002. MRIs taken of both knees showed degenerative changes and early chondromalacia on the left. Dr. Hicks performed arthroscopic surgery on the employee=s left knee on June 13, 2002. The employee continued to have symptoms in the left knee after that surgery, and he underwent injections to his left knee in October and November of 2002, without improvement.

On November 18, 2002, the employee was seen by Dr. Charles Ihle. Dr. Ihle opined that the employee=s symptoms were out of proportion for a patellofemoral disease and that there was nothing that he could offer the employee. However, at the end of his office notes of that date, Dr. Ihle stated,

After review of all his films however, and thinking about the case, the only thing that I can think of that might be offered to him that might give him some benefit would be some sort of patellofemoral surgery, either in terms of a lateral release or some sort of redirection of the patellae, or possibly raising the tibial tubercle.

The employee returned to Dr. Hicks on November 25, 2002, at which time Dr. Hicks concluded that the employee did not have patellofemoral disease. The employee then asked to be seen at the University of Minnesota, and he treated with Dr. Elizabeth Arendt on February 4, 2003. Dr. Arendt noted that the employee=s physical findings and pain were greater than would be expected for the amount of chrondromalacia that he had. When the employee returned to see her on March 11, 2003, Dr. Arendt noted that the employee=s left leg occasionally locked in a fully-extended position. She obtained a bone scan, which showed Atricompartmental lighting up on his left side.@ A rheumatological work-up was negative.

The employee filed a claim petition on September 25, 2002, seeking payment of medical bills arising out of the alleged February 4, 2002, incident. The employer and insurer denied liability for the claimed injury and asserted that the claimed medical benefits were not related to a work-related injury.

The employee was seen for an independent medical examination by Dr. Peter Daly on March 12, 2003. Dr. Daly opined that the employee did not have significant structural abnormalities of the left knee so as to warrant substantial restrictions. He stated that, assuming that the employee=s history of injury was correct, the employee did sustain a myofascial knee strain on February 4, 2002. He recommended an aggressive rehabilitation program to improve the employee=s strength and to address his quadriceps atrophy. It was his opinion that medical treatment for the left knee, up to the date of his examination, was reasonable and necessary and related to the February 4, 2002, incident, again assuming that the employee=s history was correct. Dr. Daly recommended that an infectious etiology be ruled out as the cause of the employee=s symptoms and opined that, if there was no infection, no further left knee surgery should be performed. He also concluded that any future treatment for any arthritis-related abnormalities involving the medial compartment would be unrelated to the February 4, 2002 work injury.

The employee had repeat MRIs of both knees on April 7, 2003. Those scans were interpreted as showing significant chondromalacia in both the right and left patellofemoral joints. When the employee returned to Dr. Hicks on April 16, 2003, he noted that both knees had been catching and locking up.

After reviewing additional medical records, Dr. Daly issued a follow-up report on June 24, 2003, in which he opined that the employee was not a surgical candidate.

On June 30, 2003, the employee treated for bilateral knee pain with Dr. M.G. Rock at the Mayo Clinic. Dr. Rock diagnosed indeterminate left knee pain. Dr. Rock then reviewed the employee=s medical records and wrote to the employee on July 22, 2003, stating, "it may be best to consider chronic pain management through a pain clinic. At last resort, I think one would want to consider yet another arthroscopy to determine the status of the knee and possibly take samples for culture and pathology review. . . ."

The employee returned to Dr. Rock on September 4, 2003, reporting significant problems referable to the knees and requesting that something be done. Dr. Rock advised him as to the limitations of proceeding with arthroscopy given the minimal objective findings. In his office note of that date, Dr. Rock stated, AI have given him our advice and the limitations of proceeding with arthroscopy under these circumstances and that the only reason for going in there would be to obtain samples for pathology and microbiology to rule out the possibility of a low-grade infective process.@

Surgery was performed on September 5, 2003, and the operative records from that date indicate that the arthroscopy revealed Aextensive arthrofibrosis in the anterior aspect of the knee joint, plica on the medial side, retropatellar chondromalacia and lateral tilting of the patella.@ Procedures performed during the surgery included arthrofibrolysis of the anterior aspect of the knee joint, removal of medial plica, chondroplasty of the trochlea and the retropatellar surfaces, and a lateral retinacular release. On a return visit to Dr. Rock on September 8, 2003, the employee was described as recovering nicely; however, Dr. Rock=s November 21, 2003, records indicate that the employee was making slow progress without significant resolution of his preoperative pain.

The deposition of Dr. Hicks was taken on December 8, 2003. He testified that all medical treatment rendered to the employee=s left knee, including surgery done by Dr. Rock, was the result of the February 4, 2002, work injury and was reasonable and necessary.

The employee=s claim petition proceeded to hearing on December 16, 2003. In findings and order filed on January 7, 2004, the compensation judge found that the employee had sustained a work-related injury to his left knee on February 4, 2002; that the employee=s delay in giving notice did not adversely affect the employee=s entitlement to benefits; and that medical treatment provided after March 12, 2003, was reasonable and necessary to treat the work injury. The employer and insurer appeal.

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 (2004). 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 employer and insurer argue that the employee did not sustain a work-related injury to his left knee on February 4, 2002. In making this argument, they rely on evidence indicating that the incident was unwitnessed, that the employee did not provide notice of injury until three months later, and that the employee had a very active lifestyle throughout his life. The employer and insurer also point to various medical opinions to support their position. The issue on appeal, however, is not whether evidence supports an alternative finding, but rather whether substantial evidence supports the findings that the compensation judge made. In this case, substantial evidence easily supports the compensation judge=s decision.

Many injuries are not witnessed, and the fact that a particular claimed injury was not witnessed is a factor for the compensation judge to weigh and provides no grounds for reversal on appeal. The employee in this case testified as to the mechanics of his injury, and that testimony was consistent with the histories taken by the doctors treating his left knee thereafter and the history recorded by independent medical examiner Dr. Daly. All doctors concluded that, if the employee=s history of the injury were correct, then the employee did sustain a work-related injury. The compensation judge found the employee to be a credible witness. Assessment of a witness=s credibility is the unique function of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). The employee=s testimony, the medical records, and the expert medical opinions therefore provide substantial evidence to support the judge=s finding that the employee sustained a work-related injury to his left knee on February 4, 2002. We affirm the judge=s finding to that effect.

The employer and insurer contend that there is no evidence that the employee provided timely notice of the injury to the employer. We disagree. The compensation judge in the present case found that the employee=s injury fell within the trivial injury rule. Substantial evidence supports the judge=s decision on this issue.

In Davidson v. Bermo, Inc., 272 Minn. 97, 137 N.W.2d 567, 23 W.C.D. 623 (1965) the Minnesota Supreme Court explained that when an employee sustains an apparently trivial injury which does not result in present disability, the time for giving notice of the injury runs from the time when it becomes reasonably apparent that the injury has resulted in or is likely to cause compensable disability.

The employee testified that, at the time of the injury, his left knee Ahurt like heck@ but that he continued working and assumed that the pain would work itself out. He testified that in February, March and April of 2002 he had intermittent knee pain, but he continued working and did not seek medical treatment for his left knee. It was not until he injured his right knee in May of 2002 that the employee sought medical treatment for his left knee. When he talked to the employer about medical coverage for the nonwork-related right knee difficulty, he first mentioned his left knee difficulties. A first report of injury was completed shortly thereafter.

Whether an injury is trivial and the date on which it first becomes reasonably apparent that an injury believed to be non-disabling would actually result in disability are generally questions of fact. Balow v. Kellogg Coop. Creamery Assn., 248 Minn. 20, 78 N.W.2d 430, 19 W.C.D. 43 (1956). The employee in the instant case lost no time from work and received no medical treatment for more than ninety days after the work injury, and he gave notice to the employer within one week of first asking a doctor about his left knee. Under these circumstances, it was reasonable for the judge to apply the Atrivial injury@ rule and to conclude that the notice given to the employer was timely. The judge=s decision on this issue is affirmed.

The employer and insurer contend that medical treatment rendered on and after March 12, 2003, is not reasonable and necessary or causally related to the employee=s February 4, 2002, work injury. In support of their position, they point to the opinions of doctors who recommended against a second arthroscopic surgery and to the fact that the employee has not improved with the surgery. There might well be evidence, which a compensation judge could have accepted, indicating that the disputed medical treatment was not reasonable and necessary or causally related to the work injury, but, again, that is not the issue on appeal.

The judge=s award of treatment expenses is supported by the testimony of Dr. Hicks, who indicated that the symptoms leading up to the employee=s second arthroscopic surgery were the result of the February 2002 injury. Dr. Hicks also testified that the treatment he provided to the employee and all treatment the employee received to his left knee, including the second arthroscopic surgery, was causally related to the work injury and was reasonable and necessary.

In his deposition of November 26, 2003, Dr. Daly testified that the chondromalacia and degenerative changes in the employee=s left knee were not related to the February 2002 work injury. He also testified that, even after reviewing the operative findings from the September 5, 2003, surgery, he did not think that the surgery was reasonable or necessary. While Dr. Daly=s opinions were contrary to those of Dr. Hicks, a compensation judge=s choice of expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employer and insurer have pointed to no facts assumed by Dr. Hicks that are not supported by the evidence. We therefore affirm the judge=s findings that medical treatment at issue was reasonable, necessary, and causally related to the work injury.^[1]

^[1] The employer and insurer also contend that the sole purpose of the second arthroscopic surgery was to obtain samples to rule out the possibility of an infective process. While Dr. Rock=s initial intention may have been to obtain samples for pathology, he subsequently found it Aprudent to proceed with lateral retinacular release,@ and he also decompressed the arthrofibrosis in the anterior aspect of the knee joint.