PETER L. SCHEUNEMANN, Employee, v. INSTALLATION CONCEPTS/MULTIPLE CONCEPTS INTERIORS, INC., and AMERICAN COMP. INS. CO./RTW, Employer-Insurer, and INSTALLATION CONCEPTS/MULTIPLE CONCEPTS INTERIORS, INC., and SECURA INS. CO., Employer-Insurer/Appellants, and CENTRAL MINN. SPINE CTR., CENTER FOR DIAGNOSTIC IMAGING, REGIONAL DIAGNOSTIC RADIOLOGY, and PRIMARY BEHAVIORAL HEALTH CLINIC, Intervenors.

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 14, 2004

No. WC04-186

HEADNOTES

CAUSATION - CREDIBILITY; EVIDENCE - MEDICAL EXPERT OPINION.  Substantial evidence supports the compensation judge=s finding of a new, work-related injury to the back on February 6, 2003, based on the judge=s acceptance of the employee=s testimony as credible, and the well-founded opinion of the employee=s treating surgeon.

NOTICE OF INJURY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including the employee=s testimony that he was on the phone at work discussing the job with his supervisor at the time of the injury, yelled when he felt a pop in his back, and the supervisor asked him what he did, is sufficient to support a finding of inquiry notice on the date of the February 6, 2003, injury.

CAUSATION; REHABILITATION.  Substantial evidence supports the compensation judge=s determination that the employee=s February 6, 2003, injury necessitated additional rehabilitation services causally related to the employee=s new injury.

CAUSATION; MEDICAL TREATMENT & EXPENSE.  Substantial evidence supports the compensation judge=s award of reimbursement for counseling provided by Primary Behavioral Health Clinic from December 11, 2003 through the date of hearing.

Affirmed.

Determined by: Johnson, C.J., Stofferahn, J., and Pederson, J. 

Compensation Judge: Janice M. Culnane

Attorneys: Mark J. Padgett, Law Offices of Donald F. Noack, Mound, MN, for the Respondent Employee. Timothy M. O=Keefe, Erstad & Riemer, Minneapolis, MN, for the Appellants.  David J. Klaiman, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for Respondent IC, Inc., and American Comp. Ins./RTW.

OPINION

THOMAS L. JOHNSON, Judge

The employer and its insurer, Secura Insurance Company, appeal from the compensation judge=s findings that (1) the employee sustained a work-related injury on February 6, 2003; (2) the employer received timely notice of the February 6, 2003, injury; (3) the medical expenses incurred at Primary Behavioral Health Clinic were reasonable, necessary and causally related to the employee=s February 6, 2003, injury; and (4) the rehabilitation services provided by Galvin Rehabilitation Services after February 6, 2003, were reasonable and necessitated by the February 6, 2003, injury.  We affirm.

BACKGROUND

Peter L. Scheunemann, the employee, began working as a journeyman carpet layer and floor installer for Installation Concepts/ Multiple Concepts Interiors, Inc., (IC/MCI), the employer, in 1997.  On October 25, 2000, the employee sustained an admitted personal injury to the low back.  The employer was then insured for workers= compensation purposes by American Compensation Insurance Company/RTW.

The employee experienced low back pain with radiating pain down the left leg and numbness in the left foot following this injury.  He failed to improve with conservative treatment, and on November 28, 2001, underwent a fusion and discectomy at L5-S1, performed by Dr. Sunny Kim.  The employee=s left leg pain essentially resolved following this surgery, although he continued to experience intermittent flare-ups of low back pain and symptoms.

Following physical therapy, the employee was released to return to work with light-duty restrictions of no lifting over ten pounds and no more than occasional squatting, bending, pushing/pulling, stooping or kneeling.  The employee returned to full-time work with the employer on June 10, 2002, in a temporary, light-duty job doing carpet estimation work.  The employee continued to participate in a strengthening and conditioning program through Excel Physical Therapy.

A Functional Capacities Evaluation (FCE) was completed on October 29 and 30, 2002.  Recommended work restrictions included occasional lifting up to 30 pounds, no frequent lifting over 15 pounds and only occasional bending, sitting, and crouching; frequent crawling and kneeling were permitted.  The therapist additionally recommended a four to six week work hardening program in an attempt to return the employee to work as a carpet and floor installer.  Dr. Kim concurred, and the employee began a work hardening program at Excel Physical Therapy on December 10, 2002. 

On February 6, 2003, the employee testified he was working at a doctor=s office in Woodbury, completing estimates for a rush job.  He was kneeling on the floor using a measuring tape to calculate the floor area while simultaneously talking to his supervisor on a cell phone held between his neck and shoulder.  He felt a Aclick@ or Apop@  in his mid-back followed by a sharp pain.  He testified he yelled out, and was asked by his supervisor what he had done.  The employee described the click in his back and told the supervisor he was in a lot of pain.

 The employee attended a pre-scheduled appointment at Excel Physical Therapy later that day.  The treatment notes report the employee left work early due to an onset of back pain above the surgical site.  The employee felt a significant Apop@ in his back that was Aexquisitely painful@ while on his hands and knees at work. (Jt. Ex. 1.)  On February 14, 2003, the therapist noted inability to progress the work hardening program due to aggravation of the employee=s symptoms, and concluded it was unlikely the employee would be able to return to work as a carpet and floor installer.  An FCE re-evaluation was completed on March 13, 2003, and new restrictions were recommended, including no lifting over ten pounds, no crouching and only occasional bending, squatting, crawling, pushing/pulling or kneeling.

The employee testified that following the February 6, 2003, incident, the pain was initially localized in the middle of his back.  Within a week, pain began radiating into the right buttock.  Over the course of about a month, the pain gradually progressed down the right leg, going to the knee and then the foot.  On March 17, 2003, the employee was seen by Dr. Joy Westerdahl at Northwest Family Physicians who took the employee off work.

The employee returned to see Dr. Kim on March 24, 2003.  The doctor was concerned about possible deterioration of the disc at the transitional level above the fusion, and ordered an MRI scan.  The MRI scan on May 6, 2003, revealed a disc herniation at L2-3 with a small free-fragment disc extrusion impinging the L3 nerve root.  The employee eventually underwent microdiscectomy surgery at L2-3 performed by Dr. Kim in October 2003.  Post-surgery, the employee testified the radiating pain in his right leg lessened in intensity, but he continued to experience throbbing pain in his leg and localized mid-back pain.   Following physical therapy, the employee returned to work with the employer in a new position as a field coordinator for MCI, Inc.  The new position was non-union and the employee=s wages and benefits were reduced.

On December 11, 2003, the employee was seen at Primary Behavioral Health Clinic for a chronic pain evaluation.  The employee described feelings of hopelessness, being trapped or caught, difficulty sleeping, and financial insecurity.  He continued to receive counseling at Primary Behavioral Health Clinic through the date of hearing.

On July 28, 2003, IC/MCI and American Compensation/RTW filed a petition for a Temporary Order alleging a new work injury on February 6, 2003, while the employer was insured by Secura.  The order was served and filed on August 15, 2003.  On August 27, 2003, IC/MCI and American Compensation/RTW filed a Petition for Contribution and/or Reimbursement seeking payment from Secura for all workers= compensation benefits paid from and after February 6, 2003.  The employer and Secura denied primary liability and denied notice of the injury.  A hearing was held before a compensation judge at the Office of Administrative Hearings on March 25, 2004.  In a Findings and Order served and filed April 27, 2004, the judge found the employee sustained a new injury to his back on February 6, 2003, and provided timely notice of the injury to the employer.  The judge further ordered the employer and Secura to reimburse to American Compensation/RTW amounts paid to Galvin Rehabilitation Services and Primary Behavioral Health Clinic on behalf of the employee for services provided from and after February 6, 2003.  The employer and Secura appeal.

DECISION

1.  Causation

The appellants assert the compensation judge=s finding of a new personal injury on February 6, 2003, is not supported by substantial evidence and is clearly erroneous.  Specifically the employer and Secura contend the employee=s testimony was not credible and the compensation judge improperly relied upon the inadequately founded opinion of Dr. Kim.

A.  Credibility.    The appellants argue the employee=s hearing testimony was inconsistent with his deposition testimony and contemporaneous medical and vocational records and was not credible.  We disagree.  The employee was seen at Excel Physical Therapy on February 6, 2003.  He reported an onset of back pain above the fusion site at work that day.  The employee stated he was bent over, on his hands and knees at work and heard a click or pop in his back that was Aexquisitely painful.@  The therapist noted the employee had difficulty with the work hardening program and modifications were made.  Following the final work hardening session on February 14, 2003, the therapist reported inability to progress lifting and carrying activities due to the employee=s recent aggravation of symptoms.  (Jt. Ex. 1.)

In a report dated February 26, 2003, the employee=s qualified rehabilitation consultant (QRC), Craig Galvin, noted the employee had reaggravated his condition.  He reported the physical therapist had previously thought a return to work as a carpet layer would be a realistic goal, but now did not believe it would be possible.  (Ee Ex. N.)

The appellants point also to the employee=s time card for February 6, 2003, noting entries only for the shop and Brighton Trailer.  There is no entry for work performed in Woodbury.  The employee explained there was not enough space on the card to enter every job, testifying his usual practice was to list one major job, entering all the hours in the field regardless of where the work occurred, and list the office and the number of hours he spent in the office.

Finally, the appellants maintain the employee=s deposition testimony, taken June 4, 2003, is inconsistent with his detailed recollection of  the February 6, 2003, incident at the hearing.  In response to the question, ADo you recall specifically an incident occurring February 6, 2003?@ the employee responded, ANot exactly.  I can=t recall exactly what happened.@  (T. 112-13.)  The employee further responded, however, AI do remember having extensive amount of pain.  I can=t remember the exact date, but I was measuring a job.@  He agreed it was on the same day as his appointment at Excel Physical Therapy.  (T. 141-42.)

The assessment of a witness=s credibility is the unique function of the trier of fact.  Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989).  While differing in degree of detail, the testimony of the employee is largely congruent with contemporaneous records.  Counsel for the employer and Secura conducted a thorough cross-examination of the employee, and the compensation judge had an opportunity to observe the demeanor of the employee during the hearing.  It is not the role of this court to re-evaluate the probative value of a witness=s testimony, Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988), and we cannot conclude, on this evidence, that the compensation judge=s acceptance of the employee=s testimony was unreasonable.

B.  Medical Expert Opinion.  The appellants assert that, although the employee testified he told Dr. Kim about the February 6, 2003, incident on March 24, 2003, Dr. Kim initially indicated the employee=s symptoms were the result of the October 25, 2000, injury.  The employer and Secura further maintain the reports of the independent medical examiners, Dr. Richard Hadley and Dr. Paul Cederberg, contain histories inconsistent with the employee=s allegation of a new injury on February 6, 2003.  We are not persuaded.

In his March 24, 2003, treatment notes, Dr. Kim expressed concern about possible deterioration of the disc at the transitional L4-5 level above the fusion.  By way of a letter dated April 23, 2003, Dr. Kim stated he ordered an MRI scan to investigate the etiology of the employee=s recurrent back pain, observing that if the employee had a transitional syndrome at L4-5 it would be related to his prior injury and lumbar fusion at L5-S1.  (Ee Ex. E.)  The MRI scan on May 6, 2003, instead revealed a disc herniation at L2-3.  The L4-5 transitional segment was normal.

The employee was seen by Dr. Hadley on July 16, 2003, at the request of the employer and American Compensation/RTW.  Dr. Hadley diagnosed a herniated disc at L2-3.  He noted imaging studies of the lumbar spine on January 15, 2002, showed no abnormalities at that level.  Noting further that L2-3 is three disc spaces above the employee=s L5-S1 fusion, the doctor concluded the L2-3 herniated disc could not be attributed to the employee=s October 25, 2000, work injury.  Dr. Hadley was, however, unaware of any specific injury or episode following the fusion surgery that could have contributed to the L2-3 disc herniation.

In response, by letter report dated July 23, 2003, Dr. Kim noted the employee had a good result from the L5-S1 fusion.  The doctor further related a history of a February 6, 2003, incident in which the employee experienced an exquisitely painful popping in his back at work while doing some measuring.  Based on this history, and the results of the May 6, 2003, MRI scan, Dr. Kim opined the employee had sustained a new, work-related injury to the L2-3 disc, separate and independent of the L5-S1 injury and fusion.

Dr. Cederberg examined the employee on November 5, 2003, at the request of the employer and Secura.  He agreed the employee had a new disc herniation at L2-3, not related to the October 25, 2000, injury.  The doctor, however, related a gradual, non-specific onset of back and right leg symptoms sometime in February 2003, and concluded there was insufficient documentation of a specific work incident on February 6, 2003.  Dr. Cederberg, accordingly, opined the employee suffered a non-work-related, idiopathic spontaneous disc herniation at L2-3.

The compensation judge accepted the testimony of the employee, specifically adopted the July 23, 2003, causation opinion of Dr. Kim, and specifically rejected Dr. Hadley and Dr. Cederberg=s conclusions that there was insufficient documentation of a specific injury.  Where there is a conflict in the opinions of medical experts, it is the function of the compensation judge to resolve that conflict.  That determination may not be reversed by the court so long as there is adequate foundation for the expert=s opinion.  See Nord v. City of Cook, 360 N.W. 2d 337, 37 W.C.D. 364 (Minn. 1985).

The employee testified he gave Dr. Kim a complete history of the February 6, 2003, incident when seen on March 24, 2003.  The doctor was the employee=s treating physician and surgeon following both the October 25, 2000, injury and the employee=s new back symptoms in February 2003.  This level of expertise, personal knowledge and practical experience is sufficient to establish competency to render a medical expert opinion.  Drews v. Kohl=s, 55 W.C.D. 33,  37-40 (W.C.C.A. 1996).  We find no lack of foundation, and affirm the compensation judge=s finding of causation.

2.  Notice

The employer and Secura contend the finding the employer received timely notice of the injury is clearly erroneous and must be reversed.  The appellants argue that other than the employee=s unreliable hearing testimony, there is no evidence the employer received notice of any new injury until July 28, 2003, when the Petition for Temporary Order was filed.

The employee testified, that at the time of the February 6, 2003, incident, he was on the cell phone talking to his field supervisor as he was measuring the floor.  The employee stated he yelled out when he felt the pop in his back, and the supervisor asked him what he had just done.  The employee testified he told the supervisor he had just felt a pop or click in his back and was in a lot of pain.  (T. 59-60.)  The compensation judge accepted the employee=s testimony.  As discussed previously, this court finds no ground for reversal based solely on the compensation judge=s adoption of the employee=s testimony.

The employer and insurer argue, however, the mere knowledge the employee was experiencing pain is insufficient to provide notice of a work injury.  Minn. Stat. ' 176.141 provides that A[u]nless knowledge is obtained . . . within 180 days after the occurrence of the injury no compensation shall be allowed.@  Actual knowledge within the meaning of the statute is Aknowledge of such information as would put a reasonable man on inquiry.@  See Issacson v. Minnetonka, Inc., 411 N.W.2d  865, 40 W.C.D. 270 (Minn. 1987); Davidson v. Bermo, Inc., 272 Minn. 97, 137 N.W.2d 567, 23 W.C.D. 623 (1965) (the facts and circumstances of either the disability or the injury must be such as would put a reasonable man on inquiry that the injury was work-related).  In this case, the employee was at a work site, discussing a rush job on the phone with his supervisor at the time he felt the pop in his back. The supervisor inquired what he had done.  Accepting the employee=s testimony as true, the supervisor had reason to believe the employee had injured or re-injured his back while working.  These circumstances are adequate to put the employer on inquiry notice. We, therefore, affirm.

3.  Galvin Rehabilitation Services

The employer and Secura maintain the compensation judge=s order requiring reimbursement of sums paid to Galvin Rehabilitation Services for rehabilitation services provided after February 6, 2003, is manifestly contrary to the evidence and must be reversed.  The appellants point out the QRC had been working with the employee since the October 2000 injury, and contend the services provided did not change significantly after the February 2003 injury.  We disagree.

Craig Galvin, the QRC, began providing rehabilitation assistance to the employee in April 2001.  The initial goal was a return to work with the employer.  In October 2001, the QRC noted the employee had a strong desire to return to work with the employer as a carpet and floor installer, and that Dr. Kim had not ruled out that option.  The employee returned to a temporary, light-duty job with the employer in June 2002, while completing physical therapy.

Following an FCE on October 29 and 30, 2002, a work hardening program was initiated  in an attempt to return the employee to full-duty work as a carpet layer.  The stated goal of a Rehabilitation Plan Amendment dated November 22, 2002, was a return to work with the original employer in the pre-injury job.  The employee began work hardening on December 10, 2002.   Although the employee experienced several flare-ups of low back pain, slowing his progress, he continued to advance in the work hardening program, and on February 4, 2003, reported improved tolerance and decreased pain.  The employee attended his second to last work hardening session on February 6, 2003.  Following the final session on February 14, 2003, the therapist reported inability to progress work hardening activities following the employee=s symptom aggravation, and opined the employee was not capable of returning to work as a carpet installer.

On February 26, 2003, QRC Galvin reported the employee=s medical providers previously believed a return to work as a carpet layer was a realistic goal, but, following the recent aggravation of symptoms, did not believe the employee could return to work as a carpet layer.  The QRC subsequently met with the employee and Dr. Kim to reassess the overall rehabilitation plan, including return to work options.  The QRC completed vocational testing and began vocational planning with the employee.  Eventually, with the assistance of the QRC, the employee developed a job proposal for a field coordinator position with MCI, Inc.  The proposed position was approved by Dr. Kim, and the employer created a job offer based on the proposal.  The employee began working in the new position on December 1, 2003.

Based on these facts, the compensation judge could reasonably conclude the February 6, 2003, injury necessitated additional rehabilitation services, and that the services provided by Galvin Rehabilitation Services after that date were reasonable and causally related to the February 6, 2003 work injury.  We, therefore, affirm.

Finally, the appellants argue the evidence does not support the compensation judge=s finding that the treatment provided to the employee by Primary Behavioral Health Clinic was causally related to the employee=s February 6, 2003 work injury.  The employee did not begin treating at the clinic until December 11, 2003, shortly after returning to work at MCI, Inc., in the newly-created field coordinator position.  The employee described chronic back pain and leg weakness, along with feelings of hopelessness, being trapped and loss of financial security.  The doctor=s initial note specifically references the employee=s previous work as a carpet layer for IC/MCI and that the employee was now working as a field coordinator with a significant reduction in wages.  A chronic pain evaluation, psychological tests and a career assessment inventory were completed.  The February 3, 2004, progress note references discussion of the employee=s Aaccidents@ and the employee=s chronic pain.  The January 28 and February 17, 2004, progress notes reflect the employee=s uncertainty about the future and discussions about vocational options.   On this evidence, it was not unreasonable for the compensation judge to conclude the employee was seen for Aassistance in handling consequences caused by his [February 6, 2003] work-related injury.@  (Mem. at 6.)  We, accordingly, affirm.