JAMES ANDERSON, Employee/Cross-Appellant, v. SUBURBAN CHRYSLER PLYMOUTH, and WESTERN NAT=L MUT. GROUP, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 13, 2005

 

No. WC05-168

 

HEADNOTES

 

CAUSATION - PERMANENT AGGRAVATION; EVIDENCE - EXPERT MEDICAL OPINION.  Substantial evidence, including expert opinion, supported the compensation judge=s finding that the employee sustained a work-related aggravation of his elbow condition, notwithstanding the fact that the expert relied on by the compensation judge performed only a Apaper review,@ rather than examining the employee.

 

APPORTIONMENT; SETTLEMENTS.  Where, in a stipulation for settlement, the employee and the employer and insurer released the insurer on the risk for a second work injury from all future liability, where the employer and insurer agreed to continue to pay for all medical expenses causally related to the employee=s first work injury, where the employer and insurer did not expressly reserve the right to pay only an apportioned share of those expenses, and where the first work injury continued to be a substantial contributing cause of the employee=s need for prescription medication, the compensation judge properly ordered the employer and insurer on the risk for the employee=s first work injury to pay the claimed expenses in full.

 

Affirmed.

 

Determined by: Wilson, J., Rykken, J., and Stofferahn, J.

Compensation Judge: John Ellefson

 

Attorneys: Charles M. Cochrane, Cochrane Law Office, Roseville, MN, for the Cross-Appellant.  Ronald M. Stark, Jr., Minneapolis, MN, for the Appellants.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the judge=s order requiring them to pay for all medical expenses.  The employee cross-appeals from the judge=s finding that the employee sustained a permanent aggravation in 1999.  We affirm.

 

BACKGROUND

 

In 1993, the employee developed bilateral lateral epicondylitis as a result of his work activities with Suburban Chrysler Plymouth [the employer].  At that time, the employer was insured for workers= compensation purposes by Western National Mutual Group [the insurer].  The employee missed approximately seven weeks of work due to the condition, and he returned to work with the employer with some permanent restrictions.  Between April 26, 1993, and September 29, 1994, the employee was treated conservatively with physical therapy, wrist splints, medications, ice, and a home electrical stimulation program.  The employer and insurer admitted liability for an injury occurring on November 23, 1993, and paid temporary total disability benefits and medical expenses.

 

The employee went without further medical treatment for that condition until April 16, 1999, at which time he returned to Dr. Daniel E. Johnson with a flare-up of pain in his forearms, elbows, and wrists.  The employee indicated that the flare-up had come on while he was doing heavier engine repair work, on a temporary basis, for the employer.  The employer was insured for workers= compensation purposes by MADA Insurance Exchange [MADA] at that time.  Dr. Johnson prescribed physical therapy, Ibuprofen, and the use of splints.  On April 27, 1999, the employee reported that he was 80% better.  Noting that the Ibuprofen was causing gastrointestinal intolerance, Dr. Johnson gave the employee a trial of Celebrex.

 

On October 1, 1999, Dr. Johnson noted that the employee had dramatically improved on Celebrex and that Celebrex had Aheightened [the employee=s] ability to be more active, both at home and at work with less ease of pain returning.@  Apparently Dr. Kevin Ronneberg became the employee=s treating doctor in January of 2001,^[1] and he refilled prescriptions for Celebrex.

 

The employer and insurer had the employee examined by Dr. Wayne Thompson on June 26, 2000.  In a report of that date, Dr. Thompson opined that Celebrex was an appropriate medication for control of the employee=s bilateral lateral epicondylitis but that the employee=s current need for treatment was a result of an aggravation caused by the employee=s work activities in 1999.

 

The employee apparently filed a first report of injury with the employer and MADA, and MADA filed a notice of denial.  On December 7, 2001, the employee filed a claim petition naming the employer and the insurer and MADA, seeking recovery of medical expenses for Celebrex.  The insurer denied liability for the medication expenses; MADA denied the occurrence of a work-related injury on April 16, 1999, or June 26, 2000,^[2] and also denied notice.

 

In 2002, the parties entered into a stipulation for settlement of prescription medication and medical expenses.  At that time, the employee was seeking reimbursement for $1,335.60 in prescription costs that he had paid and $75.00 for medical expenses incurred at Fairview Lakes Clinic.  Under the terms of the stipulation, MADA agreed to pay all claims, in full, in exchange for a Afull, final, and complete release of any and all claims, past, present and/or future, for workers= compensation benefits arising out of the alleged April 16, 1999 and/or June 26, 2000 work injury,@ from the employee, and from the employer and insurer.  It was agreed that the employer and insurer would Acontinue payment of prescription and/or all medical expenses causally related to the Employee=s admitted November 23, 1993 work injury, subject to the terms and conditions of the Minnesota Workers= Compensation Law and the employer and [insurer=s] defenses.@  An award on stipulation was filed on August 1, 2002.

 

The employer and insurer had independent medical examiner  Dr. William Lohman review the employee=s medical records.  In a report dated February 13, 2004, Dr. Lohman opined that the employee had suffered a permanent exacerbation of his chronic elbow pain in April of 1999 and that the employee=s need for long-term treatment with Celebrex was a consequence of that permanent exacerbation.

 

On June 29, 2004, the employee filed a claim petition naming the employer and insurer and claiming reimbursement for prescription expenses for Celebrex.  The employer and insurer denied liability for the expenses.

 

The matter proceeded to hearing, and, in findings and order filed on April 13, 2005, the compensation judge found that the employee had sustained a permanent exacerbation of his condition in April 1999 and that the 1993 and 1999 injuries were substantial contributing causes of the employee=s need for Celebrex.  The judge went on to order the employer and insurer to reimburse the employee in full.  The employer and insurer appeal, and the employee cross-appeals.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

1.  1999 Exacerbation

 

The employee contends that there is insufficient evidence to support the judge=s decision that the employee sustained a permanent aggravation of his bilateral lateral epicondylitis in 1999.  We are not persuaded.

 

First, the medical report of Dr. Lohman states that the employee sustained a permanent exacerbation of his chronic elbow pain in April of 1999.  The employee takes issue with Dr. Lohman=s opinion because that doctor did not examine the employee but rather did a Apaper review.@  It is well-settled that a trier of fact=s choice between experts whose testimony conflicts is usually 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 employee has cited to no specific facts assumed by Dr. Lohman that were not supported by the evidence.  The fact that Dr. Lohman only performed a Apaper review,@ rather than examining the employee, was a factor for the compensation judge to weigh and provides no grounds for reversal.

 

The employee also contended, at oral argument, that Dr. Lohman either ignored the medical records or did not review them, because those records establish that Celebrex was prescribed only because Athe old stuff upset his stomach@ and not because his symptoms had increased.  However, this argument ignores the fact that the Celebrex was not prescribed until after what Dr. Johnson diagnosed as an Aacute exacerbation.@  In addition, the employee specifically testified that he would no longer be able to tolerate his work with the employer without the Celebrex, whereas he was able to perform that work without Celebrex prior to 1999.  The report of Dr. Lohman and the employee=s testimony provide substantial evidence to support the judge=s finding that the employee sustained a permanent aggravation in 1999.

 

2.  Reimbursement of Medical Expenses

 

The employer and insurer contend that Aunder no theory can a first insurer be held liable for all benefits when a portion of the responsibility lies with the subsequent insurer.@    The employer and insurer further contend that the employee elected to settle his claims against MADA, the subsequent insurer, and that the employee can therefore only recover from the insurer those medical expenses specifically apportioned to the 1994 injury.  We are not persuaded.

 

The stipulation for settlement provided that MADA would make payment of all medical expenses to date, in return for a full, final and complete close-out of all past, present, and future claims, from both the employee and the insurer.  The stipulation further indicated that the employer and insurer would Acontinue payment of prescription and/or all medical expenses causally related to the Employee=s admitted November 23, 1993 work injury.@

 

In a report dated March 30, 2005, Dr. Kevin Ronneberg stated that A[the employee=s] November 22, 1993 work injury is the major, if not sole, contributing factor to his use of Celebrex.@  Dr. Lohman had opined that the employee=s need for Celebrex was a consequence of a permanent exacerbation of his chronic elbow pain in April of 1999.  The compensation judge adopted the opinions of Dr. Ronneberg and Dr. Lohman and found that both the 1993 injury and the 1999 injury were substantial contributing factors in the employee=s need for Celebrex.

 

Given the stipulation for settlement, this case is not analogous to Pearson v. Foot Transfer Co., 301 Minn. 489, 221 N.W.2d 710, 27 W.C.D. 535 (1974).^[3]  Rather, because the 1993 injury remains a substantial contributing cause of the employee=s need for Celebrex, because both the employee and the employer and insurer released MADA from all future claims, and because the employer and insurer did not specifically reserve the right to pay only an apportioned share of expenses related to Celebrex, the compensation judge properly ordered the employer and insurer to pay those expenses in full.  The judge=s decision is therefore affirmed in its entirety.