RONALD M. BALEGA, Employee/Appellant, v. HENNEPIN COUNTY MED. CTR., SELF-INSURED, Employer-Insurer, and BLUE CROSS BLUE SHIELD OF MINN. and BLUE PLUS, Intervenors, and SPECIAL COMP. FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 31, 2005

 

No. WC05-142

 

HEADNOTES

 

APPLICABLE LAW - CONTROLLING EVENT.  Where substantial evidence supports the compensation judge=s finding that the employee=s 1999 injury was a substantial contributing factor to his permanent total disability, the compensation judge correctly concluded that the 1999 injury was a controlling event for purposes of determining applicable law.

 

Affirmed.

 

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

Compensation Judge: Nancy Olson

 

Attorneys: Charles M. Cochrane, Cochrane Law Office, Roseville, MN, for the Appellant.  Mary L. Egan, Hennepin County Attorney, Minneapolis, MN, for the Respondents.  Sara Stoltman, Minnesota Department of Labor and Industry, St. Paul, MN, for the Special Compensation Fund.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s determination that his 1999 work injury is the controlling event for determining the payment of permanent total disability compensation.  We affirm.

 

BACKGROUND

 

Ronald Balega began working at the Hennepin County Medical Center in 1977 and  sustained a number of work injuries during the course of his employment there.  The parties have stipulated that the employee has been permanently totally disabled since January 15, 2004.  The issue for the compensation judge at the hearing was whether the employee=s injury of June 8, 1989, or the injury of April 1, 1999, should be considered the controlling event for purposes of determining the payment of permanent total disability compensation.^[1]

 

The employee=s injury of June 8, 1989, occurred when the employee, in his position as a surgical supply specialist, was assembling an instrument tray that fell and struck him on the left leg.  The incident apparently aggravated a pre-existing arthritic condition in the employee=s left knee.  Ultimately, the 1989 injury was determined to involve the employee=s left knee, right knee and low back.^[2]  The employee=s treatment for his knees was provided by Dr. Richard Kyle and Dr. Robert Wengler treated the employee for his low back.  The employee=s injury of April 1, 1999, was a Gillette injury resulting in bilateral carpal tunnel syndrome.  The employee=s wrist complaints have been treated by Dr. Thomas Varecka.

 

After his 1989 injury, the employee continued to perform his regular job for the employer with some modification of his work duties. During this time, the employee received conservative treatment for his knees, primarily activity restrictions and Synvisc injections.  In December 1998, the employee was referred by Dr. Kyle to Dr. Robert Wengler for treatment of the employee=s low back condition.  Dr. Wengler had an MRI scan done in February 1999 which showed multilevel degenerative disk disease.  The employee was treated conservatively thereafter with restricted activities, exercises and anti-inflammatory medications.  In early 1999, the employee was assigned to a light-duty job in the linen pack room where he was responsible for folding towels and surgical gowns.  Although the employee first saw Dr. Varecka for his wrist complaints in January 1999, this work activity apparently further aggravated his wrist symptoms.

 

The employee returned to Dr. Varecka in June 1999, reported that he was continuing to do the linen pack work, and stated that his symptoms were worsening.  Dr. Varecka injected Marcaine and Celestone into both hands and advised the employee that surgery would likely be necessary.  On March 9, 2000, the employee had bilateral carpal tunnel decompression.  The employee was off work three weeks and then returned to work with restrictions and was assigned clerical work in the medicine clinic.  The employee continued in this assignment until Dr. Kyle performed left total knee replacement surgery on December 19, 2000.

 

While the employee was recovering from the knee replacement surgery, he returned to see Dr. Varecka, indicating that he had noted recurring symptoms about six weeks before his visit on March 29, 2001.  Additional EMGs were done which showed dramatic improvement from the previous studies.  Given these results, Dr. Varecka concluded that the employee=s symptoms represented synovitis or other soft tissue problems.  On May 10, 2001, Dr. Varecka stated the employee could return to work based on his carpal tunnel condition but that he should avoid repetitive activity for several months.

 

In July 2001, Dr. Kyle released the employee from his knee surgery to sedentary work with no prolonged walking or standing and no lifting over 15 pounds.  The employee was working with a QRC at that time and Dr. Varecka and Dr. Kyle were provided with a job description which they approved.  The employee returned to work as a sterile processing technician in the linen pack room.  In December 2001, Dr. Kyle advised the employee and his QRC that AI really have nothing to add to his care other than weight loss and exercises.@

 

In March 2002, the employee returned to Dr. Kyle=s office complaining of right knee pain and an inability to work because of that pain.  He was given a steroid injection and the comment was made that the Acomplaints appear out of proportion to his clinical examination.@  On April 16, 2002, the employee returned to Dr. Varecka, advising him that the repetitive activity required by his job bothered his hands.  Dr. Varecka concluded that an open carpal tunnel decompression might be necessary.

 

On June 25, 2002, Dr. Kyle performed unicompartmental knee replacement surgery on the right knee. While the employee was recovering from this procedure, Dr. Varecka performed left open carpal tunnel decompression surgery on October 15, 2002.  The employee had right open carpal tunnel decompression and right long finger trigger release done on January 28, 2003.  On January 30, he returned to Dr. Kyle who released him to half-time work for four weeks and then full-time work.  Dr. Kyle stated that the employee should not work in linen pack.  The employee did not return to work at that point, however, and had left long finger trigger release surgery done on May 22, 2003.  A complication, dehiscence, developed from the surgery which required additional surgical treatment, a reclosure of the wound, on June 5, 2003.

 

The employee returned to work in July 2003, in a light-duty position in which he did clerical work in nursing administration.  An FCE was done in October 2003, in which significant work restrictions were placed on the employee.  The employee was limited in standing, sitting, bending, climbing, crouching, lifting and repetitive use of his hands with no firm grasping.  The employee did not begin any rehabilitation activities based on this report and had a right ring finger release done on December 2, 2003. The employee did not return to work and it was subsequently agreed that he became permanently totally disabled as of January 15, 2004.

 

The parties= dispute was heard by Compensation Judge Nancy Olson on December 21, 2004.  In her Findings and Order, served and filed February 3, 2005, the compensation judge determined that the 1999 injury was a substantial contributing cause of the employee=s permanent total disability.  Based on that determination, the compensation judge concluded the 1999 injury was the controlling event and ordered benefits to be paid in accordance with the law in effect at the time of that injury.  The employee appeals.

 

DECISION

 

On appeal, the employee argues that the compensation judge erred in finding the 1999 injury to be the controlling event for purposes of determining his benefits.  The employee contends that this finding lacks the support of substantial evidence and further argues that the 1989 injury is a substantial contributing factor in his ongoing disability. We are not persuaded.

 

In Busch v. Advanced Maintenance, 659 N.W.2d 772, 778, 63 W.C.D. 277, 284 (Minn. 2003), the court stated Athe determination of controlling event is a legal conclusion which follows from factual findings that an injury is either a new separate injury or a consequential injury, recurrence, or mere temporary aggravation.@  According to the court, if the later injury is found to be a new injury then it is the controlling event as a matter of law.  In applying Busch, this court has held that if the new injury substantially contributes to the disability, it is the controlling event for the case, even if the earlier injury continues to be a substantial contributing factor to the disability as well.  Bettin v. Wal-Mart, slip op. (W.C.C.A. Feb. 11, 2005).  The question for this court in the present case is whether substantial evidence exists to support the compensation judge=s finding that the employee=s 1999 injury is a substantial contributing factor in his disability.

 

At hearing, the employee introduced evidence which demonstrated the seriousness of his knee problems. The employee testified as to the difficulty he had in doing his daily activities. Dr. Wengler provided deposition testimony in which he provided his opinion that the employee=s knee and low back condition was a substantial contributing factor in the employee=s disability. On appeal, the employee points to this evidence and argues that the 1989 injury should have been found to be the controlling event for determining benefits.

 

This argument misconstrues the issue here. As was the case in Bettin, more than one injury may be a substantial contributing factor in producing disability. Here, there is clear evidence that the employee=s 1989 injury is a substantial contributing factor in his disability. That conclusion, however, does not result in a necessary finding that the 1989 injury is the controlling event. The question for the compensation judge was whether the 1999 injury was also a substantial contributing factor to the disability. If so, the 1999 injury, as a separate, new injury, is the controlling event as a matter of law. The question for this court is whether substantial evidence exists which supports the compensation judge=s finding that the 1999 injury is a substantial contributing factor in the employee=s disability.

 

We conclude such evidence exists. It was the employee=s wrist complaints which caused him to leave his position in linen pack in 1999. The employee reported to his QRC in April 2003, that he was only Ararely@ able to use his hands. When the employee returned to work in a light duty position in the summer of 2003, it was with restrictions both for his knees and for his wrists.  In the October 2003 FCE, the employee was given significant restrictions in the use of his hands.  The employee argues, however, that in December 2003, Dr. Varecka released the employee to work with no mention of work restrictions and the employee urges from that lack of restrictions that a conclusion should be drawn that he was able to use his hands without any limitations.  We disagree.  Such a conclusion is inconsistent with the FCE done just weeks previously and we agree with the employer that Dr. Varecka=s note refers only to the trigger finger release done on December 2 and not to the underlying wrist restrictions which had been in effect ever since the employee=s first carpal tunnel release.

 

The employee also argues that the compensation judge placed an improper burden  of proof on the employee by rejecting  Dr. Wengler=s opinion.  Dr. Wengler=s opinion, as expressed in his deposition, was that the 1989 knee and low back injury was a substantial contributing factor in the employee=s permanent total disability. The employee argues that this opinion could not have been rejected without a contrary medical opinion and that no such opinion exists.  Dr. Wengler, however, did not express an opinion on the key issue before the compensation judge, whether the 1999 injury was a substantial contributing factor in the disability.  Indeed, as the compensation judge pointed out, Dr. Wengler was not even aware of the employee=s wrist problems.  We find no error by the compensation judge in her consideration of that testimony. We affirm the compensation judge=s findings in their entirety.