JOYCE DAVIES, Employee/Appellant, v. MENARDS, SELF-INSURED, adm=d by MEADOWBROOK INS. CO., Employer, and MENARDS and ZURICH AM. INS. CO., Employer-Insurer/Cross-Appellants, and ST. MARY=S/DULUTH CLINIC HEALTH SYS., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 4, 2005

 

No. WC05-169

 

HEADNOTES

 

CAUSATION - TEMPORARY AGGRAVATION.  Substantial evidence, including the employee=s medical records and adequately founded medical opinion, supports the compensation judge=s finding that the employee=s work injury on June 5, 2000, was temporary.

 

PRACTICE & PROCEDURE - ALTERNATIVE FINDINGS.  The compensation judge did not lack authority to make alternative findings on issues presented as alternative arguments.

 

Affirmed.

 

Determined by: Rykken, J., Wilson, J., and Johnson, C.J.

Compensation Judge: Nancy Olson.

 

Attorneys: James B. Peterson, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Appellant.  Kristin B. Maland, Drawe & Heisick, Minneapolis, MN, for the Cross-Appellants.  John T. Thul, Cousineau, McGuire & Anderson, Chartered, for the Respondent.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s finding that the employee=s current low back condition is not related to her June 5, 2000, work injury, and also appeals from various alternative findings.  The employer and Zurich American Insurance Company cross-appeal the compensation judge=s alternative findings.  We affirm.

 

BACKGROUND

 

Ms. Joyce Davies, the employee, began working for Menards in August 1998.  On June 5, 2000, she sustained an admitted injury while walking by a service counter at work, when a piece of plywood slid from the counter and hit the employee=s feet, causing her to fall onto the floor, landing on her  buttocks.  The employee testified that she noted low back pain after this incident, but continued working.  The employee sought no medical treatment immediately after this incident; according to her testimony, she believed that the pain would subside.

 

At the time of this injury, the employer was insured for workers= compensation liability by Reliance Insurance Company.  Because Reliance is now insolvent, Menards has assumed the claim, and Meadowbrook Insurance Company is acting as the third-party administrator.

 

Medical records which predate 2000 refer to upper and lower back symptoms the employee experienced following a motor vehicle accident in 1991 and a slip down stairs in 1995.  The employee, however, testified that at the time of her injury in June 2000, she was no longer experiencing symptoms in her low back.  Following her June 2000 injury, the employee periodically sought medical treatment for her low back symptoms.  On July 11, 2000, the employee attended a regularly scheduled annual physical examination with her treating physician, Dr. Kenneth Irons.  The employee underwent a general examination, was treated for a sinus infection, and reported to Dr. Irons that she had been having Asome low back discomfort,@Arelatively mild but just kind of irritating.@  Dr. Irons=s chart note states that his review of systems was A[t]otally unremarkable.@  The employee testified that she continued to note relatively mild symptoms until mid-August 2000, when she turned while standing at the cash register, heard a pop in her back, and felt an increase in her low back pain.  On August 18, 2000, she consulted a nurse practitioner, Annette Samuelson, at the Duluth Clinic, reporting that she noticed occasional pain radiating down into her left leg, that she had no numbness or stinging, and that being on her feet as a cashier seemed to aggravate the problem.  The nurse diagnosed low back pain with mild radiculopathy to the left leg, and prescribed physical therapy, pain medication and anti-inflammatory medication.  The nurse also restricted the employee from work the following Saturday, allowing a return to work within three days, by August 21, 2000.

 

The employee attended ten physical therapy sessions between late August and early October 2000.  According to the physical therapist=s discharge summary on October 3, 2000, the employee reported that she was currently pain free, and was following through with home exercises.  The physical therapist reported that the employee Ano longer has biomechanical dysfunction in the lumbosacral area, has pain free trunk mobility, is able to return to normal [activities of daily living] which include bending, twisting and lifting without any symptoms.@  According to the employee=s testimony, although the physical therapy improved her symptoms, she has noticed an almost constant ache in her back since the June 5, 2000, incident.  However, between October 2000 and July 2001, there is no documentation of additional medical treatment for the employee=s low back condition.

 

On July 24, 2001, the employee underwent a complete physical examination with Dr. Irons.  She reported low back pain, which was aggravated by standing on a concrete floor at Menards for 9-hour shifts.  According to Dr. Irons=s chart note of that date, he discussed the employee=s low back condition with her, and advised that AThis is musculoskeletal.  She needs to either change jobs or put up with the pain, because it is really related to her standing on the concrete floor for nine hour shifts at a time.  She will continue to do her exercises.@  Dr. Irons prescribed no ongoing treatment for the employee=s low back condition.

 

The next medical report in the record is a chart note prepared by Dr. Ingrid Nisswandt, a colleague of Dr. Irons, whom the employee consulted on April 12, 2002, reporting continuing back pain from an injury two years earlier and another episode of low back pain while at work the previous August.  Dr. Nisswandt restricted the employee from work until April 19, with a 20-pound lifting restriction and a limitation of six hours of work per day for one week, before returning to eight-hour work days.  The doctor also referred the employee to physical therapy, for strengthening and mobilization and instructions in home exercises; the employee attended physical therapy in April and May of 2002.

 

On July 23, 2002, the employee attended an annual physical examination with Dr. Edward  Ciriasy, a colleague of Dr. Irons.  Dr. Ciriasy=s chart note states that his review of systems was entirely negative Awith the exception of some occasional low back pain.@  On August 2, 2002, Dr. Nisswandt completed a Health Care Provider Report that referred to an injury date of June 5, 2000.  Dr. Nisswandt advised that the employee had reached maximum medical improvement from her injury by June 30, 2002, that she had sustained no permanent partial disability as a result of the injury, and that no additional medical treatment was recommended.  The record contains no documentation of any additional low back care during 2002.

 

On December 31, 2002, the employee slipped in a parking lot at Menards, jerking to avoid falling.  On January 3, 2003, she consulted the St. Luke=s Medical Clinic Urgent Care clinic, reporting the incident and also advising the physician that she had experienced chronic low back pain for two years.  She was diagnosed with an acute exacerbation of low back pain, and was prescribed pain medication.  On January 27, 2003, the employee consulted a nurse practitioner, Patricia Earley, reporting another flare-up the previous Saturday when she stood up and felt pain on the left side of her lower back.  She was diagnosed as having A[b]ack pain with sciatica,@ was restricted from work until a re-evaluation the following Monday, February 3, and was referred to physical therapy.  At a follow-up appointment with the nurse practitioner, the employee advised that she had noticed improvement from the physical therapy and that she occasionally noticed Aa little bit of numbness down into her left leg when she is sitting for prolonged periods.@  The nurse recommended continued physical therapy and released the employee to return to work without restrictions.  At a follow-up appointment the following week, the nurse recommended that the employee use a stool at work periodically to vary her position, at her discretion, but provided no other restrictions.  The nurse also recommended that the employee continue to perform her home exercises.

 

On May 24, 2003, while standing at a register at work, the employee shifted her weight from her right foot to the left, and felt a Apop@ in her low back, followed by increased low back pain, leg tingling and numbness.  She sought treatment at St. Luke=s Urgent Care clinic, and resumed her pain medication.  The employee=s nurse practitioner, Ms. Earley, prescribed physical therapy and restricted the employee from work for one week; the employee then took a scheduled vacation for one week.  After those two weeks off work, the employee returned to work for a full shift, but reported low back pain after working that shift.  A nurse practitioner, Susan Gray, then assigned a limitation on the employee=s work hours, initially a 4-hour limit for one week, followed by a 6-hour limit for the following week.  The employer had provided a stool for the employee, but she reported that she could not sit for any length of time when the store was busy.  The employee testified that she worked six hours per day for approximately three weeks; by July 7, 2003, the employee=s nurse released her for full-time work with continued use of the stool and frequent breaks.  She was asked to follow-up with Dr. Irons if she had problems with increased back pain, although the medical records contain no reference to any further medical treatment until March 2004.

 

On October 17, 2003, the employee=s position with Menards was terminated for reasons unrelated to her claimed work injuries.  By March 2004, she began working for Day=s Inn as a desk clerk.

 

On December 12, 2003, the employee was examined by Dr. Richard Strand, orthopedist, at the request of the employer and Zurich American Insurance, the employer=s workers= compensation insurer at the time of the employee=s 2002 and 2003 injuries.  Dr. Strand diagnosed chronic lumbar pain, and concluded that the employee=s work injuries of June 5, 2000, December 31, 2002, and May 24, 2003, did not represent significant contributing factors to her current condition, basing that conclusion on his findings of Aa completely normal examination, a minimal amount of symptoms and no significant imaging abnormalities in her spine.@^[1]  In Dr. Strand=s opinion, the employee had reached maximum medical improvement from all injuries within three months of her last injury.  He also concluded that she had not sustained any permanent partial disability as a result of any injuries at Menards, that she needed no further medical care as a result of those injuries, and that she required no restrictions on her activities at work or at home.

 

On January 21, 2004, the employee was examined by Dr. Stephen Barron, orthopedist, at the request of the self-insured employer.  He concluded that the employee had sustained a series of temporary injuries or aggravations to her low back, but that, based on a lack of objective findings, none of those injuries resulted in any permanent disability.  Dr. Barron concluded that the employee=s injuries of June 5, 2000, December 31, 2002, and May 24, 2003, were temporary in nature and had resolved shortly after each injury.  Dr. Barron also concluded that she had reached maximum medical improvement from those injuries and from all of her claimed low back injuries, and that, based on her lack of objective findings and normal orthopedic examination, he would not place any restriction on her work activities nor would he recommend any further treatment for her low back.

 

On March 31, 2004, the employee was examined by Dr. Jed Downs, an occupational medicine specialist at the Duluth Clinic, for evaluation of her low back pain.  She reported low back pain dating back to her original injury in June 2000, and advised that she still experienced low back discomfort with occasional pain radiating into her left leg.  Dr. Downs diagnosed recurrent mechanical back pain, consistent with right SI problems, which he believed to likely be related to the original injury (evidently referring to the June 5, 2000, injury).  Dr. Downs recommended physical therapy and a functional capacities evaluation (FCE) which the employee underwent on June 7 and 8, 2004.  Based on the result of the FCE, Dr. Downs assigned restrictions of 30 pounds lifting,  25 pound overhead maximum lift occasionally, sitting only 4 hours a day, and the flexibility to change positions.  Dr. Downs also prescribed additional physical therapy, which the employee completed in June and July of 2004.

 

In October 2004, Dr. Downs opined that the employee=s low back condition was primarily due to the June 5, 2000, incident and that the incident represented a permanent aggravation of her back condition.  He assigned a total of 6 % permanent partial disability of the whole body related to the employee lumbar and thoracic spine.^[2]  He also noted that he did not believe that the employee had permanent problems secondary to her condition pre-dating the June 5, 2000, incident, including motor vehicle accidents and a 1995 fall down stairs.

 

On September 4, 2003, the employee filed a claim petition against the employer, alleging three dates of injury, June 5, 2000, December 31, 2002, and May 24, 2003.  The employee sought temporary total disability benefits from May 25 through June 8, 2003, and temporary partial disability benefits from June 9 through July 6, 2003.  The employee later amended her claim to include temporary total disability benefits from October 16, 2003, through March 15, 2004, and temporary partial disability benefits thereafter.  Although it is not entirely clear from the record, Menards evidently has paid the employee temporary total disability benefits for some loss of time from work, as well as for some  medical expenses.  However, in their answers to the employee=s claim petition, Menards, as self-insured employer, and as insured by Zurich American Insurance, denied liability for the benefits claimed by the employee in her petition.

 

The employee=s claim petition was addressed at a hearing held at the Office of Administrative Hearings on February 8, 2005.  The compensation judge found that the employee=s June 5, 2000, work injury was temporary, and that she had not sustained work injuries arising out of and in the course of her employment on December 31, 2002, or May 24, 2003, and denied her claim for benefits.  The employee appeals from those findings and from the denial of benefits.

 

The compensation judge also made alternative findings on various issues, outlining the conclusions she would have reached in the event that she had found the employee=s injuries to be compensable.  The judge found that the employee had recovered from her December 31, 2002, injury by February 3, 2003; that the employee=s position with Menards was terminated for reasons unrelated to her low back condition, but not for wilful misconduct, and therefore her termination would not bar her entitlement to all future temporary total disability benefits; that the judge would not have awarded temporary total disability benefits between October 17, 2003, and March 2004, because the employee had not conducted a diligent job search during that period; that the judge would have awarded temporary partial disability benefits from March 15, 2004, to the present and continuing, based on her conclusion that the employee=s job as a hotel desk clerk accurately reflected her earning capacity; and that she had not sustained any permanent partial disability relative to her low back.

 

The employee appealed several of the alternative findings made against her interests.  The employer and Zurich American cross-appealed the alternative findings made in the employee=s favor.

 

STANDARD OF REVIEW

 

When an appeal is taken from a compensation judge=s factual findings, this court=s review on appeal is limited to a determination of whether the judge=s findings and order are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1(3).  Substantial evidence supports the findings if, in the context of the record as a whole, they Aare 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 the evidence conflicts or more than once inference may reasonably be drawn from the evidence, the findings must 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).  Factfindings may not be disturbed, even though this 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.

 

DECISION

 

Causation

 

The employee argues that substantial evidence does not sustain the compensation judge=s findings that the employee=s June 5, 2000, work injury was temporary and that the employee=s current low back condition was not causally related to that work injury.  In her appellate brief, the employee did not address her appeal of the compensation judge=s finding that the employee did not sustain work-related injuries on December 31, 2002, or May 24, 2003, therefore those issues are waived.  See Minn. R. 9800.0900, subp. 1.

 

The employee claims that the compensation judge erroneously found that she had not received any medical treatment after the June 5, 2000, work injury or between October 2000 and April 2002.  The employer and Zurich American assert that the employee was only seen for regularly scheduled examinations or for a later low back incident, and that the compensation judge could reasonably conclude that the employee was not treated for the June 5, 2000, incident.  While the employee was seen by Dr. Irons in July 2000 and reported low back discomfort, it was at a regularly scheduled annual examination and she was not treated specifically for the June 5, 2000, injury, nor given medication or prescribed physical therapy at that time.

 

After the employee experienced low back pain on August 24, 2000, when she turned while standing at the cash register, heard a Apop@ in her back, and felt an increase in her low back pain, she attended physical therapy sessions between August and October 2000.  Between October 2000 and April 2002, however, the only other reference in the employee=s medical records to low back symptoms is found in the chart notes documenting an annual physical examination the employee attended on July 24, 2001.  Based on the limited references in the employee=s medical records to consultations or treatment to her low back, the compensation judge could reasonably conclude that the employee was not treated after the June 5, 2000, work injury for that injury.  The compensation judge accepted Dr. Barron=s opinion that it was only the employee=s pain problems for a few days after her June 5, 2000, injury that were related to that incident, and therefore concluded that her symptoms and medical treatment after the August incident were unrelated to the June 5, 2000, incident.

 

The employee=s medical records from the Duluth Clinic, including reports issued by Dr. Downs, refer to the June 5, 2000, incident as being the cause of the employee=s symptoms.  The compensation judge explained that she did not find those records to be persuasive on the issue of causation Abecause they appear to be only repeating the employee=s opinion on causation,@ and also stated that she did not find Dr. Downs=s opinion on causation to be persuasive.  As there is substantial medical evidence to support the compensation judge=s finding that the employee did not receive medical care for her June 5, 2000, injury following that injury, we must affirm that finding.

 

The employee also argues that Dr. Barron=s opinion, that the employee has no objective findings and that she had sustained a series of temporary injuries, lacks foundation.  The employee also claims that Dr. Barron=s examination was cursory and insufficient.  Whether Dr. Barron=s examination was cursory, as alleged by the employee, would go to the weight of Dr. Barron=s opinion, not its foundation.  Foundation goes to the competency of a witness to provide expert opinion.  Competency of a medical expert depends both on the extent of the scientific knowledge of the witness and Athe witness=s practical experience with the matter which is the subject of the offered testimony.@  Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).  Sufficient knowledge of the subject matter can be obtained through personal knowledge, a hypothetical question, or testimony at the hearing.  Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978).  Dr. Barron reviewed the employee=s medical records, reviewed those records with the employee during the course of his evaluation, and examined the employee.  This information provided Dr. Barron sufficient foundation for his opinion.

 

The employee also argues that Dr. Barron=s opinion that the employee has no objective findings is inconsistent with the compensation judge=s finding that the employee has a permanent low back condition.  The compensation judge, however, did not specifically find that the employee had a permanent low back condition, but instead found that she had a recurring low back condition and that the employee=s work injuries were temporary.  At Finding No. 9, the compensation judge stated as follows:

 

The compensation judge accepted that the employee has a recurring low back condition and accepted Dr. Downs[=s] restrictions as reasonable (Exhibit A).  The compensation judge does not accept that the low back condition is due to the claimed work injuries or that the physical restrictions are due to any of the claimed injuries.

 

We find no inconsistency between Dr. Barron=s opinion on lack of objective findings and the compensation judge=s conclusions.  In addition, the compensation judge could reasonably rely upon Dr. Barron=s opinion over that of Dr. Downs.  It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).

 

The compensation judge reviewed the employee=s medical records and also had the opportunity to hear the employee=s testimony concerning her claimed injuries, symptoms and medical treatment.  In her memorandum, the compensation judge summarized her conclusions as follows:

 

The compensation judge found the evidence persuasive that the employee does have a low back condition.  Due to the numerous flare-ups of pain over the years the compensation judge believes that Dr. Downs=[s] restrictions are a prudent recommendation to avoid future problems.  The compensation judge, however, did not find the evidence persuasive that the restrictions or back problems were causally related to the claimed work injuries.

 

(Memo., p. 7.)  Substantial evidence, including the employee=s medical records and adequately founded medical opinion, supports the compensation judge=s finding that the employee=s work injury on June 5, 2000, was temporary, and we affirm.

 

Alternative Findings

 

The compensation judge made various alternative findings that the employee had recovered from the December 31, 2002, injury by February 3, 2003, that the employee was terminated for reasons unrelated to her low back condition, but not for wilful misconduct, that the employee had conducted a diligent job search, that the employee=s job accurately reflected her earning capacity, and that the employee had not sustained any permanent partial disability.  The employee as well as the employer and Zurich American appealed from the alternative findings, contending either that the compensation judge lacked authority to make them and that they are not supported by substantial evidence, or both.

 

The compensation judge is required to dispose of all questions of fact and law submitted.  Minn. Stat. ' 176.371.  The judge's decision Ashall include a determination of all contested issues of fact and law.@  Id.  Alternative arguments presented to the compensation judge are "contested issues."  Grimm v. Hi-Tech Express, slip op. (W.C.C.A. Sept. 8, 1994).  That the compensation judge's decision in a case obviates the need for findings on alternative arguments does not result in the judge lacking authority to make findings on the alternative arguments.  Further, Amaking alternative findings serves the interests of judicial economy, in that the findings may obviate the need for a remand in the event of a reversal on appeal.@  Id.

 

The employee did not address the alternative findings in her appellant=s brief, thereby waiving those issues.  In any event, the employer and Zurich American=s argument that substantial evidence does not support those compensation judge's alternative findings which they appealed need not be considered, since our affirmance of the judge's decision, that the employee=s June 5, 2000, work injury was temporary, renders the alternative arguments moot and therefore the alternate findings lack any practical effect.