WILLIAM D. ERICKSON, Employee/Appellant, v. BOART LONGYEAR CO., and ZURICH N. AM. INS. CO., Employer-Insurer, and HEALTHCARE RECOVERIES, INC., for BOART LONGYEAR CO., MN DEP=T OF LABOR & INDUS./VOCATIONAL REHAB. UNIT, ST. GABRIEL=S HOSP., and CONSULTING RADIOLOGISTS, Intervenors.

 

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 2, 2005

 

No. WC05-113

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE-CREDIBILITY.  Given the discrepancies between the employee=s testimony and his medical records, given the inconsistencies between the employee=s account of the alleged work injury and his actions after the work injury, and given all of the other circumstances of this case, it was not unreasonable for the judge to conclude that the employee had not sustained either a specific injury or a Gillette injury as claimed, despite the fact that the employee=s testimony was not directly contradicted by any other witness.

 

Affirmed.

 

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

Compensation Judge:  Catherine A. Dallner

 

Attorneys:  Gregory S. Walz, Walz Law Offices, St. Cloud, MN, for the Appellant.  Lee J. Keller, Drawe & Heisick, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s determination that the employee did not sustain a work-related low back injury on June 24, 2003, as claimed.  We affirm.

 

BACKGROUND

 

The employee began working for the employer, now called Boart Longyear,^[1] in 1982.  The employer is apparently a well drilling operation, and the employee performed various jobs for them over the years, including repairing pumps and assisting on drilling rigs.  He testified that the work was strenuous and involved a great deal of heavy lifting.^[2]  His job was seasonal, from March or April until December, and he averaged over 50 hours of work per week during the drilling season.

 

In March of 1997, the employee saw Amina Watson, a doctor at Family Medical Center, for several complaints, including Art. sided back pain for the past 2-3 days subsequent to heavy lifting.@  Dr. Watson diagnosed low back strain and advised the employee to take ibuprofen.  About eight months later, the employee returned to the clinic, again for several complaints, including Achronic low back pain.@  Treatment notes indicated that the employee had Ahad this for years and it really hasn=t worsened.@  At that time, over-the-counter pain relievers and exercises were recommended.

 

The employee was next seen for low back symptoms on July 31, 1998.  The treatment note from that visit reads, in part, as follows:

 

S.  Patient is 46-year-old, comes in for eval of low back pain.  States he has had chronic recurrent problem from this.  No particular severe injury initially but has had symptoms [intermittently].  He feels it is aggravated by work but it is not a work-comp injury although he has noted more of an acute onset of his problem, recurrent problem 7/7/98.  He is employed at Northstar drilling.  He does note pain in the low back area especially on the rt, radiating into the rt leg and buttox[sic], which it has done before, but now he notes numbness and [tingling] in his foot, more in the heel area.

 

Diagnosing Aprobable@ mechanical back pain, the doctor advised the employee to follow up if his symptoms persisted or changed in any way.  Medical records indicate that the employee next returned to the clinic in September of 1998, for treatment of an infected cut on his ankle.  No mention was made of low back symptoms at that time.

 

Treatment notes from a May 15, 2000, clinic visit, for a routine physical examination, reflect that the employee was Acomplain[ing] of a lot of problems,@ including Apain in his rt sacroiliac area, sometimes pain in his groin, rt. foot pain, etc.@  The doctor Asuspect[ed] his rt. sacroiliac, hip and leg pain are all related to neuralgia coming probably from his back.  I think Ibuprofen is okay for this.  He has had it for several years.  Consider Ortho Eval.@

 

On June 13, 2003, the employee returned to the clinic again for Alow back pain radiating down his rt. leg.  He has had symptoms in his back for about 3 weeks.@  The doctor noted that the employee had had Apain and radiculopathy in the past, [which] resolved . . . with anti- inflammatory, pain medication although this one may be a little worse.  Concern of course is that he has a radiculopathy secondary to herniated disc.@  The doctor noted positive straight leg raising at 90 degrees on the right, but other examination results were normal.  The employee was prescribed Naprosyn and Darvocet and advised to rest.  The doctor indicated that an MRI might be necessary if the employee=s symptoms did not resolve on their own.

 

The claimed personal injury in this case allegedly occurred on June 24, 2003.  The employee testified that, while lifting a pump with a coworker, he experienced Asevere pain radiating down the right side of [his] leg and [his] lower back to the point where [he] had to get down on [his] knees.@  However, he completed his shift and continued to work his usual job for the next several weeks.

 

During the Fourth of July weekend, the employee went fishing with friends.  He returned to his job on Monday, July 7, 2003, and on July 8, 2003, he underwent a random drug test at work.  The test was positive for marijuana, and the employee, who had also failed a drug test in 2002, was terminated by the employer effective July 16, 2003.  The employee testified that he had notified the employer of his alleged work injury either on about July 3, 2003, just before the holiday, or at Aapproximately the same time@ that he underwent the drug test.

 

On July 18, 2003, two days after he was discharged from his job, the employee sought treatment again at Family Medical Center, complaining of low back and left hip and leg pain.  Dr. Thomas Stoy=s treatment note indicates that the employee had sustained an injury at work on June 26, 2003, and the doctor diagnosed low back strain with radiculopathy.  In a July 31, 2003, follow up with Dr. Stoy, the employee complained of pain in both legs, when, according to the treatment note, it was previously worse on the left than on the right.

 

On August 18, 2003, the employee underwent a lumbar MRI, which was viewed as being Awithin normal limits.@  According to the radiologist=s report, the tests revealed Ano focal disc bulge or herniation at any level . . . [and] no central or foraminal stenosis.@

 

In October of 2003, the employee was evaluated by Dr. Garry Banks, a spine surgeon.  Dr. Banks concluded that some minor degenerative changes that he saw on the employee=s MRI were Aincidental,@ and he did Anot believe that most of [the employee=s pain] is related to his lower back.@  Rather, the doctor concluded that the employee=s sacroiliac joint was Asomewhat irritable@ and had likely been strained in the work incident described by the employee.  The employee was advised to undergo physical therapy and was released to work with a 40-pound lifting restriction.  Dr. Banks saw Ano indication for aggressive treatment of [the employee=s] lower back.@

 

The employee subsequently received physical therapy and was evaluated by Dr. David Jorgensen, an orthopedist who had previously treated the employee for a work-related elbow injury dating back to 1991.  Dr. Jorgensen noted some tenderness around the employee=s sacroiliac joint, diagnosed chronic sacroiliitis, and recommended an SI joint injection, which was performed in early January of 2004.  In his office note, Dr. Jorgensen observed that there Awere really no significant problems noted on that [lumbar] MRI scan.@

 

On May 10, 2004, the employee was evaluated by Dr. Robert Wengler, the employee=s independent examiner.  Dr. Wengler concluded that the employee was suffering from low back pain with right lower extremity sciatica, with a neurological deficit in the form of a depressed right ankle reflex, and a probable disruption of the L5-S1 disc, despite lack of MRI confirmation.  With regard to causation of the diagnosed condition, Dr. Wengler wrote that the Aonset of [the employee=s] back difficulties is the product of his work activities,@ further specifying that, although the employee had had symptoms in August of 1998 and also June 2003, Athe date of injury should be considered June 24, 2003, when [the employee] developed incapacitating symptoms.@  Dr. Wengler also recommended a repeat MRI scan.

 

Also on May 10, 2004, the employee was evaluated by Dr. H. William Park, the employer and insurer=s independent examiner.  Dr. Park concluded that the employee=s current low back and radiating right leg pain were Amostly subjective in nature,@ seeing Ano objective findings to support that there is a structural injury in the lower spine to explain [the employee=s] low back pain and radicular right leg pain.@  With regard to the employee=s alleged work injury of June 24, 2003, Dr. Park reported that the employee had sustained Aa very mild sprain type injury,@ which had completely resolved within four weeks of the alleged injury date, with no permanent partial disability.  Dr. Park also indicated that the employee=s continuing subjective low back and right leg symptoms were related to a preexisting condition dating back to 1997.

 

The matter came on for hearing before a compensation judge on September 9, 2004, for resolution of the employee=s claim for various benefits as a result of either a specific injury or a Gillette injury^[3] allegedly occurring on June 24, 2003.  Issues included primary liability, medical causation, maximum medical improvement, and the extent of permanent partial disability, if any, attributable to the alleged work injury.

 

In a decision issued on January 3, 2005,^[4] the compensation judge determined, in relevant part, that the employee had not sustained either a specific injury or a Gillette injury on June 24, 2003.  Accordingly, all claimed benefits were denied.  The employee 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

 

The compensation judge denied the employee=s claim of a work-related injury occurring on June 24, 2003, largely because she simply did not believe the employee=s testimony.  In explaining her decision on the issue, the compensation judge observed that the employee=s Atestimony regarding the claimed personal injury is . . . contradicted by the employee=s own actions during June and July of 2003" and by the records of the employee=s treating physicians as well as the report of Dr. Park.

 

More specifically, the judge noted that, while he claimed to have experienced pain so severe it forced him to his knees on the alleged date of injury, the employee nevertheless continued to work his usual, very strenuous pre-injury job, without time off or medical treatment, for  several weeks.  Moreover, while the employee did eventually seek medical care for the alleged injury, he did not do so until July 18, 2003, ten days after undergoing a drug test at work and about two days after his termination by the employer for a second positive test for marijuana use.  In addition, the record from the employee=s first post-injury treatment on July 18, 2003, indicates that the injury occurred on June 26, 2003, rather than June 24, 2003, and that the employee was having symptoms  into his left leg, contradicting his testimony that the pain was in his right leg.  The employee also testified at hearing that he thought that his last pre-injury treatment for back and radiating leg pain had been rendered in 2000, three years prior to the alleged injury, when in fact he had received treatment for low back and radiating right leg pain on June 13, 2003, less than two weeks prior to the alleged injury.  Similarly, the employee testified that he had not really  experienced symptoms into his foot prior to the alleged June 2003 work incident, when in fact medical records from July of 1998 document complaints of numbness and tingling in the employee=s right foot, particularly the heel area, and a treatment note from May of 2000 also refers to Art foot pain.@  As the compensation judge also noted, the employee=s examination results after the alleged injury varied, particularly with respect to findings noted by Dr. Park and Dr. Wengler, who examined the employee on the same day.^[5]

The employee argues that the judge erred in rejecting the employee=s testimony that  he sustained a work injury, in that the employer offered no evidence to suggest that the employee did  not sustain an injury as claimed.  The employee also argues that the judge erred in denying the employee=s claim in that all physicians who offered an opinion on the issue indicated that the employee had in fact sustained an injury at work; even Dr. Park, the employer and insurer=s independent examiner, concluded that the employee had sustained a mild low back strain as a result of the June 24, 2003, work injury.  We are not persuaded by these arguments.

 

It may be true, as the employee maintains, that the employer and insurer offered no evidence from any witness to refute the employee=s claim that he injured himself in a lifting incident at work on June 24, 2003.  Nevertheless, contrary to the employee=s arguments, the judge was not required to accept the employee=s Auncontroverted@ testimony, under the circumstances of this case.  Credibility determinations are a unique function of the trier of fact, Brennan v. Joseph G. Brennan, 425 N.W.2d 837, 41 W.C.D. 79 (Minn. 1988), and we find no error in the judge=s credibility assessment here, in view of the evidence cited by the judge, detailed above.

 

As for the employee=s argument that his claim is supported by all of the medical opinions, it is evident that the employee is confusing the issue of primary liability with the issue of medical causation.  That is, physicians offered opinions indicating that the alleged lifting incident at work, described by the employee, caused the employee=s subsequent low back or SI joint symptoms.  The judge, however, clearly rejected the employee=s account of the underlying lifting incident itself, a question not at all dependent on medical opinion evidence.  The fact that even the employer and insurer=s independent examiner found a (temporary) low back strain related to the alleged lifting incident is essentially irrelevant given the judge=s apparent conclusion that there simply was no work-related lifting incident that produced the symptoms described by employee.

 

The judge also rejected the employee=s claim that he sustained a Gillette injury, culminating on June 24, 2003, caused by repeated heavy lifting in his job over the years.  On appeal, the employee contends that, because medical records from the employee=s preexisting low back treatment refer to heavy lifting, and the employee testified that he performed heavy lifting only at work, his condition is clearly work-related.  Again, the employee argues, A[t]here is no evidence anywhere to contradict the fact that this back pain is work related.@  However, the employee=s claim in this regard is again dependent on the employee=s testimony, and the compensation judge reasonably concluded that the employee was not a credible witness.  We would also note that only one of the employee=s low back treatment records from prior to June 24, 2003, makes reference to the employee=s work.  And, with regard to Dr. Wengler=s conclusion that the employee=s low back Adifficulties@ were Aa product of his work activities in the well drilling business,@ supporting a Gillette injury claim, we would note that Dr. Wengler had diagnosed the employee as having a lumbar disc problem.  It is clear, from the judge=s decision as a whole, that the judge did not accept that diagnosis, and the judge=s decision to that effect is reasonably supported by the opinions of Drs. Park and Banks and by the fact that the employee=s lumbar MRI scan was essentially normal, with no disc bulging, herniation, or stenosis at any level.  In that it was reasonable for the judge to reject Dr. Wengler=s opinion regarding diagnosis, it was similarly reasonable for the judge to reject the doctor=s opinion as to causation of the diagnosed condition.  No other physician offered any opinion to support a Gillette injury claim.

 

An employee has the burden of establishing that a work-related injury caused his disability.  Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 40 W.C.D. 117 (Minn. 1987).  In the present case, the compensation judge found that the employee had not met this burden, and her  conclusion is reasonably supported by the contradictions between the employee=s testimony and the medical records and by the inconsistences between the employee=s account of the alleged incident and his actions in the weeks immediately following the alleged injury.  Because substantial evidence in the record supports the  judge=s denial of the employee=s claim, we affirm her decision.