CHRISTOPHER P. HENDRICKS, Employee/Appellant, v. JOHN SCHUHWERCK TRUCKING and FARM BUREAU MUT. INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 12, 2005

 

No.  WC04-223

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Where it was not unreasonable in light of the entire record as submitted, including the opinions and records of at least two medical experts, the compensation judge=s conclusion that the employee=s ongoing low back complaints were unrelated to his work-related motor vehicle accident as alleged was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

Determined by Pederson, J., Wilson, J., and Johnson, C.J.

Compensation Judge:  Kathleen Behounek

 

Attorneys: Christopher P. Hendricks, pro se Appellant.  Charles E. Gillin, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Respondents.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's conclusion that the employee did not sustain a compensable work injury as alleged and from the judge=s consequent denial of benefits.  We affirm.

 

BACKGROUND

 

On March 23, 1994, Chris Hendricks saw Dr. Stephen Mitrione, complaining of A[l]ow back pain for approximately one month,@ initiated by a motor vehicle accident on February 13, 1994.  X-rays were essentially negative, and, finding that the pain did not radiate into the lower extremities, Dr. Mitrione prescribed medication and referred Mr. Hendricks for physical therapy.  Two months later, on May 16, 1994, Mr. Hendricks underwent chiropractic treatment at Northwestern Chiropractic Clinics with Dr. Jeffrey Ewald for what he described on intake forms as severe continuing pain in Amy middle and lower back@ that was now radiating into his buttocks.  A few years later, on November 21, 1997, Mr. Hendricks saw Dr. Mark Rotty at the Allina River Valley Clinic, regarding certain neck and upper back injuries that he sustained when some scaffolding on which he was working collapsed around him.  Dr. Rotty noted on that date that there were A[n]o lower back problems@ and released Mr. Hendricks to return to work in three days without restrictions.  Three days later, however, on November 24, 1997, Mr. Hendricks saw Dr. Anthony Walsh at the same clinic, who noted that A[s]ubsequently he has developed more low back symptoms of having pain and stiffness in the low back area.@  Dr. Walsh prescribed medication and referred Mr. Hendricks for physical therapy.  Mr. Hendricks was off work for about a week and then was released to return to work restricted from twisting, turning, reaching below the knees, climbing, or lifting over twenty-five pounds.  About a year and a half later, in April of 1999, Mr. Hendricks sought chiropractic treatment again for recurrent back pain, this centered at T12, which he indicated was aggravated by sneezing, twisting, or turning.  About two and a half years later, on August 23, 2001, the employee underwent surgery for excision of a dorsal ganglion in his left wrist; at which time, as revealed in preoperative history and physical documentation, he was still being noted to have Ahad for a while@AL[ow ]B[ack ]P[ain].@

 

On July 31, 2002, Mr. Hendricks was working forty to fifty hours a week as a gravel truck driver for John Schuhwerck Trucking [the employer], a job for which Mr. Hendricks [the employee] was paid $615.34 a week.  On that date, the employee was involved in another motor vehicle accident, when the truck that he was driving rolled over onto its passenger side in the process of a turn.  The accident burst the truck=s windshield, and the employee, who was twenty-seven years old at the time, was able to crawl out of the vehicle and to walk away with only some minor cuts and scrapes.  The employee immediately notified his employer of the accident, and his lacerations were examined but left untreated by paramedics who soon appeared at the scene.

 

The employee did not seek any further medical attention until about ten days after the accident.  On about August 10, 2002, he evidently called and made an appointment with chiropractor Dr. Scott Millner.  Subsequent to the employee=s accident, the employer no longer had a vehicle for the employee to drive, so on August 11, 2002, the employee commenced similar truck-driving employment with another employer.  On about August 19, 2002, the employee saw Dr. Millner, to whom he complained of low back and left leg pain that radiated into his left foot.  Dr. Millner ordered an EMG, which was read to reveal in part a severe elevation of muscle tension at L5 on both the left and the right, moderate elevation of muscle tension at S1 on the right, and significant asymmetry at L3 and S1 on the right.

 

Evidently finding little eventual relief through chiropractic treatment, on September 11, 2002, the employee commenced treatment with family practitioner Dr. William Spinelli at the Allina Medical Clinic, to whom he complained of Along-term@ back pain that had started about six weeks earlier, ten or twelve days after his truck accident.  The employee reported Asome radiation of pain [into] his upper thighs but nothing down into his legs.@  He also reported A[n]o previous history of severe back pain, although he has had some backaches which usually got better overnight.@  Upon review by a radiologist, x-rays were concluded to be unremarkable, with Aintervertebral disk spaces . . . well maintained and no fracture or degenerative changes . . . noted,@ and Dr. Spinelli referred the employee for physical therapy and released him to work with restrictions on twisting, turning, and sitting.  The employee underwent physical therapy for eight treatments, and on October 10, 2002, he was discharged, with a comment that there was A[s]till some mild but noticeable stiffness at L4 level [that did] not appear to justify the degree of subj[ective] pain complaints.@

 

On October 4, 2002, the employee filed a claim petition, alleging entitlement to temporary partial disability benefits from August 11 to August 24, 2002, temporary total disability benefits continuing from August 25, 2002, unspecified permanent partial disability benefits, medical benefits of undetermined amounts with various providers, and rehabilitation benefits, all consequent to a work injury to his low back on July 31, 2002.  On October 14, 2002, he returned to see Dr. Walsh, complaining of persistent low back pain, primarily on the left, but appearing to Dr. Walsh to be in no acute distress.  Dr. Walsh diagnosed A[l]ow back pain with benign exam but persist[ent] symptoms@ and ordered an MRI scan.  The scan was conducted on November 9, 2002, and was read by radiologist Dr. William Ford to reveal  a A[f]oraminal/extraforaminal [disc] herniation to the right at L5-S1" with Ano canal stenosis,@ with a note to Aquestion possible right L5 symptoms,@ together with a A[r]ight paracentral herniation at L4-5 with annular tear . . . with associated lateral recess stenosis to the right.@

 

The employee returned on November 14, 2002, to Dr. Spinelli, who explained to him that his MRI findings Amay or may not[] represent the cause of his underlying back pain that unfortunately sometimes just doesn=t correlate very well.@  On January 8, 2003, Dr. Spinelli wrote to the employee=s attorney, explaining in part that, while the employee=s November 2002 MRI scan did reveal some changes consistent with a disc herniation, the changes revealed on the scan did not correlate with the employee=s clinical symptoms and that therefore no surgical intervention was recommended and the employee did not qualify for any permanent partial disability.  Dr. Spinelli went on to express an opinion that, while the employee Adoes indeed have low back pain,@ it was Aunclear whether this was related to his motor vehicle accident directly.@  Dr. Spinelli also was of the opinion that, with an appropriate rehabilitation program, the employee should be able to return to his normal activities.

 

On January 13, 2003, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Paul Wicklund.  In his report on January 16, 2003, Dr. Wicklund diagnosed left flank pain, with MRI evidence for multilevel degenerative disc disease at L4-5 and L5-S1.  Based on a history taken from the employee, physical examination of the employee, and review of the employee=s medical records, it was Dr. Wicklund=s opinion that the employee did not injure his low back in his July 2002 work accident as claimed.  In support of this opinion, Dr. Wicklund noted in particular the facts that the employee=s symptoms did not start for ten days after the work accident at issue and that the employee=s left flank pain was unexplained by the MRI findings, concluding also that the employee could go back to work without restrictions.

 

On April 24, 2003, the employee saw Dr. Spinelli again, complaining that his back pain had been much worse over the past three or four weeks.  Dr. Spinelli reiterated to the employee that his MRI scan several months earlier had Ademonstrated some right-sided disc herniations but nothing on the left, which is the side that he has symptoms on.@  On June 26, 2003, the employee complained to Dr. Spinelli that his pain continued but was now only in his left buttock and leg and no longer in his back.  Dr. Spinelli recommended another MRI, Ato make sure that the MRI that was done last fall was not a mistake@ in Aclearly show[ing] lesions on the right side not the left side.@  On July 12, 2003, the employee underwent another MRI scan, which was read by radiologist Dr. Neeraj Chepuri to reveal in part a A[s]table appearance of the lumbar spine when compared to 11/9/02,@ a right foraminal/lateral disc herniation at L5-S1 that was causing moderate right neural foraminal narrowing, and a moderate circumferential disc bulge at L4-5.

 

On September 12, 2003, evidently on the recommendation of a family member, the employee commenced treatment with Dr. Thomas Rieser at the Midwest Spine Institute, to whom he complained of constant, aching, throbbing, and sometimes sharp low back pain, left hip and buttock pain, and left lateral leg pain to the foot, ranging in intensity from eight to ten on a scale of one to ten, stemming back to his work accident on July 31, 2002.  Dr. Rieser=s records indicate that the employee informed the doctor of a motor vehicle accident ten years earlier, after which he had sought chiropractic care and then Awas fine following those sessions,@ but that he Adenies any other work related injuries@ and Adenies any other known spine injury or problem.@  Dr. Rieser went on to report that lumbar x-rays had been normal and that an AMRI scan reveals disc herniation on the left [sic] side at L4-5 with stenosis along the lateral recess and also degenerative disc disease noted at L4-5 and L5-S1.@  Dr. Rieser does not identify the date of the MRI scan referenced, nor is there evidence that he reviewed records of any of the employee=s previous physical examinations.  After physical examination of the employee, Dr. Rieser diagnosed A[d]isc herniation L4-5 on the left side with spinal stenosis on the left side,@ noting that A[t]his appears to be a work-related injury considering the nature of the injury.@  On that diagnosis and conclusion, Dr. Rieser recommended an epidural steroid injection and an EMG, indicating that the employee might benefit from decompression and discectomy at L4-5.  On November 6 and November 25, 2003, upon Dr. Rieser=s prescription, the employee underwent epidural steroid injections at both L4 and L5 on the left.  On January 30, 2004, the employee was examined by Dr. Rieser=s physician=s assistant, Steven Lawson, who, noting that the employee=s back pain was essentially unchanged, recommended a repeat MRI and an EMG of the left lower extremity and anticipated the necessity of decompression surgery on the left.

 

On February 23, 2004, the employee was examined by Dr. Spinelli=s physician=s assistant, Don Bezdicek, to whom the employee complained of left-side pain that radiated all the way down his leg to his ankle, indicating that his recent epidural injections hadn=t helped any.  Mr. Bezdicek noted on that date that the employee had called in for a refill of his pain medication but had been denied one, having exceeded his recommended dosage.  Upon examination, the employee was found to exhibit no distress except that he moved around the room a bit slowly.  He was also found in part to be able to heel and toe walk, to have normal strength and reflexes in his lower extremities, and to have no pain upon palpation in the lumbar area.  Mr. Bezdicek agreed to prescribe a pain medication, Astrongly advis[ing]@ the employee not to exceed his dosage.

 

In a report to the employee=s attorney on March 11, 2004, Dr. Rieser reiterated a diagnosis of A[l]ateral recess stenosis on the left at L4-5 with a disc herniation and degenerative disc disease at L4-5 and L5-S1,@ reiterating also, under AOBJECTIVE FINDINGS,@ that a A[l]umbar MRI from November 19 [sic], 2002 demonstrated a disc herniation on the left [sic] at L4-5 with lateral recess stenosis along with degenerative disc disease at L4-5 and L5-S1.@^[1]  Notwithstanding Dr. Rieser=s report of undocumented  left-side MRI findings, Dr. Rieser went on to opine that the employee=s Aprimary pain source at this time is the lateral recess stenosis@ because A[t]he findings of herniations and degeneration on the right [sic] side are not directly related to the [July 2002] accident but indicate the degree of degeneration at the L4-5 level.@  Dr. Rieser explained,

 

It is not uncommon in my experience to have delayed responses in these types of accidents.  I do not feel that the herniation or pathology present on the right side is a result of the [July 2002 work-related] accident but the accident did result in an aggravation of the lesion and aggravation of the narrowed nerve root on the left side.  . . . [The employee] has sustained a significant and permanent aggravation as a result of his accident in July 2002.

 

Dr. Rieser indicated finally that a repeat lumbar MRI scan and EMG of the left lower extremity had been recommended at the employee=s appointment on January 30, 2004, and that the employee would be returning for follow-up after completion of those tests.  Meanwhile, the employee had been released to work restricted from  lifting over twenty-five pounds and from doing any repetitive bending, lifting, or twisting.  There is no evidence that the employee ever underwent the repeat tests recommended on January 30, 2004.

 

The matter came on for hearing on March 23, 2004.  Issues at hearing included whether or not the employee had sustained a compensable injury to his low back as a result of his work-related truck accident on July 31, 2002, and whether he was entitled to various benefits as a consequence of such an injury.  On direct examination at the hearing, the employee testified in part as follows about his symptoms immediately following the accident:

 

Q.        Okay.  At the time of the accident[,] were you injured, did you have any injuries of any kind, were you noticing any injuries or having any problems?

A.        My back was cut up and bleeding.

Q.        Do you know how that happened?

A.        No, I don=t.

Q.        Okay.  And with respect to your low back and low back problems which is part of what our claim is here today were you having any problems with your low back at that time.

A.        No.

Q.       And how about later in the day[;] were you having any problems with your low back?

A.        No.

Q.      Okay.  When did you first notice problems with your low back?

A.        It must have been about ten days after the accident.

 

The employee subsequently reiterated, on both cross examination and redirect examination, that the onset of his low back symptoms was on about August 9 or 10, 2002.  By findings and order filed June 14, 2004, the compensation judge concluded that, aside from Asome cuts and scrapes,@ the employee had sustained no physical injuries as a result of his July 31, 2002, work-related truck accident and that he was therefore entitled to no workers= compensation benefits as a consequence thereof.  The employee appeals pro se.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992).  Substantial  evidence supports the findings if, in the context of the entire record, Athey 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, 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).  Findings of fact should not be disturbed, even though the reviewing 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

 

The compensation judge found that the employee Ahad some cuts and scrapes, but had no other physical injuries at the time of the incident@ here at issue, that A[h]e did not seek medical treatment@ on the date of that incident, that he Ahad no symptoms involving his low back until ten days following the incident,@ that A[a]n MRI was performed on the employee=s lumbar spine on November 9, 2002 [that] showed degenerative disc disease at L4-5 and L5-S1, along with a right-sided herniation at L4-5,@ that A[t]he employee has a history of low back pain and treatment prior to the incident,@ and, in light of those findings, that Athe evidence fails to show that the employee=s low back condition and resulting disability and need for treatment after July 31, 2002 are causally related to the incident at work on July 31, 2002.@  In her memorandum, the judge noted that, to support his claim, the employee had relied on Dr. Rieser=s opinion that the July 31, 2002, incident significantly aggravated the bilateral degenerative disc disease revealed on MRI findings at L4-5 and L5-S1.  The judge noted that Dr. Rieser had acknowledged that the employee=s right-side L4-5 disc herniation was unrelated to the employee=s left-side symptoms but, apparently unaware of any preexisting ongoing low back symptomology, had concluded that the employee=s symptoms were related to the disc degeneration as aggravated by the July 2002 work incident.  The judge found Dr. Rieser=s opinion unpersuasive for having been based on an inadequate history of the employee=s preexisting low back condition and treatment, which the judge documented in her memorandum, citing treatment in May of 1994, November of 1997, April of 1999, and August of 2000.

 

On appeal, the pro se employee contends first that the compensation judge=s conclusion in Finding 3, that the employee had Ano symptoms involving his low back until ten days following the incident on July 31, 2002,@ is Aincorrect,@ although A[t]o say that Employee did not report or seek treatment for symptoms of low back pain until ten days following the incident on July 31, 2002 would be a correct statement@ (underscoring in original).  The employee asserts that he Aexperienced mild pain in his low back which progressed until . . . the tenth day when he determined he needed to seek treatment@ (underscoring added).  This argument is directly contrary, however, to the employee=s testimony at hearing, when, in answer to the question A[w]hen did you first notice problems with your low back@ (underscoring added), the employee responded, AIt must have been about ten days after the accident.@  And this testimony was also reiterated at least twice thereafter at hearing.  In making her finding at Finding 3, the compensation judge very reasonably relied on the unambiguous direct testimony of the employee at the hearing, and for us to now credit the employee=s argument would be to permit a retrial of this particular and specific issue.  We will not conclude that the compensation judge was Aincorrect@ in taking the employee=s testimony on its face.

 

The employee argues next that the compensation judge was also Aincorrect@ in concluding, at Finding 5, that the employee had a history of low back pain and treatment prior to the incident at work on July 31, 2002.  The employee acknowledges that he Ahas had back pain in the past and has had some intermittent chiropractic treatment for back pain, although for Compensation Judge Kathleen Behounek to say generally and categorically that the prior treatments were for employee=s low back pain is incorrect@ (underscoring in original).  The records are clear, however, that the employee=s treatment with Dr. Mitrione in March of 1994 was for Alow back pain@ that had already gone on for about a month at that time and that the employee continued to suffer from two months later, when he sought chiropractic treatment at Northwestern Chiropractic Clinics for pain in Amy middle and lower back@ (underscoring added).  Moreover, on November 24, 1997, subsequent to his work injury by collapse of the scaffolding, the employee saw Dr. Walsh expressly for Amore low back symptoms of . . . pain and stiffness in the low back area@ (underscoring added).  About a year and a half after that, in April of 1999, the employee sought still further chiropractic treatment for back pain, not, we grant, at a technically lumbar level but still at the lowermost thoracic level, T12.  Finally, contrary to assertions of the employee, there is evidence, in the form of a notation in the AReview of Systems@ associated with the employee=s APre-operative History and Physical,@ that the employee was still being noted to have had AL[ow ]B[ack ]P[ain]@Afor a while@ at the time of wrist surgery on August 23, 2001.^[2]  We conclude that there is certainly evidence in the record before the judge, and now before us, that the employee had a history of low back pain and treatment prior to the July 2002 work accident here at issue.

 

The employee also objects to the compensation judge=s ultimate conclusion in Finding 6, that the Apreponderance of the evidence@ did not support the employee=s claim that his current low back complaints were causally related to his work on July 31, 2002.  We can only remind the employee that our Asubstantial evidence@ standard of review here on appeal is no longer the Apreponderance of the evidence@ standard applicable at hearing.  Evidence was presented at hearing to support the positions of both sides in this matter, and, because in the context of the entire record it was supported by evidence that a reasonable mind might accept as adequate, we must affirm the finding of the judge.  See   Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

Finally, the employee appears to contest the compensation judge=s explanation, in her memorandum, that she found the causation opinion of the employee=s medical expert, Dr. Rieser, Aunpersuasive@ absent better evidence that he was fully cognizant of the employee=s preexisting low back history and treatment.  The employee argues that he fully informed Dr. Rieser of his 1994 low back injury and treatment, that that injury had fully resolved long before his appointment with Dr. Rieser, and that that injury and treatment were the only ones that might have related to the pain regarding which he was seeing Dr. Rieser.  We are not persuaded, however, that it was unreasonable for the compensation judge to conclude that Dr. Rieser=s opinion was unpersuasive.

 

First of all, we would note that there is no evidence, in either his September 12, 2003, report or his March 11, 2004, report, that Dr. Rieser ever reviewed any of the employee=s earlier medical records.  Any medical history that he might have considered in forming his opinion would appear to be limited to that provided to him orally in his interview with the employee on September 12, 2003.  That history, as evident in the doctor=s record and as apparently conceded by the employee, did not include the employee=s treatment for low back complaints in November of 1997 or for extreme lower thoracic complaints in April of 1999.  Perhaps more importantly, it is not at all clear from the record that Dr. Rieser was basing even his diagnosis on real scrutiny of actual MRI reports.  There is no MRI report in evidence dated the date of the report that he references, November 19, 2002, and both the November 9, 2002, report and the July 12, 2003, report describe potential pathology on the right side of the employee=s spine rather than the left.  Dr. Rieser=s allusion finally to right-side herniation may suggest that he eventually did come to see a report documenting such data, but his failure even to reflect such a correction in his understanding renders the credibility of his opinion less persuasive.

 

In light of the entire record as submitted, including in particular the opinion of Dr. Wicklund and the records and opinions of Dr. Spinelli, we cannot say that it was unreasonable for the compensation judge to conclude that the employee did not prove that he sustained a compensable aggravation of a preexisting degenerative disc disease as opined by Dr. Rieser, as is ultimately the employee=s position.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (the 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).  Because this conclusion by the judge was not unreasonable, we affirm the judge=s denial of benefits in its entirety.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.