SHARON L. (BANKS) KOTTKE, Employee/Appellant, v. VIRGINIA REG'L MED. CTR., SELF-INSURED/BERKLEY RISK ADM'RS CO., Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF  MINN., Intervenor, and SPECIAL COMP. FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 6, 2005

 

No. WC05-188

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge=s conclusion that the employee=s work-related injuries did not substantially contribute to the employee=s need for surgery and resulting permanent total disability.

 

Affirmed.

 

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

Compensation Judge: Nancy Olson

 

Attorneys: Thomas R. Longfellow, Longfellow Law Firm, St. Paul, MN, for the Appellant.  Mark A. Kleinschmidt and Brad R. Kolling, Couineau, McGuire & Anderson, Minneapolis, MN, for the Respondents.  Sara J. Stoltman, St. Paul, MN, for the Special Compensation Fund.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s finding that the employee=s work-related back injuries were not a substantial contributing cause of the employee=s need for surgery and permanent total disability.  We affirm.

 

BACKGROUND

 

The employee began work for Virginia Regional Medical Center [the employer], as a nurse=s aide/nursing assistant, in 1979.  On November 21, 1985, the employee sustained a work-related back injury while transferring a patient.  The employee was seen by Dr. K. Dhanalal, who diagnosed a back sprain.  An Employee Injury Investigation report indicates that the employee returned to work on November 26, 1985.  On December 31, 1985, the employee was examined by Dr. Patrick Dolan, who found Aan essentially normal back exam.@  He diagnosed Aprevious lumbosacral strain which is better@ and  released the employee to return to work without restrictions.  The employee returned to her regular duties on a full-time basis.

 

The employee sustained a second work-related injury to her low back on October 23, 1987, while transferring a patient.  Following this injury, the employee was examined by Dr. James J. Hendricks, who diagnosed ALS strain@ and took the employee off work.  In a October 27, 1987, letter, Dr. Hendricks noted that the employee was Aa long way from returning to work,@ and he prescribed daily therapy.  Dr. Hendricks released the employee to return to work without restrictions on November 9, 1987, and the employee returned to full-time work with the employer.

 

The employee sustained a third work-related injury to her low back on December 12, 1989, when she was again transferring a patient.  The employee was taken off work and returned to light-duty work with the employer on December 18, and 19, 1989.  A CT scan of the lumbar spine performed on December 21, 1989, was interpreted as showing a pronounced bulging of the disc in the midline and to the left at L3-4 and slight bulging at L5-S1.  The employee apparently lost some time from work again after December 19, 1989, as Dr. Hendricks completed a form on January 11, 1990, indicating that the employee could return to work on January 15, 1990, with restrictions for three weeks.  The employee did apparently return to work and eventually to full-time regular duties.

 

On June 25, 1991, the employee=s left leg went numb while lifting at work, and her low back pain increased.  A First Report of Injury was completed on that date, and the employee was off work for several weeks.  On June 26, 1991, Dr. H. Wayne Johnston diagnosed acute lumbosacral strain and degenerative disc disease.  The employee was referred for physical therapy and was released to return to work without restrictions on August 12, 1991.

 

The employee=s fifth work-related injury occurred on June 2, 1994, when she twisted her back while transferring a resident.  The record is silent as to what, if any, treatment the employee received for that injury.  She subsequently continued in her full-time job with the employer without further low back treatment until July 27, 2001, when she was examined by Dr. Joel Zamzow.^[1]  Dr. Zamzow noted that the employee Ahas developed one month of back pain.  She has severe leg and back pain.@  An MRI showed moderate posterior disc herniation at L3-4, moderate to severe stenosis on the right at L5-S1, and a contained disc herniation at L4-5.

 

Dr. Zamzow referred the employee to Dr. David McKee for EMG nerve conduction studies, which showed mild superimposed L5 nerve root irritation.  Dr. Zamzow then recommended a decompressive lumbar laminectomy, which was performed in September of 2001, at levels L3-4 and L4-5.  The employee was able to return to work on February 1, 2002, but, in March of 2002, she returned to Dr. Zamzow, complaining of hip, buttocks, and radiating right leg pain.  An MRI  revealed a synovial cyst of the L4-5 facet on the right side, compressing the thecal sac.  Dr. Zamzow recommended surgery in the form of excision of the facet on the right at L4-5, with resection of the synovial cyst, and that surgery was performed in March of 2002.  When her symptoms were not relieved by that surgery, the employee was eventually referred to Dr. Ensor E. Transfeldt.

 

According to Dr. Transfeldt=s chart  note of April 1, 2003, the employee had severe back pain with pain radiating down the right leg.  Dr. Transfeldt diagnosed flatback syndrome and mechanical-type low back pain associated with symptoms of nerve root irritation due to foraminal stenosis.  The employee underwent an anterior and posterior interbody fusion, from L2 through S1, on May 21, 2003, but the procedure did not relieve the employee=s pain.

 

On September 5, 2003, the employee filed a claim petition seeking temporary total or permanent total disability benefits and permanent partial disability benefits as a result of a Gillette injury sustained on August 1, 2001.^[2]  In an amended claim petition, filed on January 20, 2004, the employee alleged entitlement to benefits due to alleged injuries on November 21, 1985, December 28, 1987, December 12, 1989, June 25, 1991, and June 2, 1994.

 

The self-insured employer had the employee examined by Dr. John Dowdle on February 2, 2004.  In his report of February 3, 2004, Dr. Dowdle opined that the employee=s five work injuries were all temporary aggravations of her underlying degenerative disc condition that did not significantly or substantially contribute to her need for surgery.

 

The employee was also evaluated by Dr. Duane Person, at the request of her attorney, on June 15, 2004.  Dr. Person opined that the employee=s work injuries were substantial contributing causes of the employee=s diagnosed conditions and necessary treatments.  He went on to state that the injuries Acannot be apportioned, but in my opinion, the best way to look at those injuries is to consider them a Gillette injury, which culminated on the last day Ms. Kottke worked, which was March of 2003.@

 

When the matter proceeded to hearing on February 15, 2005, the employer and the Special Compensation Fund [SCF] agreed that the employee was permanently totally disabled, but they denied that the disability was related to the employee=s work injuries.  It was the SCF=s position that the employee had sustained a Gillette injury on August 1, 2001, which was a substantial contributing factor in the employee=s permanent total disability; it was the employee=s position that her disability was the result of the five specific work-related injuries.  In Findings and Order filed on April 18, 2005, the compensation judge accepted Dr. Dowdle=s opinion that the employee=s work injuries were not a substantial contributing factor in the employee=s need for back surgery or her permanent total disability, and the judge also implicitly found that the employee did not sustain a Gillette injury in 2001.  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 employee contends that there Ais no credible evidence as a whole to negate the obvious fact that the admitted injuries@ were substantial contributing causes of the employee=s eventual need for surgery and her admitted resulting permanent total disability.  We disagree.

 

The compensation judge specifically accepted the opinion of Dr. Dowdle over that of Dr. Person.  We note initially that both doctors performed independent medical examinations and that neither was a treating doctor of the employee.  The employee contends that Dr. Dowdle=s opinion does not have adequate foundation and goes on to itemize the claimed deficiencies in Dr. Dowdle=s report, specifically, his alleged inadequate reporting of the employee=s history, his minimizing of the findings of the 1989 CT scan, and his alleged failure to provide any explanation for what had caused the need for surgery.

 

Dr. Dowdle is a board-certified orthopedic surgeon, he outlined the numerous medical records that he reviewed as part of his examination, and he examined the employee.  Clearly, he had adequate foundation to render an opinion.  What the employee is actually arguing is that Dr. Dowdle=s opinion should be given less weight because of the claimed deficiencies.  In this regard, the employee contends that Dr. Dowdle failed to include crucial facts with respect to the employee=s first and second injuries.  However, Dr. Dowdle=s discussion of those injuries is very similar to that of Dr. Person=s.

 

The employee also contends that Dr. Dowdle misrepresented the findings on the 1989 CT scan, stating that it showed no significant abnormality when in reality it revealed pronounced bulging of the annulus on the left at L3-4.  It is unclear from Dr. Dowdle=s report whether he reviewed the actual CT scan or the CT scan report.  Certainly, Dr. Dowdle could have interpreted the actual scan differently than the reporting radiologist.

 

The employee further criticizes Dr. Dowdle for not mentioning that the employee underwent an additional CT scan in 1991, specifically referencing exhibits G and H.  However, after reviewing all of the exhibits, we could not find evidence of a 1991 CT scan.^[3]

 

A judge=s choice between expert opinions is generally 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 failed to persuade this court that Dr. Dowdle relied on any facts, in rendering his opinion, that were not supported by the record.

 

There are other factors that support the judge=s decision in this case.  For example, the employee testified that she had ongoing symptoms after her 1984 injury, but medical records reflect no treatment other than for the five specific injuries and no treatment at all from 1994 until 2001.  In fact, Dr. Zanzow=s office note of July 2001 indicates that the employee had had one month of back pain.  And, while the employee testified that surgery was contemplated as early as 1989,  there is no medical evidence to support that testimony.  The employee was released to return to work without restrictions after each of the five work injuries, and she did return to her pre-injury job on a full-time basis.  No treating doctor has indicated that the employee=s surgeries were causally related to her work injuries.  Clearly there was substantial evidence to support the judge=s findings, and those findings are affirmed.^[4]