KELLY J. KRUGER, Employee/Appellant, v. SMITH TRUCKING, INC., and MIDWEST SAFETY GROUP/ADMIN. CLAIM SERVS., INC., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 27, 2005

 

No. WC05-213

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  The record as a whole supported the judge=s denial of the employee=s claim for wage loss benefits related to a 2004 work injury, where it was not unreasonable for the judge to find the employee=s testimony not credible or for the judge to reject expert causation opinion as unpersuasive.

 

Affirmed.

 

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

Compensation Judge: Carol A. Eckersen

 

Attorneys: William H. Getts, Minneapolis, MN, for the Appellant.  Amy L. Borgeson, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the judge=s finding that the employee did not prove that his work injury is a substantial contributing cause of his need for work restrictions and from the judge=s order denying recommencement of temporary total disability benefits.  We affirm.

 

BACKGROUND

 

In 1998, the employee was living in California and working for Redding Lumber Transport as a truck driver when he sustained a work-related injury to his neck.  He was originally treated with physical therapy and medication.  He first saw Dr. Kent Patrick, in Sacramento, California,  on September 16, 1998, complaining of neck and upper back pain, right arm paresthesia and numbness, and some hip pain, and he was seeking a second opinion on proposed surgery.  Dr. Patrick noted that an MRI of the cervical spine dated July 11, 1998, showed a herniated disc at C4-5 and that Apurely on a degenerative basis the C6-7 level shows the most change with disc space narrowing and anterior osteophyte formation.@  Dr. Patrick diagnosed a C4-5 disc herniation causing spinal stenosis and cord compression.  He performed an anterior discectomy and fusion at C4-5 on November 12, 1998.

 

When seen by Dr. Patrick again on February 2, 1999, the employee complained of continuing neck, upper back, and bilateral shoulder pain with paresthesias and numbness in the right forearm and hand.  Dr. Patrick ordered physical therapy and noted that Athese lingering effects may take further time to improve.  It is also possible that his symptoms emanate from one of the other discs as he does show multi-level disease.@

 

When seen by Dr. Patrick on March 22, 1999, and again on May 3, 1999, the employee reported that his pain level was an 8 on a scale of 10.  He also reported some pain, paresthesias, and numbness in the right buttock, thigh, and calf.  Dr. Patrick ordered an MRI, which was performed on May 10, 1999.  The report from that MRI indicated that, A[w]ith respect to right sided symptoms, there appears to be compromise of the right C6-7 neural foramen, the result of uncovertebral spurs and accompanying disc material.  If surgery is contemplated, recommend intrathecal contrast enhanced CT scan through this region.@

 

On August 9, 1999, the employee reported to Dr. Patrick that his pain was 7-8 out of 10 and that his symptoms were not improving with time.  The employee was told that he had disc disease at C5-6 and C6-7 and that his symptoms could be emanating from those levels.  Following a discogram CT, performed on September 13, 1999, Dr. Patrick noted that the employee=s pain was Afully concordant and 10+ out of 10 at the C6-7 level@ and that the employee=s complaints at that time appeared to be associated with the C6-7 level.  The employee remained temporarily totally disabled, and Dr. Patrick indicated that the employee would not be able to return to his previous work.  Dr. Patrick recommended an anterior discectomy and fusion at C6-7 with instrumentation and repair of the pseudoarthrosis at C4-5.  According to the doctor=s records, the employee had indicated that Ahe cannot continue with his current level of pain.@

 

A pain intensity form completed by the employee on November 1, 1999, suggests that the employee had numbness in his right elbow and knee, pins and needles in his right thigh, foot, and hand, stabbing pain in his upper back, chest, and neck, and headache.  Surgery was scheduled and then rescheduled but cancelled.  Dr. Patrick=s last report, dated May 30, 2000, indicated that the employee was delaying surgery pending review of a second opinion report.

 

At some point, the employee settled his workers= compensation claim with Redding Lumber Transport and their insurer, Liberty Mutual.^[1]

 

The employee worked as a self-employed driver for approximately two years.  In June of 2002, the employee began work, as a driver, for Smith Trucking, Inc. [the employer], and, on December 29, 2004, he sustained a work-related injury in a motor vehicle accident arising out of that employment.  He was admitted to a  hospital the evening of the accident complaining of headache and neck pain.  Dr. Martin Bautista noted that the employee=s symptoms were Areminiscent of the injuries he sustained six years earlier in California.@  An MRI performed on December 30, 2004, showed bulging discs at C3-4, C5-6 and C6-7, the worst levels being C5-6 and C6-7, where the cord was almost compressed.  Following examination, Dr. James Harrington diagnosed a whiplash injury and opined that the employee did not require any orthopedic or neurological surgery. Dr. Bautista discharged the employee from the hospital on January 1, 2005.  The treatment plan at that time was to continue on Aanalgesia, physical therapy, muscle relaxants@ and to contact the employee=s treating surgeon in California.  The employee was given a copy of his records and radiographs.

 

The employee was seen by Dr. Mitchell Johnson in Sioux Falls, South Dakota, on January 14, 2005, complaining of some weakness in the right arm, numbness and tingling of both hands, and some neck pain.  Dr. Johnson ordered an EMG, diagnosed carpal tunnel syndrome, and released the employee to return to work on January 25, 2005.

 

On February 1, 2005, the employee returned to work for the employer, hauling a load to Arizona.  The trip took four days, round trip.  The employee has not worked for the employer since that time.

 

The employer and insurer paid temporary total disability benefits from the date of injury through January 31, 2005, and then filed a notice of intention to discontinue benefits, based on the employee=s return to work on February 1, 2005.  On March 31, 2005, the employee filed an objection to discontinuance, seeking temporary total disability benefits continuing from February 11, 2005.

 

The employee was next seen by Dr. Gregory Kosters, D.O., at the Family Medical Clinic in Sibley, Iowa, on February 16, 2005, for complaints of neck pain radiating down to the right shoulder over the right trapezius area, as well as some numbness in the right arm and pain down the right leg.   He was seeking a referral to a doctor in Sioux City or Des Moines.  Dr. Kosters made arrangements for the employee to be seen at the Center for Neuroscience Orthopedic Sciences [CNOS] in Sioux City and prescribed a Medrol Dosepak and Flexeril.

 

The employee returned to Dr. Kosters on April 13, 2005.  At that time, Dr. Kosters was informed that the employee had been diagnosed with carpal tunnel syndrome.  Dr. Kosters examined the employee and found no evidence of carpal tunnel syndrome.  Dr. Kosters prescribed Relafen, with the goal being to give the employee some relief from pain until he could be seen at CNOS in Sioux City on July 1.

 

On April 19, 2005, in response to a letter from the employee=s attorney, Dr. Kosters reported that the employee was suffering from myofascial pain syndrome Asecondary to motor vehicle accident of December 28, 2004" and Amild cervical radiculitis of the right C7 nerve root.@  Asked whether the employee=s current disability was related entirely to the December 2004 accident, Dr. Kosters responded  that the employee=s fusion at C4-5 was a Amild co-factor@ in his current disability, A[b]ased on the fact that this is a different nerve root on exam, i.e., C-7 on the right and since his previous fusion was at C4-5,@ and he opined that the employee was unable to work.  Subsequently, on May 10, 2005, Dr. Kosters diagnosed Amyofascial pain syndrome with probably superimposed cervical radiculopathy due to MVA@ and issued a note taking the employee off work until a scheduled appointment with an orthopedist on July 1, 2005.

 

The objection to discontinuance came on for hearing on May 17, 2005.  In findings filed on June 8, 2005, the compensation judge found that the employee had been taken off work by Dr. Kosters in February of 2005, but that the employee=s inability to work was not substantially related to the December 29, 2004, work injury.  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

 

1.  Credibility

 

In her memorandum, the compensation judge noted,

 

The employee clearly had continuing problems after the 1998 injury and the November 12, 1998 fusion surgery.  While there is no record that Mr. Kruger sought medical attention, the compensation judge does not find the employee=s testimony credible that he recovered from the 1998 injury to the degree he claims following the surgery.

 

On appeal, the employee contends that the judge committed reversible error by basing her decision on the assumption that the employee was having significant ongoing symptoms, related to the 1998 injury, at the time of his work-related injury in 2004.  This argument is not entirely without merit, because there is no evidence, in the form of medical records or testimony, as to ongoing symptoms in the years 2000 to 2004.  At the same time, assessment of a witness=s credibility is the unique function of the trier of fact.  Even v. Kraft, Inc., 445 N.W. 2d 831, 42 W.C.D. 220 (Minn. 1989).  The employee testified repeatedly that, after his 1998 surgery, he had only stiffness, soreness and  Arehab kind of symptoms.@  However, according to medical records from ten months after his surgery, the employee was complaining of right posterior cervical pain, right upper extremity symptoms, and frequent headaches - - symptoms so severe that the employee did not feel he could continue with his current level of pain.  Furthermore, a pain diagram completed by the employee almost one year after his surgery revealed ongoing complaints of Astabbing pain.@  As such, medical records clearly contradict the employee=s testimony as to his symptoms following the 1998 surgery.  In addition, on numerous occasions during his testimony and in exhibits offered at hearing, the employee downplayed his 1998 injury.^[2]  It is not the role of this court to evaluate the credibility and probative value of witness testimony or to choose different inferences from the evidence than those drawn by 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).  In the present case, under all circumstances, it was not unreasonable for the compensation judge to conclude that the employee=s testimony about his recovery from the 1998 surgery lacked credibility.

 

2.  Medical Opinion

 

The compensation judge noted in her memorandum that Dr. Kosters had an incomplete or inaccurate history of the employee=s symptoms following the 1998 injury.  For this reason, the judge was not persuaded by Dr. Kosters= causation opinion.  The employee contends that the judge erred in rejecting Dr. Kosters= opinion on this basis.  We are not convinced.

 

Dr. Kosters opined that the employee=s fusion surgery was only 20% responsible for the employee=s ongoing symptoms.  He did not opine that the employee=s 1998 work injury was only 20% responsible, and the employee admits in his brief that Dr. Kosters did not have all of the records from Dr. Patrick at the time he wrote his April 2005 letter.  In that letter, Dr. Kosters stated, Abased on the fact that this is a different nerve root on exam, ie., C-7 on the right and since his previous fusion was at C4-5, I think while the fusion may be contributing some to his discomfort, it is perhaps only about a 20% factor.@  In fact, a 1999 MRI and a discogram indicated that the employee=s pain complaints were associated with the C6-7 level.  Thus, the findings noted by Dr. Kosters in 2004 were not at a different level, contrary to Dr. Kosters= belief, and it was not unreasonable for the compensation judge to conclude that Dr. Kosters did not have accurate or complete information upon which to base his opinion.^[3]

 

There being substantial evidence to support the judge=s conclusions as to the employee=s credibility and the lack of persuasiveness of Dr. Kosters= opinion, we affirm the judge=s findings in their entirety.