DEBORAH A. LEAL, Employee, v. ST. MARY=S MED. CTR., SELF-INSURED, adm=d by GALLAGHER BASSETT SERVS., INC., Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 11, 2005

 

No. WC04-267

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Whether the employment aggravated a pre-existing condition is a question of fact, not law, and a finding of fact on causation by a compensation judge that is based on medical and other evidence in the record will not be disturbed on appeal.  There is substantial evidence, based upon the expert opinion of the employee=s primary treating physician and the employee=s testimony regarding the onset of symptoms, to support the compensation judge=s determination that the employee=s work activities aggravated her underlying degenerative disc disease and was a cause of the employee=s need for medical care and work restrictions.

 

Affirmed.

 

Determined By: Johnson, C.J., Wilson, J., and Stofferahn, J.

Compensation Judge: Patricia J. Milun

 

Attorneys:  James B. Peterson, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Respondent.  Gina M. Uhrbom, Brown & Carlson, Minneapolis, MN, for the Appellant.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The self-insured employer appeals the compensation judge=s finding that the employee=s work activities aggravated her underlying degenerative disc disease and the judge=s denial of its request to discontinue temporary partial disability benefits.  We affirm.

 

BACKGROUND

 

In 1991, Deborah A. Leal, the employee, went to work for St. Mary=s Hospital which is now a part of St. Mary=s Medical Center, the employer.  For approximately seven years, the employee worked as a phlebotomist.  This job required the employee to move around the hospital and take blood samples from patients.  The employee described this position as very physical, requiring a lot of bending.  During these seven years, the employee recalls having only minor aches and pains in her back.[1]

 

In 1996, the employee ceased working as a phlebotomist and began working as a lab assistant.  Initially, the employee sat at a work station in the middle of a room testing blood specimens.  She prepared each specimen by pouring blood into a test tube, placing the tube in a centrifuge and then logging the test results into a computer.  The employee testified that whether she stood or sat at the work station it was an ergonomically comfortable place to work.  The employee denied any low back problems prior to 2001.  In 2001, the employer removed the center island, replaced the centrifuge with an automated processor, and moved the computers and telephones to a lower counter.  The chairs were removed, which, the employee testified, required her to bend over for lengthy periods to type and answer the telephone.

 

Shortly after the employer changed the employee=s work station, the employee experienced low back pain that gradually worsened.  Eventually, the employee testified, the pain became so severe it was difficult to get out of bed.  On the morning of October 17, 2002, the employee testified she was in excruciating pain but went to work anyway.  At some point during the day, she attempted to stand up and experienced an onset of low back pain so severe that she could hardly move.  The employee then went to the occupational medicine clinic at St. Mary=s and saw Dr. Jed Downs.  She gave Dr. Downs a history of altering her posture in order to read a computer screen and having to bend to work at low counter heights which resulted in progressive low back pain.  The doctor diagnosed biomechanical back pain with poor trunk stability,  restricted the employee to working in a sitting position 90 percent of the time and ordered physical therapy.  The doctor opined the employee=s condition was Alikely, if not initiated, then certainly sustained by her ergonomics which do sound like they are problematic and may be difficult to have a standing work station which is going to be acceptable to everybody.@  (Pet. Ex. A.)  Dr. Downs ordered an MRI scan that showed an L3-4 disc herniation with advanced degenerative disc disease.  The doctor=s diagnosis remained biomechanical back pain with degenerative disc disease.

 

In May 2003, the employee saw Dr. Mark Glazier, a neurosurgeon, on referral from Dr. Downs.  The employee complained of progressive low back pain with radiation into the left leg.  The doctor felt the employee=s symptoms suggested an L4 radiculopathy and felt the employee might need to consider a decompression surgery at L3-4 if conservative measures failed.  In October 2003, the employee saw Dr. James Callahan, also a neurosurgeon.  On examination, the doctor noted the employee walked with a left limp and was unable to bear weight on her left leg.  The doctor recommended a second MRI scan that showed a near complete collapse of the L3-4 disc space with marked spinal stenosis at L3-4 and L4-5 and significant facet arthropathy with laxity at L3-4 and L4-5.  Dr. Callahan opined the employee had a difficult problem to treat and stated the surgical option was a laminectomy from L3 to L5 with a fusion.  In consultation with Dr. Downs, the employee decided to hold off on surgery unless she had significantly increased problems with walking.

 

In January 2004, Dr. Robert Brown, an orthopedic surgeon, examined the employee at the request of the self-insured employer.  The doctor obtained a history from the employee, reviewed her medical records, and performed a physical examination.  The doctor noted significant findings on examination including a decreased patellar reflex on the left with subjective numbness in the left leg and foot consistent with lateral recess narrowing at L3-4 and stenosis at L4-5 as reflected on the MRI scan.  Dr. Brown agreed with Dr. Callahan that the employee had a very difficult problem to treat because it was multilevel.  Dr. Brown further stated:

 

It is my medical opinion, from the history given by Ms. Leal and from available medical records, that her onset of symptoms was insidious in nature and that there was no one specific episode that precipitated her symptoms.  It is apparent from the MRI scan of December 16, 2002 and a subsequent MRI scan of October 22, 2003 that she does have a marked underlying condition in her back which pre-existed the alleged work injury of October 17, 2002

 

*  *  *

 

It was noted when Ms. Leal was evaluated by Dr. Downs on October 17, 2002 that back pain had been ongoing for two weeks and she developed a marked exacerbation upon awakening that morning.  Repetitive bending would have been primarily at the hip joint and would not have been a significant stress on the low back.  It is my opinion that her symptoms started insidiously and were unrelated to any repetitive bending that she did while at work.  Specifically, her work did not cause, aggravate or accelerate her underlying condition.  No specific or Gillette injury occurred.  Therefore, it is my medical opinion that her current condition is related to the underlying degenerative changes and stenosis.  (Resp. Ex. 1.)

 

Dr. Downs wrote two letters to the employee=s attorney.  In a letter dated April 20, 2004, Dr. Downs opined:

 

At this juncture, I consider Ms. Leal=s problems to be primarily on the basis of her multilevel degenerative disc disease.  I think that ergonomic deficiencies in the lab work area, which I have not personally gone to observe, are a minor contributing, but nonetheless a contributing factor, as far as her back pain is concerned.  Her history was that she had insidious onset of back pain for two weeks prior to having significant increased back pain upon awakening.  There is no specific event or acute trauma which ties Ms. Leal=s back pain to her work incident.  As you are aware, from reviewing Dr. Callahan=s notes, her back is in a fairly advanced stage of degeneration, and she does have ongoing radicular symptoms and myopathy but surgical correction would be heroic.

 

Regarding the second question, I have limited her to a 0.6 FTE work schedule.  The question is whether her work activities in the fall of 2002 were a substantial contributing cause or a significant aggravation of the back condition requiring these work restrictions.  I can just say that they are a contributing cause, but I can not say they are a substantial contributing cause.  Again, it would be the ergonomic deficiencies more so than any particular work activity or work event in question.  (Pet. Ex. A.)

 

By letter dated May 11, 2004, Dr. Downs stated:

 

My opinion is that Ms. Leal began noticing symptoms as a harbinger of the condition that was already present in her low back.  That came about because of putting additional [stress] on the nervous system which was compromised by pre-existing moderately-severe to severe degenerative disc and joint disease in the lumbar spine.  The ergonomic deficiencies are associated with symptoms regarding her low back pain, but are not causal, in my opinion, for the neurological compromise and ongoing radicular pain that she is currently experiencing.  (Pet. Ex. A.)

 

In a findings and order filed August 4, 2004, the compensation judge accepted the medical opinions of Dr. Downs over those of Dr. Brown, and found the employee=s low back pain was the result of her work activities with the employer, which aggravated her underlying degenerative disc disease causing the need for work restrictions.  Accordingly, the compensation judge denied the self-insured employer=s petition to discontinue compensation benefits.  The self-insured employer appeals.

 

DECISION

 

The compensation judge accepted the medical opinion of Dr. Downs over the medical opinion of Dr. Brown.  Dr. Downs opined the ergonomic deficiencies in the lab work area were only a Aminor contributing@ factor to the employee=s back pain.  This opinion, the appellant argues, is legally insufficient to establish causation between the employee=s work activities and any resultant disability.  Accordingly, the appellants argue, the compensation judge=s decision is legally erroneous and must be reversed.

 

The appellant further argues the compensation judge=s findings are unsupported by substantial evidence.  It is undisputed, the appellant asserts, that the employee smokes 20 cigarettes per day; she is also diabetic, overweight, and has a history of back problems.  Dr. Glazier opined the employee=s leg symptoms were due to a peripheral polyneuropathy caused by the employee=s diabetes, not to her low back condition.  Dr. Downs stated the employee=s low back was in a fairly advanced stage of degeneration with radicular symptoms and myopathy but stated the ergonomic deficiencies at work did not cause the employee=s neurological compromise or radicular pain.  Dr. Brown opined the employee=s onset of symptoms was insidious in nature and the employee=s work activities did not cause, aggravate or accelerate her underlying condition.  Considering the record as a whole, the appellant contends the evidence is insufficient to support a conclusion that the employee=s work activities were a substantial contributing cause of the employee=s low back condition.  Accordingly, the appellant asserts the compensation judge=s decision must be reversed.  We are not persuaded.

 

It is well settled that injuries are compensable if the employment is a substantial contributing factor not only to the cause of the condition but also to the aggravation or acceleration of a pre-existing condition.  Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975).  An employee need not prove that the employment was the sole cause, only a substantial contributing cause of the disability for which benefits are sought.  Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989).  The fact that the employee had a history of pre-existing back problems does not bar her claim if the employment aggravated, accelerated or combined with the pre-existing infirmity to produce the disability for which compensation is sought.  See e.g., Wyatt v. Hancock Nelson Mercantile Co., 296 Minn. 489, 207 N.W.2d 342, 26 W.C.D. 673 (1973).

 

Ultimately, the issue in this case is causation.  The compensation judge found the employee=s work activities aggravated her mechanical low back pain causing symptoms which required treatment and resulted in restrictions on the employee=s work duties.  Whether the employment aggravated a pre-existing condition is a question of fact, not law, and a finding of fact on this issue by a compensation judge which is supported by substantial evidence will not be disturbed upon appeal.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

 

The employee testified that prior to 2001, her work station was ergonomically comfortable and she denied any problems with her back.  After the employer changed the work station, however, the employee testified she had to do more bending to perform her job following which she noted an onset of low back pain.  That the employee=s low back condition was asymptomatic before the work station change and symptomatic thereafter is a factor the compensation judge could consider in deciding the causation issue.  See e.g., Lundberg v. Bemidji Ambulance Service, slip op. (W.C.C.A. May 22, 1998).  Dr. Downs acknowledged the employee=s work activities did not cause her underlying disc disease, neurological compromise or radicular pain.  He did, however, conclude the employee=s symptoms developed because she was putting additional stress on her nervous system which was already compromised by the lumbar disc and joint disease.  While Dr. Downs felt the work activities were only a minor contributing factor, the doctor did, nonetheless, conclude the work activities were a medical cause of the employee=s back symptoms.   The employee=s low back symptoms caused the need for medical care and work restrictions.

 

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).  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).  Considering the testimony in its entirety, we cannot conclude the compensation judge=s decision was legally erroneous or without substantial evidentiary support.  The compensation judge=s decision is, therefore, affirmed.