MICHAEL W. MCCUE, Employee/Appellant, v. BALZER MFG., and AMERICAN COMP. INS./RTW, INC., Employer-Insurer, and BLUE CROSS BLUE SHIELD OF MINN., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 23, 2005

 

No. WC04-330

 

HEADNOTES

 

EVIDENCE - EXPERT MEDICAL OPINION; CAUSATION.  Since it is not clear whether the compensation judge considered the references in Dr. Barnett=s report to a 1991 motorcycle accident while determining the issue of causation, nor can the court determine from the compensation judge=s findings and order whether he relied upon medical opinions other than that of Dr. Barnett when reaching his conclusions on causation, and in view of the potential error inherent in Dr. Barnett=s reference to a 1991 motorcycle accident and the impact that may have had on the compensation judge=s findings on causation, the court vacates those findings that relate to the compensation judge=s determination that there is no causal relationship between the employee=s 2002 work injury and his current condition and disability, and remand this matter to the compensation judge for reconsideration of the employee=s claims.

 

Affirmed in part, vacated in part, and remanded in part.

 

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

Compensation Judge: Gary M. Hall

 

Attorneys: Steven R. Sunde, Sunde, Olson, Kircher and Zender, St. James, MN, for the Appellant.  Nancy E. Lamo, McCollum, Crowley, Moschet & Miller, Bloomington, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s finding that he did not sustain a injury to his low back on August 20, 2002, and from the compensation judge=s related denial of his claim for benefits.  We affirm in part, vacate in part, and remand in part to the compensation judge.

 

BACKGROUND

 

In November 1999, Michael W. McCue, the employee, began working as a welder for Balzer Manufacturing, the employer.  Balzer Manufacturing, located in Mountain Lake, Minnesota, is in the business of manufacturing heavy agricultural equipment; one of the employee=s main duties included welding steel oscillating arms which carried liquid manure tanks or grain wagons. This claim arises from an injury the employee sustained on August 20, 2002, while working for the employer.  On that date, the employee sustained an admitted injury in the nature of a recurrent right inguinal hernia; he also claims that he injured his low back, but the employer and insurer have denied primary liability for a low back injury.

 

Pre-Injury Medical History

 

The employee has an extensive medical history of treatment to his low back.  In addition, there are references in his medical records to a right inguinal hernia in the 1990's.  Although the employee acknowledges his previous medical history and low back condition, he contends that immediately prior to his August 20, 2002, he was not working under any physical restrictions, was able to perform his job duties and routinely lifted heavy objects at work, and was able to carry on normal daily activities.  He also contends that he had never received a disability rating for any work-related back injury before August 20, 2002, and that his injury at Balzer Manufacturing significantly aggravated his underlying condition.

 

In 1992, the employee injured his low back while working for Parts Plus Warehouse in Montana.  Medical records from Dr. James Burton, orthopedic surgeon in Missoula, Montana, refer to a February 1992 work-related injury which occurred while the employee was stacking batteries at Parts Plus in Missoula.  Records show that the employee received physical therapy from July to September 1992.  The employee testified that he remained off work approximately 6-8 months following this injury; other references in the medical records indicate that he was off work for approximately one year.  The employee underwent two MRI scans of his lumbar spine on September 25, 1992, and December 9, 1992.  The first was interpreted to show minimal degenerative disc disease at the L3-4 level, without evidence of herniated disc or other significant abnormality.  No change in findings was noted in the later MRI, and Dr. Burton interpreted both MRIs to be within normal limits.  On February 25, 1993, the employee underwent a bone scan, which identified no cause for the employee=s low back pain.  According to an April 27, 1993, report from Dr. Burton, he assigned a 0% permanent partial disability relative to the employee=s back injury, determined that the employee had reached maximum medical improvement from that injury, and also indicated that he could return to his former job as a parts counter person.

 

Fairview Ridges Hospital and Oxboro Clinic Records show that on two occasions in 1994 and 1995, the employee reported a history of low back pain and right radiating pain into his right leg.

 

The employee sustained an admitted work-related low back strain on March 27, 1997, while moving a table.  At the time, the employee was working as a welder at Modern Tool,  Inc.  He received medical treatment at Aspen Clinic on April 2, 1997, reporting low back pain, most consistently on the right side, with pain radiating down into the right buttock.  Dr. T.G. Domino=s chart note of April 2, 1997, refers to the employee=s 1992 work injury in Montana, and relates that the employee Awas off work for one year and has never been without pain since.  He is better on some days and worse on others but is never entirely free of pain.@  The employee returned to work on April 7, 1997, and by April 9, 1997, advised Dr. Domino that his discomfort in the low back was gradually improving and that he was able to perform the essential tasks of his job.  By April 9, 1997, Dr. Domino determined that the employee had reached maximum medical improvement from that injury, that he had sustained no permanent partial disability as a result of the injury, and that he could return to work with no restrictions.

 

On December 17, 1997, the employee consulted Fairview Ridges Clinic for symptoms of depression, and also reported occasional low back pain with radiation into his right leg.  On December 6, 1998, the employee consulted Fairview Ridges Hospital, reporting continuous low back pain since a lifting incident three weeks earlier, which resulted in pain radiating into his right groin area and leg.  An MRI scan of the low back taken on December 9, 1998, showed multi-level degenerative disc disease and bulging disc at two levels without significant stenosis.  The employee was prescribed physical therapy.  He attended two follow-up medical appointments in December 1998, and it is unclear from the medical records whether he attended any physical therapy as prescribed.

 

On October 26, 1999, the employee sustained another low back injury while working as a machinist and welder at Dick=s Welding.  He slipped on the floor after pulling on an ironworker device to bend a rod, felt a snap and a pop sensation in his low back, and noted a sudden onset of very sharp low back pain extending into his right buttock and down his right leg.  The employee consulted Dr. Steven Hartberg that same day, who restricted him from work and prescribed physical therapy and pain medication.  In his chart note, Dr. Hartberg refers to the employee=s Ahistory of prior low back injury and right sciatica in 1981 [sic], while working in Montana,@ and records a history from the employee that his problems with low back pain had Aresolved over time with medication and physical therapy.@

 

On October 27, 1999, the employee consulted Dr. Grattinger, D.C., whose chart notes refer to a low back injury in 1991 Afollowing pulling/twisting, bending steel.  Missed 1 yr. from work.@  The employee received chiropractic treatment from Dr. Grattinger on three other occasions in October and November, 1999.  By November 4, 1999, Dr. Hartberg released the employee to return to work within restrictions and as of November 16, 1999, Dr. Hartberg released the employee to return to work, without restrictions.  The employee testified that he missed 1-2 days of work following this injury.  Dr. Hartberg determined that the employee had reached maximum medical improvement as of November 16, 1999, and that he had sustained no permanent partial disability as a result of his October 26, 1999, work injury.

 

In November 1999, the employee switched jobs to Balzer Manufacturing.  He underwent a pre-employment physical with Dr. Harder on November 19, 1999; the results of that examination were listed by Dr. Steven Harder as AHealthy 42 year old male.@  On November 29, 1999, the employee commenced his work with Balzer Manufacturing.  There is no reference to additional medical or chiropractic treatment between November 1999 and August 2002, and the employee testified that he was able to perform heavy-duty work during that time period.

 

August 20, 2002, Work Injury

 

On August 20, 2002, while standing on a platform at Balzer Manufacturing, the employee lifted a steel reinforcing plate that weighed approximately 50 to 60 pounds.  He fell backwards onto the ground, landing on his tail bone area with the steel plate landing on top of his mid-section.  The employee reported this incident to his supervisor, and sought medical treatment at the Mountain Lake Medical Clinic the next day, reporting to Dr. Leo Avenido that he experienced sharp, stabbing pain deep inside his mid-section or abdomen at about the belt line.  The doctor examined the employee, and recorded in his chart note that the employee reported increasing heartburn and increasing pain in the right lower quadrant.  Dr. Avenido diagnosed worsening GERD^[1] and a possible recurring right inguinal hernia, and recommended a surgical consult for a potential hernia.

 

Dr. Ernest Lampe, surgeon at the Mankato Clinic, examined the employee on August 28, 2002, and recorded a history from the employee that he was involved in Aa motorcycle accident about 20 years ago, at which time he had a back injury as well as a right groin injury@ that was repaired.  The employee reported to Dr. Lampe that he had noted intermittent discomfort since that time but was able to pursue activities without limitation, and that one month ago, while lifting a heavy piece of steel at his usual employment, he felt a Atearing@ and persistent pain and tenderness in the right groin.^[2]  Dr. Lampe=s chart note states the employee had chronic back discomfort and reflux disease, along with carpal tunnel pain.  He recommended surgery for a right inguinal hernia.

 

In a preoperative physical examination conducted on September 23, 2002, at Immanuel-St. Joseph=s hospital, under Areview of systems@ there is a reference to Aback pain.@  On September 25, 2002, Dr. Lampe surgically repaired the employee=s hernia.  Dr. Lampe restricted the employee from work for approximately three weeks; the employee returned to work for the employer on a light-duty basis on October 17, 2002, with work restrictions assigned for a three-week duration.

 

On November 6, 2002, the employee consulted Dr. Lampe, reporting an acute onset of right flank and groin pain.  He reported that he was lifting an item of about 100 pounds and twisting to place it on a shelf when he noted a sudden onset of right sided back and groin pain.  Dr. Lampe diagnosed a right back strain with possible muscular disruption and hematoma, and stated that the Afindings on physical examination suggest a significant muscular injury.@

 

On November 26, 2002, the employee reported to Dr. Avenido that he continued to notice pain and low back spasms, and that even with the use of Vicodin he could not function well.  The employee evidently asked the doctor about obtaining chiropractic treatment but the doctor discouraged this, and instead prescribed pain medication.  On December 2, 2002, the employee returned to Dr. Avenido, again reporting back and right hip pain that he had noticed for the past four weeks.  The chart note states that the employee had undergone right inguinal hernia repair in August and had been doing well since then until approximately four weeks earlier, when he lifted a 100 pound box at work and twisted his hip area while lifting.  He still noted pain radiating into his right thigh.

 

Due to the employee=s ongoing symptoms, Dr. Avenido recommended an MRI scan of the lumbar spine, which was taken on December 30, 2002.  That exam showed degenerative disc disease at the L3-4 vertebral level, disc space narrowing, and a small disc bulge at that level.  No frank disc herniation was noted.  On January 10, 2003, the employee reported to Dr. Avenido that his pain was almost gone.  However, on April 8, 2003, he advised Dr. Avenido that his right abdomen pain continued; he was referred to Dr. Lampe for consultation, who assessed right inguinal hernia repair site pain and restricted the employee to a 50-pound weight lifting limit for two weeks.

 

In mid-October 2003, the employee again reported to Dr. Lampe that his back pain continued.  Dr. Lampe=s chart note again refers to pain radiating to the right gluteal area.  Dr. Avenido referred the employee to the Twin Cities Spine Center, where Dr. Amir Mehbod examined the employee on March 26, 2004, and prescribed an epidural steroid injection at the L3-4 vertebral level, which provided minor symptomatic relief.  However, the employee still noted pain in his right lower back and right leg.   Dr. Mehbod recommended surgery in the nature of a one-level fusion at the L3-4 level to treat the employee=s spondylolisthesis^[3].  Because the employer had denied primary liability for the employee=s claimed low back injury, the employer and insurer did not authorize the Twin Cities Spine Center to perform the recommended surgery.

 

The employee filed a claim petition, seeking payment for medical expenses related to his low back condition and wage loss benefits which he attributed to his low back injury.  While that claim was pending, the employer and insurer scheduled the employee for an independent medical examination with Dr. Robert Barnett.  In his report of July 12, 2004, Dr. Barnett repeatedly referred to a 1991 motorcycle accident and concluded that this accident precipitated the employee=s ongoing low back symptoms and condition.  Dr. Barnett diagnosed the following:

 

1.  Chronic low back pain with long history of intermittent, episodic exacerbations of mechanical low back pain, with imaging studies suggesting L3-4 lumbar disc degeneration dating back to a motorcycle accident in 1991.

 

2.  Symptoms of chronic, intermittent low back pain with symptoms possibly suggesting segmental instability.

 

Dr. Barnett concluded that the employee=s work-related injury of August 20, 2002, represented a continuation of his preexisting condition and stated that the Amedical records do not provide any convincing evidence of injury on or about August 20, 2002, which would represent a new and separate injury to the low back.@  Dr. Barnett also concluded that the employee=s work- related injuries in March 1997 and October 1999 did not represent significant permanent aggravating factors to the employee=s preexisting condition.  He concluded that the employee=s condition was Aessentially the natural consequence and natural history of progressive degeneration of an injured disc related to the 1991 motorcycle accident.@  Dr. Barnett found that the medical treatment provided to the employee=s low back had been reasonable and necessary, that objective findings substantiated the employee=s complaints of pain, and that fusion surgery, as recommended by Dr. Mehbod, would be reasonable and necessary.  He concluded, however, that the employee=s medical treatment and low back condition were unrelated to the employee=s August 2002 work injury.

 

Dr. Harder referred the employee to Dr. Mark Fox, neurosurgeon, in Sioux Falls, South Dakota, for a surgical consultation.  Dr. Fox examined the employee on September 13, 2004, and recommended a follow-up MRI scan, after which he would determine whether lumbar discography was recommended.  The employee reported to Dr. Fox that he had had no back pain between 1999 and 2002.  In his report, Dr. Fox concluded that the employee had chronic back and leg symptoms related to a work-related injury on August 2002, and that although the employee had a pre-existing condition, it was not symptomatic and therefore the Anew onset of back and leg symptoms are related to his injury.@

 

The employee=s claim was addressed at a hearing before a compensation judge on September 23, 2004.  In his findings and order, the compensation judge found that the employee had not shown that his injury in August 2002 substantially contributed to his current condition and, therefore, denied the employee=s claims.  Adopting Dr. Barnett=s opinion, the compensation judge concluded that the employee did not complain of low back pain immediately following that injury, that the medical records reflect a long-standing preexisting low back condition which caused the employee=s chronic low back pain, that the employee=s first significant low back complaints were made almost two months after the injury, and that the low back problems Acould simply be a natural progression of [the employee=s] preexisting condition.@

 

The compensation judge outlined his findings as follows:

 

5.  The employee has had a long history of back complaints going back to at least the 1980's.  He has had considerable treatment for both the low back and a hernia prior to August 20, 2002.  In the past he has lost significant periods of time from work as a result of his low back condition.  He has had several MRIs that showed degenerative changes at L3-4.  The post August 20, 2002 scans show the same condition with some progression of the degenerative changes.  It is not at all clear that the progression was causally related to the August 20, 2002 incident.

 

6.  Based on a preponderance of the credible evidence this court finds that on August 15, 2002 [sic],^[4] the employee sustained a recurrent hernia, but did not sustain any significant injury to his low back.  The July 2, 2004 report of Dr. Barnett is most persuasive on the issue of causation and is hereby adopted.

 

7.  The employee has not shown by a preponderance of the evidence that the August 15, 2002 [sic], injury was a substantial contributing cause of his claimed periods of temporary total disability.

 

In his memorandum, the compensation judge stated that,

 

The employee=s first significant low back complains came almost two months after this injury.  It is possible that the employee=s initial symptoms were misdiagnosed and actually caused by an aggravation of his preexisting back condition, or by the back and the hernia combined, and not recognized as such until later.  However, the employee has not convincingly established that possibility.  Based on the record as a whole, I am not persuaded that the employee=s initial complaints were in any way related to his back condition.  The diagnosis was recurrent hernia and a recurrent hernia was found and repaired.  The low back problems started much later and could simply be a natural progression of his preexisting condition.  He has not shown by a preponderance of the evidence that the August 15, 2002 [sic], injury was a substantial contributing cause of his current condition.

 

The employee appeals from the compensation judge=s denial of his claim.

 

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

 

On appeal, the employee argues that the findings and order are manifestly contrary to the evidence and clearly erroneous on the issues of causation, need for medical treatment and disability from employment.  The employee=s primary arguments relate to inconsistencies between the employee=s medical records and statements outlined in Dr. Barnett=s IME report.  The employee contends that Dr. Barnett=s references to a 1991 motorcycle accident are erroneous as they are based on a false premise that the employee injured his low back as a result of a 1991 motorcycle accident.  The employee also argues that Dr. Barnett ignored references in the medical records, specifically those of Dr. Lampe and Dr. Mehbod, that point to a causal relationship between the employee=s August 20, 2002, work injury and his current low back condition.

 

There are many inconsistencies in the various doctors= chart notes concerning the dates of past medical treatment and injuries.^[5]  Even so, Dr. Barnett=s discussion, generally, of the employee=s history of back problems and previous medical treatment is supported by the medical records in evidence.  However, Dr. Barnett repeatedly and consistently referred to the employee=s L3-4 lumbar disc degeneration dating back to a 1991 motorcycle accident and concluded that the employee=s chronic low back condition is essentially the natural consequence of the progressive degeneration relating to that motorcycle accident.  On that basis, Dr. Barnett concluded that there was no causal relationship between the employee=s August 2002 work injury and his later need for medical treatment or disability from employment.

 

The employee argues that Dr. Barnett=s report should be rejected because he refers to a 1991 motorcycle accident when in fact the employee was involved in a motorcycle accident in 1986 which caused no back injury, and injured his low back as the result of a work injury in 1991 or 1992.  By contrast, the employer and insurer argue that there are no significant foundational shortcomings in Dr. Barnett=s opinions and, therefore, the compensation judge=s decision to adopt the causation opinion of Dr. Barnett must be affirmed on appeal.  They argue that although there are inconsistencies in the medical records as to when the employee=s motorcycle accident occurred, even if the accident occurred earlier than 1991 Adoes not negate the fact that the employee hurt his back in the accident, and has had chronic low back pain since that time.@  While it may be true that the employee has periodically noted low back symptoms since at least 1991 or 1992, the compensation judge=s decision is written as if based upon Dr. Barnett=s report and opinion which, in turn, is based on the premise that the employee sustained a low back injury as the result of a 1991 motorcycle accident.  While the compensation judge may have reached the same decision in view of other evidence in the record, that is not clear from his findings and order.

 

The facts upon which an expert relies for his or her opinions must be supported by the evidence.  McDonald v MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff'd (Minn. July 13, 1990).  See also Manthei v. Layne Minn. Co., slip op. (W.C.C.A. Jan. 20, 2005).   "[A] doctor's opinion regarding causation which is based on an inadequate factual foundation is of little evidentiary value."  Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991) (citing Welton v. Fireside Foster Inn, 426 N.W.2d 883, 41 W.C.D. 109 (Minn. 1988)).   The only medical records in evidence that document an injury in 1991 or 1992 are those from Dr. Burton, dating from September 19, 1992, through February 25, 1993, that refer to an injury the employee sustained in February of 1992 while employed at Parts Plus Warehouse.  In addition, the employee testified about that work-related injury.  There is no evidence in the record that the employee was involved in a motorcycle accident in 1991, nor that he injured his back as a result of a 1991 motorcycle accident.

 

We are not certain that the compensation judge considered the references in Dr. Barnett=s report to a 1991 motorcycle accident while determining the issue of causation.  Nor can we determine from the compensation judge=s findings and order whether he relied upon other medical opinions other than that of Dr. Barnett when reaching his conclusions on causation.  In view of the potential error inherent in Dr. Barnett=s reference to a 1991 motorcycle accident, and in view of the impact that may have had on the compensation judge=s findings on causation, we vacate those findings that relate to the compensation judge=s determination that there is no causal relationship between the employee=s 2002 work injury and his current condition and disability, Findings Nos. 5, 6 and 7, and remand this matter to the compensation judge for reconsideration of the employee=s claims.