JAY PALMER, Employee, v. ELO ENG=G, SELF-INSURED/BERKLEY RISK ADM=RS CO.,  Employer/Appellant, and CENTER FOR DIAGNOSTIC IMAGING, CAMBRIDGE CHIROPRACTIC CLINIC, MULTICARE ASSOCS., and MEDICAL ADVANCED PAIN SPECIALISTS, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 28, 2005

 

No. WC04-322

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION.  Where the employee=s testimony and medical records indicate the employee continued to have symptoms related to his admitted mid-back injury, substantial evidence supports the compensation judge=s finding that employee=s 1994 injury to his thoracic spine was permanent and was a substantial contributing factor to the development of degenerative changes in the thoracic spine despite the lack of an expert medical opinion in the record expressly supporting this finding.

 

Affirmed.

 

Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.

Compensation Judge: Bradley J. Behr

 

Attorneys: Jackson S. Baehman, Woodbury, MN, for the Respondent.  Dean A. LeDoux and Kelly W. Hoversten, Gray, Plant, Mooty, Mooty & Bennett, Minneapolis, MN, for the Appellant.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The self-insured employer appeals the compensation judge=s finding that the employee=s June 15, 1994, work injury to his thoracic spine was permanent and that it substantially contributed to the development of degenerative changes in his thoracic spine.  We affirm.

 

BACKGROUND

 

On June 15, 1994, Jay Palmer, the employee, sustained a work-related back injury while working for ELO Engineering, the employer, which was self-insured for workers= compensation liability.  At issue on appeal is whether certain medical expenses incurred between 2002 and 2004 relate to treatment that was causally related to the employee=s June 15, 1994, work injury.

 

The employee began working for the employer as a machinist in 1977, and was working as a machinist/tool and die maker at the time of his 1994 injury.  Before his 1994 injury, the employee had sustained no work-related injuries and had no back problems or treatment.  On June 15, 1994, the employee injured his back when stepping out of a doorway into a 10" to 18"-deep drop in grade caused by construction.  The employee missed no time from work and did not seek medical treatment until nine days after the injury after again awkwardly stepping out of the door into the deep drop and jarring his back.

 

On June 24, 1994, the employee sought treatment for his back at Multicare Associates; he received medical care for his back at Multicare Associates through at least May 9, 2003.  Dr. Curtis McCamy diagnosed an Aupper lumbar strain,@ prescribed pain medication, and assigned restrictions of no lifting over 20 pounds, no repetitive back bending, and allowance for frequent change of position.  The employer was able to accommodate these restrictions and the employee continued to work for the employer.^[1]  Dr. McCamy extended these restrictions after a follow-up visit on June 30, 1994.  The employee returned on July 7, 1994, when Dr. McCamy reduced the work restrictions to no lifting over 20 pounds and no repetitive bending.  After a July 14, 1994, return visit, Dr. McCamy released the employee to work without restrictions and determined that the employee was at maximum medical improvement from his June 15, 1994, work-related injury.  Dr. McCamy also recommended that the employee be rechecked if he noticed further problems or a flare-up of symptoms.

 

The employee testified that he continued to experience mid-back pain between June 1994 and February 1995, but was able to work.  On February 16, 1995, after noticing a recurrence of mid-back pain, the employee returned to Multicare Associates.  The employee reported that he had not fully recovered from his June 1994 back injury although his pain was Afairly minimal and intermittent since then.@  Dr. Kevin Bailey diagnosed a thoracic back strain, and imposed a 20-pound lifting restriction and a restriction of no repetitive bending or lifting.  He stated that the employee would be rechecked next week if not better, and that physical therapy should be considered if his symptoms did not improve.  The employee attended physical therapy, where he received instruction for a home exercise program, and apparently did not return to Dr. Bailey for additional medical care at that time.  The employee received no additional medical treatment for his back between April 1995 and February 1998, although he testified that he continued to have symptoms throughout that time.

 

In February 1998, the employee again treated for back pain, reporting to Dr. Stephen Bentz that his pain was in the exact same spot as it was in 1994.  In March and April 1999, the employee treated for thoracic back spasms and he underwent physical therapy in April 1999.  An April 7, 1999, x-ray indicated mild to moderate spur formation in the mid-thoracic region.  The employee also testified that several times in 1998 and 1999, he sought emergency room treatment for his back in Cambridge, Minnesota, near his residence.  There are no records in evidence, however, of those hospital or clinic visits.

 

Dr. Bentz referred the employee to Dr. Orrin Mann, in the occupational health department of Multicare Associates; Dr. Mann examined the employee on April 5, 2000.  At that point, the employee reported ongoing back pain starting in 1994 when he stepped off an uneven grade and jarred his back at work. He advised Dr. Mann that although he had done lap swimming at another physician=s referral, the swimming had not resolved his back pain.  Dr. Mann referred the employee for a thoracic MRI scan, conducted on April 6, 2000 which showed disc degeneration from T6-7 through T8-9 with small right sided broad based disc herniation at T8-9, small right posterolateral T6-7 disc herniation, and right-sided annual tearing and bulging at T7-8.  Dr. Mann diagnosed degenerative disc disease at T6-7, T7-8, and T8-9 and recommended epidural injections if the employee=s symptoms worsened.

 

In October 2000, the employee again consulted Dr. Bentz, reporting continued thoracic pain since his June 1994 injury.  Dr. Bentz referred to the employee=s Avery complicated history of work-related back injury from 6/1994@.  Dr. Bentz noted on a work status form that the employee=s continuing thoracic back pain was work-related, and he referred the employee to Dr. Mann for follow-up treatment.  In early 2001, the employee sought treatment from Dr. Mann, reporting a worsening of his thoracic pain as well as an onset of left-sided posterior pelvic pain and pain radiating into his left leg.  Dr. Mann adjusted the employee=s left SI joint in order to treat the employee=s low back pain, and instructed the employee how to perform self-adjustments to treat his symptoms.  Dr. Mann referred the employee for an MRI scan of the lumbar spine, which showed normal results.  Dr. Mann also recommended a trial of epidural steroid injections, if the employee=s mid-back pain persisted.

 

By December 2001, the employee again consulted Dr. Mann, reporting worsening pain in his thoracic area and low back.  In January, the employee underwent an epidural steroid injection in his thoracic back, which reportedly worsened his thoracic pain.  At Dr. Mann=s referral, he received physical therapy treatment from January 14, 2002, through February 8, 2002.

 

Dr. Bentz later referred the employee to Medical Advanced Pain Specialists (MAPS), where he began receiving treatment in November 2002.  The employee was treated with thoracic epidural steroid injections, thoracic medial branch blocks, left sacroiliac joint blocks, physical therapy, and medication, and continued to swim and participate in an exercise program in an attempt to treat his symptoms.  However, he continued to note ongoing pain in his mid-thoracic area as well his low back.  The employee treated at MAPS through February 23, 2004.

 

On March 6, 2003, the employee filed a claim petition for payment of medical expenses related to his low and mid-back.  The employee was evaluated by Dr. Paul Wicklund at the employer=s request in August 2004.  Dr. Wicklund diagnosed multilevel degenerative disc disease of the thoracic spine.  He concluded that by July 1994, the employee had reached maximum medical improvement from his June 1994 work injury, based on a lack of objective physical findings and no ongoing complaints of pain.  Dr. Wicklund concluded that the Afact that he complained of pain intermittently since [July 1994] does not, in any way, indicate that he had a permanent injury on June 15, 1995, but rather suggests that he had some intermittent muscle strains of the thoracic spine.@  Dr. Wicklund found that Athe findings seen on the thoracic MRI are degenerative in nature, and not work related.@

 

A hearing was held on September 8, 2004, to address the employee=s claim petition.  The parties stipulated that the employee had sustained a work-related injury to his low back and mid-back on June 15, 1994, but that the nature and extent of the injury was in dispute.  In his findings and order served and filed on November 3, 2004, the compensation judge found that the employee=s 1994 injury to his thoracic spine was permanent and was a substantial contributing factor to the development of degenerative changes in the thoracic spine, and awarded payment of medical expenses related to this condition.  In unappealed findings, the compensation judge denied the employee=s claim that he had sustained permanent injuries to his lumbar spine or his left sacroiliac joint as a result of his June 15, 1994, injury, and denied payment of medical expenses related to those conditions.  The compensation judge also denied payment for claimed chiropractic expenses.  The employer appeals from the findings that the employee=s June 15, 1994, thoracic spine injury was permanent in nature, that it substantially contributed to his development of degenerative changes in his thoracic spine, and that the employee=s medical treatment to his thoracic spine was related to his June 15, 1994, work injury.

 

STANDARD OF REVIEW

 

In reviewing cases 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.  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.^[2]  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id.^[3]  Similarly, "[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.^[4]  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."  Id.

 

 

DECISION

 

The employer argues that the compensation judge erred by finding that the employee=s 1994 injury to his thoracic spine was permanent, and was a substantial contributing factor to the development of degenerative changes in the thoracic spine, in the absence of an expert medical opinion in the record to support those findings.

 

The employee sustained an admitted mid-back injury in 1994.  He testified that he continued to experience mid-back pain over the years even though he was able to forego treatment in some years and missed little time from work as a result of his mid-back or thoracic spine condition.  The employee received periodic medical treatment between June 1994 and 2004, documented by medical records submitted into evidence.  Those medical records contain repeated references to the employee=s symptoms in his mid-back or thoracic area, since 1994.  As noted by the compensation judge, April 1999 x-rays indicated degenerative changes at multiple levels of the thoracic spine and an April 2000 MRI scan indicated degenerative changes, herniations at T8-9 and T6-7, and tearing and bulging at T7-8, causing compression or flattening of the spinal cord.

 

Under the circumstances of this case, the employee=s failure to submit a medical opinion specifically tying his current low back condition to his 1994 injury is not fatal to his claim.  The 1994 injury was admitted, and there was no evidence of any specific intervening cause or injury since that date.  As questions of medical causation fall within the province of the compensation judge, Felton v. Anton Chevrolet,^[5] a finding of causation will not ordinarily be disturbed on appeal, even in the absence of supporting expert medical opinion, when there is other reliable evidence in the record to support the compensation judge=s findings.^[6]  Although the medical records in this case may not contain an express causation opinion supportive of the employee=s claim, it is apparent that several treating doctors had accepted that the employee=s work caused the employee=s condition.  The employee=s medical records show that since 1994, the employee consistently reported similar pain and symptoms, in the same area of his thoracic spine, each time he sought medical treatment for his thoracic spine.  In addition, Dr. Bentz indicated in October 2000 that the employee=s continuing thoracic back pain was related to his June 1994 work injury.

 

The employer also argues that the compensation judge erred by rejecting the unopposed medical opinion, set forth by Dr. Wicklund, that the employee had reached maximum medical improvement from his June 1994 work injury in July 1994 and that any degenerative changes in the thoracic spine were not work-related.  Under Flansburg v. Giza,^[7] unopposed expert medical testimony cannot be disregarded; however, such testimony is not necessarily conclusive upon a trier of fact.^[8]  The compensation judge considered Dr. Wicklund=s report and opinion and found that it lacked persuasive rationale in view of the employee=s medical records and in view of the employee=s testimony of his progressively worsened symptoms.  The compensation judge concluded that Dr. Wicklund=s report lacked a discussion of the reasons or objective support for his opinion that the employee=s degenerative changes were not work-related, and found that Dr. Wicklund=s opinion, that the employee needs no further medical care, was conclusory and Anot particularly helpful in addressing the disputed [medical] expenses.@  AWhere more than one inference may reasonably be drawn from the evidence, the compensation judge's findings shall be upheld,@ Nord v. City of Cook,^[9] and we conclude that the  compensation judge did not err by choosing not to adopt Dr. Wicklund=s opinion.

 

The compensation judge also found that the employee was a credible witness and that the employee experienced intermittent pain in his mid-back from 1994 through the date of the hearing, experienced periodic flare-ups, sought treatment, but continued to work.  The assessment of a witness=s credibility is the unique function of the trier of fact,^[10] and the judge=s crediting of the employee=s testimony on this issue was reasonable.  The record as a whole reasonably supports the compensation judge=s findings on causation and his conclusion that the employee=s symptoms and need for treatment since June 1994 were attributable to degenerative changes in his thoracic spine and that the June 1994 injury was permanent and substantially contributed to the employee=s degenerative changes in his thoracic spine and his need for medical treatment.  We therefore affirm the compensation judge=s award of payment for medical expenses related to treatment of the employee=s thoracic spine.