MICHAEL R. POWERS, Employee, v. BACHMAN=S, INC., and HORTICA INS. CO./DOUGLAS CLAIMS SERVS., Employer-Insurer/Appellants.

 

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 26, 2005

 

No. WC04-265

 

HEADNOTES

 

CAUSATION.  Where no medical opinion provided a causal relationship between the employee=s work injury and his subsequent low back condition and fractured toe, substantial evidence does not support the compensation judge=s decision.

 

Reversed.

 

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

Compensation Judge: William R. Johnson

 

Attorneys: Peter A. MacMillan, MacMillan & Wallace, Minneapolis, MN, for the Respondent.  Janet Monson and Susan M. Stepaniak, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal from the compensation judge=s decision that the employee sustained a herniated disc from his work injury of September 13, 2002, and, that as a result of his herniated disc condition, the employee fell and fractured his toe on February 7, 2003.  We reverse.

 

BACKGROUND

 

On September 13, 2002, Michael Powers, the employee, was working for Bachman=s Inc., the employer, as a delivery driver.  As he was returning to his truck after making a delivery, the employee stepped in a gopher hole, lost his balance, and fell, landing on his right hip.  The employee testified that he Ajarred@ his ankle and left knee when he fell.  The employee sought medical attention for this occurrence on September 18, 2002, when he saw Dr. Daniel Lussenhop at the Park Nicollet Airport Clinic.

 

The employee advised Dr. Lussenhop that he had strained his knee and his low back in the incident.  He complained of mild knee discomfort.  His examination was essentially normal and the employee was not restricted from any activity.  Dr. Lussenhop suggested physical therapy  but the employee indicated that he wanted to wait until he had consulted an orthopedist.  The employee continued his normal work activities for the employer.

 

The employee had an extensive medical history before this incident.  The employee sustained a work injury to his low back in June 1991, while he was working for another employer.  The employee treated at the Institute for Low Back Care with complaints of low back and left leg pain.  He was diagnosed as having a herniated disc at the L-4-5 level which compressed the L-5 nerve root on the left.  Ultimately, the employee had a laminectomy for a left-sided herniated disc at the L-4-5 level on July 29, 1991.  In follow-up care, the employee reported residual discomfort in the left side of his low back.  In August 1992, the employee reported a new onset of low back pain after bending forward.  The employee testified that he had flare ups of low back pain thereafter.

 

In September 1994, the employee sustained a low back strain after lifting on the job at Bachman=s.  He treated at the Park Nicollet Airport Clinic with physical therapy and on November 17, 1994, was released to work without restrictions.  He was seen two weeks later after noting a tearing sensation in his low back while bending over to pick up his child.

 

The employee also sustained a fractured left ankle on October 25, 2000, while at work.  He was treated by Dr. Randall Norgard and diagnosed as having a left minimally displaced distal fibula avulsion fracture.  The employee was provided with a fiberglass short leg walking cast.  He was released without restrictions on January 4, 2001.  The employee has also had extensive treatment to his right knee, although those records are not in evidence.  The employee testified at the  hearing that he has had seven or eight surgeries to the right knee, that he has had his right knee-cap removed and that he has been advised that a total knee replacement may be necessary.

 

After seeing Dr. Lussenhop on September 18, 2002, the employee next treated and saw Dr. Bryan Lynn at the Institute for Low Back and Neck Care on November 27, 2002.  His primary symptoms at that time were of low back pain and proximal posterior left thigh pain.  Dr. Lynn noted that Afor the last two or three months he has noted a gradual increase in the discomfort in his low back.@  Dr. Lynn made no mention of the September 13, 2002, incident in his records but the Patient History Intake form completed by the employee at the time of the examination refers to the pain as being due to an accident on that date.  Dr. Lynn=s assessment was A1. Status post L4-5 diskectomy and 2. mechanical low back pain.@  Dr. Lynn prescribed Celebrex and recommended physical therapy.

 

At the hearing, the employee was asked what had caused him to consult with Dr. Lynn.  His response was AThe pain was getting a lot worse, it was more frequent, less things that I did would cause it to flare up, and I just remembered back in >91 how it felt and I had a feeling something was wrong in there, big time wrong and so I figured I=d go back to the place that treated me the first time.@

 

The employee returned to Dr. Lynn on January 6, 2003, with continued complaints of severe back pain and left posterior lower extremity pain.  Dr. Lynn recommended an MRI scan which was done on January 13, 2003.  It was read as showing severe degenerative changes from T-10-11 to L5-S1 with disc bulging.  A disc protrusion at L3-4 with possible contact with the L4 nerve root and a left disc herniation at the L4-5 level with probable contact with the left L5 nerve root were also seen.  The employee had a nerve block done at the L5 level on the left.  When he returned to Dr. Lynn on March 24, 2003, he was assessed as having left lower extremity pain consistent with left L-5 radiculitis which had been temporarily improved by the nerve block.  Dr. Lynn discussed different treatment options with the employee but ultimately it was decided to leave the employee on anti-inflammatory medication.  The employee had not consulted for his low back condition from that time to the date of hearing.  The employee testified that he missed no time from work because of his low back difficulties.

 

On February 7, 2003, the employee was at home and had arisen between 6 and 6:30 a.m.  He was going down the basement stairs to get clothes when he fell and fractured his toe.  He testified, over objection, that his sciatic nerve in his left leg gave, causing him to fall.  On cross-examination, the employee stated he was wearing socks but no shoes and was going down carpeted stairs when he fell.  As the result of his fall, he fractured his great toe on the right foot.  He treated with Dr. Norgard and missed time from work and incurred medical expenses as a result of the toe fracture.

 

The employee claimed the February 7, 2003, incident to be a consequence of his September 13, 2002, injury.  The employer and insurer, while admitting an incident on September 13, 2002, took the position that the 2002 incident did not result in a reherniated disc in the employee=s low back, and in any event, that the fall in February 2003, was not the result of the September 2002 injury.  The employee filed a claim petition.

 

The employee was evaluated by Dr. Gary Wyard on behalf of the employer and insurer on August 6, 2003.  In his report of that date, Dr. Wyard concluded that the September 13, 2002, injury was, at most, a temporary aggravation of the employee=s preexisting condition and that the employee=s current low back condition was the result of his 1991 work injury.  Dr. Wyard also found no connection between the September 2002 injury and the employee=s fall and fracture in February 2003.

 

The employee=s claim petition was heard by Compensation Judge William Johnson on June 17, 2004.  In his Findings and Order served and filed on August 16, 2004, the compensation judge determined that the employee=s injury on February 7, 2003, was a consequence of his September 13, 2002, injury and awarded worker=s compensation benefits.  In his findings, the compensation stated that the employee Aapparently re-herniated a disc on September 13, 2002.@ The employer and insurer appeal.

 

DECISION

 

The employee contended at the hearing that his work injury of September 13, 2002, was the cause of his low back condition on February 7, 2003, which caused his leg to collapse, which caused him to fall down the stairs and which caused him to fracture his toe.  The compensation judge accepted this contention and awarded benefits.  For the decision to be affirmed, there must be substantial evidence that provides a causal relationship between the injury on September 13, 2002, and the employee=s low back condition on February 7, 2003.  The employer and insurer argue on appeal that no such evidence exists.  We agree.

 

Causation is a question of fact for the compensation judge to determine.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994); Hendricks v. Roof Depot, slip op. (W.C.C.A. Dec. 11, 2002).  Generally, that determination is supported by a properly founded medical opinion but it has been held that a medical opinion is not required in cases which involve Acommoner afflictions.@  Bender v. Dongo Tool Co., 509 N.W.2d 366, 367, 49 W.C.D. 511, 513 (Minn. 1993).  While a low back injury which results in a herniated disc may be one of the commoner afflictions in workers= compensation cases we find the present case to be more complicated.

 

The employee had a significant low back injury in 1991 which required a laminectomy at the L4-5 level because of the employee=s low back and left leg symptoms.  The employee had flare-ups of his low back pain from then on.  He testified at the hearing that the flare ups began to happen more frequently and that it was this problem which sent him to Dr. Lynn.  The employee=s symptoms when he saw Dr. Lynn were similar to his symptoms in 1991 and the 2003 MRI scan showed probable nerve root involvement at the same level as in 1991.  The employee missed  no time from work due to the September 2002 incident until he fractured his toe and, other than one visit to the Airport Clinic on the Monday after the incident, there was no medical treatment until November.  Given these circumstances, we conclude that a medical opinion is necessary in this case to provide a causal relationship between the work injury of September 13, 2002, and the employee=s low back condition on February 7, 2003.

 

The employee=s counsel argued at oral argument that the issue in this case is one of the employee=s credibility, that the compensation judge found the employee to credible, and that this court should defer to that finding.  In this decision, we do not question the employee=s credibility or the sincerity of his belief that his low back condition in February of 2003, was the result of his September 2002 injury.  We conclude only that the causation issue which is at the heart of the dispute requires medical expertise that the employee simply does not possess.

 

As employee=s counsel acknowledged at oral argument, there is no medical opinion which supports the employee=s contention of a causal relationship between his September 2002 work injury and his low back condition on February 7, 2003.  In the absence of such an opinion, the employee=s claim for a consequential injury must fail.  As a reviewing court, it is our obligation to affirm a compensation judge=s decision if it is supported by substantial evidence.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).  Where, as here, the necessary supporting evidence does not exist, the compensation judge=s decision must be reversed.  Westling v. Untiedt Vegetable Farm,  slip op. (W.C.C.A. April 29, 2004).