LAURA RODAS, Employee, v. BY BREAD ALONE, INC., and TRAVELERS INS. CO., Employer-Insurer/Appellants, and BY BREAD ALONE, INC., and FIREMAN=S FUND INS. CO., Employer-Insurer/Cross-Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 23, 2005

 

No. WC04-313

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including medical records, expert medical opinion, and the employee=s testimony, supported the compensation judge=s findings that the employee=s 1996 work injury was a substantial contributing cause of her left shoulder condition.

 

APPORTIONMENT - EQUITABLE.  Substantial evidence, including medical records, expert medical opinion, and the employee=s testimony, supported the compensation judge=s equitable apportionment of wage loss benefits and medical and rehabilitation expenses.  In that the case presents unusual features which could justify an equitable apportionment of permanent partial disability, that issue is remanded for reconsideration where it was not addressed in the compensation judge=s findings or memorandum.

 

APPORTIONMENT - PERMANENT PARTIAL DISABILITY.  Where medical records prior to the 1998 incident did not provide evidence sufficient to support a left shoulder disability which was ratable under the applicable disability schedules, the compensation judge did not err in denying statutory apportionment of permanent partial disability.

 

Affirmed in part and remanded in part.

 

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

Compensation Judge: William R. Johnson

 

Attorneys:  Joel C. Monke, Woodbury, MN, for the Respondent.  Gary M. Swanson, John G. Ness & Associates, St. Paul, MN, for the Appellants.  Timothy J. Manahan, Brown & Carlson, Minneapolis, MN, for the Cross-Appellants.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and its insurer, Travelers Insurance Company (Travelers), appeal from the findings that the employee=s May 29, 1996, work injury was a substantial contributing cause of her left shoulder condition and that Travelers was responsible for 75 percent of certain workers= compensation benefits.  Employer and its insurer, Fireman=s Fund (Fireman=s) cross-appeal from the denial of equitable apportionment of liability for permanent partial disability compensation against Travelers. We affirm, in part, and remand, in part, in accordance with this Opinion.

 

BACKGROUND

 

The employee, Laura Rodas, was born in 1945 in Guatemala and is 59 years old.  She speaks very little English.  She came to the United States in about 1981 with her husband and children, settling first in Los Angeles, California.  In 1996 the family moved to Minnesota and the employee began working for the employer, By Bread Alone, as a bakery production worker.  Her principal task was packing muffins and scones into boxes, but her duties also included icing scones and muffins, washing dishes, and sweeping and mopping floors.  On May 29, 1996, the employee sustained an admitted work injury when she slipped on some screws and grease while sweeping, and fell, landing first on the left arm at the elbow and the left shoulder, and coming to rest on her left side and hip.  According to her testimony, she then began to experience pain in the left shoulder and pain and swelling in the left elbow.  On the date of this injury the employer was insured for workers= compensation purposes by Travelers.

 

The employee continued to work over the next several weeks without medical care but her symptoms did not go away, and on June 10, 1996, she sought treatment at the North End Medical Center in Saint Paul for what was recorded as Apain in left wrist and back since a fall at work two weeks previously.@  An x-ray of the left wrist on that date was negative.  The employee was given a wrist brace.

 

On July 26, 1996, the employee was seen at the West Side Health Center in Saint Paul.  She reported that she fell on her left arm one month before and that it continued to be painful. She was also having pain in the left hand and fingers.  She was diagnosed with musculoskeletal wrist pain.  Her wrist was splinted and the employee was given a prescription for Naprosyn.  She was advised to restrict lifting to five pounds and return for a recheck in three weeks.  However, the employee did not return or seek further medical treatment during 1996.

 

There is some evidence in the notes of the employee=s QRC which suggests that the employee could not afford further treatment and that she was under the impression that the employer did not provide workers= compensation coverage.  She testified that her pain never left and that, although she continued to work, she tried to avoid lifting and to obtain help as necessary from other employees.

 

On February 10, 1997, because of the employee=s continuing pain, the employee=s work supervisor accompanied her to the NOW Care clinic in Saint Paul, where he acted as an interpreter.  Through her supervisor, the employee reported that she had slipped on screws at work in May 1996 and landed awkwardly on her left arm.  Her supervisor stated that, since that time, the patient had complained of left pectoral, left upper arm and left elbow pain while doing her work.  She was diagnosed with a strain to the left elbow and shoulder and was advised to restrict use of her left shoulder, elbow and hand, and to avoid lifting over five pounds or overhead reaching with the left arm.

 

The employee was also sent to Physical Therapy Orthopaedic Specialists for physical therapy.  The notes of her initial evaluation there state that she injured her left arm in May 1996 in a fall at work, that her symptoms had now become severe.  She had complaints of pain extending from the posteriorlateral aspect of neck, including the left shoulder blade and over the cap of left shoulder, onto the pectoral portion of her chest.  There was also lateral left elbow pain.

 

The employee returned to NOW Care on February 17, 1997, and again on March 7, 1997.  She reported continued left elbow and left shoulder pain as well as left hip pain, and was diagnosed with epicondylitis of the left elbow.  As of the March 7 visit, she was noted to have shown steady improvement such that she could now lift 15 pounds.  Physical therapy and restrictions were discontinued.  The employee was scheduled for a recheck appointment.

 

The employee did not, however, return for further treatment until September 15, 1998. On that date, she was seen by Dr. John De Celles at the NOW Care clinic.  She told him through an interpreter that her symptoms had never entirely improved.  Dr. De Celles wrote in his notes that the employee appeared to be a vague historian, but that this might be the result of language barriers.  He diagnosed a chronic left shoulder strain, with a partially frozen left shoulder, and mild left elbow medial epicondylitis by history.   He prescribed physical therapy, Relafen, heat and ice treatment, and rigid work restrictions.  The employee was sent to Consulting Radiologists where x-rays of her left shoulder showed some caudal angulation of the distal acromion with marginal acromiohumeral distance, suggesting a possible impingement syndrome.

 

On September 25, 1998, the employee was seen at NOW Care by Physician=s Assistant Christopher Reese for reevaluation of her left arm and shoulder.  She reported that she had not gone to physical therapy because of workers= compensation issues, and that her employer had not been following her restrictions.  Mr. Reese recorded that the employee=s condition was a work-related exacerbation of chronic pain which had itself originated in a work injury.  He released the employee to work with limitations against lifting more than 10 pounds, pushing or pulling more than 25 pounds, and overhead reaching.

 

The employee returned to NOW Care on October 1, 1998, and was seen by Dr. Rebecca Mitchell.  The employee=s husband served as translator.  The employee dated her left shoulder condition to her 1996 fall at work.  She still had not started physical therapy.  Dr. Mitchell diagnosed a probable frozen shoulder, and recommended physical therapy and an orthopedic referral.

 

The employee was seen on October 29, 1998, at Capitol Orthopedics by Dr. Paul T. Wicklund.  She reported that she had fallen at work landing on her left elbow and that she had experienced pain in the left elbow for almost two years despite various forms of treatment.  She also complained of pain in the left shoulder.  Dr. Wicklund recommended MRI scans of the employee=s left elbow and shoulder.  The scans were done in January 1999.  The scan of the left elbow was within normal limits, showing no significant elbow joint effusion or bone contusion.  The left shoulder MRI was read as showing possible incomplete tearing of the rotator cuff.

 

In November 1998 the employer prepared a First Report of Injury stating that the employee had Areaggravated the left shoulder (strain).@  The form indicates that the claim was initially submitted to Travelers Insurance Company.  On November 23. 1998,  Travelers issued a primary liability determination denying liability on the basis that the employee=s condition was the result of work activities which were subsequent to the period of its coverage.  On December 7, 1998, the employer=s current insurer, Fireman=s, also denied liability, on the basis that the employee did not associate her symptoms to any specific incident during its period of coverage, but rather to an earlier injury in 1996, before it was on the risk, from which she had never fully improved.  Fireman=s subsequently paid the employee various benefits under a temporary order pending a determination of liability.

 

On March 11, 1999, Dr. Wicklund injected the subacromial space in employee=s left shoulder and prescribed Celebrex and physical therapy.  On May 7, 1999, the employee reported that the injection had given some relief, and Dr. Wicklund reinjected the shoulder and renewed the employee=s prescription for Celebrex.  He noted that surgery might need to be considered.

 

The employee was seen for an initial physical therapy evaluation at Saunders Therapy on May 15, 1999.  Her diagnosis was of chronic left shoulder pain and impingement, medial elbow pain, and stiffness of the ulnar side of the hand.  When interviewed in Spanish she reported that all her problems had resulted from the fall at work.

 

On June 9, 1999, the employee returned to Dr. Wicklund with her QRC and a translator.  She was now having more pain that radiated down her left arm to her fourth and fifth fingers.  Dr. Wicklund recommended a cervical MRI to rule out the possibility of a disc problem.  The MRI was performed on July 12, 1999.  It showed modest disc bulging at two levels but no impingement, stenosis or cord compression.  On August 5, 1999, Dr. Wicklund recommended that the employee be evaluated by a neurologist.

 

The employee was seen at Capitol Neurology on September 7, 1999.  Nerve conduction studies of the ulnar sensory and motor nerve above the elbow were within normal limits. On September 21, 1999, Dr. Wicklund recommended further physical therapy and placed the employee on a 32 hours-per-week light duty schedule.  He injected the employee=s shoulder again on October 29, 1999, and recommended that the employee decide whether she wanted surgery.

 

On December 20, 1999, the employee underwent an anterior acromioplasty and subacromial bursectomy for an impingement syndrome of the left shoulder.  Following a period of recovery and more physical therapy, Dr. Wicklund released the employee to return to light duty work on April 3, 2000, with no work above the waist and lifting limited to two to three pounds.

 

On May 24, 2000, Dr. Wicklund rated the employee=s left shoulder condition with a three percent permanent partial disability based on her left shoulder surgery, by analogy with the rating provided under Minn. R. 5223.0450, subp. 2C.  The employer and Fireman=s paid the employee permanent partial disability compensation in accordance with Dr. Wicklund=s opinion.

 

On September 1, 2000, Dr. Wicklund opined that the employee had reached maximum medical improvement.  He noted that she could not work with her left arm above 90 degrees or lift more than 20 pounds.  She continued to have pain in the pectoralis muscles over her left chest area and under her left arm, which Dr. Wicklund considered not to be directly related to her rotator cuff problems.

 

In a letter opinion dated July 21, 2003, Dr. Wicklund stated that the employee=s medical records supported the view that her left shoulder complaints came on after her fall at work on May 29, 1996.   While her initial complaint was left elbow pain, she also had weakness in the left upper extremity, and subsequently exhibited pain on abduction of the left shoulder when examined at NOW Care.  Dr. Wicklund apportioned 75 percent of the employee=s left shoulder problems to the May 1996 work injury, and 25 percent to a work-related Gillette aggravation of the left shoulder culminating in September 1998.

 

Dr. Paul A. Cederberg saw the employee for an orthopedic examination on behalf of Travelers on July 13, 2004.  He attributed the employee=s shoulder problems entirely to pre-existing degenerative changes of the left AC joint.  Based on the medical records, he opined that the employee=s May 29, 1996, work injury temporarily aggravated her shoulder problems but resolved within four weeks, after which her shoulder problems progressed merely as a result of an aging process and not due to her ongoing work activity.  Thus he did not believe the employee had sustained a Gillette injury to her left shoulder.  He rated the employee with a three percent permanent partial disability but considered it to be unrelated to her work injury or work activities.

 

Fireman=s filed a petition for contribution on August 8, 2003, seeking equitable apportionment against Travelers, which answered on September 16, 2003, alleging that the employee=s May 29, 1996, work injury had constituted merely a temporary work injury to the left elbow.  Travelers therefore denied liability for any part of the benefits paid by Fireman=s after September 15, 1998.

 

The matter came on for hearing before Compensation Judge William R. Johnson of the Office of Administrative Hearings on October 13, 2004.  In his Findings and Order, the compensation judge accepted the apportionment opinion of Dr. Wicklund and ordered contribution by Travelers to the extent of 75 percent of wage loss, medical and vocational benefits paid by Fireman=s.  The compensation judge denied contribution with respect to permanent partial disability paid by Fireman=s.  Travelers appeals from the order for contribution and Fireman=s cross-appeals from the denial of contribution for permanent partial disability.

 

DECISION

 

1. Causation and equitable apportionment

 

The employee testified that she had swelling and pain in her left shoulder following the work injury in 1996, and that the pain had persisted since 1996.  The employee gave the same history to her physicians and consistently related the beginnings of her shoulder problems to her 1996 fall at work.  The compensation judge relied on the employee=s testimony and on the expert medical opinion of Dr. Wicklund, the employee=s treating physician, who offered the view that 75 percent of the employee=s left shoulder condition was apportionable to the 1996 work injury.  Although Dr. Cederberg offered a contrary opinion, this court must affirm a compensation judge=s choice between differing expert opinions unless the opinion relied upon was without adequate foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

In his deposition testimony, Dr. Wicklund noted that the employee=s shoulder was congenitally somewhat abnormal in that she had a AType III@ acromion, one which had a pronounced curve or tip.  He testified that this condition rendered her shoulder more susceptible to impingement, and offered an explanation as to how the employee=s 1996 fall at work might have caused her shoulder problems.  Specifically, he testified that if she landed on her elbow in such a way that the weight of her body pushed her left humerus up into her shoulder joint, forcing the left humoral head against her acromion, this could cause the onset of symptoms of pain and impingement in the area of the rotator cuff, which could continue to worsen over time through her use of the arm at work. 

 

Under the appellants= interpretation of Dr. Wicklund=s testimony, it was necessary to his opinions on causation and apportionment that the employee fell directly on her left elbow.  They argue that this is contradicted by the employee=s hearing testimony, and that Dr. Wicklund=s opinions therefore lacked adequate foundation.

 

The employee=s testimony during direct examination, through a translator, was that her left elbow and her left shoulder hit the floor first when she fell in 1996.  (T. 26).  On cross-examination, she was again asked about how she landed:

 

Q.  When you fell what I want to understand is did you fall - - when you fell did you fall on your elbow and your shoulder at the same time and then your hip and side of your body landed on top?

 

A. (Interpreter) When I fell my body fell over my arm.

 

Q.  Okay.  And what I=m getting at is when you fell you didn=t land right on your elbow, the point of your elbow though did you?

 

A. (Interpreter) No.

 

Q. So you landed on the side of your elbow?

 

A. (Interpreter) I fell laying on my arm is what I remember.

 

(T. 47-48).  The employee=s testimony does not appear to us to be clearly incompatible with Dr. Wicklund=s theory that the employee might have Afallen in such a way on her side where there is the weight of her body pushing her elbow and humerus up into her shoulder joint.@  (Exh. B. At 48).  Accordingly we cannot conclude that the compensation judge=s adoption of Dr. Wicklund=s apportionment opinion was clearly erroneous.

 

As to the employee=s testimony, the appellants argue that compensation judge should  have deemed it unreliable since no medical record mentions the employee having left shoulder complaints until  February 10, 1997.  Thus, Travelers argues, the records contradict the employee=s testimony about ongoing and persistent left shoulder symptoms since the 1996 work injury.   We note, however, that various inferences can be drawn from the absence of mention of shoulder symptoms in the earliest medical records, particularly in light of the employee=s language difficulties and the relatively limited and sporadic periods of treatment during the initial months following the injury.  The compensation judge=s reliance on the employee=s testimony was in large part a question of witness credibility, which this court will not disturb unless clearly erroneous.  See Even v Kraft, Inc, 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).  We cannot here conclude that the compensation judge=s acceptance of the employee=s testimony was clearly erroneous merely because the initial records failed to mention the shoulder complaints.

 

2. Apportionment of permanent partial disability

 

Fireman=s Fund paid the employee compensation for a three percent permanent partial disability of the whole body for the injury to the left shoulder.  The compensation judge considered the question of the apportionment of permanency under Minn.Stat. '176.101, subd. 4a, which permits apportionment to a pre‑existing disability under certain circumstances where the disability is clearly evidenced in a medical report or record made prior to the current personal injury.  The compensation judge found that the evidence did not meet the requirements for apportionment under this subdivision.

 

Cross-appellants, the employer and Fireman=s Fund, contend that compensation judge erred in failing to order statutory apportionment under subdivision 4a, because medical records before the 1998 injury contain evidence that the employee suffered a loss of use or impairment of function.  Specifically, they point out that the employee was placed on work restrictions before 1998 and had these work restrictions up to the date of the 1998 incident.

 

We disagree.  Applicability of subdivision 4a does require that the earlier injury functionally disabled the worker prior to the current personal injury,^[1] but that is not the only prerequisite.  The disability which is "clearly evidenced in a medical report or record made prior to the current personal injury" must be one that is ratable under the applicable disability schedules and case law.  See Giese v. Green Giant Co., 426 N.W.2d 879, 881, 41 W.C.D. 286, 289 (Minn. 1988).   Finding that the medical records prior to the 1998 incident did not evidence a left shoulder disability which was ratable under the applicable disability schedules, the compensation judge denied the statutory apportionment of permanent partial disability.  The cross-appellants have pointed to no evidence of a ratable disability prior to 1998 and, like the compensation judge, we see no such evidence in that time period.  We accordingly affirm the denial of statutory apportionment.

 

Citing Stone v. Lakehead Constructors^[2] as well as subsequent cases, the cross-appellants further argue that, in the absence of statutory apportionment, the compensation judge was required, as a matter of law, to equitably apportion the permanent partial disability under specific circumstances presented in this case.  We disagree.   In Stone, the Minnesota Supreme Court reinstated a compensation judge=s decision to apply equitable principles of apportionment to permanent partial disability, which this court had reversed on the basis that the enactment of subdivision 4a had rendered equitable apportionment unavailable for permanent partial disability benefits.  In subsequent cases, we have interpreted Stone as holding that a compensation judge has some discretion to utilize equitable apportionment to allocate liability for permanent partial disability in circumstances in which that approach is more appropriate.  However, nothing in Stone or in any of the subsequent cases cited by the cross-appellants, requires a compensation judge to apply equitable apportionment.

 

Nonetheless, we agree with the cross-appellants that the present case does present features in which the use of equitable apportionment might have been justifiable^[3].  As this possibility was not addressed in the compensation judge=s findings or memorandum, we remand the issue of the apportionment of permanent partial disability for reconsideration.  Nothing in this opinion should be construed as requiring that the compensation judge apply equitable principles of apportionment if, in his discretion, he finds that the facts of the case do not so warrant.