THOMAS W. SCHOLER, Employee, v. SHERER BROS. LUMBER CO. and LUMBER INS. COS., Employer-Insurer, and SHERER BROS. LUMBER CO., SELF-INSURED, adm=d by BERKLEY RISK ADM=RS. CO., Employer/Appellant.

 

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 3, 2005

 

No. WC04-242

 

HEADNOTES

 

CAUSATION - TEMPORARY AGGRAVATION.  Substantial evidence, including the well-founded medical opinion of Dr. Boxall, supports the compensation judge=s determination that the employee=s August 25, 1999, injury was temporary and had resolved.

 

PRACTICE & PROCEDURE - ADEQUACY OF FINDINGS.  Although the compensation judge=s one-paragraph memorandum adds nothing by way of explanation to the decision, the judge=s findings are sufficiently specific and detailed to allow review of the decision by this court.

 

Affirmed in part and reversed in part.

 

Determined by: Johnson, C.J., Wilson, J., and Pederson, J.

Compensation Judge: Danny P. Kelly

 

Attorneys: Harold H. Riehm, Ayers & Riehm, Mendota Heights, MN, for the Respondent Employee.  Timothy M. O=Keefe, Erstad & Riemer, Minneapolis, MN, for the Respondent Employer-Insurer.  Mark A. Kleinschmidt and Angela B. Poth, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Appellant.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The self-insured employer appeals the compensation judge=s finding that the employee=s personal injury on August 25, 1999, was temporary and resolved no later than January 25, 2000, the compensation judge=s finding that the employee sustained a Gillette^[1] personal injury on November 11, 2002, and the compensation judge=s award of expenses for medical treatment in the year 2000.  We affirm in part and reverse in part.

 

BACKGROUND

 

On August 25, 1999, Thomas W. Scholer, the employee, sustained a personal injury arising out of and in the course of his employment for Scherer Brothers Lumber Company, the employer, then insured by Lumber Insurance Companies.  The employer and its insurer admitted liability for the employee=s personal injury.

 

On August 25, 1999, the employee was working on the top of a lumber truck.  As he turned to get off the truck, he struck the inside part of his left knee cap on a piece of lumber.  The employee testified his knee cap popped out of its socket about two inches to the outside of his knee and he had to hit his knee cap with his hand to get it back into place.  The next day, the employee saw April Tilton, a Physician=s Assistant at Multicare Associates, complaining of pain and swelling in the left knee.  The employee gave a history of prior knee dislocations as a result of soccer injuries.^[2]  An x-ray of the left knee showed the kneecap was intact.  On examination, the employee demonstrated full range of motion with tenderness to palpation around the lateral aspect of the knee.  Ms. Tilton diagnosed a left knee contusion and strain, but felt the knee cap was intact.  She placed the employee in a patella knee splint, prescribed anti-inflammatory medication and placed restrictions on the employee=s work activities.

 

On September 1, 1999, the employee saw Dr. Orrin Mann at Multicare Associates.  The employee told the doctor he struck his medial left knee and clarified that his prior injuries were while playing hockey, not soccer.  The employee complained of significant knee pain and episodes of buckling and locking of his left knee.  The doctor examined the employee and found full range of motion of the knee without significant tenderness.  Dr. Mann noted the employee initially walked with some pain behavior and antalgia, but with encouragement, the employee was able to walk without a limp.  The doctor reviewed the August 26 x-ray and concluded it was normal.  Dr. Mann diagnosed left knee pain with a benign exam and concluded the employee sustained a soft tissue contusion and joint capsule contusion.  The doctor released the employee to work subject to restrictions.  On September 9, 1999, the employee reported his knee was improving with only a little bit of buckling and one episode of locking.  Dr. Mann was not convinced the employee was describing true buckling or locking.  His diagnosis was left knee contusion with evidence of patellar tendinitis.  On September 15, 1999, the employee denied any buckling or locking and Dr. Mann noted no instability of the left knee.  The doctor reduced the employee=s restrictions.  In October 1999, Dr. Mann diagnosed resolving left patellar tendinitis and continued the employee=s restrictions for two more weeks.  On November 3, 1999, the employee reported to Dr. Mann that his knee still buckled on occasion but stated he was basically doing unrestricted duty at work.  An MRI scan of the left knee showed no evidence of joint effusion or soft tissue edema, but showed some slight irregularity of the cartilage along the patella which was felt to relate in some way to the personal injury or an early chondromalacia change.  The MRI scan was otherwise normal with no abnormalities seen to explain the employee=s symptoms.

 

The employee returned to see Dr. Mann on November 19, 1999, and reported he still had tenderness but had experienced no buckling or locking of his knee.  The doctor reviewed the MRI scan and stated it showed a little bit of chondromalacia on the medial surface of the patella but stated the patellar tendon looked normal with no other abnormalities.  On examination, Dr. Mann found no ligamentous instability but a patellofemoral grind test reproduced the employee=s symptoms.  The diagnosis was patellar tendinitis and patellofemoral syndrome.  The doctor prescribed Ibuprofen and work restrictions.  On December 16, 1999, Dr. Mann noted the employee=s knee was unchanged and recommended the employee see Dr. Philip Haley.

 

The employee was examined by Dr. Haley on December 28, 1999.  The employee gave a history of his injury and described his kneecap being pushed out of place laterally and  popping back in place on its own.  The employee complained of pain along the anterior part of the knee aggravated by activities such as stair climbing, bending and kneeling.  On examination, Dr. Haley found no effusion, ecchymosis or deformity and range of the motion of the knee was intact with some vague tenderness.  The doctor diagnosed traumatic chondromalacia secondary to a patellar subluxation and prescribed Vioxx and physical therapy.  The employee commenced physical therapy on December 29, 1999.  The employee returned to see Dr. Haley on January 25, 2000, and reported the Vioxx was helpful, as was taping his knee, a technique he learned in physical therapy.  On examination, the doctor noted some persistent retropatellar tenderness without patellofemoral crepitus.  The doctor stated the employee=s patella tracked appropriately and was not hypermobile.  Dr. Haley stated he thought Aat this point we need to give this time, nature and protected activity in addition to the Vioxx, taping and exercises.  I would like to see him in follow up in about three weeks time to assess progress.@  (Joint Ex. K.)  The employee did not appear for his February 18, 2000 appointment.  Other than physical therapy, the employee had no treatment for his left knee from January 25, 2000, until September 20, 2000.

 

The employee was off work for approximately three weeks following the August 25, 1999, personal injury and then returned to work on a light duty basis.  At some point in 1999, the employee returned to his normal job for the employer.  The employee testified, however, that after a heavy day or week at work, his knee would be stiff and sore with increased pain.  He testified that his left knee never returned to the way it was before this injury.

 

On September 19, 2000, the employee sustained a second left knee injury while working for the employer.  The employee saw Dr. John Marshall at Multicare Associates on September 20 and gave a history of tripping over a piece of steel in the back of his truck.  On examination, the doctor noted tenderness, swelling and crepitus in the knee.  Dr. Marshall diagnosed  patellofemoral syndrome, instructed the employee to wear his knee brace, placed limitations on the employee=s work activities and prescribed physical therapy.  Dr. Mann saw the employee on October 11, 2000, on referral from Dr. Marshall.  The doctor diagnosed a new patellar tendon contusion and preexisting patellofemoral syndrome, not substantially worsened by the new injury.  The doctor allowed the employee to continue working with restrictions.  On October 26, 2000, the employee saw Dr. Bertie complaining of continued left knee pain and stated his knee felt like it wanted to Agive out.@  The doctor ordered an MRI scan which on October 31, 2000, showed a possible partial tear of the anterior cruciate ligament noted to be similar to the November 11, 1999, scan and probably  not related to the recent injury.  On November 8, 2000, Dr. Mann noted some minor tenderness to palpation along the left patellar tendon but the employee described no pain with kneeling, crawling or squatting.  The doctor concluded the employee had reach maximum medical improvement and sustained no permanent partial disability.  Dr. Mann stated he saw no compelling medical evidence to continue with any formal restrictions but showed the employee how to modify his kneeling to protect his left knee and advised the employee to get a knee pad.

 

In November 2000, the employee returned to his regular job duties driving a boom truck for the employer.  In approximately September 2002, the employee switched to driving a flatbed truck.  At that time, the employee testified he rarely had any knee problems.  After switching to the flatbed truck, the employee testified his knee problems returned and stated that by November 2002, they were constant.  On November 21, 2002, the employee returned to see Dr. Bertie complaining of an onset of left knee problems over the last few months.  The employee was referred to Dr. James Green who diagnosed anterior knee pain syndrome, ordered a patellar stabilizer brace and prescribed physical therapy.  On December 2, 2002, Dr. Philip Hoversten diagnosed a left knee injury and stated Ait does appear that he [the employee] has had the patellar dislocations, he has had ongoing anterior knee pain.@  (Joint Ex. I.)  The doctor released the employee to work with restrictions.

 

The employee saw Dr. Paul Diekmann at Orthopedic Partners, P.A., on December 10, 2002.  The employee gave a history of increased knee pain and swelling over the past couple months causing him to limp and stated that his knee gave out on him frequently.  The employee told the doctor he had discussed the possibility of surgery with another doctor two years earlier but decided not to proceed.  The doctor diagnosed chronic left knee pain status post patellar dislocation, lateral patellar compression syndrome and a possible ligament tear.  Dr. Diekmann recommended an arthroscopic lateral retinacular release which he performed on February 4, 2003.  The post operative diagnosis was left knee patellofemoral instability and left patellar chondromalacia.  In May 2003, Dr. Diekmann released the employee to return to work without restrictions.  The doctor opined  the employee=s need for left knee surgery was a direct result of his 1999 work injury.

 

Dr. Paul Wicklund examined the employee on June 17, 2003, at the request of the self-insured employer.  The doctor diagnosed a left lateral patellar tilt, treated surgically with a good result and mild chondromalacia of the left patella.  The doctor opined the employee=s only significant injury to his left knee occurred on August 25, 1999, when he dislocated his patella.  Dr. Wicklund stated the September 19, 2000, incident did not change the condition of the employee=s left knee, and  opined the August 1999 injury was a substantial cause of the employee=s need for medical care and treatment after November 2002.  Dr. Wicklund further concluded the employee did not sustain a Gillette injury in November 2002 while working for the employer.

 

Dr. David Boxall examined the employee on July 8, 2003, at the request of Lumber Insurance Companies.  Dr. Boxall=s diagnosis was status post lateral release and shaving of chondromalacia of the patella with a good result and a history of subluxation versus dislocation of the left patella.  The doctor stated the August 1999 injury was a contusion to the left knee, and concluded the employee did not sustain an instability event of dislocation or subluxation of the patella at that time.  The September 2000 incident was, the doctor stated, a contusion to the left patella and patellar tendon.  Dr. Boxall opined the August 1999 and September 2000 injuries were not significant or permanent.  Rather, the doctor concluded the employee sustained a Gillette-type injury culminating in November 2002.  Dr. Boxall rated a one percent whole body disability for the surgical procedure, stated the employee had reached maximum medical improvement and placed no restrictions on his work activities.

 

The employee filed a claim petition seeking benefits resulting from his August 25,  1999, personal injury and a claimed Gillette injury culminating on November 11, 2002.  In a Findings and Order filed July 20, 2004, the compensation judge found the employee sustained a Gillette injury on November 11, 2002, which was the sole contributing factor to the employee=s disability and need for medical care after November 2002.  The self-insured employer appeals.

 

DECISION

 

1.  Causation - temporary injury

 

The appellant contends the compensation judge=s finding that the August 25, 1999, injury was temporary and resolved by January 25, 2000, is not supported by substantial evidence.  Rather, the appellant asserts the evidence is overwhelming that the 1999 injury was the substantial cause of the employee=s need for surgery in 2002.

 

The appellant asserts the employee=s testimony that in August 1999 his kneecap popped about two inches to the outside and he manually pushed his kneecap back into place, is uncontroverted, and supports Dr. Wicklund=s opinion that the employee dislocated his patella on August 25, 1999.   The self-insured employer also points out the November 1999 MRI scan showed irregularity along the medial aspect of the articular cartilage of the patella.  The employee testified in 1999 he discussed with Dr. Diekmann the possibility of surgery but the doctor concluded the employee was too young to consider surgery at that time.  The employee testified to continued knee pain and problems following the 1999 injury, and stated his left knee was never 100 percent again.  In November 2002, the employee testified his knee symptoms were in the same location and identical to what they were in 1999.  Finally, Dr. Diekmann and Dr. Wicklund both opined the August 1999 injury was the sole cause of the employee=s disability and need for medical care in November 2002.  Based upon this evidence, the appellant contends the compensation judge=s decision that the 1999 injury was temporary is clearly erroneous and must be reversed.  We disagree.

 

Certainly, there is evidence of record which, if accepted by the compensation judge, would support a different outcome in this case.  It is not, however, this court=s function to substitute its judgement for that of the compensation judge.  Rather, the Workers= Compensation Court of Appeals must determine whether the findings of fact of the compensation judge are clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted. Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the compensation judge=s findings if, in the context of the entire record, the findings are supported by evidence that a reasonable mind might accept as adequate. Hengemuhle v. Long Prairie Jaycees, 358 N.W. 2d 54, 37 W.C.D. 235 (Minn. 1984).

 

Although the employee testified he dislocated his kneecap on August 25, 1999, the August 26 medical record of P.A. Tilton does not reflect this description of the injury.  On examination, Ms. Tilton found some bruising and tenderness around the kneecap but range of motion was full and the knee joint appeared to be stable.  An x-ray showed the kneecap to be intact.  The employee saw Dr. Mann on numerous occasions from September 1 through December 16, 1999.  On none of these visits, did Dr. Mann record a history of the employee dislocating his kneecap on August 25, 1999.  The first mention of a dislocated kneecap in the medical records was on December 28, 1999, when the employee saw Dr. Haley.  Based on the records of P.A. Tilton and Dr. Mann, the compensation judge could reasonably conclude the employee did not dislocate his knee cap on August 25, 1999, but rather suffered a contusion of the knee.  The employee stopped treating for his left knee condition on January 25, 2000, and did not seek medical care again until after the September 19, 2000 injury.  By November 2000, the employee was released to return to work with no restrictions and received no medical care for his left knee for approximately two years thereafter.  During this time he continued to work at his regular job, without restrictions.  These facts also support the compensation judge=s decision.

 

In reaching his conclusion, the compensation judge relied, in part, on the opinion of Dr. David Boxall who opined the employee did not sustain a dislocation or a subluxation of the left knee on August 25, 1999, but, rather, sustained a contusion of the left knee. The appellant contends Dr. Boxall had inadequate foundation to render this opinion.

 

The underlying facts assumed by a medical expert in support of the expert opinion must be supported by the evidence.  Absent such a factual basis, the expert=s testimony lacks foundation.  Klapperich v. Agape Halfway House, Inc., 281 N.W.2d 675, 31 W.C.D. 641 (Minn. 1979).  The appellant contends Dr. Boxall=s opinions are based on a false factual assumption that the employee did not sustain an instability event of dislocation or subluxation of the kneecap on August 25, 1999.  Dr. Boxall, the appellant contends, based this opinion on medical records shortly after the injury which, the compensation judge found, Arevealed no swelling and full range of motion, which are inconsistent with an acute subluxation or dislocation event.@  (Finding 10.)  The appellant argues that had the compensation judge carefully examined the medical records, he would have seen the employee filled out an injury questionnaire on August 26, 1999, in which he stated he had pain and swelling in his left knee following the injury.  Ms. Tilton and Dr. Mann both prescribed anti-inflammatory medication which, the self-insured employer argues, would not have been prescribed had the employee not had swelling in his knee.  Further, the employer asserts, Dr. Boxall made his diagnosis without examining the employee=s x-rays and the MRI scan. Accordingly, the appellant argues, Dr. Boxall=s underlying assumption that the employee did not dislocate his knee in August 1999 was incorrect and, accordingly, the doctor=s opinions lack adequate foundation and could not be relied upon by the compensation judge.  We are not persuaded.

 

As previously noted, the medical records of P.A. Tilton and Dr. Mann do not reflect the dislocation incident later testified to by the employee.  On examination, Ms. Tilton did not document any swelling of the knee and noted the employee demonstrated a full range of motion. Nor did Dr. Mann document any swelling of the knee and, on examination, also found a full range of motion.  Dr. Mann agreed the August 26, 1999, x-ray was normal and diagnosed a contusion of the left knee.  Thus, the medical records are consistent with Dr. Boxall=s opinion that the employee sustained a contusion of the left knee on August 25, 1999, rather than a dislocation or subluxation.  We cannot, therefore, conclude Dr. Boxall=s opinions lacked foundation.  Although there is medical evidence to the contrary, the compensation judge=s choice between medical experts must be upheld so long as the expert relied upon had adequate foundation for the expert=s opinion.  See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).

 

The evidence in the case, together with the expert opinions of Dr. Boxall, provide substantial evidentiary support for the compensation judge=s decision.  Accordingly, this court must affirm the decision of the compensation judge.

 

2.  Memorandum

 

The appellant contends the compensation judge=s memorandum fails to provide sufficient information for adequate review of the decision. Citing Mendez-Merino v. Farmstead Foods, slip op. at 8 n.7 (W.C.C.A. Aug. 7, 2001),^[3]  the appellant seeks a remand to the compensation judge to provide an explanation and rationale for his decision.  We are not persuaded.

 

In the Findings and Order, the compensation judge included a memorandum which states, in its entirety:

 

This Compensation Judge has carefully considered the entire record in this matter, documentary evidence submitted and also the argument  ably presented by counsel for each of the parties. He has concluded that the evidence supports his findings as to the issues before him in the present proceeding; no further comment or explanation is necessary.

 

The appellant asserts the compensation judge=s memorandum provides no information about disputed facts or any discussion about which facts the judge accepted or why the judge accepted certain facts and opinions over contrary facts and opinions. The appellant argues the compensation judge=s memorandum fails to comment on whether the judge accepted the employee=s testimony that he dislocated his knee on August 25, 1999, fails to explain why the judge rejected the opinions of Dr. Wicklund and Dr. Diekmann, and, ultimately, fails to provide sufficient information to allow this court to adequately review the compensation judge=s decision.

 

Minn. Stat. ' 176.371 specifically addresses memoranda in the context of a  compensation judge=s decision,  stating:

 

A compensation judge=s decision shall include a memorandum only if necessary to delineate the reasons for the decision or to discuss the credibility of witnesses. A memorandum shall not contain a recitation of the evidence presented at the hearing but shall be limited to the compensation judge=s basis for the decision.

 

We acknowledge the compensation judge=s memorandum does nothing to illuminate the basis for the judge=s decision nor does it address the credibility of the witnesses.  The compensation judge=s memorandum essentially adds nothing to the compensation judge=s decision.  We disagree, however, with the appellant=s assertion that the judge=s memorandum is an attempt to isolate the findings from adequate review on appeal.  Whether the compensation judge=s findings are adequately supported by the evidence is a question for this court, the compensation judge=s memorandum notwithstanding.  We conclude the compensation judge=s factual findings are sufficiently specific and detailed to allow this court to determine the basis and facts upon which the decision was based, and we affirm.

 

3.  MRI scan

 

Finally, the self-insured employer appeals the compensation judge=s order that it pay to Suburban Imaging a $1,133.00 charge for an MRI scan on October 31, 2000.  The employer was self-insured on November 11, 2002, the date of the Gillette injury and is liable for benefits caused by that injury.  Clearly, however, the self-insured employer cannot be liable for  medical expenses incurred prior to the date of the personal injury.  The order that the self-insured employer pay the cost of the October 2000 MRI scan is reversed.