WARREN S. ST. JOHN, Employee, v. LEFEBVRE TRANSP., and MIDWEST SAFETY GROUP, a SELF-INSURED ASS=N/ADMIN. CLAIM SERVS., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 5, 2005

 

No. WC05-133

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including the expert opinion of the employee=s treating orthopedic surgeon, supports the compensation judge=s finding that the employee=s February 27, 2002, work-related injury represented a substantial contributing cause of the employee=s right lower extremity condition and related disability.

 

Affirmed as modified.

 

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

Compensation Judge: John Ellefson

 

Attorneys: James W. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Respondent.  Amy L. Borgeson and Gregg Johnson, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellants.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The self-insured employer appeals from the compensation judge=s determination that the employee=s work injury of February 27, 2002, represents a substantial contributing cause of the employee=s current right ankle condition and from the award of permanent partial disability benefits related to the employee=s left and right lower extremities.  We affirm.

 

BACKGROUND

 

Mr. Warren S. St. John, the employee, has worked as a truck driver since  approximately 1972.  In 1990, he began working for the predecessor company to LeFebvre Transportation, Inc., the employer.  On February 27, 2002, at age 59, while driving his truck for LeFebvre in New York, the employee was involved in a serious multi-vehicle accident.  As a result of that accident, the employee fractured his left leg, incurring a bicondylar tibial plateau fracture which required hospitalization and surgical repair utilizing a fixation device.^[1]  The employer, who was self-insured for workers= compensation liability in the State of Minnesota at the time of the accident, admitted liability for the employee=s injury to his left lower extremity, and paid various workers= compensation benefits to and on behalf of the employee, including medical expenses, temporary total disability benefits through February 4, 2003, temporary partial disability benefits between February 5 and March 9, 2003, and rehabilitation assistance between July 2002 and March 2003.

 

Following his injury, the employee remained hospitalized in Buffalo, New York, for approximately ten days.  Upon his release from the hospital, the employee returned to Minnesota, and obtained follow-up medical treatment from Dr. Thomas Patnoe, an orthopedic surgeon at the Duluth Clinic.  He also underwent physical therapy, initially at home and later at a medical facility.  According to his testimony, the employee was bedridden for approximately three months, but used a wheelchair for mobility.  According to the employee=s medical records, by mid-April, 2002, the employee was allowed minimal or touch weight bearing on his left leg.  The employee also testified that by the summer of 2002, he began using a walker and then crutches for mobility, and by sometime in the fall of 2002 discontinued using crutches when he walked.^[2]  The amount of weight bearing he was allowed gradually increased, such that by August 14, 2002, he reported to Dr. Patnoe that he had he had attained full weight bearing with his left leg, and rarely used a cane, although Dr. Patnoe observed that he continued to walk with a slight limp.  Dr. Patnoe originally advised that the employee could return to work in mid-September, but later rescinded that release to work due to the employee=s continuing difficulties with walking.

 

The employee has received medical treatment for diabetes since at least 1991.  As a result of his diabetes, the employee began to develop neuropathy in his lower extremities by 1996, and later his neuropathy had progressed to the point that he had limited sensation in his feet.  Other than during his 2002 hospitalization, the employee=s diabetes has been treated with dietary monitoring and oral medication.

 

In November, the employee reported that the swelling continued in both legs, and he reported the same in late January 2003.  However, following a functional capacities evaluation and a release from Dr. Patnoe, the employee eventually was able to return  work as a truck driver for the employer on a part-time basis in February 2003, and by early March returned to work on a full-time basis.

 

After the employee returned to work, he noticed pain in his right ankle, especially when using his truck=s accelerator pedal.  On approximately April 19, 2003, while he was in Chicago to pick up a trailer for delivery back to Minnesota, the employee=s right ankle Agave out@ as he was  walking in a warehouse, causing him to fall.  He skinned his left knee and elbow, and felt pain in his right ankle, but was able to get up slowly after falling.  The employee completed his delivery trip to Minnesota.  He already had a follow-up appointment scheduled with Dr. Patnoe  for April 21, 2003; on that date, he reported to Dr. Patnoe that he noted persistent swelling in both of his legs, especially recently in his right leg, and that his ankle had given way, causing him to fall. Based on x-rays taken of the employee=s right ankle on that date, Dr. Patnoe concluded that it appeared the employee was developing a Charcot change in his right ankle.^[3]  Dr. Patnoe stated that,

 

I suspect he is developing Charcot change in the right ankle. This is related to his diabetes, but likely also aggravated by this work injury and the added demands he has placed on his right lower extremity.  I explained that he might have rapid deterioration of his ankle with this process.

 

Based on his findings, Dr. Patnoe restricted the employee from working and referred him to physical therapy for fitting of a brace and a Tubi-Grip, which is a type of support bandage for sprains or joints.  On May 19, 2003, Dr. Patnoe took additional x-rays, which showed no change from previous x-rays but which, in his opinion, confirmed the diagnosis of Charcot changes in the right ankle.  He reiterated his opinion that the right foot and ankle conditions were work-related.  The doctor fitted the employee for an ankle brace, and released him to return to work as of June 2, 2003.  The employee attempted to return to his truck driving job in June and worked for three weeks before discontinuing in late June due to an increase in pain in his right ankle.^[4]

 

On June 24, 2003, the employee was hospitalized for seven days for treatment of pain in his right ankle and a fever.  He was diagnosed as having a severe bacterial infection in his right ankle joint, identified either as septic ankle or septic arthritis.  He was again hospitalized for six days in July 2003.   Based on x-rays, Dr. Patnoe diagnosed sepsis in the right ankle and subtalar joints,^[5] with Charcot change in the right hind and mid foot, as well as a history of gout.  On July 10, 2003, Dr. Patnoe performed an irrigation debridement of the right subtalar joint with irrigation debridement of the right ankle joint.  X-rays of his right ankle taken in July, August and September 2003 showed a progressive deterioration of the ankle.  On July 22, 2003, Dr. Patnoe again advised the employee that he had the Charcot change in his right foot, particularly the subtalar joint, and that he would Aalways likely have some deformity of the foot@ and that it Amay be progressive even once his infection resolves.@

 

X-rays taken in November 2003 and February 2004 showed no dramatic progression in the deterioration of the right ankle joint.  Since 2003, the employee=s right ankle has been severely deformed, and he now utilizes a brace to walk.

 

In July 2003, the employee applied for Social Security disability income.  The Social Security Administration determined that the employee had been disabled since his injury on February 27, 2002, and awarded him benefits commencing in August 2002.

 

On January 20, 2004, the employee filed a claim petition, seeking various benefits based on his 2002 work injury.  He alleged that his right lower extremity condition and related disability was causally related to his 2002 work injury.

 

On May 7, 2004, at the request of the employer, Dr. Larry Stern, orthopedic surgeon, examined the employee.  In conjunction with that exam, Dr. Stern obtained a history from the employee and reviewed his medical records; he later reviewed the employee=s radiographic studies.  Dr. Stern confirmed the employee=s diagnoses of diabetes mellitus with diabetic peripheral neuropathy; left knee tibial plateau fracture that had been surgically repaired; a possible Charcot joint, right foot and ankle; development of septic right ankle; and marked subtalar joint destruction. In his report of May 10, 2004, Dr. Stern addressed the issue of whether there was any causal relationship between the employee=s 2002 work injury and the condition and disability that later developed in his right ankle; in his opinion, there was no causal link.   Dr. Stern concluded that the employee sustained Ano injury to his right lower extremity on February 27, 2002, nor was there a consequential injury due to an altered gait theory as set forth by Dr. Patnoe.@  He explained that the

 

etiology of a Charcot joint starts off with the peripheral neuropathy, which leads to the sensation abnormality in the foot and ankle itself.  Obviously, this was not caused by the injury of February 27, 2002, and Mr. St. John was known to have a preexisting peripheral neuropathy.

 

Dr. Stern further explained that if the employee had been developing his Charcot joint because of his altered gait due to his recovery from his left ankle and foot injury, he would have expected the employee to have complained of swelling and associated problems during his rehabilitation from that injury.  Dr. Stern concluded that it was the septic arthritis, associated with the employee=s diabetes, that resulted in the bony destruction in his right foot and ankle, and that it was not the Charcot joint nor any condition that developed as a consequence of the left foot and ankle injury.  Dr. Stern also concluded that the employee had reached maximum medical improvement with respect to his left and right lower extremities.  He concluded that the employee had no restrictions related to his left knee, but was restricted to sedentary employment due to the development of septic arthritis in his right ankle, and would be unable to return to his truck driving job.

 

On December 29, 2004, the employee=s claim petition was addressed at an evidentiary hearing at the Office of Administrative Hearings.  At the hearing, the employee claimed that as a result of the injury and condition of his left and right lower extremities, he was entitled to payment of permanent partial disability benefits and permanent total disability benefits.   The employer denied liability for the claimed benefits, contending that after March 9, 2003, when the employee returned to full-time work, his 2002 work injury no longer contributed to his disability from work nor to his need for medical treatment.

 

In his Findings and Order served and filed January 31, 2005, the compensation judge found that the employee=s work injury of February 27, 2002, represented a substantial contributing cause of the changes in the employee=s right ankle and the resulting disability related to his right ankle condition.  The compensation judge found that the employee had sustained 9% permanent partial disability of the whole body relative to his left lower extremity condition and 24% whole body impairment relative to his right lower extremity, and awarded permanent partial disability benefits based on those ratings.  In an unappealed finding, the compensation judge denied the employee=s claim for permanent total disability benefits, concluding that it was premature to make a determination regarding whether the employee was permanently and totally disabled as a result of his 2002 work injury.

 

The self-insured employer appeals from the compensation judge=s determination that there is a causal relationship between the employee=s February 27, 2002, work injury and his right ankle condition.

 

DECISION

 

On appeal, the self-insured employer argues that no causal relationship exists between the employee=s injury to his left lower extremity in 2002 and his current right ankle condition.  The employer does not dispute the level of permanent partial disability related to the employee=s left and right lower extremities.  The employer, however, disputes that any causal relationship exists between the employee=s work injury and his right ankle condition and alleges that the employee=s right ankle condition deteriorated solely as a result of the infection he developed in the spring of 2003 and not as a result of any Charcot changes in that ankle.

 

The compensation judge found that the employee=s 2002 work injury substantially contributed to the development of the Charcot condition in his ankle, and that the Charcot condition substantially contributed to the deterioration and deformity of his right ankle.  He also found that the employee=s septic infection contributed to the deformity.  In reaching his conclusions on the issue of causation, the compensation judge adopted the opinion of the employee=s treating physician, Dr. Patnoe.  In his deposition and medical reports, Dr. Patnoe addressed the issue of whether there is a causal relationship between the employee=s right ankle deformity and his 2002 work injury.  Dr. Patnoe described the development of the employee=s right ankle condition, the right ankle deterioration he experienced, and the findings on x-ray in 2003 that showed the employee was developing a Charcot joint in his right ankle.  He explained that persons with diabetes are at risk for Charcot changes, especially if more weight is borne on one leg as compared to the other.  Dr. Patnoe testified that the employee=s weight bearing on his right leg, necessitated during recovery from his left ankle injury, together with his diabetes-related neuropathy, caused Charcot changes to the right ankle.  He also testified that these Charcot changes substantially contributed to the deterioration and deformity in the employee=s right ankle.

 

The controversy on appeal, from the employer=s perspective, revolves around a dispute over the timing of the development of the Charcot joint or condition in the employee=s right ankle, and the severity of that condition in its early stages, as opposed to the immediate deterioration caused by the employee=s septic arthritis.  The employer contends that the septic infection, and not the Charcot joint, caused the deformity of the employee=s right ankle.

 

On appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, Athey 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), and 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.

 

The record here contains conflicting medical evidence concerning the issue of whether the employee=s 2002 work injury substantially contributed to the employee=s right ankle condition.  In contrast to Dr. Patnoe=s opinion, on which the compensation judge relied, Dr. Stern concluded that the employee=s 2002 work injury did not represent a substantial contributing cause of the employee=s right ankle condition, specifically concluding that the employee did not develop an injury to his right lower extremity due to his altered gait resulting from his left leg injury.  Instead, Dr. Stern concluded that the employee=s development of septic arthritis in the spring of 2003 resulted in bony destruction and chondrolysis in his right foot and ankle.  Dr. Stern concluded that even if the employee had a Charcot joint in the spring of 2003, it was a very mild one at that time, and did not manifest itself in the extensive signs of destruction and erosion typically associated with a typical Charcot joint.

 

Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld as long as the evidence of record supports the compensation judge=s findings.  See Redgate, 421 N.W.2d at 734, 40 W.C.D. at 957.  In this case, the record contains conflicting medical expert opinions as to the ultimate cause of the deterioration of the employee=s right ankle, and also concerning the role that his diabetes played in that deterioration.  The employee had a history of diabetes mellitus and related neuropathy before his work injury in 2002.  There is no dispute that the employee=s neuropathy contributed to the development of his septic arthritis.  And Dr. Patnoe concluded that the employee=s diabetic condition predisposed him to the development of a Charcot joint.  Adopting Dr. Patnoe=s opinion, the compensation judge concluded that both a work-related condition, the Charcot changes in the employee=s right ankle, and a nonwork-related condition, septic arthritis or infection, substantially contributed to the employee=s right ankle condition and deformity.

 

Injuries are compensable if the employment is a substantial contributing factor not only to the cause of the condition but also to the aggravation or acceleration of a pre-existing condition.  Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975).  In addition, an employee need not prove that his employment was the sole cause, only a substantial contributing cause of the disability for which benefits are sought.  Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989); see also Treasize v. United Hosp., 64 W.C.D. 160 (W.C.C.A. 2003), summarily aff=d (Minn. Feb. 25, 2004).  And, in view of the medical opinions offered by both parties, including those of Drs. Patnoe and Stern, it was the compensation judge=s role to choose between the conflicting medical opinions.  In this case, we conclude that the compensation judge did not clearly err in accepting Dr. Patnoe=s opinion over that of Dr. Stern.^[6]  A compensation judge has considerable discretion in choosing among conflicting expert opinions.  See Nord v. City of Cook, 360 N.W.2d 337, 342-343, 37 W.C.D. 364, 372-73 (Minn. 1985).^[7]  As outlined in his findings and memorandum, the compensation judge found Dr. Patnoe=s opinion to be more persuasive on the issue of causation.  As there is substantial evidence in the record to support the compensation judge=s conclusions, we affirm.