JOEL S. RABIDEAUX, Employee, v. ALLETE, INC., f/k/a MINNESOTA POWER & LIGHT CO., SELF-INSURED, Employer/Appellant, and PARK AVE. THERAPIES, INC., LAKEWALK SURGERY CTR., NORTHLAND NEUROLOGY & MYOLOGY, P.A. and ST. LUKE=S HOSP., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 31, 2006

 

No. WC06-157

 

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including the testimony of the employee and the opinion of the employee=s treating surgeon, supports the compensation judge=s determination that a fall at work on April 4, 2003, substantially and permanently aggravated the employee=s pre-existing low back condition.

 

Affirmed.

 

Determined by Johnson, C.J., Wilson, J. and Rykken, J.

Compensation Judge: Gregory A. Bonovetz

 

Attorneys: James B. Peterson, Falsani, Balmer, Peterson & Quinn, Duluth, MN, for the Respondent.  James A. Wade, Johnson, Killen & Seiler, Duluth, MN, for the Appellant.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The self-insured employer appeals from the compensation judge=s determination that a work incident on April 4, 2003, substantially and permanently aggravated the employee=s pre-existing low back condition and was a substantial contributing cause of the employee=s need for medical care and treatment to the low back.  We affirm.

 

BACKGROUND

 

Joel S. Rabideaux, the employee, began working for the self-insured employer, ALLETE, Inc., formerly known as Minnesota Power & Light Company, in October 1990.  There is no dispute the employee had a significant pre-existing low back condition dating back to the mid 1980s.  (Findings & Order, 1/7/2002.)  The employee had his first surgery to the low back in September 1998, a laminotomy and disc excision at L3-4 with foraminotomy of the left L3 nerve root.  In February 1999, the employee experienced a recurrence of low back pain with bilateral leg pain.  An MRI scan showed a recurrent disc at L3-4, a small central disc protrusion at L4-5, and facet arthrosis and lateral recess stenosis compromising the left L4 and right L5 nerve roots.  The employee underwent a second surgery, consisting of laminectomies at L3 and L4, an L3-4 discectomy, and foraminotomies of the L4 and L5 nerve roots, performed by Dr. Stefan Konasiewicz.

 

The employee returned to Dr. Konasiewicz in October 2001, reporting a return of his low back symptoms with pain radiating from the buttock to the knee on the left and some bilateral hip pain.  A repeat MRI scan revealed a recurrent herniated disc at L3-4 compressing the left L4 nerve root.  The employee did not significantly improve with conservative management and in August 2002, Dr. Konasiewicz performed a third surgery consisting of bilateral laminectomies, facetectomies and foraminotomies at L3 and L4, a left sided discectomy at L3-4, and a posterolateral bilateral fusion at L3-4 with segmental bilateral instrumentation and placement of a bone stimulator.

 

By November 2002, Dr. Konasiewicz noted the employee=s back and leg pain had resolved, stating A[h]e has improved tremendously in terms of back and leg symptoms.@  (Ex. 7, 11/18/02.)  In late December 2002, the employee reported recent upper back pain and intermittent arm and leg pain.  Dr. Konasiewicz ordered bilateral EMG/nerve conduction studies.  The January 20, 2003, lumbar study was unremarkable, showing no evidence of any recurrent radiculopathy or other focal neuropathic process.^[1]  In a follow-up visit on January 22, 2003, Dr. Konasiewicz recorded a normal examination and released the employee to return to work, without restrictions, on January 27, 2003, starting at four hours per day, progressing to full-time on February 10, 2003.

 

The employee returned to his regular work with the self-insured employer as a substation service worker.  On April 4, 2003, the employee was sent to pick up construction debris blowing around a substation.  The employee picked up a 3 feet wide by 6 foot long piece of plywood.  As he was sliding it across the tailgate into the bed of the truck, the wind caught the plywood, blowing it back over the employee=s head.  There were nails and staples in the board and, as the employee was trying to hold it away, his right leg slipped on snow covered ice and he fell, landing on his back.  The employee returned to the shop and reported the injury.  The first report of injury describes pain in the lower back, right hip, right hamstring and shoulders. The employee stated he went home, took some Lortab, and made an appointment to see Dr. Konasiewicz.

 

The employee was examined by Dr. Konasiewicz on April 16, 2003, reporting a fall at work and complaining of intermittent sharp, achy pain in the low back and legs.  The doctor diagnosed a lumbar strain, prescribed Ultracet and Flexeril, and referred the employee to Dr. Matthew Harrison, a physical medicine specialist, for assessment and treatment.  The employee testified he did not follow through because he was hoping his back would improve and he would not need additional treatment.  The employee continued to work and did not seek further care for his low back until October 7, 2003, when he was seen by his family physician, Dr. Charles Kendall.^[2]  The employee reported worsening low back and leg pain aggravated by work activities.  Dr. Kendall again referred the employee to Dr. Harrison and ordered a repeat MRI scan.

 

The October 13, 2003, lumbar spine scan showed degenerative changes from L3-4 to L5-S1, with impingement of the L3, L4 and L5 nerve roots bilaterally.  The employee was seen by Dr. Harrison on October 30, 2003, reporting a gradual progression of bilateral leg pain with numbness and tingling into both feet and a dull ache across the back.  The doctor concluded the employee=s symptoms were suggestive of a chronic lower extremity radiculopathy, and referred the employee for an EMG.  The December 1, 2003, EMG study revealed an L4 radiculopathy on the right side and a milder L3 radiculopathy on the left side.

 

The employee returned to Dr. Konasiewicz on December 10, 2003.  The employee stated he had been doing well following the third surgery until the April 2003 fall at work with increasing back and leg symptoms since then.  Conservative management failed to relieve the employee=s persistent back and bilateral leg pain, and on March 30, 2004, Dr. Konasiewicz performed a fourth surgery consisting of bilateral foraminotomies at L3 and L4 with decompression of the thecal sac and nerve roots.  The surgery was not particularly successful and, in February 2005, Dr. Konasiewicz implanted a morphine pump for treatment of chronic pain.  The employee was released to work, with restrictions, and returned to a desk job with the self-insured employer in March 2005.

 

In a letter report dated October 27, 2004, Dr. Konasiewicz opined, based on his treatment of the employee, review of the employee=s treatment records and notes, and review of the MRI and EMG studies, that the April 4, 2003, fall at work significantly aggravated the employee=s pre-existing low back condition and was a substantial cause of his need for surgery thereafter.

 

On March 11, 2005, Dr. Larry Stern examined the employee at the request of the self-insured employer.  By report dated March 14, 2005, Dr. Stern opined the employee=s low back condition was due to a combination of his pre-existing condition and a new injury sustained in April 2003, and that the April 2003 injury permanently aggravated the employee=s low back condition.  The self-insured employer provided additional medical information and work attendance records to Dr. Stern, and in a supplementary report dated May 2, 2005, Dr. Stern opined the slip and fall injury on April 4, 2003, did not result in a permanent aggravation or even a significant temporary aggravation of the employee=s pre-existing low back condition.

 

Following a hearing, a compensation judge at the Office of Administrative Hearings found the April 4, 2003, work incident substantially and permanently aggravated the employee=s low back condition and was a substantial contributing cause of the employee=s need for medical care and treatment to the low back thereafter.  The self-insured employer appeals.

 

DECISION

 

On appeal, the self-insured employer raises the same factual arguments it made before the compensation judge, asserting the judge=s decision is clearly erroneous and is not supported by substantial evidence.  The self-insured employer contends there is no evidence the employee experienced a change in symptoms following the April 2003 incident, and that the compensation judge improperly disregarded Dr. Stern=s medical opinion that the employee did not sustain a permanent or even significant temporary aggravation of his pre-existing low back condition as a result of his fall at work on April 4, 2003.  We are not persuaded.

 

AThat an employee has a long history of back trouble does not disqualify a claim if the employment aggravated, accelerated or combined with the infirmity to produce the disability for which compensation is sought.  >Whether the employment [aggravated the preexisting condition] is a question of fact, not law, and a finding of fact on this point by the [compensation judge] based on any medical testimony . . . will not be disturbed on appeal.=@  Bender v. Dongo Tool Co., 509 N.W.2d 366, 367, 49 W.C.D. 511, 513 (Minn. 1993)(citations omitted).

 

The compensation judge accepted the employee=s testimony that, although he did not seek formal medical treatment,^[3]  his back and leg pain steadily worsened following the April 2003 incident until October 2003 when he saw Dr. Kendall.  Assessment of a witness=s credibility is the unique function of the trier of fact, and as a general rule, this court must defer to the compensation judge=s determination of credibility.  Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989).

 

The compensation judge also implicitly accepted the opinion of Dr. Konasiewicz that the employee suffered a significant aggravation of his pre-existing low back condition in the April 2003 fall at work.  The self-insured employer maintains that Dr. Stern was the only medical expert with a complete record on which to base his opinion.  Dr. Konasiewicz, however, began treating the employee in 1999, performed three of the employee=s four low back surgeries, reviewed the employee=s MRI and EMG studies, and conducted multiple examinations of the employee.  There is adequate foundation for his opinion and the compensation judge did not err in relying upon it.  Where there is a conflict in the opinions of medical experts, resolution of that conflict is the function of the compensation judge and will not be reversed by this court so long as there is sufficient foundation for the expert=s opinion.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

The compensation judge addressed the arguments raised by the self-insured employer on appeal in his findings and memorandum.  The judge acknowledged the fact of the employee not missing time from work and not seeking medical care after April 16, 2003, until October 2003, could Abe seen to establish that nothing of major import had occurred on April 4, 2003.@  The compensation judge concluded, however, to the contrary, that Asomething rather definitive occurred,@ pointing in particular to the fact that the employee was doing well in the months immediately prior to April 4, 2003, and the significant difference between the January 2003 EMG which showed no evidence of radiculopathy or other focal neuropathic process, and the December 1, 2003, EMG which revealed radiculopathy at L4 on the right and at L3 on the left.  (Mem. at 6.)

 

Which factors are significant in a particular case and the weight to be given to any factor are matters to be resolved by the compensation judge.  See Bergin v. Cass Lake-Bena Sch. Dist. No. 115, No. WC05-265 (W.C.C.A. Mar. 28, 2006).  It is not the role of this court to reevaluate the evidence or substitute our judgment for that of the compensation judge.  Rather, where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge must be upheld.  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  On the record here, it appears to us there is sufficient evidence from which the compensation judge could reasonably conclude that the work-related fall on April 4, 2003, significantly and permanently aggravated or accelerated the employee=s pre-existing low back condition.  As there is substantial evidence to support the compensation judge=s determination, we must affirm.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).