JESSE L. SMITH, Employee/Appellant, v. TIMBERLAND LUMBER CO., INC., and LUMBER INS. CO., Employer-Insurer, and CENTER FOR DIAGNOSTIC IMAGING, ABBOTT NORTHWESTERN HOSP., CONSULTING RADIOLOGISTS, MILLE LACS HEALTH SYS., and MN DEP=T OF HUMAN SERVS., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 23, 2006

 

No. WC06-106

 

HEADNOTES

 

CAUSATION - INTERVENING CAUSE.  Where the employee was involved a motor vehicle accident as a passenger which resulted in the need for additional surgery on the site of his earlier work-related fusion surgery, substantial evidence supports the compensation judge=s finding that the accident was not a superseding, intervening cause that resulted from conduct by the employee which was unreasonable, negligent, dangerous or abnormal.  That finding, however, did not compel a finding that the employee=s work injury remained a substantial contributing cause of the employee=s need for surgery in 2005, unless the medical evidence indicated that a causal relationship existed.

 

CAUSATION - MEDICAL TREATMENT; CAUSATION - SUBSTANTIAL EVIDENCE.  The issue in intervening cause cases is not merely whether the intervening injury or condition is itself a substantial contributing cause of the employee=s subsequent disability but whether that intervening injury or condition has broken the causal connection between the employee=s work injury and that disability.  In this case, substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee=s work injury was not a substantial contributing cause of the employee=s need for additional surgery after the motor vehicle accident.

 

Affirmed.

 

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

Compensation Judge: Rolf G. Hagen

 

Attorneys: Benjamin A. Lavoie, Lindell & Lavoie, Minneapolis, MN, for the Appellant.  Jeffrey B. Nelson, Erstad & Riemer, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s finding that his surgery in 2005 was not causally related to his 2000 work injury, and from the corresponding denial of his claim for payment of medical expenses related to that surgery.  We affirm.

 

BACKGROUND

 

Mr. Jesse L. Smith, the employee, sustained an admitted injury to his low back on February 14, 2000, and has undergone two surgeries to his low back since then, in 2001 and 2005.  The issue on appeal is whether the employee=s expenses related to a revision fusion surgery on May 24, 2005, are compensable.  The compensation judge denied that this surgery was causally related to the employee=s work-related injury; the employee appeals from that determination.

 

The employee injured his low back on February 14, 2000, as a result of falling from the roof of a building while removing snow.  At that time he was 26 years old and was employed as an apprentice for Timberland Lumber Company, then insured by Lumber Insurance Company.  As a result of his injury, he treated with Dr. Timothy Garvey, and eventually underwent surgery to his low back on June 13, 2001, in the nature of an anterior/posterior fusion from the L4 level to the sacrum.

 

According to the employee=s medical records, he had a good result from that surgery.  On July 23, 2001, at his first post-operative exam, the employee reported to Dr. Garvey that he still noted some aching although he was not taking routine medication.  Following his examination of the employee and X-rays, Dr. Garvey concluded that there was good alignment of the employee=s spine.  He outlined restrictions on the employee=s activities and recommended walking for exercise.  Dr. Garvey recommended to the employee and his qualified rehabilitation consultant that the employee receive vocational retraining, because the doctor was concerned, given the employee=s young age, that he might develop adjacent segment degeneration.

 

On September 10, 2001, the employee reported to Dr. Garvey that he felt Aabout 80 to 90% better.@  X-rays showed that the employee was developing a solid arthrodesis.  Dr. Garvey assigned restrictions, recommended increased exercises and advised the employee that he should limit his work to a light duty capacity on a long-term basis.

 

At an examination on December 17, 2001, Dr. Garvey concluded that the fusion appeared to be solid, that the employee=s low back was in good alignment, and that the employee could work on a light-duty basis within certain restrictions.  In response to an inquiry from the employee, Dr. Garvey also advised that, based upon his findings on examination and that the employee was not complaining of symptoms, he thought it would be unlikely that he would need to perform a second surgery to remove the instrumentation inserted at the time of the initial surgery.  Dr. Garvey endorsed vocational retraining for the employee so that he could work on a light-duty basis in the future.  Dr. Garvey suggested that the employee return for a follow-up examination within approximately six months, and anticipated that by that point the employee would be at maximum medical improvement.

 

The employee testified that his back pain was relieved, for the most part, after his initial surgery, but that he continued to notice pressure or a cold sensation in the area of his surgery.  He testified that his pain and symptoms were very limited during the year following his December 2001 exam with Dr. Garvey; he did not receive any other medical care or treatment for his low back during that year-long period, although he followed through with Dr. Garvey=s recommendation for continued exercises and strength training during that period of time.

 

In June 2002, the parties entered into a settlement whereby the employee=s claims, with the exception of future medical expenses, were closed out on a full, final and complete basis.

According to the employee=s testimony, he did not follow through with Dr. Garvey=s suggestion that he return for an appointment in mid-2002, since it was at about that same time that he and the employer and insurer settled his workers= compensation claim.

 

It also was in approximately mid-2002 that the employee returned to work on a light-duty basis, working in a building maintenance position until that employer went out of business.  In approximately August 2002, the employee obtained employment with Isle Harbor Construction, working at what was considered a full-time position for the season, which was an average of 24 to 36 hours per week.  He described his work as being light-duty and Apre-construction,@ which included measuring and cutting wood to specifications using miter saws, hand saws, and other equipment.  Due to his lifting restrictions, co-workers lifted boards to assist the employee.  He worked at this job for three to four months until work was no longer available.  During this period of time, he sustained no wage loss and had no complaints of pain, nor did he undergo any medical treatment.

 

On December 15, 2002, the employee was involved in an automobile accident.  He was a passenger in the rear right seat of a friend=s automobile, a Dodge Neon, that was stopped in a traffic lane while the driver waited to make a left hand turn.  The friend=s automobile was rear-ended by a Chevrolet S10 pickup truck that was traveling at an estimated speed of 70 miles per hour.  The impact spun the automobile into the path of oncoming traffic where it was hit a second time by another vehicle.  Following the accident, the employee was transported to Kanabec Hospital where he received emergency medical treatment.  He complained of low back pain and bilateral leg radiculopathy, including leg numbness and tingling.  The employee underwent a CT scan which was interpreted to show the prior fusion surgery but showed no evidence of further damage.

 

The employee returned to Dr. Garvey within a week, reporting continuing pain.  The employee advised Dr. Garvey that before the automobile accident he Awas doing quite well@ and had been working on a full-time basis performing restricted-duty construction work.  The employee advised Dr. Garvey that his legs had gone numb after his automobile accident, but that the numbness had settled down.  He still noticed an increased tingling sensation into his legs whenever he sat, however.  Dr. Garvey concluded that, based upon CT scan results, there appeared to be a solid posterior fusion, but that Aanteriorly it is hard to know if he is completely solid or if there is fracturing at the graph host interface.@  Dr. Garvey diagnosed an acute onset of a lumbar sprain/strain, recommended that the employee remain off work, and that he wear his back brace for the next three months.  He also recommended further radiographic studies if the employee=s symptoms did not improve.

 

On March 24, 2003, the employee reported again to Dr. Garvey, advising that he still noted persistent and increasing symptoms after his automobile accident, including mid-back pain and weakness in his legs.  Dr. Garvey recommended an MRI of the thoracic and lumbar spines, to assess potential neurologic compressive pathology causing his leg weakness.  The employee underwent these MRI scans on July 11, 2003;  Dr. Garvey concluded that the scans showed degenerative disc changes at the thoracic spine, as well as small central disc protrusions, along with evidence of the lumbar spine fusion surgery.

 

Also on July 11, 2003, Dr. Peter Strand examined the employee at the request of Auto Owners Insurance Company, in conjunction with that insurer=s investigation of the employee=s automobile accident.  In a report dated July 11, 2003, Dr. Strand outlined his objective findings of significant muscle spasm in the paravertebral muscles even while standing at rest, and concluded that the employee may have sustained a crack or fracture of his fusion but that he could not make a definitive diagnosis without the benefit of additional testing.  His working diagnosis at that point was a possible fracture of the lumbral-sacral fusion with superimposed musculoligamentous strain.  Dr. Strand concluded that the employee needed further medical treatment as a result of the automobile accident, and concluded that the employee was not capable of any work activities at that point.

 

Dr. Garvey recommended an additional MRI of the lumbar spine, which was taken on August 4, 2003.  Dr. Garvey reviewed that MRI and advised that he could not determine from the MRI whether the employee=s back fusion was solid.  In his chart note of September 15, 2003, Dr. Garvey stated that if diagnostic testing showed pseudoarthrosis, then he anticipated Athat the accident either aggravated or caused fracturing of his healing which has then not responded.@  The employee underwent a CT scan of his lumbar spine on September 18, 2003, which showed frank pseudoarthrosis and loose transfacet screws at the L4-5 and L5-S1 levels, but no apparent stenosis at those levels.  Based on those findings, Dr. Garvey concluded that the fusions either had not healed solidly or had broken down, and recommended that the employee undergo revision surgery, in the form of a posterior spinal fusion from the L4-S1 levels, with pedicle screw fixation.  Dr. Garvey commented that although he was not able to guarantee resolution of symptoms, he believed there was Aa good chance that we could return [the employee] to his pre-December, 2002, status.@  Dr. Garvey commented that the employee would still need to restrict his bending, twisting, and lifting activities on a long-term basis.  He also commented that the goal of the surgery would be to place the employee back into a light-duty activity mode, since he was not yet capable of gainful employment.

 

In his chart note of January 27, 2004, Dr. Garvey outlined his opinion that the employee=s 2001 work injury was causally related to the employee=s worsened condition.  He stated that

 

The [automobile] accident either aggravated a stable fibro pseudoarthrosis or caused fracturing and breakdown of the healing process.  As such, the L4 to the sacrum fusion, that is the work-related injury, is a significant factor of why the patient would need revision surgery at those same levels.  The accident did precipitate things but had [the employee] not had the previous L4 to the sacrum fusion, he would not need a repair of pseudoarthrosis.^[1]

 

The employee=s low back pain persisted.  By August 2004, Dr. Garvey reiterated his recommendation for a revision surgery.  He also advised that the employee would be limited to light-duty activity, whether or not he underwent surgery.  Dr. Garvey performed surgery on May 24, 2005, which included a revision fusion at two levels, a posterior decompression and fusion with complete laminectomy at the L-5 level, a bilateral medial facetectomy at two levels, and segmented fixation with pedicle screws and hooks.

 

The employee filed a medical request, seeking payment for medical expenses related to his 2005 surgery and alleging that his February 14, 2000, work injury was a substantial contributing factor to his need for the revision surgery.  The employer and insurer responded by denying the request for treatment, contending that the employee=s automobile accident in December 2002 represented a superseding, intervening event or an independent cause of the employee=s need for a revision surgery.

 

On August 9, 2005, Dr. Wicklund examined the employee at the request of the employer and insurer.  Dr. Wicklund concluded that the revision fusion surgery in 2005 was reasonable and necessary, and also stated that the automobile accident in December 2002 was not only a substantial contributing cause to the breakdown of the employee=s original fusion surgery but was a superseding intervening cause of the employee=s current low back condition.

 

In a letter dated August 23, 2005, Dr. Garvey outlined his diagnosis of the employee=s condition and his opinion that the employee=s current condition was causally related to his work injury.  He stated that the employee was in an early convalescent stage following surgery, and that Dr. Garvey hoped that the employee would eventually be able to return to light duty employment.  He stated that,

 

His medical records are consistent in that he had increasing symptoms after his motor vehicle accident.  In that his symptoms are directly related to the pseudoarthrosis at L4-5 and L5-S1, which are the two disc spaces that were operated on for his work related activity, this is continuation of treatment for his work related activity.  Clearly the automobile accident either caused fracturing of the pseudoarthrosis or brought to a symptomatic point the pseudoarthrosis.  Had the patient not had the previous spine fusion, he would not be treated for pseudoarthrosis secondary to the automobile accident.  While he may have sustained another injury, I do not believe that he would have gone on to having a two level posterior lumbar fusion.  Had he not had the previous fusion for his work related low back pain, I do not believe that he would have had the repair of the pseudoarthrosis. 

 

The employee=s medical request was addressed at a hearing before a compensation judge on October 19, 2005.  In his Findings and Order served and filed December 21, 2005, the compensation judge found that the employee=s February 14, 2000, work-related injury did not represent a substantial contributing factor in the need for the employee=s 2005 revision surgery, but that the employee=s December 2002 automobile accident was a substantial contributing factor in the need for that surgery.  The compensation judge accordingly denied the employee=s claim for payment of expenses and costs related to his 2005 revision fusion surgery.  The employee appeals.

 

DECISION

 

The employee appeals from the compensation judge=s determination that the 2002 automobile accident was the substantial contributing cause of the employee=s need for revision fusion surgery in 2005 and from the judge=s conclusion that there is no causal relationship between the employee=s 2000 work injury and his need for surgery in 2005.  The employee argues on appeal that these findings are unsupported by substantial evidence of record, and that the judge erred when reaching his conclusions on causation, in view of the unopposed medical opinion of the employee=s treating physician, Dr. Garvey.  The employee also argues that the compensation judge=s conclusion that the automobile accident did not constitute a superseding intervening event necessitated a finding that the original work injury was a substantial contributing factor in the employee=s need for a second surgery.

 

An employer and its insurer are responsible for medical expenses if the employee=s need for treatment is due in substantial part to the work injury.  The work injury need not be the sole cause of the need for treatment but may be a substantial contributing factor in the employee=s condition.  Roman v. Minneapolis Street Railway Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1974).  Thus, medical expenses incurred as a result of an aggravation of a work injury continue to be the responsibility of the employer if the work injury remains a substantial contributing factor in the need for treatment.  See e.g., Michlitsch v. Michlitsch Builders, Inc., slip op. (W.C.C.A. Aug. 10, 2006); Andeen v. Emmaus Nursing Home, 256 N.W.2d 290, 30 W.C.D. 269 (Minn. 1977); Rohr v. Knutson Construction Co., 232 N.W.2d 233, 28 W.C.D. 23 (Minn. 1975).  The causal relationship with a work injury may be broken by a superseding, intervening cause of the aggravation.

 

As this court stated in Buford v. Ford Motor Company, 52 W.C.D. 723 (W.C.C.A. 1995), cases on superseding intervening cause can be divided into two general categories.^[2]  The first is where the employee=s own actions result in additional disability,^[3] and the other category is where the additional disability stems from some unrelated trauma or disease.^[4]  In cases involving the first category, in order to constitute a superseding, intervening cause, the aggravation must be the result of conduct by the employee which is unreasonable, negligent, dangerous or abnormal.  Eide v. Whirlpool Seeger Corp., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961).  In the second category, the medical evidence must show that a causal relationship remains between the work injury and the employee=s current condition.  The determination of whether a subsequent incident or event is a superseding, intervening cause of disability or need for medical treatment is one of fact, and the employer and insurer have the burden of proof.  Trettel v. Cambridge Regional Center, slip op. (W.C.C.A. Dec. 17, 2003); Johnson v. Waseca ISD No. 829, slip op. (W.C.C.A. Aug. 21, 2003); Hughes v. Karps Twin City Supply, slip op. (W.C.C.A. Nov. 27, 1996).

 

In this case, the compensation judge found that the employer and insurer failed to prove that the employee=s conduct on December 15, 2002, while a passenger in an automobile that was rear-ended by another vehicle, constituted Aunreasonable, negligent, dangerous or abnormal conduct@ and therefore failed to prove that the accident was a Asuperseding, intervening cause@ of the employee=s need for revision surgery in May 2005.  He also found that, Awhile not being a superseding intervening cause of the employee=s low back condition . . . the 12/15/2002 motor vehicle accident was a substantial contributing cause in the employee=s need for revision fusion surgery.@

 

We agree that the employee=s accident, in these circumstances, does not constitute the type of superseding, intervening cause that traditionally has been defined by the case law as an aggravation that is Athe result of conduct by the employee which is unreasonable, negligent, dangerous or abnormal.@  Eide, 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437.  That finding, however, does not necessitate the corresponding finding, as argued by the employee, that the employee=s work injury remained a substantial contributing cause of the employee=s need for surgery in 2005, unless the medical evidence shows that such a causal relationship exists.  Only if the employee=s work injury remains a substantial contributing cause of the employee=s condition are the employer and insurer responsible for the employee=s ongoing medical expenses. The issue in intervening cause cases is not merely whether the intervening injury or condition is itself a substantial contributing cause of the employee=s subsequent disability but whether that intervening injury or condition has broken the causal connection between the employee=s work injury and that disability.  See Helget v. Pies, Inc., slip op. (W.C.C.A. July 30, 2003); Hughes v. Karps Twin City Supply, slip op. (W.C.C.A. Nov. 27, 1996).  If the work injury continues to be a substantial contributing cause of the employee=s disability, the intervening injury or condition will not relieve the employer and insurer of liability for benefits, and the burden of proving an intervening cause of the disability at issue is on the employer and insurer.  Id.  Whether a causal relationship exists is a fact finding by judge, and if there is medical support for a judge=s finding on that issue, this court must affirm.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

 

The compensation judge adopted Dr. Wicklund=s opinion that the 2002  motor vehicle accident was a substantial contributing factor in the employee=s overall low back condition from and after that accident.  The compensation judge found, and the medical records reflect, that the employee had excellent surgical results following his first fusion surgery and had minimal or limited symptoms after mid-December 2001, at which he was released to return to work by Dr. Garvey.  The judge concluded that before the automobile accident, the employee had worked in construction for three or four months full-time, as work was available, without symptoms, without necessity of seeking medical attention, and without taking medication, although this admittedly was light-duty work, referred to as Apre-construction@ work.  He also concluded that, by contrast, the employee had remained off work for almost three years following his automobile accident, had undergone extensive medical care and treatment, and, by the hearing in October 2005, had only been released to light-duty work.

 

The record contains conflicting medical opinions concerning the causation of the employee=s need for the second surgery.  Dr. Garvey, the employee=s primary treating physician and his surgeon, performed both fusion surgeries in 2001 and 2005.  He concluded that the motor vehicle accident in 2002 aggravated the stable fusion, or caused a fracture and breakdown, and therefore concluded that the need for the second revision surgery was causally related to the employee=s 2000 work-related injury.  By contrast, Drs. Wicklund and Strand both agreed that the employee sustained an injury to his low back as a result of his December 2002 automobile accident, and made no causal connection between the employee=s work injury in 2000 and his need for surgery in 2005.  Dr. Wicklund expressed the opinion that the employee=s automobile accident was the substantial contributing cause of the breakdown of his fusion at the L4-5 and L5-S1 levels and necessitated the employee=s 2005 surgery.  Dr. Strand=s opinion was less definitive, as he examined the employee in September 2003, long before his second surgery.  However, Dr. Strand concluded that the employee injured his back as a result of his automobile accident and would need further medical treatment as a result of that accident.  The reports from both doctors are silent on the issue of whether there was any causal connection between the employee=s 2000 work injury and his 2005 surgery.

 

The employee argues that both the work injury and the 2002 automobile accident could be deemed as a substantial contributing factor in the employee=s post-accident disability and need for medical treatment, and that Dr. Wicklund=s opinion that the employee=s automobile accident necessitated his later surgery did not negate Dr. Garvey=s opinion that the work injury remained a substantial contributing factor in the employee=s need for a revision surgery.  The employee also argues that by its very definition, a revision surgery is a repeat of a procedure done because an earlier surgery failed or was disrupted.  He contends that it was speculative for Dr. Wicklund to suggest that even if the employee not had the initial surgery he still would have needed the post-auto accident fusion surgery, and cites to Dr. Garvey=s opinion that his work injury remained a substantial contributing cause of his need for revision surgery in 2005.

 

The employer and insurer argue that the compensation judge=s decision on the causation of the employee=s need for surgery is supported by substantial evidence in the record, including the medical opinions rendered by Drs. Strand and Wicklund.  Both physicians were aware of the employee=s original work injury and initial surgery and yet both concluded that the employee=s injuries caused by his 2002 automobile accident necessitated his surgery in 2005.  Since Dr. Strand did not implicate the employee=s 2000 work injury as a contributing factor to his disability and need for medical treatment following his 2002 accident, the compensation judge could reasonably infer that he did not regard that work injury as a contributing factor in the employee=s need for surgery in 2005.  Dr. Wicklund concluded that the employee=s second surgery was necessitated by the automobile accident in 2002, stating that the employee=s automobile accident was a Asuperseding, intervening event@ and did not mention the 2000 work injury as being a substantial contributing factor; the compensation judge could, likewise, infer that Dr. Wicklund did not regard that work injury as a contributing factor in the employee=s need for surgery in 2005.

 

We conclude that the compensation judge could reasonably rely on the opinion of Dr. Wicklund as opposed to that of Dr. Garvey when reaching his conclusion that it was solely the 2002 automobile accident that necessitated the employee=s 2005 surgery.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (resolution of conflicting expert medical testimony is function of trier of fact and will usually be upheld on appeal).

 

Under this court=s standard of review, we must determine whether "the 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, "they 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).  We conclude that the record contains substantial evidence, including the employee=s medical records and expert medical opinions, in support of the compensation judge=s findings.  We therefore affirm his determination that the employee=s work-related injury on February 14, 2000, did not substantially contribute to his need for the second fusion surgery.