RICHARD A. LAFOUNTAIN, Employee/Cross-Appellant, v. M.A. GEDNEY CO., and SFM MUT. INS. CO., Employer-Insurer/Appellants, and M.A. GEDNEY CO., and NATIONWIDE AGRIBUSINESS, Employer-Insurer, and PARK NICOLLET, TWIN CITIES SPINE CTR., CONSULTING RADIOLOGISTS, BLUE CROSS BLUE SHIELD OF MINN., PAR, INC., and ST. FRANCIS HOSP., Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
JULY 28, 2008

No. WC08-115

HEADNOTES

CAUSATION - PRE-EXISTING CONDITION; CAUSATION - SUBSTANTIAL EVIDENCE.  Where the record reasonably supported the conclusion that the employee had merely leaned 10 or 15 degrees to look at a broken hose at work when his low back symptoms flared up on August 10, 2006, where he had a substantial preexisting disability, necessitating four low back surgeries, attributable to a work injury in 1993, and where medical evidence reasonably supported the conclusion that the flare-up  on August 10, 2006, was due largely to a progression of the condition resulting from the 1993 injury, it was not unreasonable for the compensation judge to conclude that the employee had not sustained a new, compensable injury on August 10, 2006, and that the employee’s subsequent disability was attributable solely to the 1993 work injury.

Affirmed.

Determined by: Wilson, J., Pederson, J., and Stofferahn, J.
Compensation Judge: James F. Cannon

Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Cross-Appellant.  Beth Giebel Mandel, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Appellants.  Eugene J. Flick and Matthew P. Bandt, Jardine, Logan & O’Brien, Lake Elmo, MN, for the Respondents.

 

OPINION

DEBRA A. WILSON, Judge

The employer and SFM Mutual Insurance Company appeal from the compensation judge’s decision attributing the employee’s claimed low back disability and need for treatment solely to the employee’s 1993 work injury.[1]  We affirm.

BACKGROUND

On April 12, 1993, the employee sustained a work-related injury to his low back while employed as a line mechanic by M.A. Gedney Company, which was then insured by State Fund Mutual Insurance Company [hereinafter SFM].[2]  He subsequently underwent extensive treatment, including four surgeries, to address his low back condition.

According to the current record,[3] the first surgery, performed on April 28, 1993, was a partial hemilaminectomy and microdiscectomy, for a right-sided disc herniation at L5-S1.  Only a few weeks later, on June 4, 1993, the employee underwent a re-exploration of the L5-S1 disc space, with excision of an extruded disc fragment.

The employee apparently underwent an MRI scan in July of 1994 that revealed a large amount of scar tissue at L5-S1 on the right, a mild recurrent herniation at that same level, and a tear in the annulus at L4-5.  Several months after that, in December of 1994, a third surgical procedure was performed, during which the surgeon opened both sides of the L5-S1 level, removed bone impinging on the nerve, repaired a tear in the dura, and removed additional disc material.

In April of 1999, the employee underwent a CT myelogram, which apparently disclosed a central and right-sided disc herniation at L4-5, touching both L5 nerve roots, and scar formation at L5-S1, more on the right side.  The following year, in August of 2000, another MRI scan was performed, revealing a moderate central and right-sided L4-5 disc herniation, touching both L5 nerve roots, and L5-S1 degenerative changes, spur formation, disc bulge, and foraminal stenosis.  The employee’s fourth surgery, performed in January of 2001, involved laminotomies and decompression at L4-5 and L5-S1 on the right.

The employee testified[4] that he was never symptom-free after his 1993 work injury and that he had at least intermittent low back and bilateral leg pain thereafter, despite the four surgeries.  He did not, however, seek medical care for these symptoms between about February of 2002 and August of 2006.  While he was unable to return to his pre-injury job due to restrictions related to the 1993 injury, the employer gave him light work on a full-time basis.  SFM apparently paid various benefits following the 1993 injury, including wage loss benefits and benefits for an 18% whole body impairment.  SFM apparently also paid for all of the employee’s treatment expenses, including the expenses associated with the four surgeries.

The employee testified that he began experiencing increased symptoms again in early August of 2006, which “wouldn’t go away,” and that he attempted to call SFM on August 8 or August 9, 2006, to discuss additional treatment.  However, he did not succeed in reaching anyone at SFM because of a power failure.  Then, a day or two later, on August 10, 2006, he experienced a severe flare-up of low back and leg symptoms while performing his job with the employer.  The employee testified that the sharp increase in symptoms occurred when he leaned or bent 10-15 degrees and turned his head in order to look at a leaking hose.  He also testified that, when the incident occurred, he exclaimed to his foreman, “it’s 1993 all over again.”

The employee went to the hospital emergency room for treatment that same day.  Notes from that examination contain the following history:

The patient is a 51-year old male who presents with worsening back pain over the last three to four days.  He states that he does have bilateral posterior leg pain associated with this.  No bowel or bladder problems.  He has had pain similar in the past but not as bad.  As he was working today, he bent over and twisted slightly and at that time he went down to the ground on account of his pain.  He denies any weakness, just significant pain in both his legs and mainly his lower back.  Otherwise his pain is unchanged from previous, only the severity has changed.  The patient denies any weakness in his legs.  When he fells [sic] he has no dysesthesia [sic] or numbness of his legs.  He states that he has not had a recent imaging study of his low back.

The examining physician concluded that the employee was suffering from an “acute exacerbation of his chronic low back pain” and admitted the employee to the hospital for pain control.  During his hospitalization, the employee underwent a lumbar MRI scan, which was interpreted to show as follows:

1.         Mature wide L5 laminectomy and dorsal fat graft.
2.         Left sided L4-5 disc extrusion with left L5 root impingement.
3.         L5-S1 degenerative disc disease.
4.         Mild L5-S1 degenerative facet disease.

After his discharge from the hospital, the employee was taken off work and referred for physical therapy.  Injections were also recommended.  At some point, he was released to work with essentially the same restrictions that had been imposed after the 1993 injury, except that he was to work only part time.  Medical records indicate that he was seen at the emergency room again on November 16, 2006, having simply awoken that day with acute symptoms, including left leg pain, and was seen again on November 26, 2006, when his “back just gave out and [he] went to the ground.”  On that date, his primary complaint was severe back pain radiating down his right leg.

When the employee claimed entitlement to various benefits as a result of his 1993 injury, SFM contended that the employee’s disability was due to a work-related injury occurring on August 10, 2006, when Nationwide Agribusiness [Nationwide] was on the risk, and the matter ultimately came on for hearing before a compensation judge on September 18, 2007.  Issues included which insurer was liable for the employee’s claimed disability and the extent of permanent partial disability attributable to the employee’s work-related condition.  Evidence submitted by the parties included selected medical records, rehabilitation records, and causation and permanent partial disability opinions from Dr. Mark Engasser, SFM’s examiner, and Dr. Mark Friedland, Nationwide’s examiner.

In a decision issued on December 17, 2007, the compensation judge concluded, in  part, that the employee had not sustained a work-related injury on August 10, 2006, when Nationwide was on the risk, and that the employee’s claimed disability and need for treatment were due solely to the employee’s 1993 injury.  Accordingly, SFM was ordered to pay all awarded benefits.  SFM appeals.

STANDARD OF REVIEW

On appeal, the Workers' Compensation Court of Appeals 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 (2008).  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).  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.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

DECISION

Two experts offered opinions as to the cause of the employee’s low back disability and need for treatment from and after August 10, 2006.

Dr. Engasser, SFM’s examiner, concluded that the employee had sustained an injury at work on August 10, 2006, that was solely responsible for the employee’s subsequent symptoms, need for treatment, and additional permanent partial disability, explaining,

[t]he symptoms that the patient has experienced following the injury of August 10, 2006 is [sic] on the opposite side of his previous primary leg pain and the dramatic findings on MRI certainly are totally consistent with the incident of August 10, 2006 and not related to chronic changes before that time.  The fact that the herniation is extruded would certainly suggest a short time frame in terms of occurrence.

Dr. Engasser also specifically indicated that the employee’s 1993 work injury was not a substantial contributing cause of the employee’s disability for the period in question, because, although scans had shown some evidence of a disc bulge at L4-5 prior to August 10, 2006, that bulge was “asymptomatic and consistent with [the employee’s] age.”  In other words, Dr. Engasser attributed the employee’s most recent disability solely to a left-sided herniation at L4-5, and he attributed that herniation solely to the alleged work injury of August 10, 2006.

Dr. Friedland, on the other hand, testified that the employee’s claimed disability was attributable to both the 1993 work injury and an injury occurring on August 10, 2006, apportioning responsibility 75% to the 1993 injury and 25% to the 2006 injury and explaining his reasoning as follows:

I felt the majority of the responsibility was due to the April 1993 injury based upon the fact that he had documented MRI and CT scans over the years from 1993 through 2000, 2001 of progressively enlarging disc protrusion at the L4-5 level touching the L5 nerve roots on both sides requiring surgery at L4-5 on the right side because of that problem, and due to the fact that Mr. LaFountain really continued to have symptoms of his low back and lower extremity symptoms on both sides even after his fourth surgery by Dr. Schwender, also consistent with the fact that he readily admits that for two days prior the incident at work on August 10, 2006, he was noting increasing symptomatology again.  All that, in my opinion, would relate back to the progression of the pathology to L4-5 that began at the time of the injury in April of 1993.

Despite these two expert opinions, the compensation judge concluded that the employee “did not sustain a new work-related back injury on August 10, 2006, but merely had an exacerbation of his ongoing back problem, due to the work-related back injury of April 12, 1993.”  The judge further determined that the employee’s 1993 work injury “was and is the only substantial contributing factor to the employee’s low back problem” from and after August 10, 2006.  In his memorandum, the compensation judge explained,

In the case herein, it is again noted that the employee had a significant work-related back injury on April 12, 1993, which required four surgeries, and resulted in an admitted 18% permanent partial disability to the back.  Further, it is again noted that the facts, medical records, and the employee’s credible testimony, indicated that the employee was never asymptomatic following the work-related injury of April 12, 1993, but continued to have good and bad days, and occasional flare-ups of his back condition.  In addition it is again noted that the work-related incident occurring on August 10, 2006, merely involved the employee bending over at the waist when he had the onset of severe back pain.  Thus, the work activity the employee was engaged in on August 10, 2006 was benign, and was not significant or substantial.  Therefore, in spite of the IME medical opinions, the other reliable evidence in the record supports the conclusion that the employee’s work-related back of April 12, 1993 was the only substantial contributing factor to the employee’s disability and need for medical treatment prior to and from and after August 10, 2006.

(Emphasis in original.)

On appeal, SFM contends that the compensation judge erred by ignoring “uncontroverted evidence” that the employee sustained a significant work-related injury on August 10, 2006, which “produced a large herniated disc and new symptoms,” disability, and need for additional treatment.[5]  We are not persuaded.

The record reasonably supports the conclusion that the employee’s flare-up on  August 10, 2006, occurred when he simply bent or leaned slightly - - 10 to 15 degrees - - and turned his head.[6]  His symptoms had been increasing for several days before that, enough so that he had attempted to contact SFM about additional treatment.  According to Dr. Friedland, the employee’s L4-5 disc problem had been progressing over time since the 1993 injury, and, with respect to the employee’s activities on August 10, 2006, Dr. Friedland testified as follows:

In my opinion yes, he would have had that disc herniation regardless.  The bending forward 10 to 15 degrees and turning his head certainly was not any kind of major injury of the back, it did occur at work and that’s why I attribute that to the work activities of that day.  But that’s not much of an insult to the back and if it hadn’t occurred then, it could have occurred at home with a similar incident and would not have been attributable to his work activities at that time.

The record also indicates that the employee experienced two acute flare-ups subsequent to August 10, 2006, that had no identifiable triggers of any kind.

Whether an employee has sustained an injury arising out of his employment is generally a question of fact for the compensation judge.  See Franze v. National Delivery Serv., 49 W.C.D. 148, 154 (W.C.C.A. 1993).  In the present case, given the employee’s very significant pre-existing condition, Dr. Friedland’s testimony about the progression of the degeneration at L4-5, the fact that the employee’s symptoms had been increasing even before the acute flare-up on August 10, 2006, and the fact that his movement at the time of the flare-up can only be characterized as ordinary, if not negligible, it was not unreasonable for the compensation judge to conclude that any causal connection between the employee’s condition and his employment was insufficient to qualify the incident of August 10, 2006, as a separate, compensable injury.  That is, the flare-up simply happened to occur at work that day.  We therefore affirm the judge’s decision that the employee’s disability from and after August 10, 2006, was substantially attributable to the 1993 work injury alone.


[1] The employee filed a cross-appeal, asking for reversal of the compensation judge’s denial of temporary partial disability benefit in the event that we reverse the compensation judge’s decision on causation.  Because we are affirming as to causation, we need not address the cross-appeal.

[2] State Fund Mutual Insurance Company is now known as SFM Mutual Insurance Company.

[3] The parties submitted few contemporaneous medical records from the employee’s surgeries or treatment prior to about 2000.  Our summary of the employee’s treatment and test results was taken largely from the deposition testimony of Dr. Mark Friedland.

[4] Because the digital recording of the hearing failed, this court is reviewing the matter based on the exhibits and an approved statement of proceedings issued by the compensation judge.  That statement includes a detailed account of the employee’s testimony.

[5] In their argument on this issue, SFM contends that the compensation judge erred in characterizing the August 10, 2006, injury as “benign” and “not significant” or “substantial.”  The judge, however, did not characterize the August 10, 2006, injury as benign but rather the employee’s work activities on August 10, 2006, as benign.

[6] At oral argument, SFM contended that the employee had just stooped under a conveyor belt to get to the location of the broken hose.  Perhaps so, but his symptoms did not occur when he did so.