THOMAS G. NEWMAN, Employee, v. NORTHWESTERN MENTAL HEALTH CTR., INC., SELF-INSURED/BERKLEY RISK ADM=RS CO., Employer/Appellant, and MINNESOTA DEP=T OF LABOR & INDUS./VRU, MILLENNIUM NEUROSURGERY, MERITCARE HEALTH SYS., BLUE CROSS BLUE SHIELD OF MINN., BEMIDJI ASSOC. RADIOLOGISTS, TWIN CITIES SPINE CTR., and NORAN NEUROLOGICAL CLINIC, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 8, 2008

 

No. WC08-171

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee sustained a substantial and permanent aggravation of his pre-existing neck condition due to his work activity of driving, in the nature of a work-related Gillette injury.

 

PRACTICE & PROCEDURE - INDEPENDENT MEDICAL EXAMINATION.  Where the employee had attended the independent medical examination, his medical records were available for review, and the examiner was able to render an opinion on the issues, the compensation judge did not abuse his discretion by denying the employer=s motion to suspend benefits based on failure to comply with the examination under Minn. Stat. ' 176.155, subd. 3.

 

Affirmed.

 

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

Compensation Judge: James F. Cannon

 

Attorneys: Eric R. Lee, Lee Law Firm, Minneapolis, MN, for the Respondent.  Timothy P. Jung and Patrick W. Ostergren, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for the Appellant.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The self-insured employer appeals the compensation judge=s award of temporary total disability benefits and medical expenses, arguing that substantial evidence does not support the compensation judge=s finding that the employee sustained a substantial and permanent aggravation of his pre-existing neck condition due to his work activity of driving, in the nature of a work-related Gillette injury.  The employer also appeals the compensation judge=s denial of its motion to suspend the employee=s entitlement to benefits due to his failure to comply with requests for independent medical examinations under Minn. Stat. ' 176.155, subd. 3.  We affirm.

 

BACKGROUND

 

Thomas G. Newman, the employee, worked as a mental health specialist for Northwestern Mental Health Center, Inc., the self-insured employer, from May 4, 2006, through November 13, 2006.  During that time, the employee was required to drive about 900 miles per week over paved and unpaved roads.  After he began working for the employer, the employee experienced neck pain.  The employee had an extensive pre-existing neck injury from a non-work-related motorcycle accident in July 2004, and had been diagnosed with cervical spondylosis at the C4-5 and C5-6 levels with myelopathy.  In January 2005, he underwent surgery which included a corpoectomy at the C5 level, anterior decompression, and fusion from the C4 to the C6 level.  That surgery  improved the employee=s symptoms even though he reported that he was never pain-free after the surgery.

 

According to the employee=s medical records, he had been disabled from employment between 1993 and 1997, due to his congestive heart failure.  The employee also had a pre-existing psychological condition, diagnosed in 2003 as chronic adjustment disorder with mixed anxiety and depressed mood.

 

The employee=s medical records contain references to the employee=s ongoing neck pain following his January 2005 surgery.   In August 2006, the employee was treated at the Twin Cities Spine Center and diagnosed with chronic neck pain with headaches status post-anterior cervical fusion C4-C6, kyphotic cervical deformity, and mild disc degeneration C6-7.  On October 4, 2006, the employee returned to the Twin Cities Spine Center reporting continuing significant neck discomfort and that his driving 200 miles a day aggravated his neck condition.  The employee reported difficulty performing activities of daily living including driving.  At this time, a physician=s assistant recommended that the employee be assigned work restrictions, including limitations of driving, due to his neck condition.  On November 13, 2006, the employee stopped working for the employer due to his ongoing neck problems.

 

On November 28, 2006, the employee was examined by Dr. Richard Olson at the emergency room of North Country Regional Hospital, complaining of neck pain, and referring to his car accident two years earlier and subsequent surgery.  The employee also advised Dr. Olson that he was scheduled for an additional surgery, and sought a refill of his Tylox prescription.  Dr. Olson diagnosed chronic neck pain syndrome, and advised that he would treat the employee but not with narcotic medication.

 

On December 6, 2006, the employee consulted Dr. Daryll Dykes.  In his chart note, he referred to the employee=s earlier plan to obtain a second opinion concerning surgery.  Dr. Dykes noted that additional surgery might not be possible from a risk/benefit perspective, due to the proposed extensive procedure involving both anterior and posterior approaches to his cervical spine.  Dr. Dykes concluded that such a surgery might not be possible or advisable in view of the employee=s history of congestive heart failure; the employee apparently decided to continue with a nonoperative approach and conservative care.

 

On January 16, 2007, the employee was examined by Dr. Peter Eriksson at MeritCare Clinic for a work ability examination.  Dr. Eriksson indicated that the employee=s pre-existing neck condition had been aggravated or accelerated by his work activity.  He also released the employee to work with restrictions of sedentary work and one hour of driving per day.  Dr. William Dicks, whom the employee had consulted at the Meritcare pain clinic, agreed that the employee could return to work.  At an appointment with Dr. Dicks on February 22, 2007, the employee reported that his pain persisted but that physical therapy had helped with his pain problems in his head and neck.  In his chart note, Dr. Dicks stated that

 

[The employee] also told me about the fact that after his surgery and then returning to work in May of 2006, doing the long drives, he started having more and more pain and as such, he feels that his work exacerbated this underlying condition.  I told him I really do not have an opinion on that.  It is possibly true that driving as he did to do home counseling could cause pain in the neck but on the other hand, it is getting better, and in my opinion, this patient should go back to work.

 

In March 2007, the employee consulted Dr. Phudhiphorn Thienprasit at Millennium Neurosurgery, the surgeon who performed his surgery in January 2005.  He reported neck pain and symptoms in his right arm and right shoulder, and referred to an exacerbation of his neck pain in approximately May 2006 due to extensive driving.  Dr. Thienprasit reviewed a recent CT/myelogram and concluded that an additional decompression and revision of the fusion at the C4-5 level would be required.  According Dr. Thienprasit=s chart note of March 19, 2007, he and the employee discussed scheduling surgery in May when the employee would be able to take time off work.

 

On May 21, 2007, Dr. Dicks examined the employee again, at which time the employee reported continued neck pain, headaches, and pain extending into both shoulder areas.  Dr. Dicks recommended that the employee return to work on at least a part-time basis.  Dr. Dicks  recommended medication to assist with his poor sleep, stress and pain, and possibly Botox injections to treat his neck, although he advised against narcotic pain medication, further down his spine.

 

The employee did not conduct any job search for a position with other potential employers from the time he was off work in November 2006 through the date of the hearing.  In May 2007, following a vocational rehabilitation consultation, a QRC with the Vocational Rehabilitation Unit of the Department of Labor and Industry concluded that the employee was not eligible for rehabilitation services.  The QRC had requested the employee=s medical records from his treating physician and from a licensed psychologist with whom the employee had treated, but had only received information from the psychologist, who advised that the employee, at that time, was unable Ato tolerate formal employment or a work preparation programming.@  The QRC found the employee to be ineligible for rehabilitation services at that time, but stated that he would readdress the situation in the future if either the employee=s surgeon or treating physician determined that the employee would be capable of performing the functions of rehabilitation.

 

In a letter to the employee=s attorney from Dr. Thienprasit, dated July 5, 2007, Dr. Theinprasit stated that ABarring any other explanation, it is logical to reach the conclusion that excessive neck movement associated with driving as mentioned in the evaluation, serves as a substantial contributing reason for his ongoing symptoms and need for additional surgical treatment.@  Dr. Thienprasit recommended additional surgery, but later canceled the surgery due to the employee=s unacceptable behavior toward the clinic=s staff.

 

The employee received chiropractic treatment for his neck with Dr. Lyle Erickson, between July 23 and August 20, 2007.  He reported neck, upper and lower back pain, and headaches, and reported to Dr. Erickson that the onset of his symptoms occurred following a July 3, 2004, injury.  His symptoms were reduced through this chiropractic care.

 

On November 15, 2007, the employee was examined by Dr. Nolan Segal at the employer=s request.  The employee attended the examination but gave a limited history and would not allow Dr. Segal to touch his neck.^[1]  Dr. Segal observed the employee and also reviewed his medical records and radiographic studies; his report includes a thorough review of the employee=s medical history, as gleaned from those records.  Based on those records, Dr. Segal concluded that the employee had no objective neurologic deficits nor significant myelopathic symptoms.  He opined that the employee=s subjective complaints exceeded what would be expected given his radiographic studies, that it was unlikely that his driving for the employer caused a Gillette injury to his cervical spine, and that any aggravation to his spine would be subjective only.  He concluded that Ait would appear that the bulk of his problems certainly predated his employment at Northwestern Mental Health,@ and that his diagnosis prior to starting employment with the employer was identical to his current diagnosis.  Dr. Segal also noted that jostling and bumping and repetitive impact-type activities would be ill-advised for the employee and that he should have work restrictions.

 

On April 20, 2007, and June 15, 2007, the employee filed a claim petition and amended claim petition for temporary total disability benefits, medical expenses, permanent partial disability benefits related to the cervical spine, and permanent partial disability benefits related to an alleged consequential psychological condition.  The employer objected.  The employee later amended his claim petition to include permanent total disability benefits, but withdrew that claim before the hearing, and reserved it for a future claim.  In his pleadings, the employee also reserved claims for mileage and out-of-pocket medical expenses, and preserved appeal rights on discovery orders by the compensation judge regarding constitutional issues.

 

A hearing was held on December 7, 2007.  The compensation judge found that the employee sustained a substantial and permanent aggravation of his pre-existing neck condition due to his work activity of driving, in the nature of a work-related Gillette injury, and that he was temporarily and totally disabled from November 14, 2006, through February 21, 2007.  The compensation judge denied the employee=s claim for further temporary total disability benefits through the date of the hearing based on his release to work with restrictions and lack of job search.  The compensation judge reserved the employee=s claim for permanent partial disability benefits related to his cervical spine condition for future determination, and denied the employee=s claim for permanent partial disability benefits and medical expenses related to his psychological condition based upon his finding that the employee=s psychological condition had not changed after his injury.  The self-insured employer appeals.

 

STANDARD OF REVIEW

 

In reviewing cases 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.  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).  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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.@  Id.

 

DECISION

 

The self-insured employer appeals the compensation judge=s finding that the employee sustained a substantial and permanent aggravation of his pre-existing neck condition as a result of his work activity of driving for the employer, in the nature of a work-related Gillette injury to his neck.  The employer argues that there is no substantial evidence to support the finding of a causal relationship between the employee=s driving and his current condition and need for treatment.

 

The employer first asserts that the compensation judge erred by finding that the employee drove on Aprimarily unpaved and graveled roads.@  The employer argues that most of the employee=s driving was on paved roads from his home to Mahnomen County where he met his clients.  The employee testified that most of his clients lived on unpaved roads that he would need to drive on once he arrived in Mahnomen County.  The employer claims that the county is small and that he could not have driven Aprimarily@ on unpaved roads since so much of his driving, 150 to 160 miles of the 200 to 300 miles he drove per day, was on the paved highway from his home to the county.  The compensation judge found that the employee=s work for the employer Aclearly involved a significant amount of repetitive and excessive driving.@  The employee testified that the gravel roads were minimal maintenance roads, were not plowed all the time, the pot holes were not filled, and the roads were in Arough shape.@  Whether or not the employee Aprimarily@ drove on unpaved roads, the compensation judge could reasonably conclude that the employee did need to drive on unpaved roads repetitively, resulting in repetitive and excessive jostling and bumping of the employee=s body, including the cervical spine.

 

The employer also argues that the opinions from Dr. Thienprasit and Dr. Eriksson that were relied upon by the compensation judge lack foundation.  Foundation is established by the competency of a witness to provide expert opinion.  Competency of a medical expert depends both on the extent of the scientific knowledge of the witness and Athe witness=s practical experience with the matter which is the subject of the offered testimony.@  Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).  Sufficient knowledge of the subject matter can be obtained through personal knowledge, a hypothetical question, or testimony at the hearing.  Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978).  Both Dr. Thienprasit and Dr. Eriksson had examined and treated the employee.  Generally, this level of knowledge and experience establishes a doctor=s competence to render an expert opinion.  See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130, 11210-33 (Minn. 1988).  The opinions relied upon by the compensation judge do not lack foundation.

 

Dr. Thienprasit concluded that excessive neck movement associated with driving was  a substantial contributing reason for the employee=s ongoing neck symptoms, and that the employee=s pre-existing neck condition had been aggravated or accelerated by the employee=s driving for the employer.  Dr. Eriksson indicated that the employee=s pre-existing neck condition had been aggravated or accelerated by his work activity.  The compensation judge also noted that Dr. Segal, the independent medical examiner, noted that jostling and bumping and repetitive impact-type activities would be ill-advised for the employee.  It is the function of the compensation judge to consider competing medical opinions and the compensation judge=s decision in that regard will not be reversed so long as the accepted opinion has adequate foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003).  In view of the various medical opinions in the record, we conclude that substantial evidence supports the compensation judge=s finding that the employee sustained a substantial and permanent aggravation of his pre-existing neck condition due to his work activity of driving, in the nature of a work-related Gillette injury, and we affirm.

 

The self-insured employer also appeals the compensation judge=s denial of its motion under Minn. Stat. ' 176.155, subd. 3, to suspend the employee=s benefits for his refusal to comply with a request for examination with Dr. Segal.  An injured employee must submit to  examination by the employer=s physician, if requested by the employer.  Minn. Stat. ' 176.155, subd. 1.  AIf the injured employee refuses to comply with any reasonable request for examination, the right to compensation may be suspended by order of the commissioner or a compensation judge, and no compensation shall be paid while the employee continues in the refusal.@  Minn. Stat. ' 176.155, subd. 3 (emphasis added).  The determination of whether to suspend benefits under this statute is within the discretion of the compensation judge.  Fennig v. Transcom, Inc., slip op. (W.C.C.A. Mar. 19, 1999).

 

In this case, the employee attended the examination but gave a limited history and would not allow Dr. Segal to touch his neck.  We note, however, that Dr. Segal had the employee=s extensive medical records dating back to July 2004 available to review, which would limit the need for a medical history from the employee.  In his report, Dr. Segal commented that the employee=s subjective complaints far exceeded what he would have expected, in view of his radiologic studies, but that he was unable to do a physical examination to determine if, in fact, the employee had any neurologic deficits on examination.  In addition, Dr. Segal observed the employee and reviewed his medical records, and therefore had adequate information on which to base his opinion.  He was able to provide his opinion that the employee=s subjective complaints exceeded what would be expected given his radiographic studies, that it was unlikely that his driving for the employer caused a Gillette injury to his cervical spine, and that any aggravation to his spine would be subjective only.

 

The employer also argues that the employee allows his treating physicians to touch his neck for examination and that by refusing to allow the independent examiner to touch his neck, he was refusing to comply with the employer=s request for examination.  The compensation judge found the employee=s refusal to allow Dr. Segal to touch his neck was not unreasonable given his neck condition, and concluded that the employee had Afor the most part submitted to the physical examination.@

 

The judge acknowledged Drs. Segal and Rauenhorst=s observations of the employee=s behavior during their independent medical examinations, but determined that the employee had adequately complied with those examinations.  He explained that

 

Although the employee in this case was somewhat confrontational and unresponsive with both the independent medical examiner, Dr. Segal, and the independent psychological examiner, Dr. Rauenhorst, the employee did attend the scheduled IME examinations, and submitted to questioning during both examinations.  Except for the primary exception of an understandable refusal to allow Dr. Segal to touch his neck, the employee for the most part submitted to th physical examination.  It is determined that in this case the employee has adequately complied with Minn. Stat. ' 175.155, subd. 3, and as a result, a suspension of benefits awarded is not appropriate in this matter.

 

(Memo., p. 16; emphasis in original.)

 

 In view of the record as a whole, the compensation judge did not abuse his discretion by denying the employer=s motion to suspend benefits under Minn. Stat. ' 176.155, subd. 3.  We affirm.

 

The employer also argues in his brief that the employee=s lack of cooperation in providing sworn testimony, and his failure to provide reliable testimony about his medical history, employment history, and general background also exhibit his disregard for the legal process and provide a basis for suspending benefits.  In its brief, the employer refers to numerous occasions at the hearing when the employee=s testimony was impeached.

 

We note that the determination of a witness=s credibility and the probative value of his testimony is in the purview and function of the compensation judge.  See Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).  In this case, the employee was subject to cross-examination at the hearing, and the compensation judge had the opportunity to observe the employee and hear his testimony on direct and cross-examination, and to evaluate that testimony in conjunction with the employee=s medical records.  It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  Anderson v. Upper Lakes Foods, Inc., No. WC07-262 (W.C.C.A. June 6, 2008).  We therefore defer to the compensation judge=s assessment of the credibility of the employee=s testimony.

 

In view of the record as a whole, we conclude that substantial evidence supports the compensation judge=s decision, and we therefore affirm.