TERRY A. PETERSON, Employee, v. BRAUSSE DIECUTTING & CONVERTING EQUIP., and ZURICH N. AM., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 24, 2008

 

No. WC08-204

 

HEADNOTES

 

CAUSATION - MEDICAL TREATMENT.  Substantial evidence, including expert medical opinion and evidence concerning the course of the employee=s symptoms, supported the compensation judge=s decision that the employee=s need for low back surgery was causally related to his work injury.

 

Affirmed.

 

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

Compensation Judge: Jennifer Patterson

 

Attorneys: Friedrich A. Reeker, Minneapolis, MN, for the Respondent.  Mark A. Kleinschmidt, Cousineau McGuire Chartered, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the judge=s findings that the employee=s work injury was a substantial contributing cause of the employee=s development of a free fragment disc herniation and that the employee sustained a consequential injury in the form of an aggravated umbilical hernia requiring surgery.  We affirm.

 

BACKGROUND

 

The employee began work for Brausse Diecutting & Converting [the employer] in 1996.  He performed heavy, physically strenuous work for the employer, regularly lifting more than 100 pounds by himself and up to 300 pounds with a coworker.

 

On August 13, 2002, the employee treated with Dr. Sonia Kumar, complaining of a two-year history of back pain, with intermittent numbness and tingling down his left lower extremity.  The doctor diagnosed low back pain with radiculopathy and ordered an MRI.  The MRI, completed on August 16, 2002, showed mild degenerative disc changes at L4-5 and L5-S1 and an L4-5 central and left paracentral shallow disc herniation, which contacted the left L5 nerve root and caused slight posterior displacement of that nerve.  The employee returned to Dr. Kumar on October 22, 2002,  with continuing complaints of low back pain with radiation down his left lower extremity.

 

On March 24, 2003, the employee was seen by Dr. Sean Flood, indicating that he had experienced sharp thoracolumbar back pain while placing a 70- to 80-pound toolbox into his truck.^[1]  The employee was directed to see Dr. Jeffrey Meyer in one week, and Dr. Flood noted that Aif history as given is correct this is work related.@  On exam, Dr. Flood also noted a large umbilical hernia.

 

When he was seen by Dr. Meyer on March 31, 2003, the employee gave a history of pain radiating down his left thigh to his knee since the previous fall.  Dr. Meyer diagnosed acute thoracolumbar strain superimposed upon chronic low back pain, with no evidence for a lumbar radiculopathy.  The employee  treated with Dr. Meyer for aching soreness in his central mid-back and low back on March 31, 2003, and May 23, 2003, but there is no record, in evidence, of further treatment with that office until 2006.  Dr. Meyer=s notes also reflect that the employee had been receiving chiropractic manipulation from Dr. Paul Gallagher, since 1984, for mid and low back pain, but records of the employee=s chiropractic treatment prior to September 9, 2006, were not submitted into evidence.

 

On September 8, 2006, the employee experienced sudden, sharp low back pain at work while kneeling on the floor in front of a large machine, pulling a large wrench toward him with all of his strength.  The employee treated with Dr. Gallagher on September 9, 2006, giving a history of the injury.  Dr. Gallagher diagnosed an acute lumbar strain/sprain.  On his return to Dr. Gallagher on September 11, 2006, the employee felt worse; he had constant, severe low back pain that was worse with movement, and he rated his pain at 10/10 with movement and 8/10 at rest.

 

Later that day the employee was also seen by Dr. Meyer, who noted that the employee had been injured on September 8, 2006, and had experienced continuous, severe, excruciating, sharp, aching pain in his central and bilateral low back since that time.  The employee noted that his left thigh and upper calf had felt dead for 15 years and that there had been no new sensory changes since September 8.  The employee described his pain as different, however, than the Achronic low backache@ for which he had treated in the past.  Dr. Meyer diagnosed acute low back pain that was work-related and took the employee off work from September 11 through September 13, 2006.

 

The employee treated with Dr. Gallagher again on September 12, 13, and 18, 2006.  On September 12, Dr. Gallagher noted that he Asuspected a disc@ because of increased pain with coughing, sneezing, or bearing down.  He continued to note that the employee had an antalgic lean, had difficulty getting up from a prone or seated position, and complained of pain.

 

When the employee returned to Dr. Meyer on September 19, 2006, he continued to complain of sharp, stabbing pain in his low back, although he noted that it was no longer excruciating and unbearable.  Dr. Meyer continued to diagnose acute low back pain, and he released the employee to return to work with limitations that day.^[2]

 

The employee was seen again by Dr. Meyer on September 25, 2006, with complaints of increased stiffness and aching soreness in his bilateral low back since having put out a fire at his cabin.  He continued to complain of increased pain while moving into or getting out of a sitting position.  His back pain was also increased by bending and twisting at the waist. 

 

The employee saw Dr. Gallagher eight times and Dr. Meyer three times in October of 2006.

 

When he saw Dr. Meyer again on November 28, 2006, the employee was complaining of sharp stabbing pain in his central, mid, and low back.  He indicated that he had flown to Chicago and then had driven to Fort Wayne for work and said that the prolonged sitting and driving seemed to aggravate his back pain.  Dr. Meyer referred the employee to the Physician=s Neck and Back Clinic [PNBC] for strength training.

 

On December 5, 2006, the employee was seen by Dr. Meyer, complaining of excruciating, constant, sharp low back pain that took his breath away.  His pain was noted to radiate down the right posterior thigh to the knee but not below knee level, and that pain was increased by sneezing, coughing, and bowel movements.  Dr. Meyer ordered a lumbar MRI and took the employee off work.

 

The MRI, performed on December 13, 2006, showed a moderate central disc extrusion at L4-5 with moderate to severe central spinal stenosis and lateral recess stenosis at that level.  It also showed a small to moderate central disc extrusion at L5-S1 with mild to moderate facet hypertrophy and moderate central spinal stenosis.

 

When he returned to Dr. Meyer on December 19, 2006, the employee again complained of severe, constant, excruciating pain in his central and bilateral low back.  The pain was increased by sitting, he was unable to sit or drive, and he had difficulty dressing or undressing without help.  The pain radiated into both buttocks.  Dr. Meyer recorded a history of one incidence of radiculopathy, but he felt that, because the employee did not have strong symptoms of radiculopathy, surgery was not strongly indicated.  Dr. Meyer therefore decided that the employee should have an initial evaluation at PNBC before referral to a back surgeon.

 

The employee was seen by Dr. Alison Coulter at PNBC on December 21, 2006.  At that time, the employee complained of severe pain just below his waist, with radiation down the back of his legs.  He also noted that his left leg felt weak.  He disclosed that he had spent nine days in recent weeks lying flat in bed, unable to get up.  Dr. Coulter recommended an epidural steroid injection but did not feel that the employee could tolerate rehabilitation at that point.

 

The epidural was performed on December 28, 2006, but as of January 2, 2007, the employee was still complaining of severe, excruciating pain to Dr. Meyer.

 

The employee worked with a therapist at PNBC on January 24, 2007.  He was only able to move 6 degrees in the lumbar flexion-extension MedX.  That same day, he reported to Dr. Coulter that the epidural injection had helped him only slightly.  The employee reported that his leg pain was better but that Athe back pain was terrible.@  Dr. Coulter opined that she had nothing to offer the employee if he could not tolerate Abeing in the equipment,@ and he was sent home with home exercises.  Later on January 24, 2007, the employee experienced a Alightening bolt@ of pain down his leg while sitting on the toilet.  The pain was so severe he had to crawl out of the bathroom.^[3]

 

Two days later, he was unable to walk to the bathroom, and he was taken to the emergency room at Unity Hospital and admitted.  The admission history indicates that the employee=s back pain had been increasing over the past two days.  The employee met with orthopedist Dr. David Kraker on January 27, 2006, at which time he gave a history of an injury having occurred at work the previous fall.  Dr. Kraker ordered an MRI, which was performed later that day and revealed a free disc fragment causing severe spinal canal narrowing just above the L4-5 disc level, a new finding when compared to the previous MRIs.

 

Dr. Kraker performed bilateral decompressive laminectomies at L4 and L5, with bilateral L5 foraminotomies and diskectomy at L4-5, on January 30, 2007.  The employee was discharged from the hospital on February 2, 2007.

 

On July 13, 2007, Dr. Kraker prescribed a garment to hold the electrodes for the employee=s TENS unit in place and on September 7, 2007, prescribed permanent use of such a garment.  On that same date, Dr. Kraker=s office note indicated that the employee was at maximum medical improvement [MMI].

 

Since his low back surgery, the employee has had physical therapy, steroid injections, use of a TENS unit, additional chiropractic treatments, and two additional MRIs.  The garment that the employee used to hold the TENS electrodes in place had Velcro straps that were situated directly over his preexisting umbilical hernia area.  When the garment rubbed against the hernia, the hernia increased in size and began to bleed.  Dr. Kraker recommended that the hernia be surgically repaired in order to strengthen the employee=s abdominal muscles and allow him to benefit from physical therapy.^[4]

 

The employee underwent an independent medical examination with Dr. Terry Hood on December 21, 2007.  In his report of that date, Dr. Hood opined that the employee had sustained a lumbar sprain/strain injury as a result of his work injury on September 8, 2006, but that the work injury was not a substantial contributing cause of the free fragment disc herniation at L4-5.  He opined that the primary cause of the employee=s lumbar spine condition was his morbid obesity, and he reported that the employee=s work injury had resolved on January 22, 2007, Aat which time he developed a new clinical syndrome,@ and that MMI from the work injury had been reached on that date.

 

The employee was properly served with MMI opinions on October 31, 2007 (based on the September 7, 2007, report of Dr. Kraker) and on March 3, 2008 (based on the December 21, 2007, report of Dr. Hood).

 

On January 8, 2008, the employee filed a medical request for the umbilical hernia surgery prescribed by Dr. Kraker, and on January 31, 2008, he filed another medical request for a permanent low back garment, a TENS unit, and a muscle stimulator.  In their response to the second medical request, the employer and insurer indicated that they had paid for rental of some of the requested items.

 

The latter medical request was subsequently amended to include only a request for a TENS unit.  Following an administrative conference, the employee filed a request for formal hearing for the TENS unit.

 

On March 7, 2008, the employer and insurer filed a notice of intention to discontinue benefits [NOID], seeking to discontinue benefits as of May 3, 2008, based on Dr. Hood=s MMI opinion.  The NOID indicated that the employer and insurer had paid temporary total disability benefits from January 1, 2007, through March 4, 2008.  The employee filed an objection to discontinuance.  The January 2008 medical request, the request for formal hearing, and the objection to discontinuance were subsequently consolidated for purposes of hearing.

 

That hearing was held on June 3, 2008.  In findings and order filed on July 31, 2008, the compensation judge found, in part, that the September 8, 2006, work injury was a substantial contributing cause of the employee=s development of the free fragment herniation and the employee=s need for surgery, that the use of the support garment and TENS unit belt after January of 2007 had substantially aggravated the employee=s hernia, that the employee had sustained a consequential injury that requires surgery, and that the employee had not yet reached MMI.  The employer and insurer appeal.

 

STANDARD OF REVIEW   

 

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 (2008).  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, 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 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

 

1.  Causation for Back Surgery and Disability

 

The employer and insurer contend that the record Ais simply devoid of any supportive facts that the September 8, 2006 lumbar strain had any affect on the incident of January 24, 2007, where the Employee sustained a L4-5 free fragment disc herniation,@ and that the judge=s finding of a causal link between the work injury and that herniation cannot be affirmed.  Specifically, the employer and insurer contend that Dr. Kraker did not opine that the September 8, 2006, lumbar strain was a substantial contributing cause of the free fragment disc herniation that required surgery.  Rather, the employer and insurer argue, Dr. Kraker opined that the MedX program was the cause of the L4-5 free fragment disc herniation.  We are not persuaded.

 

As noted by the employer and insurer, the compensation judge found that the L4-5 free fragment disc herniation did not develop until January 24, 2007, but that the employee did not sustain a significant  injury to his back while using the MedX equipment on that date. Those findings were not appealed.  Those findings, however, do not render Dr. Kraker=s causation opinion Afoundationally deficient,@ as the employer and insurer contend.  Contrary to the employer and insurer=s assertion, Dr. Kraker did not opine that the free fragment disc occurred as the employee was using the MedX equipment on January 24, 2007, or that the use of the MedX equipment on January 24, 2007, caused the free fragment herniation.

 

Dr. Kraker=s April 2008 letter states both that the employee Awas under treatment at  PNBC for the injury of 9/8/06 when the extruded disc herniation occurred@ and that Athe extruded disc herniation occurred after treatment at Physicians Neck and Back Clinic.@  Those statements may be interpreted to mean simply that the free fragment herniation occurred in the period during which the employee was treating with PNBC and using MedX equipment.  While Dr. Kraker noted that the employee complained of increased pain after using the exercise equipment, he did not state that the use of that equipment caused the free fragment herniation.  In any event, what ultimately triggered the free fragment herniation, or even when, exactly, it occurred, is not necessarily determinative of the ultimate question on appeal.

 

Dr. Kraker concluded that Athe work injury of 9/8/06 was a significant contributing factor to the need for surgery in January of 2007 and his continued back pain.@ (Emphasis added).  A work injury need not be the sole cause of an employee=s condition, only a substantial contributing cause, to support a finding of liability.  See Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 40 W.C.D. 117 (Minn. 1987).  Here, the medical records easily support the conclusion that the employee never recovered from the September 8, 2006, injury.  He continued to have pain and restricted motion.  Dr. Kraker found that the disc herniation as seen on MRI dated December 13, 2006, had increased in size as compared to the image from 2002.  Dr. Meyer had removed the employee from work as of December 6, 2006, and, as early as December 19, 2006, Dr. Meyer had raised the possibility of referring the employee to a back surgeon.  On December 21, 2006, the employee complained of recently having spent nine days flat on his back, unable to get up, and Dr. Coulter=s treatment records document radicular leg pain at that time.  On  January 2, 2007, the employee complained of severe, excruciating pain, and, on January 24, 2007, while at PNBC, he described his back pain as terrible.  That is, the record strongly suggests that, whatever caused the employee=s disc to fragment, he was nevertheless headed toward surgery due to the severe symptoms caused in substantial part by his work injury.

 

A judge=s choice between expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord  v. City of Cook, 460 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employee=s testimony and the medical records all support Dr. Kraker=s opinion that the 2006 work injury was a substantial contributing cause of the employee=s need for surgery in January of 2007 and of the employee=s disability thereafter.  On this basis, we affirm the judge=s award.

 

2.  Remaining Issues

 

The employer and insurer also appeal from the judge=s findings that the employee=s umbilical hernia was a consequential injury, that MMI had not been reached from the work injury, and that the employee was entitled to temporary total disability benefits and medical expenses.  However, the employer and insurer=s arguments on these issues all focus on their contention that the free fragment disc herniation and resulting surgery were not causally related to the 2006 work  injury.  As we have affirmed the judge=s finding that the January 2007 surgery was causally related to the 2006 work injury, we need not consider the other issues.