ERNEST ROWAN, Employee/Appellant, v. UNITED STATES STEEL CORP., SELF-INSURED/U.S. STEEL, Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 7, 2008

 

No. WC08-135

 

HEADNOTES

 

ARISING OUT OF & IN THE COURSE OF.  Where the employee had a long history of substantial preexisting right knee symptoms and treatment, including three surgeries, where the employee=s right knee symptoms occurred after he merely turned his body to the left at work, and where expert medical opinion supported the conclusion that this low-force incident did not substantially cause the employee=s torn ACL or meniscus tears, substantial evidence supported the compensation judge=s decision that the employee did not sustain a right knee injury arising out of and in the course of his employment.

 

Affirmed.

 

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

Compensation Judge: Gregory A. Bonovetz

 

Attorneys: Russell J. LaCourse, LaCourse Law Office, Duluth, MN, for the Appellant.  James P. Paciotti, Law Office of James P. Paciotti, Duluth, MN, for the Respondent.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s decision that he did not sustain a right knee injury arising out of and in the course of his employment with the employer on August 4, 2006.  We affirm.

 

BACKGROUND

 

The employee in this matter has a long history of significant right knee symptoms and treatment dating back to at least the early 1980s, when he apparently underwent an open medial meniscectomy.^[1]  He subsequently underwent arthroscopic surgery for a posterior horn medial meniscal tear in November of 1999, at which time his surgeon noted that he also had grade III chondromalacia of the medial femoral condyle, grade II chondromalacia of the tibial plateau, and an anterior cruciate ligament [ACL] that was a Abit frayed secondary to some medial arthrosis but was otherwise normal.@

 

In the spring of 2004, the employee was seen again for right knee pain that had reportedly been worsening since an unrelated back surgery.  An MRI performed in September of 2004 disclosed, among other findings, a complex tear of the medial meniscus, thinning of the articular cartilage involving the medial aspect of the medial femoral condyle and tibial plateau, joint effusion with some debris, chondromalacia patella, cystic degenerative change at the femoral attachment of the ACL, and A[i]rregular appearance of the [ACL] demonstrating poor definition,@ Asuggest[ing] a tear of unknown age.@

 

The employee underwent a third right knee surgery, on November 29, 2004, in the nature of a subtotal medial meniscectomy, patellofemoral joint chondroplasty, and removal of a loose body.  After receiving a series of Synvisc injections, the employee had no further treatment for his right knee condition from early February 2005 until early August of 2006, a period of 18 months.  He testified that he experienced no significant knee symptoms during that period.

 

The employee was employed as a millwright by United States Steel Corporation [the employer], working in rod mills and ball mills, which are used to grind ore.  The ore is fed into the mill by belt, the mill rotates, and the rods or balls inside the mill crush the ore into a slurry.  Rod mills are 15 feet high, and the rods inside are about 4.5 inches in diameter and 20 feet long.  The employee=s job as a millwright involved going into the mills and removing and replacing Aliners,@ plates that line the mills.  The liners are removed by machine using a device called a Temco, which attaches to the individual liner, and an Aair tugger@ or hoist.  The mills are not operating when the liners are replaced, and the rods inside are simply lying on the floor of the mill, as they have fallen, when the millwrights perform their work.  The process of replacing the liners also involves removing the nuts that hold the liners in place, jack hammering off the bolts, and prying the liners off the walls.

 

On the morning of August 4, 2006, the employee experienced right knee pain while turning to his left in order to connect a Temco, which was suspended on a chain, to a liner for removal.  The employee told coworkers that he had hurt his knee and reported the incident to his supervisor that same day.

 

The record contains varying descriptions as to exactly what the employee was doing when his symptoms occurred.  In a document entitled AInjury Report Part 1,@ the employee indicated that he had Aturned left to get another liner felt right knee pop.@  In another report, entitled AEmployee Injury Report,@ the employee wrote that he Awas going to get another liner holding chains turned to get another liner felt knee pop and hurt, uneven surface in rod mill might have caught my foot I=m not sure.@  Both reports were completed on August 4, 2006, the day of the incident.  A few days later, the employer=s area manager wrote a memorandum describing his conversation with the employee as follows:

 

I spoke with Ernie Rowan while he and Dave Santelli were filling out the accident report in the operations office.  I asked Ernie several times to describe to me what he was doing at the time of the injury.  Ernie stated that he was positioned inside of the rod mill on line 10 and he was facing towards the South side of the mill.  He had just finished placing a used liner on the lining machine and grabbed the Temco liner lifters, which were still hanging from an air hoist, and turned to his left to go and hook up another liner.  As he turned to go get the next liner, he felt a Apop@ in his right knee.  He did not recall whether he had actually taken a step yet or not and I had asked him that question several times to try and confirm this.  Ernie=s version of the accident report reflects that he was not exactly sure what caused his knee to Apop@ other than the turning motion.

 

This injury was not the result of a slip, trip, or fall and that is also reflected in Ernie=s version of the accident report.

 

For the record, Temco liner lifters are used to handle both new and used mill liners, they work by inserting the jaws into a bolt hole and as a lifting force is applied, the Temco=s jaws expand to grip the liner.  While hanging from the air hoist inside the mill, the Temco lifters would not weight very much, in other words, I don=t feel that a lifting load came into play in this case.

 

An accident report completed by the employee=s supervisor indicated that the employee had Atwisted knee on grinding rods.@  In an application for sickness and accident benefits, the employee wrote that his Afoot got wedged and twisted right knee.@

 

Medical records similarly contain differing accounts of what occurred just prior to the onset of the employee=s knee symptoms.  For example, a record from the employee=s visit to the employer=s dispensary on August 4, 2006, indicates that the employee was pulling on a liner, Aturned to the side to slide it over onto the conveyance device when he heard three quick clicks in his right knee@ and experienced sharp pain.  In an addendum to a report from a dispensary visit on August 7, 2006, Dr. Brian Pfeifer wrote as follows:

 

Addendum from visit 8-7-06 involving his right knee.  In reviewing  this with Mr. Rowan, he did not twist his knee, did not fall, did not step or slip.  He was not lifting anything at the time, he had not been lifting anything at all, was attaching a hook to the lining material that was being picked up by a hoist of some sort.  He did not have anything on the hook, he was simply turning to place it on when he felt pain in his medial knee.  This is c/w his written report here and the safety investigation that followed.  Mr. Rauzi tells me that he checked with James at MSHA and under [MSHA] view of everyone who reviewed this was that there was no incident to set this off.  There was certainly evidence of pre-existing osteoarthritis and that this is not an MSHA reportable case.  Given the fact that no significant incident occur[r]ed and that this is most likely result of the natural progression of the arthritis in his knee.  From a work comp standpoint, it=s not clear and has not been defined.

 

Records from the employee=s subsequent knee treatment with Dr. Russell Bergum indicate at one point that the employee=s Afoot got caught in some rubble and pipes while he was working, causing him to twist his knee@; at another point, Dr. Bergum indicated that the employee was standing Awith both feet planted on the ground. . .when his right foot got stuck in some pipes and rubble.  He started to slip and twisted his knee.@  As recorded by Dr. Troy Erickson, the employee sustained Aa traumatic injury to his right knee when his foot caught on something as he was turning, creating a twisting force.@  In another report, Dr. Erickson indicated that the employee had Acaught, twisted his leg and went hard onto it and fell to the ground.@

 

The employee underwent an MRI scan on August 21, 2006.  According to the radiologist=s report, the scan disclosed as follows:

 

1.         Acute complete disruption of the anterior cruciate ligament with hemorrhage and/or edema obscuring detail within the intercondylar notch.

2.         There is prominent abnormal increased intensity involving the posterior cruciate ligament suggesting partial disruption which may be high in grade.

3.         Early marginal osteophyte formation seen involving the medial joint space with prominent articular cartilage loss.

4.         Moderately large joint effusion.

5.         Moderate popliteal cyst.

6.         Prominent irregularly and thinning retropatellar articular cartilage.

7.         Contusion involving the posterior aspect of the medial and lateral tibial plateaus.

8.         Complex tear entire medial meniscus with partial absence of the mid meniscus raising the possibility of meniscal loose bodies.

9.         Complex tear posterior and lateral meniscus.

 

On November 16, 2006, the employee underwent another right knee surgery, performed by Dr. Erickson, consisting of an arthroscopic medial meniscal repair, partial anteromedial meniscectomy, extensive debridement of the ACL, and excision of a loose body in the anterior compartment.

 

The employee claimed entitlement to wage loss benefits, permanent partial disability benefits, and medical expenses as a result of the August 4, 2006, incident, and the matter came on for hearing before the compensation judge on January 17, 2008.  Relying largely on the opinion of their independent medical examiner, Dr. Michael D=Amato, the self-insured employer denied that the employee had sustained a compensable injury.  Evidence included the employee=s medical records and testimony, the testimony of the employee=s manager and two coworkers, and the deposition testimony of Dr. D=Amato.

 

In a decision issued on February 7, 2008, the compensation judge concluded that the Aonset of marked knee symptomatology@ that the employee experienced at work on August 4, 2006, Adid not arise out of the employee=s performance of his work duties.@  The judge also concluded that the employee=s November 2006 surgery had been performed to address conditions preceding the event of August 4, 2006, and, because the employee had not sustained an injury arising out of and in the course of his employment, the judge denied the employee=s claim in its entirety.  The employee 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

 

In Minnesota, an injury is compensable for workers= compensation purposes if the injury arises out of and in the course of the employee=s employment.  See Minn. Stat. ' 176.011, subd. 16.  AIn the course of@ refers to the time, place, and circumstances of the injury, while Aarising out of@ refers to the causal connection between the injury and the employee=s work activity.  Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988).  The requisite causal connection Aexists if the employment, by reason of its nature, obligations or incidents may reasonably be found to be the source of the injury producing hazard.@  Nelson v. City of St. Paul, 429 Minn. 53, 55, 81 N.W.2d 272, 275, 19 W.C.D. 120, 123 (1957).  Under what is known as the Aincreased risk@ test, applicable in Minnesota, there must be a showing that the Ainjury was caused by an increased risk to which the claimant, as distinct from the general public, was subjected to by his or her employment.@  1A. Larson & L.K. Larson, Workers= Compensation Law ' 3.00 (1999);  see Bohlin v. St. Louis County/Nopeming Nursing Home, 61 W.C.D. 69 (W.C.C.A. 2000); Pratt v. Minnesota Tex Invs., 63 W.C.D. 33 (W.C.C.A. 2005); Goebel v. Dyneon Corp./3M Co., slip op. (W.C.C.A. Jan. 24, 2005).

 

In the present case, it is undisputed that the employee was in the course of his employment when his right knee symptoms occurred.  That it, he was performing his usual work, during his usual shift, on the employer=s premises.  The compensation judge concluded, however, that there was insufficient causal connection between the employee=s work activities and his right knee disability and need for treatment to support a finding of compensability.  In other words, the employee did not sustain an injury Aarising out of@ his employment.

 

The judge=s denial of the employee=s claim was based largely on his conclusions as to two underlying factual issues.  The first concerns the question of just what the employee was doing when his symptoms occurred.  As indicated earlier in this decision, the record contains varying descriptions of the employee=s activity.  After discussing some of these accounts, the compensation judge concluded that the employee had simply turned to his left and felt a Apop@ in his knee, that nothing else had occurred at the time in question.  The judge also expressly rejected records indicating that the employee had caught his foot or that a significant twisting force had been generated, explaining in his memorandum that A[t]here was no forceful, traumatic event.@  While the evidence is conflicting, the record clearly supports the compensation judge=s conclusions as to the circumstances of the August 4, 2006, work event. 

 

The second component of the compensation judge=s decision involves the issue of medical causation.  In support of his claim, the employee relied on the medical opinions of two treating doctors, Dr. Bergum and Dr. Erickson.  Dr. Bergum concluded that the employee had sustained an acute, traumatic injury to his ACL in the incident at work, as evidenced by the August 2006 MRI scan.  Dr. Erickson similarly concluded that the incident was Aquite consistent with an acute complete ACL tear and progression of medial meniscal tears,@ a Asubstantial aggravating factor, which accelerated [the employee=s] underlying right knee condition beyond the normal rate of progression.@

 

Dr. D=Amato, on the other hand, concluded that the employee had already had a complete ACL tear by at least 2004, as evidenced by the September 2004 MRI scan and a positive Lachman=s test noted in an October 2004 treatment record.^[2]  Dr. D=Amato further testified that the event of August 4, 2006, was merely a manifestation of the employee=s preexisting bone-on-bone osteoarthritis, meniscus deficiency, and ACL tear, that the August 4, 2006, event caused no material change in the employee=s underlying condition, and that the employee=s right knee was in fact already so damaged prior to the claimed injury that very little additional damage was even possible.  In explaining his conclusions in this regard, Dr. D=Amato indicated that simply turning in place constitutes a very low energy event, which was, at most, responsible for temporary bone bruising and tearing of scar tissue.

 

The compensation judge specifically accepted the opinion of Dr. D=Amato and rejected the opinions of the employee=s treating physicians.  In doing so, the judge noted that both Dr. Bergum and Dr. Erickson had assumed that the employee had injured himself in some kind of forceful twisting incident, a scenario rejected by the judge as unsupported by the record.  The judge also noted that there was no evidence that either Dr. Bergum or Dr. Erickson had been given a complete history of the employee=s prior right knee treatment, including the earlier surgeries.  A compensation judge=s choice between conflicting medical opinions is generally upheld if the facts assumed by the expert are supported by the record.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Here, we find no basis to overturn the judge=s choice between conflicting medical opinions as to the cause of the employee=s disability and need for treatment. 

 

In summary, the record supports the conclusion that the employee experienced significant knee symptoms when he simply turned his body to the left, standing in place, while performing his job.^[3]  Medical opinion reasonably accepted by the judge also supports the conclusion that this activity did not materially contribute to the employee=s subsequent disability and need for treatment, especially in view of his very serious preexisting condition.  No particular work hazard created an Aincreased risk@ that resulted in injury; rather, as the compensation judge explained it,

 

In essence, well prior to August 4, 2006 the employee=s right knee was a Atime bomb@ waiting to go off.  With the preexisting ACL tear, with the bone-on-bone end stage arthritis and with the meniscal tears it was just a question of time before the employee would once again experience a marked increase in symptomatology.  Here the time bomb just happened to go off while the employee was turning at work.  There was no forceful, traumatic event.  As the employee testified: AI just turned.@

 

The judge=s decision is affirmed.