HAROLD K. ZIMMERMAN, Employee, v. METZ BAKING CO. and ACE USA, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 3, 2008

 

No. WC08-144

 

HEADNOTES

 

CAUSATION - PRE-EXISTING CONDITION; EVIDENCE - CREDIBILITY; EVIDENCE - EXPERT MEDICAL OPINION.  Where the judge reasonably concluded that the employee=s position and testimony as to the post-injury development of his low back symptoms were neither internally inconsistent nor in conflict with the medical records, and where the causation opinions of two treating doctors relied upon by the judge were not without proper foundation, the compensation judge=s denial of discontinuance and her award of ongoing temporary total disability benefits were not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

Determined by: Pederson, J., Rykken, J., and Stofferahn, J.

Compensation Judge: Catherine A. Dallner

 

Attorneys: James E. Lindell, Lindell & Lavoie, Minneapolis, MN, for the Respondent.  James S. Pikala and Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's conclusion that the employee sustained a compensable low back injury in the course of his employment on February 25, 2007.  We affirm.

 

BACKGROUND

 

On February 25, 2007, Harold Zimmerman sustained an injury when, in the course of his work as a transport driver for Metz Baking Company, he slipped on some ice and fell onto his back, bumping his head and pinning his left hand behind him.  Mr. Zimmerman [the employee] was sixty-five years old on that date and was earning a weekly wage of $842.88.   He reported the incident to Metz Baking Company [the employer] on that date, and on about March 6, 2007, he saw occupational health specialist Dr. Terry Domino, to whom he complained of Adiscomfort over the left lateral hip area and some over the he[e]l area on the right side@ and Atingling in the left index middle finger area@ but Adenie[d] any low back pain or any neck pain.@  Physical examination revealed Ano palpable tenderness in the lumbar spine@ and Afull range of motion of the left hip,@ though Aa little palpable tenderness over the skin area of the lateral hip area.@  Dr. Domino diagnosed acute left cervical strain with left hand paresthesia, right heel pain, and mild left hip contusion, and he ordered an EMG to test for cervical radiculopathy and released the employee to return to his driving job, recommending that he reinstall a steering knob on his truck steering wheel to minimize his hand discomfort. The employer and its insurer acknowledged liability for a work-related injury on February 25, 2007, and commenced payment of benefits.

 

On April 4, 2007, the employee underwent a left upper extremity EMG, which was read by Dr. Frank Wei to reveal no cervical radiculopathy, peripheral neuropathy, or plexopathy and no ulnar nerve problem, but there was evidence of a severe left median neuropathy at the wrist consistent with left carpal tunnel syndrome.  On that same date, the employee returned to see Dr. Domino, who noted that the employee=s right heel pain appeared to be improving but that he still had Asome numbness feeling around the anterior thigh area on the left side, but no associated back pain now.@  Examination of the left hand revealed a positive Tinel=s sign, with some tingling radiating into the middle finger and thumb, and Dr. Domino requested a surgical consultation and released the employee to continue working without restrictions.

 

On April 17, 2007, the employee was examined by orthopedic surgeon Dr. Paul Donahue, who recommended carpal tunnel release surgery.  On May 1, 2007, Dr. Domino conducted a preoperative physical examination of the employee.  Dr. Domino noted early in his office notes that A[t]he [employee] had a date of injury of 2/25/07, where he fell out of his truck sustaining a low back injury and neck injury and aggravation of his carpal tunnel on the left side.@  In addition to noting that the employee had complained of persistent tingling and numbness in his left hand ever since his injury of February 25, 2007, Dr. Domino noted on that date that the employee Aalso continues to complain of low back pain and that will be address[ed] at a later time.@  Dr. Domino found the employee clear for surgery, and on May 4, 2007, the employee underwent the recommended left carpal tunnel release and left index and middle finger trigger releases, performed by Dr. Donahue.

 

On May 23, 2007, the employee returned to see Dr. Domino specifically regarding his low back problem, which Dr. Domino noted Aoccurred when he fell off the truck at the same time when he injured his neck, which resulted in carpal tunnel surgery.@  The employee complained on that date of bilateral low back pain, more on the left than on the right, with some radiation into the left buttock and across the front of the left thigh, with similar but less intense symptoms on the right.  Examination of the employee=s back revealed some minimal tenderness to percussion over the left low lumbar area, and x-rays were read to reveal mild disc space narrowing at L4-5 and L5-S1, Awith moderate to severe facet [stenosis]^[1] at these levels indicative of degenerative joint disease,@ and Dr. Domino recommended a lumbar MRI scan and released the employee to work restricted from doing any lifting.  The scan, conducted on May 30, 2007, was read to reveal mild disc degeneration at L3-4 without neural impingement, moderate stenosis and disc degeneration at L4-5 with mild encroachment on the traversing L5 nerve roots, and advanced disc degeneration and mild foraminal stenosis at L5-S1 without neural impingement.  On June 1, 2007, the employee saw Dr. Domino again, who noted that the employee=s hand was feeling better and his back pain was better, although A[h]e does get bilateral tingling in the feet and does have some bilateral low back soreness on occasion,@ denying, however, any specific radiation of pain down the legs.

 

On June 20, 2007, the employee saw spine surgeon Dr. Stefano Sinicropi, on referral from Dr. Domino.  Upon examination of the employee and review of his MRI scan, Dr. Sinicropi diagnosed A[m]oderate central canal stenosis with severe subarticular root sleeve at L4-5,@ along with A[l]ow back pain and bilateral lower extremity numbness.@  Dr. Sinicropi recommended an epidural steroid injection and physical therapy and issued work restrictions.  A few weeks later, on July 11, 2007, with the employee now complaining of fairly significant low back pain and worsening bilateral lower extremity numbness with standing and walking, Dr. Sinicropi restricted the employee from working.  The physical therapy, commenced about June 25, 2007, and the steroid injection, finally approved and administered on July 17, 2007, did not result in any relief of the employee=s symptoms, and on August 1, 2007, with symptoms continuing, Dr. Sinicropi recommended discography.  The employee underwent the procedure on August 17, 2007, performed by Dr. Louis Saeger, who read the results to reveal highly concordant pain at L4-5 and L5-S1.  Upon the employee=s follow-up on August 21, 2007, Dr. Sinicropi recommended decompression and fusion at L4-5 and L5-S1, with which the employee elected to proceed.

 

On September 4, 2007, the employee was evaluated for the employer and insurer by orthopedic surgeon Dr. Loren Vorlicky, who took a history of the employee, physically examined him, and reviewed his medical records absent any radiographs, which had not been provided for the doctor=s review.  In a report dated September 11, 2007, Dr. Vorlicky concluded in part that both the employee=s surgically repaired carpal tunnel condition and his multi-level lumbar degenerative disc disease and spinal stenosis conditions predated the employee=s fall at work on February 25, 2007, and were not causally related to that incident.  It was Dr. Vorlicky=s opinion that, as a result of that incident, the employee sustained only a left hip contusion and a right heel contusion and that both of those injuries would have healed without any specific treatment.  It was his further opinion that the employee had no need of any further medical or chiropractic or diagnostic care relative to his February 25, 2007, injuries, that he was subject to no permanent partial disability relative to those injuries, and that any work restrictions that he might reasonably require would also be unrelated to those injuries.

 

On September 21, 2007, the employer and insurer filed a notice of intention to discontinue the employee=s temporary total disability benefits, on grounds that the employee=s lumbar spine and carpal tunnel conditions were not work-related but were entirely pre-existing in nature.  An administrative conference was held on October 26, 2007, following which, on November 8, 2007, the employee filed an objection to discontinuance, alleging entitlement to ongoing benefits consequent to a work-related injury to his low back on February 25, 2007.

 

In a letter to the employee=s attorney dated December 27, 2007, replying to a request for further information about the employee=s injury of February 25, 2007, Dr. Domino reported in pertinent part as follows:

 

History reveals that [the employee] fell backwards off his truck, landed on his back, and on examination of 3/6/2007 he indicated some tingling sensation in the lateral side of the left hip and thigh area.  He did not specifically indicate any significant severe back pain at that time.  Subsequently he developed gradual worsening of back pain and I attribute this back pain directly to the fall that occurred on 2/25/2007.  . . . .

 

My note dated 5/1/2007 makes mention of the fact that the [employee] fell out of his truck sustaining low back injury and neck injury and aggravation of his carpal tunnel on the left side.  My evaluation dated 5/23/2007 also indicates that he noticed bilateral low back pain, more consistent on the left side with some radiation down the buttocks and across the anterior thigh on the left leg.

 

The above information give[s] contributory evidence that the work comp injury dated 2/25/2007 is [a] contributing factor [to] the necessity [of] the spinal procedure recommended by Dr. Sinicropi.

 

In a letter to the employee=s attorney dated February 14, 2008, after recounting the history of his treatment of the employee and indicating that he had reviewed also treatment notes of Dr. Domino, Dr. Sinicropi opined as follows:

 

According to [the employee], he was having discomfort in his low back [following February 25, 2007], and that gradually progressed.  His symptoms have continue to worsen.  Assuming this information from the [employee] is true, it is my opinion that the fall he had on February 25, 2007 constituted a substantial contributing factor in the development of his low back pain and leg symptoms.  He has sustained a severe and permanent aggravation to a preexisting condition as a result of that fall.  . . . . I continue to recommend surgery for [the employee], and his treatment is necessary to relieve symptoms he sustained as a result of the fall on February 25, 2007.

 

The matter came on for hearing on February 26, 2008.  Issues at hearing included whether the employer and insurer were entitled to discontinue the employee=s temporary total disability benefits on grounds that the employee=s lumbar spine condition was pre-existing in nature and not related to an injury that he sustained in the course of his work for the employer on February 25, 2007.  Evidence submitted at hearing included the testimony of the employee, including in part that, in the days immediately following his slip and fall on February 25, 2007, during which he continued to work at his regular job, he Ahad some discomfort in my back and I had patches on my left leg that were getting numb and above my right knee.@  The employee testified further that he also described these symptoms to Dr. Domino at his first treatment visit on March 6, 2007, although he acknowledged that he denied any actual low back Apain@ because Ait wasn=t really throbbing pain.@  He testified further that, when, on Dr. Domino=s entry form, he crossed out only Aarms@ on a query as to whether he had any numbness in his arms or legs, he intended to indicate that he had numbness in his legs.  He testified that he also indicated on a diagram that day that he had patches of pain and numbness in his left thigh and above his left knee, and he testified that that pain was severe.  He testified further that he continued to see Dr. Domino because Athe numbness in my leg was getting worse and the discomfort of my back was getting worse@ while the pain in his left hand Awas getting a lot worse,@ to the extent that he Acouldn=t close it hardly at all.@  He testified also, regarding another in-processing diagram in the records of Dr. Sinicropi, that his symptoms by the time of his referral to that doctor were similar, except that A[t]he one up on my hip had grown a little bit.  . . .  And I had also gotten another one down my left leg,@ which had by that time extended down into his foot.  Finally, he testified also that he eventually had symptoms from the knee up in his right leg, in addition to the symptoms in his left leg.

 

By findings and order filed March 17, 2008, the compensation judge concluded in part that the employee=s slip and fall on ice in the employer=s parking lot on February 25, 2007, had resulted in an aggravation to the employee=s pre-existing lumbar disc degeneration and stenosis, such as constituted a compensable work-related injury.  In drawing that conclusion, the judge expressly indicated, in a detailed three-page memorandum, that she found the employee=s testimony credible and the opinions of Drs. Domino and Sinicropi more persuasive than the opinion of Dr. Vorlicky.  On those findings, the judge concluded that the employer and insurer were not entitled to discontinue the employee=s temporary total disability benefits, and she ordered payment of those benefits continuing from September 19, 2007, as claimed.  The employer and insurer appeal.

 

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 compensation judge found that the employer and insurer were not entitled to discontinue the employee=s temporary total disability benefits on grounds that the employee=s lumbar spine condition was not work related.  The employer and insurer contend that that conclusion is not supported by substantial evidence.  They argue (1) that A[t]he Employee=s testimony was inconsistent regarding the development of his symptoms,@ (2) that A[t]he Employee=s testimony conflicted with the medical records,@ and (3) that Athere is no well-reasoned, founded medical [opinion] linking the Employee=s low back findings to the work incident.@  We are not persuaded.

 

1.  Inconsistency

 

The compensation judge concluded expressly in her memorandum that A[t]he employee testified credibly regarding his symptoms at the time of his slip and fall on the ice on February 25, 2007 and the progression and worsening of his symptoms over the course of the following weeks and months.@  At the time of his initial visit with Dr. Domino, the employee had denied any low back Apain,@ and Dr. Domino=s records do not reflect any complaints of any Apain@ until the employee=s pre-operative evaluation for carpal tunnel surgery on May 1, 2007.  The employee testified at hearing, however, that he both was feeling and reported low back Adiscomfort@ to Dr. Domino at the at the time of his initial visit, explaining that his low back symptoms were very minimal in comparison to the far more significant pain that he was feeling in his left hand and left hip area.  The judge indicated in her memorandum that she accepted the employee=s distinction between actual Apain@ and mere Adiscomfort.@  The employer and insurer contend that the employee=s testimony is inconsistent and conflicting and therefore should not have been given much weight in the judge=s determination of the nature and extent of the employee=s injury.  We conclude, however, that, particularly in light of her expressly identifying the alleged inconsistency and addressing it directly, the judge remains entitled to this court=s normal deference to a factfinder=s unique role in assessing the credibility of the testimony of a witness appearing before her.  See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact).  We also find some support for our conclusion in what appears to be at least a suspicion in Dr. Domino=s mind a month later, on April 4, 2007, that the employee=s left leg symptoms could potentially be related to a back injury, when Dr. Domino noted some continuing Anumbness feeling around the anterior thigh area on the left side, but no associated back pain now@ (underscoring added).

 

2.  Conflict with the Medical Records

 

In arguing that the employee=s position and testimony conflicts with the medical records, the employer and insurer first reiterate at some length their suggestion that the employee=s distinction between low back Apain@ and low back Adiscomfort@ is artificial and insubstantial.  As we have implied above, we conclude that the employee=s distinction does not constitute a dispositive inconsistency in his position, nor, we conclude here on the same grounds, does it necessarily constitute a conflict with the medical record.  The employer and insurer suggest also that Dr. Domino=s reference on May 1, 2007, that the employee=s injury occurred when he Afell out of his truck@ not only conflicts with the employee=s own history of his injury but also invalidates the doctor=s opinion by demonstrating A[a] lack of understanding of the mechanism of the injury.@  On this point, however, we agree with the employee that, once the doctor had identified the accurate mechanism of injury at his initial examination of the employee as a serious fall by the employee onto his back, no dispositive weakness in the foundation of Dr. Domino=s opinion is established by the doctor=s temporary lapse in articulating the context of the fall, whether it was onto ice consequent to slipping or out of a truck otherwise precipitated.

 

The employer and insurer have argued also that the judge failed in her analysis to note certain Akey portions@ of the medical record, including the fact that the employee=s back pain was reportedly Abetter@ on June 1, 2007, over three months post injury.  The employer and insurer themselves, however, fail to note the key fact that the record on that same date indicates that the employee Adoes get bilateral tingling in the feet and does have some bilateral low back soreness on occasion.@  The employee=s back-related symptoms as reported in his medical records may have been ambiguous for a period following the employee=s work injury, but they were not necessarily in conflict with the employee=s testimony, and it was not unreasonable for the compensation judge to conclude that those symptoms were growing increasingly more evident.

 

Finally, the employer and insurer argue that A[t]he nature of the Employee=s low back condition is something that takes years to develop, and would not have been caused by the February 2007 incident.@  Neither the employee=s lumbar MRI findings nor his clinical lumbar findings, they argue, are described as acute in the records of either Dr. Domino or Dr. Sinicropi, the latter repeatedly describing those findings as Aclassic@ and Asecondary to L4-5 disease@ or Asecondary to L4-5 severe subarticular recess stenosis,@ language perhaps more suggestive of only a longer term condition.  Moreover, they argue, Aat no point in any of the contemporaneous medical records and reports, prepared between February and August 2007, did either Dr. Sinicropi or Dr. Domino refer to the Employee=s low back diagnosis as caused, aggravated or accelerated by the February 25, 2007 incident.@  AIn fact,@ they argue, Aneither Dr. Domino nor Dr. Sinicropi reported that the employee=s >lumbar degeneration and stenosis= was contributed to by the February 25, 2007 incident,@ as the compensation judge had asserted in her memorandum.  We conclude, however, that, while neither doctor may have used exactly the phrase Alumbar degeneration and stenosis,@ as employed by the compensation judge, the judge=s assertion clearly captures the reasonable gist of both doctors= opinions, and we will not presume to question either doctor=s ultimate professional opinion, however belated, as to the effect of the employ=s fall on his preexisting low back condition.

 

3.  Foundation and Sufficiency of  the Medical Opinions Relied Upon

 

The employer and insurer contend that proper foundation is lacking for the causation opinions of both Dr. Domino and Dr. Sinicropi, upon both of which the compensation judge relied in reaching her decision in this matter.  They contend, as asserted also with regard to earlier issues here, that Dr. Domino=s opinion is insufficiently founded to be relied upon first of all in that he was basing his opinion on a presumption that the employee=s injury occurred when he fell Abackwards off his truck,@ a factual premise that is not supported by substantial evidence or even asserted by the employee.  We have addressed this argument above and will not do so again.  The employer and insurer argue further that, while Dr. Domino=s report does assert the ultimate conclusion that the employee=s work injury was a substantial contributing cause of the employee=s ongoing low back condition, the doctor Afails to provide any explanation connecting the work incident with his listed diagnosis of disc space narrowing at L3-4 with annular bulging facet arth[ro]pathy on the left and moderate disc degeneration at L4-5 and L5-S1.@  We acknowledge that Dr. Domino=s report is not as detailed as it might better have been in the areas referenced by the employer and insurer.  But, particularly in the case of an expert who has known and treated an employee for an extended period of time, as is here the case, we are reluctant to disregard a medical expert=s opinion, or a factfinder=s discretion to rely on that opinion, simply on grounds that its explanatory detail is minimal.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence); Pommeranz v. State, Dep=t of Public Welfare, 261 N.W.2d 90, 91, 30 W.C.D. 174, 177 (Minn. 1977) (the truth of an expert opinion Aneed not be capable of demonstration@); Skari v. Fluidyne Eng=g, No. WC07-201 (W.C.C.A. Dec. 21, 2007) (an expert medical opinion does not lack foundation because the doctor did not explain the mechanism of the injury or the underlying reasons for his or her opinion); see also Gardner v. Elbow Lake Coop Grain, No. WC07-180 (W.C.C.A. Jan. 10, 2008), Henchal v. Federal Express Corp., No. WC07-212 (W.C.C.A. Jan. 30, 2008).

 

The employer and insurer contend further that Dr. Sinicropi=s opinion also fails for a similar shortage of detail in its explanation of a causal connection between the work incident and the employee=s low back condition, and on similar precedent we will not reverse with regard to Dr. Sinicropi=s opinion either.  The employer and insurer argue also that Dr. Sinicropi=s express indication that his opinion was based on an assumption that the employee=s history of his symptoms was true renders Dr. Sinicropi=s opinion unfounded, because A[t]he >history= relied upon by Dr. Sinicropi has already been discussed above, and shown by the Employee=s testimony and medical records to be inaccurate.@  We have already affirmed the compensation judge=s conclusion that the employee=s testimony was credible, however, and therefore Dr. Sinicropi=s opinion is not without sufficient foundation to be relied upon.

 

Having concluded that the opinions of Drs. Domino and Sinicropi are not without sufficient foundation to be relied upon, and finding insufficient reason in the employer and insurer=s additional arguments regarding the opinion of Dr. Vorlicky to stray from our normal deference for a compensation judge=s choice between experts, we affirm the compensation judge=s reliance on the opinions of Drs. Domino and Sinicropi over the contrary opinion of Dr. Vorlicky.  See Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73.  Having found also that the judge=s decision was not otherwise unreasonable on grounds that the employee=s position is internally inconsistent or in conflict with the medical records, we affirm the compensation judge=s denial of discontinuance and her award of ongoing temporary total disability benefits.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.