JAMES R. THOMPSON, Employee/Appellant, v. J & L STEEL ERECTORS and AMERICAN COMP. INS. CO., Employer-Insurer, and UNIVERSITY OF MINN. PHYSICIANS, and TWIN CITIES IRON WORKERS FRINGE FUND, Intervenors.

WORKERS' COMPENSATION COURT OF APPEALS
MARCH 3, 2009

No. WC08-227

HEADNOTES

CAUSATION - TEMPORARY AGGRAVATION.  Substantial evidence, including expert opinion, supported the compensation judge's determination that the employee's work injury was merely a temporary aggravation that did not substantially contribute to the employee's disability for the period at issue.

Affirmed.

Determined by: Wilson, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Kathleen Behounek

Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Appellant.  Thomas F. Coleman and Whitney L. Teel, Cousineau McGuire, Minneapolis, MN, for the Respondents.

 

OPINION

DEBRA A. WILSON, Judge

The employee appeals from the compensation judge's findings that his 1997 work injury was temporary and not a substantial contributing cause of his low back condition, disability, and need for medical treatment after December of 2003.  We affirm.

BACKGROUND

The employee filed an amended claim petition on May 12, 2004, seeking temporary total disability benefits as a result of work injuries allegedly sustained on April 14, 1997, and December 4, 2003, during his employment by J & L Erectors [the employer].  The matter proceeded to hearing in April and May of 2005.  In findings and order filed on August 19, 2005, the compensation judge found that the employee had sustained a work-related injury to his low back on April 14, 1997; that the preponderance of evidence failed to show that the employee had sustained a work-related injury to his low back on December 4, 2003; and that the preponderance of the evidence failed to show that the employee's 1997 work injury was a substantial contributing cause of the employee's low back condition, resulting disability, need for restrictions, and need for medical treatment from and after December 8, 2003.  In the memorandum attached to that findings and order, the judge rejected the opinion of Dr. Paul Wicklund, an orthopedic surgeon, that the employee had sustained a work-related Gillette type injury[1] on December 4, 2003.[2]

Both parties appealed from the judge's decision, but the appeals were dismissed as untimely, by order dated October 21, 2005.

The employee filed a claim petition on May 10, 2006, seeking temporary total disability benefits from May 26, 2005, through September 24, 2005, and temporary partial disability benefits from September 25, 2005, through November 25, 2005, allegedly due as a result of the April 14, 1997, work injury.  The employer and insurer admitted that the employee had sustained a temporary aggravation on April 14, 1997, but argued that the employee had fully recovered without restrictions or diminution in earning capacity.  The employer and insurer also asserted that the employee's claims were barred by res judicata and collateral estoppel and moved for summary judgment based on those principles.

When the claim petition came on for hearing on June 20, 2007, counsel for the employer and insurer renewed the motion for summary judgment.  The compensation judge proceeded with the hearing, indicating that she would rule on the motion in her findings and order.

In findings and order filed on September 7, 2007, the judge determined that the employee was collaterally estopped from claiming benefits due to the April 14, 1997, injury, based on the August 19, 2005, findings and order.  The employee appealed, and in a decision filed on May 29, 2008, this court held that the doctrines of res judicata and collateral estoppel did not apply.  We therefore reversed and remanded the matter to the compensation judge for findings as to whether the 1997 injury was temporary and whether the employee was entitled to the claimed benefits for temporary total and temporary partial disability.[3]

On September 9, 2008, the judge filed her findings and order on remand, concluding that the 1997 work injury was temporary and was not a substantial contributing cause of the employee's low back condition, disability, or need for medical treatment after December 2003.  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 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 the memorandum attached to her 2008 findings, the compensation judge explained that she had adopted the expert opinion of Dr. Wicklund in concluding that the employee's April 14, 1997, work injury was a temporary aggravation and not a substantial contributing cause of his ongoing low back condition and disability since 2003.  She specifically stated that, "Dr. Wicklund's opinions are based upon foundation consistent with the evidence and findings in this case.  Dr. Wicklund's opinions are well reasoned and persuasively explained in his reports."

The employee contends that Dr. Wicklund's opinion is based on improper foundation, arguing that "it is reversible error for [the judge] to rely upon the opinion of Dr. Wicklund when it is based upon the existence of a 2003 injury which the Judge specifically found was not supported by the record."  We are not persuaded.  A compensation judge is generally free to accept one portion of an expert's opinion while rejecting other portions.  Johnson v. L.S. Black Constr. Co., slip op. (W.C.C.A. Aug. 18, 1994); Proffit v. Minnesota Harvest Apple Orchard, 48 W.C.D. 215 (W.C.C.A. 1992).  In the present case, the judge could reasonably rely on a portion of Dr. Wicklund's expert opinion without creating an inconsistency in her findings.

Dr. Wicklund first examined the employee on September 7, 2004.  In his report of that date, he recorded that the employee had sustained three injuries with the employer: the first in 1992, the second on April 14, 1997, and the third on December 4, 2003.  In that report, he opined,

there is no indication that the work injury of April 14, 1997, plays a significant role in his current symptoms.  In my opinion, he had a Gillette injury to his low back over the years which culminated on December 4, 2003 . . . .  It is my opinion that he had several temporary back strains including the 1992 and 1997 incidents, but the ultimate breakdown of his back and the need for medical care and treatment occurred after December 4, 2003.

Dr. Wicklund's deposition was taken on April 12, 2005, in preparation for the 2005 hearing.  At that time, Dr. Wicklund testified that the 1997 work injury was not a substantial contributing cause of the employee's disability, symptoms, and need for medical treatment from and after December 4, 2003.  When asked to explain the basis for his conclusion, he testified,

When I look at an injury I look at what happens immediately after that with regard to medical visits, what kind of symptoms that develop, and then the kind of restrictions, if any, that are necessary during the healing phase of that injury.
In this case he was seen on one occasion, never had any restrictions, went back to his regular job.  Even though he says he had some symptoms after that, that required medication, there's no - - there's no doctor or any medical professional that prevented him from doing all normal activities.

After the compensation judge denied the employee's claim for benefits related to a work-related injury allegedly occurring in December of 2003, and after the employee filed a claim petition seeking benefits as a result of the 1997 work injury, Dr. Wicklund re-examined the employee.  In his resulting report of February 2, 2007, Dr. Wicklund wrote that "there is no indication that the 4-14-97 injury was anything other than a temporary low back strain" that was not a substantial contributing cause of the employee's need for medical care from and after December 3, 2003.  He went on to state, "I base this opinion on the lack of any restrictions placed on him after 4-14-97 and the lack of any objective clinical findings which would support a permanent injury that occurred at that time."  In this report, Dr. Wicklund adequately explained the bases for his conclusions and did not rely on his original opinion that the employee had sustained an injury in December of 2003.

A judge's choice of 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, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Dr. Wicklund's opinions are supported by the employee's own testimony that, after the 1997 injury, he treated on only one occasion, and he returned to work at his usual job and worked without wage loss, work restrictions, or further medical treatment for more than six years.[4]  The doctor's opinions are also supported by the employee's medical records, which show a lack of restrictions and lack of treatment, other than on one occasion, following the 1997 injury.[5]

Finally, the employee argues that, because the judge had earlier found that there was no work injury in December of 2003, "the default incident can only be the April 1997 injury.  There is no other logical conclusion."  This argument suggests that a judge must always identify the cause of an employee's condition.  That, however, is not the case.  See Sanders v. Northwest Airlines, Inc., slip op. (W.C.C.A. Nov. 2, 1995).

Because substantial evidence supports the judge's findings, those findings are affirmed in their entirety.

 


[1] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).

[2] The judge noted that Dr. Wicklund did not have an accurate history of the employee's job duties with the employer.

[3] We indicated that, because those issues had been fully litigated at the 2007 hearing, the judge had the discretion to decide whether she wanted to receive additional evidence.  In her decision on remand, the judge noted that she had determined that no further evidence was necessary.

[4] While the employee testified that his back flared up a couple of times a year  after the 1997 injury, he also testified that his back flared up a couple of times a year from 1992 to 1997.  During both periods, he used prescription medications belonging to others rather than seeking medical treatment.

[5] The employee contends that this court should adopt the opinions of Dr. Harold Wexler, the employee's treating internist, who in a note dated March 29, 2006, stated, "it is inconceivable to me that the injury he sustained in 1997 did not significantly contribute to his present disability."  This note, however, was apparently written in response to a letter sent to Dr. Wexler on March 2, 2006, by the employee's attorney, in which he informed the doctor that the compensation judge had found that the employee had not sustained a work injury in December of 2003, and that, "if we can establish that his 1997 injury and the resulting condition is a substantial contributing factor to his present level of disability, he is entitled to claim additional benefits at this time."  The attorney's letter went on to identify the 1997 work injury as "the injury which precipitated all his problems" and the "original injury," descriptions that are not supported by the evidence.