RICHARD D. DRURY, Employee/Appellant, v. YRC INT’L f/k/a ROADWAY EXPRESS, SELF-INSURED/GALLAGHER BASSETT SERVS., INC., Employer.

WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 18, 2011

No. WC10-5195

 

HEADNOTES

CAUSATION.  Substantial evidence in the record, including witness testimony and medical records, supports the compensation judge’s decision that the employee’s medical treatment and disability since October 2008 were not causally related to his work injury in October 2008. 

Affirmed.

Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Bradley J. Behr

Attorneys: Gregg B. Nelson, Nelson Law Offices, Inver Grove Heights, MN, for the Appellant.  Michael J. Patera, MacMillan, Wallace, Athanases & Patera, Minneapolis, MN, for the Respondent.

 

OPINION

MIRIAM P. RYKKEN, Judge

The employee appeals the compensation judge’s findings, issued on remand, that the employee did not sustain a work-related injury to his low back on October 13, 2008, and from the corresponding denial of the employee’s claim for temporary total and permanent partial disability benefits, medical treatment expenses and rehabilitation services.  We affirm.

BACKGROUND

This matter relates to a low back injury that Mr. Richard Drury, the employee, claims to have sustained on October 13, 2008.  On that date, the employee was employed as a driver/dock worker for YRC International (formerly known as Roadway Express), the self-insured employer.

The employee had undergone prior treatment for low back pain.  In January 1997, he sought treatment at the Apple Valley Medical Center for low back pain associated with a work-related injury or incident.  In March 2000, he was treated for left-sided low back pain after a work-related lifting incident.  X-rays showed minimal spondylitic and osteoarthritic changes throughout the lumbosacral spine.  The employee again sought treatment in January 2006 at the Apple Valley Medical Center for right-sided mid-back and low back pain, which he reported was work-related.  X-rays taken at that time indicated minimal anterior osteophytes at L4 and L5 levels and minimal loss of disc height at L3 and L5 levels.  On May 28, 2008, the employee treated at the St. Croix Regional Medical Center for left leg pain, which he described as a deep aching pain radiating from his left buttock to the back of his thigh and which he reported had been occurring intermittently for two weeks.  According to the medical chart note, the employee did not report a specific injury or event but expressed concern that he had arthritis.  The employee also underwent five chiropractic treatments in June 2008 for low back pain radiating into his left leg.

On October 13, 2008, the employee worked a fifteen hour day, commencing at 4:00 a.m.  During the first four hours of his shift he performed loading duties with a forklift, and then delivered his truckload and picked up freight at multiple sites.  The employee testified that at one of his stops, he used an electric pallet jack that was broken and was difficult to pull.  The employee also testified that after awakening very early the next morning with severe low back and leg pain, he called the employer to report he was unable to work and that he had been injured while working the day before.

On October 14, 2008, the employee was examined by Dr. Edwin Turner at the St. Croix Regional Medical Center emergency room for low back pain radiating to his legs^[1]. He reported that the pain was related to his work activities the day before, including using a jack to lift and move freight.  A lumbar spine x-ray taken that day indicated slight anterolisthesis at L3 and L4, but no spondylolysis or fractures.  Dr. Turner diagnosed “back pain, probably acute lumbar strain,” and released the employee to work with light duty restrictions.  He prescribed pain medication, recommended moist heat and ice for therapeutic relief, and scheduled the employee for follow-up care in the occupational medicine department.

The employer initially terminated the employee’s position for calling in late on October 14 to report that he was unable to work.  The parties agreed, after a grievance proceeding, that the employee could return to work for the employer once he was released for work without restrictions.  By the time of hearing in October 2009, the employee apparently had not yet been able to return to work.

On November 4, 2008, the employee filled out the employer’s injury report. In that report, he provided a more specific history concerning the events surrounding his injury, and stated that he was injured while “pulling pallet jacks and pushing pallet jacks and at one of my stops [with an] elec[tric] pallet jack the reverse on the pallet jack did not work and I pulled the elec[tric] pallet jack out from underneath the freight.”

After his October 2008 injury, the employee continued his treatment, including physical therapy, at the St. Croix Medical Center.  During an office visit on October 21, 2008, the employee reported that he had been driving and pulling pallets with a pallet jack for 15 hours on the day of the injury.  During a physical therapy evaluation on October 28, 2008, he reiterated the history that he had pulled a “heavier-than-usual pallet” on the injury date and awoke with back pain on the following day. 

Dr. Thomas Hinck referred the employee for an MRI scan to evaluate his ongoing symptoms of low back pain and radiation into his left leg.  A January 2009 MRI scan detected positive findings at multiple lumbar levels, most significantly at the L3-L4 level.  Based, in part, on the MRI findings, Dr. Hinck diagnosed spondylolisthesis with stenosis.  He referred the employee thereafter for pain clinic treatment.  The employee underwent two epidural steroid injections in February and March 2009, with minimal effect. 

The employer denied primary liability for the employee’s injury.  In January 2009, the employee filed a claim petition for temporary partial disability benefits, permanent partial disability benefits, medical expenses, and a vocational rehabilitation consultation.  In its answer to the claim petition, the self-insured employer admitted that the employee’s medical treatment had been reasonable and necessary, but denied that the employee’s injury was causally related to his work; the employer alternatively contended that any injury the employee may have sustained was temporary and had resolved without any permanent partial disability.

In April 2009, the employee was evaluated by Dr. Joseph Teynor at the employer’s request.  Dr. Teynor opined that the employee had pre-existing chronic lumbar stenosis, and that the findings noted by MRI scan were not recent, but instead reflected chronic and congenital conditions.  Dr. Teynor concluded that the employee was not a good candidate for surgery, in part because he felt the employee’s subjective complaints outweighed his objective findings and in part because, in his opinion, the employee had gradually developed osteoarthritis of his spine, unrelated to an injury in October 2008.

In May 2009, the employee ultimately underwent a surgical consultation with Dr. T. Sunil Thomas, who diagnosed L3-4 spondylolisthesis with stenosis and discussed the possibility of decompression and fusion surgery.  Dr. Thomas advised the employee that he needed to fully quit smoking before surgery, due to the high risk of pseudarthrosis.

The employee returned to Dr. Hinck in August 2009, reporting worsening low back pain.  In a report dated October 21, 2009, Dr. Hinck outlined his opinion that the employee’s pre-existing back symptoms were exacerbated by his work activity.  He also advised that “[s]urgical intervention might be necessary in the future, although this has its own risks and I would anticipate that even with surgery he would ultimately have some restrictions in place as far as his work activities.”

A hearing was held on October 29, 2009.  In his findings and order issued following the hearing, the compensation judge found that the employee had failed to prove that he had sustained a work-related injury on October 13, 2008.  He also noted that the employee had experienced low back symptoms in the past, similar to those he described since the October 2008 incident, and most notably only five months prior to October 2008.  The compensation judge noted that the degenerative changes shown on the employee’s January 2009 MRI scan had existed prior to his October 2008 injury.  The compensation judge found that although the employee had been medically released to light duty work, including driving, and although the employer had no available work until the employee was released without restrictions, he had not conducted a diligent job search for a light-duty position.  The employee appealed.

In this court’s opinion issued following the employee’s initial appeal from the 2010 findings and order, the court vacated the compensation judge’s finding that the employee failed to prove he sustained a work-related injury to his low back on October 13, 2008, and remanded that matter for reconsideration on the issue of causation.  Drury v. YRC Int’l, No. WC10-5050 (W.C.C.A. July 21, 2010).  The court affirmed the compensation judge’s finding that the employee did not conduct a diligent job search within his restrictions.  In addition, the court remanded, for further consideration, the issue of whether the employee had a reasonable expectation of returning to work for the employer, and, therefore, at least for some period of time, whether the employee could have been relieved of the statutory requirement to search for alternative work.

Two evidentiary issues were raised by the employer on appeal.  The court did not have jurisdiction to hear one of the issues, as it had not been raised by a party in a notice of appeal.  The second evidentiary issue concerned the employer’s objection to an additional exhibit submitted by the employee in his appellate brief; that exhibit was not considered on appeal, as it had not been submitted into the record at the hearing.

On October 1, 2010, the compensation judge issued his Findings and Order on Remand, again denying the employee’s claims.  The compensation judge concluded that the evidence did not establish that the employee sustained an injury to his low back which arose out of and in the course of his employment on October 13, 2008.  As to the employee’s job search and expectation of returning to work for the employer, the compensation judge concluded that the employee had a reasonable expectation of returning to work with the employer from October 13 until October 21, 2008, but thereafter the employee did not engage in a reasonable and diligent job search for alternative employment within his physical limitations.  The compensation judge denied the employee’s claims for benefits and denied the intervention claims.  The employee appeals from the Findings and Order on Remand.

DECISION

The employee appeals from the compensation judge’s denial, on remand, of the employee’s claim that he sustained an injury to his low back, which arose out of and in the course of his employment, on October 13, 2008.  The judge reached this conclusion following his reconsideration of the hearing record, including medical records in evidence and testimony by the employee and witnesses from the employer.  He reviewed the opinions presented by the employee’s treating physician, Dr. Hinck, and the opinions of Dr. Teynor, independent medical examiner, and relied on neither opinion.  The compensation judge outlined Dr. Teynor’s opinions expressed in his report concerning factors unrelated to the employee’s claimed injury and medical condition.  The compensation judge concluded that Dr. Teynor had gone “far beyond his role as a medical expert, expressing opinions which are legal or quasi-judicial in nature.  Many of his comments suggest a bias which raises significant doubt as to the foundation and medical support for his causation opinions.”  The judge did not find Dr. Teynor’s opinion persuasive, and it was reasonable for him to do so.

In addition, the compensation judge outlined the reasons he did not rely on Dr. Hinck’s opinion.  The judge found it significant that Dr. Hinck did not cite any objective medical evidence in support of his opinion, did not discuss the employee’s prior history of low back symptoms since 1997, and made no reference to -- and appeared to be -- unaware of the employee’s treatment for acute low back pain and left leg pain in the spring of 2008 without any “inciting factor.”  The compensation judge concluded that the temporal relationship between the employee’s work on October 13, 2008, and his acute symptoms did not equate with a causal relationship between the two, and determined that the record did not contain medical support for the employee’s claim.

In addition, the judge questioned the reliability of the employee’s testimony.  He compared the employee’s testimony to certain references in his medical records, and outlined certain inconsistencies between them.  The judge also noted that medical records contradicted the employee’s testimony that his low back pain rendered him unable to drive between October 14 and November 4, 2008 (the date on which he completed an accident report at the employer’s warehouse). The judge noted that this was during a time when the employee had been released to light-duty work and had not been, by the employee’s own admission, medically restricted from driving.

In summary, the compensation judge concluded that the employee’s testimony and evidence in the record did not establish an injury on October 13, 2008.  The compensation judge determined that

The preponderance of the evidence demonstrated that the employee was an unreliable witness.  He had a significant preexisting degenerative condition and, contrary to his testimony, had been treated for low back symptoms on multiple occasions prior to the alleged date of injury.  It may be argued that the employee was able to perform his job prior to 10/13/08 without significant back pain, but has been plagued by persistent back and leg pain since that date.  Even if one assumes this to be chronologically true, it does not necessarily follow that the employee’s work activities on 10/13/08 were necessarily the cause of the symptoms thereafter, as suggested by Dr. Hinck.  As noted above, the employee experienced a similar episode of back and leg pain only a few months before the alleged date of injury, without any identifiable traumatic cause.

(Memo at p. 9.)

The employee argues that the compensation judge exceeded the scope of remand when he made new determinations regarding credibility based upon previously-tried facts and again found that the employee did not sustain a work-related injury on October 13, 2008.  We disagree.  The judge’s earlier findings appeared to be inconsistent with the medical evidence in the record, and were vacated on that basis.  Language in our earlier decision was not meant to be read as dictating a certain result on remand.   Because the findings on causation were vacated, the compensation judge reconsidered the entire record to again address that issue.  He reconsidered the evidence and issued findings outlining background information and the basis for his conclusions.  The compensation judge considered the entirety of the record, including information the employee provided to his medical providers and testimony the employee provided at the hearing.  He assessed the credibility of witness testimony, finding certain portions of testimony by both the employee and employer to be unreliable, but also relying on other parts of the testimony.  Assessment of a witness's credibility is the unique function of the trier of fact.  See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839‑40, 41 W.C.D. 79, 82 (Minn. 1988) (citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978)); see also Hatch v. Langhoff Enters., No. WC09-195 (W.C.C.A. Jan. 25, 2010).

It is evident from the findings that the compensation judge thoroughly reviewed and reconsidered information in the record, and again concluded that the evidence did not establish that the employee sustained a work-related injury on October 13, 2008, that necessitated medical treatment or resulted in the employee’s disability from employment. 

In reviewing cases 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 (2010).  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).  In this case, the compensation judge’s factual conclusions concerning the employee’s claimed injury are supported by substantial evidence in the record, and are not clearly erroneous.  We therefore affirm.