WENDY CALLAWAY, Employee/Appellant, v. MCDONALD’S RESTS. OF MINN., INC., and AMERICAN ZURICH INS. CO./GALLAGHER BASSETT SERVS, INC., Employer-Insurer.

WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 29, 2013

No. WC13-5542

HEADNOTES

CAUSATION - PRE-EXISTING CONDITION.  Substantial evidence, including expert opinion, supported the judge’s conclusion that the employee’s ongoing disability and need for treatment were related to the employee’s preexisting condition and not to the employee’s work injuries.

Affirmed.

Determined by:  Wilson, J., Hall, J., Milun, C.J.
Compensation Judge:  Gary P. Mesna

Attorneys:  Richard C. Lund, Law Offices of Donald F. Noack, Mound, MN, for the Appellant.  Christopher E. Celichowski, O’Meara, Leer, Wagner & Kohl, Minneapolis, MN, for the Respondents.

 

OPINION

DEBRA A. WILSON, Judge

The employee appeals from the compensation judge’s conclusion that the employee’s work-related injuries did not substantially contribute to her ongoing disability and need for treatment.  We affirm.

BACKGROUND

In December 1992, the employee was involved in a very serious automobile accident in Georgia.  Records from her resulting hospitalization have been destroyed, but a surviving medical bill references a dislocation and fracture of the employee’s right ankle, among other injuries.  The employee underwent surgery to repair that ankle injury and also had reconstruction of her right knee.  She testified that the knee injury was more significant and disabling than her ankle injury.

Beginning in about 1994, the employee was employed primarily in customer service jobs that required her to be on her feet.  In 2004 or 2005, she began working as a manager for McDonald’s [the employer], eventually working at four different McDonald’s stores.  Again, this work required the employee to stand or walk for much of her shift.

On December 30, 2008, the employee slipped on ice in the employer’s parking lot and fell, injuring her right ankle.  X-rays taken that day disclosed “considerable degenerative change, particularly involving several small well corticated fragments adjacent to the medial malleolus,” and “irregularity of the articular surface of the distal tibia and fibula.”  The employee was given a protective boot to wear and continued working at her usual job.  She testified that she was ultimately referred to a sports medicine physician for further evaluation, but there are no medical records to support her testimony to that effect.  In any event, she was eventually able to perform her job without the boot.

On May 19, 2011, the employee was involved in a work-related incident when a stack of trays fell off a cart onto her right foot.  She continued to work but noticed that her foot was swelling and that her shin was bleeding.  When another manager arrived for his shift, the employee left work, and she sought treatment the following day at Midwest Podiatry Centers, where she came under the care of Dr. Long Le.

Dr. Le ordered an MRI of the employee’s right foot.  That scan, performed on May 23, 2011, showed a ganglion cyst on the lateral aspect of the lateral malleolus, prominent degenerative changes in the tibiotalar joint with spurs, and spurring along the dorsum of the mid-foot.  The anterior talofibular ligament [ATFL] could not be seen and was “presumed to be chronically torn.”  The radiologist also saw a “chronic” avulsive injury of the medial malleolus and spurring along the anterior aspect of the lateral malleolus “presumably related to injury at the [ATFL] attachment.”

On June 17, 2011, Dr. Le performed surgery to remove the cyst on the employee’s right foot.  The cyst appeared to redevelop, and the employee continued to experience pain and swelling, so a second surgery was performed about five months later.  Despite that treatment, the employee’s symptoms persisted.  She underwent physical therapy and used a brace prescribed by Dr. Le.  This brace would not fit into the shoes the employee was required to wear at work, so she was unable to return to her job.  Given the employee’s continuing complaints, Dr. Le recommended surgery to repair the ATFL and potentially deal with the arthritic changes in the employee’s right foot.

The employer and insurer paid for wage loss, treatment expenses, and rehabilitation assistance following the May 19, 2011, injury.  In April of 2012, the employer and insurer had the employee evaluated by Dr. Mark Engasser.  When Dr. Engasser subsequently reported that the employee’s ongoing problems were not related to her work injuries, the employer and insurer filed a notice of intent to discontinue benefits.  Around the same time, the employee filed a claim petition, seeking approval of the surgery proposed by Dr. Le and asserting entitlement to as yet undetermined permanent partial disability benefits.

The matters were consolidated and came on for hearing before a compensation judge on October 24, 2012.  The primary issue was causation of the employee’s continuing disability and need for treatment.  Evidence included the employee’s medical records and narrative reports from Dr. Engasser and Dr. Le.

In a decision issued on December 6, 2012, the compensation judge concluded that the employee’s disability and need for treatment after June 12, 2012, were not related to the employee’s work injuries.  As a result, the judge denied the employee’s claim for medical treatment and related expenses after that date and allowed the employer and insurer to discontinue temporary total disability benefits.  The employee appeals.[1]

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 (2012).  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

The parties offered conflicting expert opinions as to the cause of the employee’s continuing right foot symptoms and need for treatment.  Dr. Le, the employee’s treating podiatrist, issued a narrative report on July 9, 2012, in response to questions by the employee’s attorney.  On the issue of causation, Dr. Le wrote, in pertinent part, as follows:

The MRI report of Ms. Callaway’s ankle from May 2011 revealed injury to the ATFL ligament.  Unfortunately, there is no certain way to determine if this injury was caused from the 1992 motor vehicle accident or the ankle sprain in late 2009 [sic] since no diagnostic tests were performed after either injury.  Given the fact that most ATFL injuries occur after ankle sprain/twists and that she did not recall having any ankle pain for 17+ years after the motor vehicle accident, I am confident that her current ATFL disability resulted from the ice slippage injury of late 2009 [sic].
Given a review of Ms. Callaway’s history, she was able to return to work after the ice slippage injury and had minimal to no difficulty with pain and disability up until the May 19, 2011 injury.  There is a strong possibility that the latter injury may have re-aggravated the ATFL injury.
I believe that the majority of Ms. Callaway’s ankle disability (80-90%) is due to pain associated with the ATFL ligament.  She also has DJD of the ankle which contributes to a much lesser degree of her current disability and may have stemmed from either the 1992 MVA or 2009 [sic] ice slippage injury.
The current work restrictions that Ms. Callaway must observe are primarily attributed to the ATFL disability; and thus, its re-aggravation from the May 19, 2011 incident.

Dr. Le also explained his reasoning for recommending additional surgery.

Dr. Engasser, the employer and insurer’s independent examiner, reached a different conclusion on causation, writing in pertinent part,

In my opinion, this patient has basically undergone two surgeries, the first for a ganglion cyst excision and the second for exploration of the sinus tarsi with removal of a recurrent cyst.  The cyst certainly would have been present prior to her work incident of May 19, 2011.  In fact the degenerative changes in her ankle including the chronic ligament abnormalities on MRI would be consistent with the previous injury she sustained in 1992.  She had undergone previous surgery in the right ankle before her injury at McDonald’s in May 2011.
I believe that at the very most this patient sustained an aggravation of her underlying cyst as a result of the work injury of May 19, 2011.

* * *

In my opinion, this patient’s right foot and ankle problem is multifactorial and frankly the structural problems are not, in my opinion, related to the work incident she sustained on May 19, 2011.  In other words, I feel this patient has underlying degenerative changes in the right foot and ankle which are related to a condition which predated the work injury of May 19, 2011. . . .  I feel that she is now approximately four months following her last surgery and frankly the treatment now recommended is for problems totally unrelated to the work incident of May 19, 2011 but due to an underlying arthritic condition.  I do not feel this patient sustained any permanency with respect to her right foot and ankle as caused by the incident of May 19, 2011.

The compensation judge expressly accepted the opinion of Dr. Engasser over that of Dr. Le, concluding that Dr. Engasser’s opinion was “more consistent with the overall chronology and the medical records.”[2]  The judge also explained in his memorandum that he found Dr. Le’s final causation opinion unconvincing “since he changed his analysis so many times during the ten months when he was actively treating the employee.”[3]  The judge further noted that, immediately after the employee’s 2008 fall on ice, x-rays already showed “marked” degeneration.  Finally, the judge noted that although the employee’s MRIs showed the torn ATFL ligament, Dr. Le did not note that condition as a cause of the employee’s pain until after the employee mentioned the 2008 fall to him in August of 2011 - - and it appeared that Dr. Le changed his opinion “based on just the mention of the 2008 sprain by the employee and little else.”  The judge then summarized that “the employee’s symptoms in the right ankle/foot are due to marked degenerative joint disease and arthritis related to the ankle fracture at the time of the 1992 motor vehicle accident,” as concluded by Dr. Engasser.

On appeal, the employee argues that the judge erred in concluding that the May 19, 2011, injury was only temporary and had resolved, contending, in part, that the fact that the employee had continuing symptoms after the May 2011 work incident establishes that the May 2011 incident substantially caused her ongoing disability.  We conclude, however, that, especially given the opinion of Dr. Engasser, the compensation judge was not required to accept this argument.  The employee also argues that she should not be penalized for the fact that Dr. Le seemingly changed his opinion over time, noting that Dr. Le is simply “not adept at medico-legal opinions and probably too prone to making sweeping statements that he later needs to reconsider.”  Again, however, the compensation judge was not required to accept the employee’s explanation on this point.

The opinion of Dr. Engasser supports the judge’s conclusion.  The employee points to no defects in Dr. Engasser’s opinion that would warrant reversal of the judge’s decision to rely on that opinion.  Rather, the employee contends, essentially, that the judge should have chosen to rely on the evidence supporting the employee’s claim.  A judge’s choice between expert opinions is usually upheld unless the facts assumed by that expert are not supported by the record.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The compensation judge was entitled to rely on the opinion of Dr. Engasser, and we therefore affirm the judge’s decision in its entirety.



[1] The employer and insurer request that we strike the employee’s brief as untimely.  We deny the request.

[2] Dr. Engasser noted the employee’s 2008 slip and fall injury in his report as well, but he did not attribute the employee’s disability to that incident.

[3] On August 22, 2011, Dr. Le wrote, “I explained to [the employee] that her surgery is mostly healed but that continuing pain in the ankle is from the DJD incurred from the previous car accident. . . .  If she is unable to stand work through a regular shift, it is due to the DJD, not surgery.”  In a September 12, 2011, note, Dr. Le wrote that he would estimate that “1/3 of all her ankle pain is due to arthritis stemming from the car accident almost 20 years [ago].  The other 2/3 of the pain is from the ruptured ankle ligaments (fall during work 2 years ago) and recurrence of the ganglion cyst.”  Similarly, on January 9, 2012, Dr. Le reported that employee’s disability at that point was caused by the “previously torn ankle ligament and also arthritis that pre-existed.”  However, on March 12, 2012, Dr. Le indicated that the “work injury sustained last May has fully resolved and I do not think she has anymore disability from that injury.”  At the same time, Dr. Le indicated that the “current pain over the ATFL and anterior-lateral ankle . . . most likely injured in a previous work accident.”