JASON A. PALKO, Employee/Appellant, v. SJF MATERIAL HANDLING, INC., SELF-INSURED/MEADOWBROOK INS. GROUP, Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 9, 2013
No. WC13-5576
HEADNOTES
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supports the compensation judge’s conclusion that the employee did not sustain a cervical injury at work as claimed.
Affirmed.
Determined by: Wilson, J., Hall, J., and Milun, C.J.
Compensation Judge: Gary P. Mesna
Attorneys: Joseph J. Osterbauer and Kristine Pasowicz Wobig, Osterbauer Law Firm, Minneapolis, MN, for the Appellant. Arlen R. Logren and Krista L. Hiner, Peterson, Logren & Kilbury, St. Paul, MN, for the Respondents.
OPINION
DEBRA A. WILSON, Judge
The employee appeals from the judge’s finding that he did not sustain a work-related injury on March 7, 2012. We affirm.
BACKGROUND
The employee received medical treatment for bilateral shoulder pain, muscle spasm, and upper back pain between April and August of 2009. An MRI performed on August 11, 2009, showed a shallow, subligamentous, right parasagittal herniation of the C5-6 disc with no significant spinal canal or neural foraminal stenosis and no convincing impingement of the exiting nerve roots. The employee received no further treatment in 2009.
The employee treated at the Hutchinson Medical Center in March of 2010. He gave a history of heavy lifting at work the day before and complained of pain from his neck to the low back. The doctor’s assessment was upper neck and back pain and muscle strain, and the employee was released to return to work with restrictions. On March 17, 2010, the employee told his doctor that he thought that his prior herniated disc was “flaring,” and his doctor referred him to physical therapy, noting, “I think the patient’s issues are muscular in nature.”
On September 13, 2010, the employee was seen in urgent care, indicating that he had experienced severe pain and an electric shock into his right arm while putting on a shirt that morning. An MRI performed later that day showed a subarticular disc protrusion at C6-7, mildly narrowing the left neural foramen. He was diagnosed with a herniated disc and cervical radiculopathy.
When he returned to his doctor on September 15, 2010, the employee was tender in the right trapezius with muscle spasms in that area. The doctor informed the employee that the MRI showed “mild left sided bulge in the cervical spine that isn’t impinging on anything specific” and that there were no right-sided abnormalities. The doctor further informed him that “his neck does not appear to be involved at this point.”
On March 7, 2012, in the course of his employment with SJF Material Handling, Inc. [the employer], the employee was working on a large metal racking system, with uprights that weighed between 275 and 300 pounds and required two workers to move. The employee alleges that he sustained a work-related injury that day when he flipped an upright with a coworker. As he described the incident, “I noticed a - - I don’t know how to explain it. It was like a tear or a jolt that just didn’t feel right. And then afterwards I noticed a very - - like a weak symptom in one arm.”
The employee did not immediately report the alleged injury and continued to perform his job. On March 22, 2012, he reported to his employer that “I think I might have re-aggravated an injury incurred at a previous employer . . . . At that time I had herniated a disc in my neck/upper back area.” A first report of injury was filed, and the employee continued to work and did not seek any medical treatment.
On March 29, 2012, the employee experienced a sharp pain in his neck and shoulder, with shooting pain and tingling down his right arm, while reaching for a jacket at home. He sought treatment that day with Dr. Padma Vaela at the Riverview Clinics. She recorded that the employee had been doing heavy lifting at work two weeks previous and had been experiencing severe back pain and neck pain since that time, with shooting pain down his right arm and “electric shock” and numbness in the right hand. An MRI showed a moderate right-sided disc protrusion at C6-7 with probable impingement at the right C7 nerve root. The scan also showed a small broad-based disc protrusion at C5-6, with possible impingement at the right C6 nerve root.
The employee was subsequently seen by orthopedist Dr. Robert Barnett, who diagnosed the employee as having a large cervical disc herniation. He referred the employee to Dr. Michael Smith. According to the history recorded by Dr. Smith, on March 7, 2012, the employee had been involved in “some form of stumbling or lifting incident . . . where he developed neck and arm pain.” The employee underwent conservative treatment. On August 1, 2012, Dr. Smith noted that the employee was no better and ordered a CT scan to evaluate the facet joints at C5-6 and C6-7. On August 29, 2012, Dr. Smith recommended surgery.[1]
The self-insured employer initially admitted liability for a work injury and paid benefits, including temporary total disability benefits, but eventually sent the employee to Dr. Terry Hood for an independent medical examination. In his report dated October 29, 2012, Dr. Hood noted that, according to the employee, on March 7, 2012, he was lifting a 300-pound item with a coworker when he developed neck and right arm pain, but he initially thought that his pain was muscular in origin and therefore delayed obtaining medical treatment. Based on the employee’s past record of seeking immediate treatment for similar symptoms, Dr. Hood concluded that the employee did not sustain a work injury on March 7, 2012. Dr. Hood stated, “I believe he developed an increased disc herniation subsequent to March 7, 2012, which prompted him to obtain medication evaluation on March 29, 2012.”
The employer filed a notice of intention to discontinue benefits on November 1, 2012, seeking to discontinue benefits effective October 31, 2012, based on Dr. Hood’s opinion. After an administrative conference, the employer filed a petition to discontinue workers’ compensation benefits, again based on Dr. Hood’s report. The employer also filed a rehabilitation request, seeking to have the rehabilitation plan terminated. The employee objected, and the petition to discontinue and the rehabilitation request were consolidated for the purposes of hearing. In a decision filed on March 29, 2013, the compensation judge found that the employee did not sustain a work-related injury to his neck on March 7, 2012. 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 (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 employee contends that the judge incorrectly put the burden of proof on the employee when the burden should instead have been on the employer to prove grounds for discontinuance. We are not convinced.
An employer petitioning to discontinue benefits has the initial burden to establish the evidentiary basis for discontinuance. See King v. Farmstead Foods, 45 W.C.D. 292 (W.C.C.A. 1991). The transcript of hearing in the present case indicates that the employer was required to proceed first and introduced evidence supporting the position that the employee’s injuries were not work-related, including the report and deposition of Dr. Hood. Counsel for the employer indicated that he would not be calling any witnesses other than a possible rebuttal witness. When the employee was called as a witness, the judge asked if counsel for the employer wanted to proceed with cross examination, but it was decided by the attorneys that employee’s counsel would begin with direct. Because the employer’s evidence established a basis for discontinuance, the burden then shifted to the employee to prove his claim. Under the circumstances, the judge did not inappropriately require the employee to prove that he sustained an injury. See id.
The employee also contends that substantial evidence does not support the judge’s findings. We disagree.
At the hearing, the employee testified that he experienced “like a tear or a jolt or something that just didn’t feel right” while doing heavy lifting at work on March 7, 2012. When asked where he felt that sensation, he testified, “I would want to say in the area of my neck.” He further stated that it was “probably” on the right side but that it was hard to say. On cross examination, the employee testified that the tingly and shooting pains down the right arm did not occur until March 29, 2012, while he was at home.
In his report, Dr. Smith recorded that the employee had been moving a heavy object on March 7, 2012, when he stumbled and lifted something that resulted in the abrupt onset of neck and arm pain. The doctor further indicated that “this acute presentation of radiculopathy in the setting of chronic neck pain is consistent with a chronic degenerative disc disease related condition, often reasonably asymptomatic up until a point one develops and [sic] acute disc herniation.” The doctor went on to opine that, based on this information, “unbarring [sic] any information to the contrary, the natural conclusion would be that Mr. Palko did have a work injury described related to March 2012 timeframe.” However, Dr. Smith’s assumption that the employee had an abrupt onset of arm pain and symptoms on March 7, 2012, was expressly contrary to the employee’s testimony at hearing. The compensation judge indicated that he rejected Dr. Smith’s opinion because of the doctor’s erroneous assumptions. He was entitled to do so.
The compensation judge adopted the opinions of Dr. Hood. That doctor’s report and testimony support the judge’s findings. Dr. Hood first opined that, if the employee had sustained a herniated disc or a further rupturing of a herniated disc on March 7, 2012, the employee would have had arm pain and symptoms within 24 to 48 hours and would have sought medical care at that time. He also testified that, when a disc herniates such that it lodges against a nerve, as was first seen on the March 30, 2012, MRI, the symptoms in the extremity develop quickly. It was Dr. Hood’s opinion that, because the employee did not seek any medical treatment until March 29, 2012, his herniated disc or the further rupturing of his herniated disc did not occur until substantially after March 7, 2012.
A judge’s choice between 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). The employee points to no facts assumed by Dr. Hood that are not supported by the evidence. The judge’s findings and order regarding an alleged specific injury on March 7, 2012, are affirmed in their entirety.
[1] There was no request for surgery before the compensation judge at hearing.