CAUSATION – TEMPORARY AGGRAVATION. Substantial evidence, including expert medical opinion and video surveillance, supports the compensation judge’s finding that the employee’s 2012 and 2014 work injuries resulted in a temporary aggravation of a pre-existing condition.
Compensation Judge: Stacy P. Bouman
Attorneys: David W. Blaeser, Blaeser Law Office, Woodbury, Minnesota, for the Appellant. Mark A. Wagner, O’Meara, Leer, Wagner & Kohl, P.A., Minneapolis, Minnesota, for the Respondents.
Affirmed.
DEBORAH K. SUNDQUIST, Judge
Substantial evidence supports the compensation judge’s finding that the employee, who suffered two work injuries, failed to establish by a preponderance of the evidence that the injuries were permanent aggravations of a pre-existing low back condition.
Mark Aulik, the employee, is president and CEO of the employer, Alloy Hardfacing and Engineering. The employee slipped and injured his low back while on business trips out of the country on November 4, 2012, and again on February 1, 2014. Following a course of treatment, the employee sought a surgical opinion from Dr. Manuel Pinto who recommended fusion surgery. The employer and its insurer, Western National, denied that surgery was reasonable and necessary and related to the employee’s two claimed work injuries.
The employer and insurer denied the surgery in part because the employee has a long history of prior low back complaints and treatment. Most concerning was a previous unreported work injury that happened in 2011 while the employee was lifting a dot matrix printer in his Minnesota office. The medical records were replete with references to the 2011 injury as being a source of low back pain even after the February 2014 incident. Furthermore, the employee was surveilled for nine days before being deposed by the employer and insurer’s attorney in November 2015. While the employee testified at his deposition that he was in significant pain 24/7 six days before his deposition, the surveillance report and video revealed that he was engaged in significant bending and lifting. He ambulated with ease. He also used no assistance in walking and his gait appeared unimpaired. Yet on the day of the deposition, the employee was observed and video recorded lifting a wheelchair into his vehicle, bending down to lift it after it had fallen to the ground, bending over to pick up other objects that had fallen to the ground; and then forcefully pushing the wheelchair into the hatchback of his vehicle. The video showed that when the employee arrived at his attorney’s office for the deposition, he pulled out his wheelchair, placed it on the ground, and sat down in it, shuffling his feet to move it from his vehicle to the door of the building.
The employee called several co-workers to testify at the hearing. They testified that the employee was able to work without impairment until February 2014 when he suffered a low back injury on a business trip. After the 2014 injury, they noticed that the employee began using a walker or wheelchair, reduced his leisure and social activities, and worked less at the office. Dr. Lon J. Lutz, who treated the employee for pain, opined that the February 1, 2014, injury represented a permanent exacerbation of the employee’s pre-existing lumbar condition.
The employer and insurer retained Dr. David Carlson, an orthopedic surgeon, who issued a few narrative reports. In the first report dated September 4, 2015, Dr. Carlson agreed with Dr. Pinto’s recommendation for fusion surgery as the employee had significant degenerative disc disease in the lumbar spine. However, Dr. Carlson disagreed with the cause of the employee’s low back problems. He opined that the employee had degenerative spondylolisthesis and degenerative disc disease prior to the 2014 work injury. He found no objective medical evidence to support that the 2014 injury resulted in an injury that aggravated or accelerated the pre-existing condition beyond any normal progression of the pre-existing condition. He concluded that the 2014 injury was a temporary aggravation of the employee’s pre-existing condition.
Following a review of the employee’s deposition testimony and video surveillance, Dr. Carlson wrote a subsequent report in December 2016. He changed his opinion on the necessity of fusion surgery stating that “[g]iven [the employee’s] demonstration of physical capabilities on surveillance videos, I frankly do not believe there is a medical necessity for surgery or a wheelchair regardless of causation.”
Dr. Richard Hadley also reviewed the record and surveillance video and offered a medical opinion at the request of the employer and insurer. He opined that the fusion surgery was not reasonable and necessary with a low chance of long term improvement. He also opined that the employee had pre-existing multilevel degenerative disc disease that was a substantial contributing factor to his current condition.
The employed filed a medical request on October 15, 2015, to obtain authorization for the fusion surgery recommended by Dr. Pinto. The matter was heard on December 11, 2015, and April 15, 2016. The compensation judge denied the employee’s request for surgery. She found that the preponderance of the evidence failed to support the permanent nature of the November 2012 and February 2014 low back injuries and instead found the injuries had resolved without permanently aggravating or accelerating the employee’s pre-existing condition. She further found that the evidence failed to establish that the surgery proposed by Dr. Pinto was causally related to the work injuries. The employee appeals.
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(3). 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).
A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
On appeal, the employee argues that the judge’s finding that the November 2012 and February 2014 work injures were temporary and not permanent in nature is manifestly contrary to the evidence. The employee cites Wold v. Olinger Trucking, Inc., slip op. (W.C.C.A. August 29, 1994), making the argument that the pre-existing condition was significantly aggravated by the work injuries. He requests a reversal or a remand for further review and consideration.
In response, the employer and insurer argue that substantial evidence supports the compensation judge’s finding. They argue that the employee lacked credibility. They further argue that application of Wold in this case justifies the judge’s decision which must be affirmed. We agree. Both the employee’s credibility issues and the application of the Wold factors support the compensation judge’s finding.
The employee’s request for approval of additional surgery relies on the description of subjective symptoms and physical limitations. The employee described constant pain and signification restrictions in his activities arising from his low back condition. The employer and insurer contended that the employee was exaggerating his condition and symptoms. The record contains video surveillance of the employee showing unrestricted movement, lifting and bending at the waist from November 13 to November 21, 2015. On November 25, 2015, immediately before the employee’s deposition, that surveillance shows the employee lifting his wheelchair (which had not been prescribed by a doctor) and forcefully pushing it into his vehicle. Upon arrival at his attorney’s office, the employee removed the wheelchair without assistance and propelled it by shuffling his feet toward his attorney’s office. Upon seeing the video, Dr. Carlson withdrew his previous conclusion that surgery was reasonable and necessary. Dr. Carlson opined that:
[T]he proposed surgery is fraught with risk, complications, problems and unhappy patients and I personally would not recommend such a procedure to a patient who clearly appears to be demonstrating an exaggeration of his symptoms and capabilities. Despite Mr. Aulik’s deposition testimony that he is severely limited with his condition and of ‘excruciating pain’ between Thursday, November 19, 2015 and the date of the deposition on November 25, 2015, surveillance video clearly showed him quite active without demonstrating any outward signs of discomfort or disability in that timeframe and not using his wheelchair at all until he appeared to present to his deposition. Even then, he appeared to demonstrate the ability to propel his weight in the wheelchair primarily by using the strength of his legs. I do not find this consistent with his testimony or report of the level of his symptoms or limitation.
Assessment of witnesses' credibility is the unique function of the trier of fact. Even v. Kraft Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989) (citing Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn.1988)). The compensation judge found that the employee’s actual condition was inconsistent with the claimed symptoms and limitations as expressed by the employee and the witnesses on his behalf. The record in this matter amply supports the compensation judge's credibility assessments.
Which of these factors are significant in a particular case and the weight to be given to any factor is generally a question of fact for the compensation judge. Wold, id.
Here, the employee has a significant pre-existing history of low back pain. He suffered a low back injury in 2011, which was not reported. The 2011 injury made it difficult for the employee to stand, sit, or walk for long. An x-ray taken after the injury showed degenerative disc derangement. Throughout this period, the employee kept working and did not display any significant disability.
As to the nature of the aggravating incident, the employee experienced increased pain from his baseline, but testified that his back returned to normal after three to four months. Treatment records following the November 2012 injury consistently attribute the employee’s low back pain to the unreported 2011 work injury. A November 30, 2012, MRI scan revealed a herniated disc at the L5-S1 level without neural impingement and a herniated disc at the L3-4 level with moderate narrowing of the neural foramen and encroaching on the right L3 nerve. By March 5, 2013, the employee reported no trouble with his low back. There was no evidence of radiculopathy. He was assessed as reaching maximum medical improvement (MMI).
After the work injury in February 2014, the employee described an increase in pain symptoms. An MRI scan showed a progression of disc and facet degeneration at the L4-5 level and facet inflammation on the left that had markedly increased since the prior MRI. At this point surgery was recommended for the employee’s low back condition. At the time of the recommendation, the employee maintained that he was not able to keep working like before. He described significant disability.
After the 2014 work injury, the medical treatment notes, testimony of co-workers, and the MRI scan suggest that the employee suffered a worsening of his low back condition. The testimony of the employee and the credibility determinations of compensation judge are adequate to support the conclusion that the employee suffered a temporary aggravation of the employee’s pre-existing low back condition.
The judge adopted the medical opinions of Dr. Carlson and Dr. Hadley over the opinions of Dr. Pinto and Dr. Lutz regarding the need for surgery and/or the nature and extent of the two reported work-related injuries. The trier of fact's choice between experts whose testimony conflicts is usually upheld, absent those cases where the facts assumed by the expert in rendering an opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 343, 37 W.C.D. 364 (Minn. 1985). Based on the record as a whole, both Drs. Carlson and Hadley possess the necessary facts and foundation upon which to base their opinions. This factor favors a finding of a temporary aggravation.
Which of the Wold factors are significant in a particular case and the weight to be given to any factor is generally a question of fact for the compensation judge. Wold, id. In this case, the judge gave greater weight to the employee’s abilities and non-work activities, particularly as evident in the surveillance video. The judge’s choice of medical expert opinions supported the conclusion that the employee experienced a temporary aggravation of his pre-existing degenerative disc disease. Affirmed.