EDWIN E. GANUN, Employee/Appellant, v. VINCO, INC., and TRAVELERS GROUP, Employer-Insurer/Respondents, and DOUGLAS COUNTY HOSP., SANFORD HEALTH, DR. JOHN STARK, M.D., P.A., UCARE, and CTR. FOR DIAGNOSTIC IMAGING, Intervenors.

JANUARY 19, 2016

No. WC15-5851

CAUSATION - TEMPORARY INJURY; MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Substantial evidence, including medical records and expert medical opinion, supports the decision of the compensation judge that the employee’s work injury resulted only in a temporary low back strain which resolved by May 23, 2014, and from which maximum medical improvement was reached.

CAUSATION - MEDICAL TREATMENT; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Substantial evidence, including adequately founded medical opinion, supports the compensation judge’s findings that proposed sacroiliac (SI) fusion surgery was not reasonable, necessary, or causally related to the employee’s work injury.

Determined by:
            Deborah K. Sundquist, Judge
            Patricia J. Milun, Chief.Judge
            David A. Stofferahn, Judge

Compensation Judge:  Cheryl LeClair-Sommer

Attorneys:  Steven J. Drummond, Drummond Law Office, Alexandria, Minnesota, for the Appellant.  Kenneth B. Huber, Kelly R. Rodieck & Assocs., St. Paul, Minnesota, for the Respondents.





On January 2, 2014, the employee fell from a ladder at work.  While the distance of the fall varies in the records from 4 feet to 6 feet to as high as 10 feet, it is undisputed that the employee landed on his buttocks.  It is also undisputed that he hit his shoulder on an electrical box on the way down.  He suffered a temporary shoulder injury, but the subject of litigation was an injury to his sacrum, sacroiliac (SI) joint, and/or coccyx (tailbone).  The employer, Vinco, Inc., and its insurer, Travelers, admitted primary liability and paid benefits until they retained an independent medical examination through Dr. Thomas J. Raih who opined that the injury was merely a temporary aggravation of the employee’s underlying low back condition with no evidence of a fracture to his tailbone.

The employee’s treating doctors’ opinions varied.  Dr. Bruce Evink of Alexandria Family Medicine read a May 23, 2014, MRI as showing some mild inflammatory changes at the coccyx area where the employee complained of pain.  The radiologist, Dr. de Guzman, read the same MRI of the coccyx/sacrum and concluded that there were “subtle signal changes at the first coccyx which may represent residual bone edema” (swelling of the bone).  This was not present in an MRI taken of the same area before the injury.  Dr. Evink read the CT scan of November 18, 2014, as showing no evidence of a fracture, only osteoarthritic changes along the anterior margin of the right sacroiliac joint, which he concluded would not be caused from the fall.  Dr. Evink referred the employee to Dr. Dennis Sollom, a physical medicine and rehabilitation specialist, and then to Dr. John Stark, an orthopedic surgeon, for further evaluation and recommendations.

Dr. Sollom recommended additional diagnostic testing and injections.  He added that if the SI joint injections provided some significant but temporary pain relief, and if radiofrequency ablation did not seem to help, he might want to consider talking to a surgeon who does SI joint fusions.  Dr. Sollom also suggested that if coccydynia became a major problem and nothing else improved it, surgery for coccygectomy is something that could be considered.

Dr. John Stark, a surgeon who does SI joint fusions, examined the employee in January 2015.  After reviewing the CT scan of the employee’s tailbone area (right SI joint), he stated that it was unclear whether this was fused or if there was still a persistent fusion line.  As Dr. Stark studied and magnified the scan, it looked to him like the SI joint was probably still open.  He surmised that it might have been broken, damaged, or fractured in the course of the employee’s fall.[1]  Dr. Stark noted that the CT scan showed a fractured osteophyte with a crack which was “very clinically consistent with the pain around the area of the right SI.”  Dr. Stark observed that “also consistent is the pain which extends down the leg, and that nerve is commonly irritated as it passes past the injured SI joint.”  Dr. Stark noted that the CT scan demonstrated the degenerative osteoarthritis of the sacroiliac joint and the nonunion line superiorly.  He assessed the condition as a “work related aggravation of degenerative right sacroiliac joint, severe and limiting.”  He recommended a right SI arthrodesis or fusion surgery.

Adding to the complexity of the medical issue was the employee’s past medical history.  The employee had previously complained of numbness down his left leg which he related to a possible tailbone fracture in April 2013, predating the work injury by eight months.  At that time, he also treated with Dr. Evink who ordered an MRI scan of the pelvis and SI joint.  The MRI of July 1, 2013, showed mild osteoarthritic change of the more superior aspect of the right sacroiliac joint anteriorly.  He also had a herniated disc at the L4-5 level and received an injection several months before his work injury.  The employee continued to complain of leg pain through November 2013, only two months before the work injury.  However, he was under no work restrictions when he began working for the employer or on the date of injury.

In addition to the past history, there was also an aggravation to the employee’s tailbone injury in May 2014, four months after the work injury, which occurred while using a bobcat skid loader.  It is unclear from the records and testimony whether this aggravation represented a work-related aggravation or a non-work-related event.

Based on the opinion of Dr. Raih, the employer and insurer sought to discontinue payment of benefits and filed a petition to discontinue benefits in December 2014.  The employee filed a medical request for payment of outstanding medical expenses and for approval for the proposed SI fusion surgery on March 11, 2015.  Issues tried at the hearing of May 6, 2015, included whether there were reasonable grounds to discontinue temporary total disability, whether the employee had reached maximum medical improvement (MMI), and whether SI fusion surgery was reasonable and necessary treatment for the work injury.

The compensation judge found that the employer and insurer had shown reasonable grounds to discontinue temporary total disability benefits.  She determined that the preponderance of the evidence supported a conclusion that the work injury was no longer a substantial contributing factor to the employee’s continued symptoms in the low back, sacrum, and coccyx, and that  imaging showed that the employee had preexisting degeneration in the lumbar spine and the SI joints.  The judge found Dr. Raih’s opinion persuasive that the January 2, 2014, work injury was a temporary strain sprain of the lumbar spine superimposed on the employee’s underlying degenerative disc disease.  She further found that the SI joint fusion surgery proposed by Dr. Stark was not reasonable and necessary treatment, accepting the conclusion of Dr. Raih that the surgery was inappropriate considering the minimal diagnostic findings in the SI joints without evidence of fracture or other deformity.  She ordered payment of medical expenses through May 23, 2014, the date of MMI.  All medical treatment after May 23, 2014, was denied.  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 (2014).  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).


On appeal, the employee requests that this court reverse the finding of MMI, the finding that he sustained a temporary rather than permanent injury, and the finding that the surgery proposed by Dr. Stark was not reasonable and not necessary.  The employee argues that this case highlights what he terms “one of the most troubling developments in the area of workers’ compensation practice,” an alleged misuse of the “temporary aggravation of a pre-existing condition defense.”  The employee argues that the “temporary aggravation defense” is typically a subterfuge which would defeat the long established principle that an employer takes the employee as it finds him, and that a work injury remains compensable where it has led to the aggravation or acceleration of an underlying condition.  Specifically, the employee points out that he was under no work restrictions on the date of injury, and regularly lifted 50 to 150 pounds at work.  After the injury, he was unable to return to his normal work.  He argues that Dr. Raih’s IME opinion thus makes no logical or medical sense, because if his injury was indeed a resolved temporary aggravation, as asserted by Dr. Raih, then he would have returned to the same unrestricted status and the same level of ability he had before the work injury.  The employee also argues that Dr. Raih’s opinion was inconsistent with the evidence in view of the entire record as submitted, and therefore wholly without foundation or a basis in fact.

The employer and insurer respond that the compensation judge’s decision to accept Dr. Raih’s opinion is supported by substantial evidence and must be affirmed.  They point out that the compensation judge accurately recounted the medical facts of the case in her findings and order and that she gave a clear explanation of her reasoning which is consistent with the facts in the case.  She adopted Dr. Raih’s opinion in part because none of the physicians in the case other than Dr. Stark, including the employee’s other physicians, agreed with Dr. Stark that the employee’s CT scan showed a significant SI joint problem in the form of incomplete bridging of the SI joint or fractured osteophytes.

The employee correctly states that where the work activity aggravates or accelerates a pre-existing condition, it is compensable under the workers’ compensation law.  Vanda v. Minn. Mining & Mfg. Co., 218 N.W.2d 458, 27 W.C.D. 379 (1974).  Here, there is no issue that the injury was compensable.  The employer and insurer admitted liability and paid benefits.  The issue is whether there were reasonable grounds to discontinue temporary total disability and whether the employee reached MMI.  Contingent upon the resolution of that issue was addressing the issue of ongoing medical treatment.  Dr. Stark recommended surgery.  If the surgery was found to be reasonable and necessary, the employee would not yet be at MMI.  The aggravation may be permanent and the employee would be entitled to ongoing TTD.  Likewise, if the injury were temporary in nature, then ongoing medical treatment may not be causally related to the injury.  Dr. Raih found that the injury was a temporary aggravation and Dr. Stark disagreed opining that the injury was permanent and required surgery.

The compensation judge carefully weighed the evidence and determined that the preponderance of the evidence supported the conclusion that the employee’s work injury was no longer an aggravating factor.  While Dr. Stark noted Dr. Raih was not a specialist in spine surgery, the compensation judge found Dr. Raih’s opinion more persuasive because his opinion was supported by the CT and MRI scans.  She reasoned that Dr. Stark failed to adequately explain why the SI joint surgery would resolve the employee’s symptoms.   There was also no confirmation in Dr. Stark’s records that he had a complete understanding of the employee’s full symptom complex and response to prior treatment.

Essentially, this is a case which rests on the compensation judge’s choice between two opposing medical expert opinions from Dr. Stark and Dr. Raih.  The compensation judge adopted Dr. Raih’s opinion.  “[C]onflicts in the opinions of medical experts must be resolved by the trier of fact and its findings will not be disturbed unless consideration of the evidence and the inferences permissible therefrom clearly requires reasonable minds to adopt contrary conclusions.”  Seversen v. Color Ad Packaging, 277 N.W.2d 380, 382. 31 W.C.D. 404, 406 (Minn. 1979).  The compensation judge carefully weighed the medical evidence and medical expert opinions and determined that the preponderance of the evidence supported the conclusion that the employee’s work injury was no longer an aggravating factor.  We affirm the compensation judge’s findings and order.

[1] Exhibit B.