RAYMOND B. HENDRICKS, Employee/Respondent, v. AVR, INC., and ZURICH AM. INS. CO., Employer-Insurer/Appellants, and MINN. TEAMSTERS HEALTH & WELFARE PLAN, Intervenor.

The employer and insurer argue that the compensation judge’s findings and order are clearly erroneous and unsupported by substantial evidence in the record, and that the preponderance of the evidence does not support the facts or conclusions reached by the judge. The employer and insurer assert that this case is a rare exception that requires departure from an affirmance pursuant to Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). We affirm.

The employee began working as a commercial truck driver for the employer AVR, Inc., in July 1985, delivering ready-mix concrete. On April 4, 2014, during a heavy, wet snowfall, while exiting his truck the employee’s feet went out from under him and he fell, landing on his back. He heard “crunching” in his neck and was concerned he had broken something. The employee lay still for a few seconds, moved his fingers and toes, then slowly got up. He reported the fall to the employer, then went across the street to Apple Valley Medical Clinic Urgent Care to get an x-ray.^[1]

The employee was seen by Dr. Laurel Martini, reporting pain primarily in the neck and upper back. On examination, the doctor noted paravertebral cervical tenderness and spasm and diagnosed a cervical strain. The employee was provided a soft cervical collar, prescribed Naprosyn and Flexeril, and advised to take Tylenol, ice, and rest. The employee was instructed to follow-up with his primary doctor in five days.

Also on April 4th, the employee was seen by Paul Newman, D.C., at Newman Chiropractic and Wellness Center. The employee had received chiropractic care from Dr. Newman previously and wanted to make sure his neck was properly aligned. The employee described the fall, stating he could not put his head back very well, muscles in his upper back had tightened up, and his neck was very stiff and sore. The employee received cervical adjustments, and testified he understood he was to come back as needed. ^[2]

Prior to April 4, 2014, the employee had received periodic treatment at Newman Chiropractic, including chiropractic adjustments for cervical and upper back symptoms. The employee agreed he had received chiropractic care from Dr. Newman for many years and would see him whenever he got stiff or sore or had problems moving. Records were submitted by the employer and insurer substantiating such treatment between February 2010 and March 2014.^[3]

On April 9, 2014, the employee returned to Apple Valley Medical Clinic and was seen by Dr. Amy Diede. The employee described neck pain that was moderate in intensity, constant, dull, and pulling as well as neck stiffness. Review of systems [ROS], musculoskeletal, was “[p]ositive for neck pain resolving.” Dr. Diede noted a normal neck examination and assessed “cervical strain resolved,” but discussed with the employee the natural and expected course of a cervical strain, advised the employee to use ice and ibuprofen, and instructed the employee to return to the clinic if there was no improvement or resolution of symptoms.^[4] The employee returned to Dr. Newman on June 19, 2014, reporting neck and shoulder muscle pain that “started month ago” and gradually worsened. The employee testified he did not seek treatment in the interim because it was his understanding he would get better with time, but he continued to have symptoms including a stiff neck, electric shock-type symptoms, and slowed movement.^[5]

On July 16, 2014, the employee sought alternative treatment from Dr. Randall Roehl at Burnhaven Chiropractic. The employee reported very tight and stiff muscles and pain in his neck and upper back, as well as tingling and discomfort intermittently in his arms. He reported using ice and heat with little relief. On examination, Dr. Roehl noted decreased cervical range of motion and muscle spasms in the upper back and neck. The employee had ten visits with Dr. Roehl between July 16 and August 22, 2014, but did not make as much progress as he hoped, so discontinued care with Dr. Roehl wanting to try something else.

The employee saw Dr. Newman on September 26, 2014, and three times between November 14 and November 19, 2014 with complaints of neck pain, tingling and weakness in the left arm, and pressure headaches for which he received adjustments. The employee testified that his symptoms were getting worse and he could no longer physically continue working. In November 2014, the employee spoke to the employer’s dispatcher and requested a winter layoff to give himself time to heal. He agreed that given his seniority with the employer he would not have been subject to layoff if he had not requested it. The employee was off work for three months, from December through February.

At the recommendation of a friend, the employee initiated treatment with David Geary, D.C., at Valley Chiropractic Associates. The employee was seen by Dr. Geary on fifteen occasions between November 25, 2014, and January 23, 2015. The employee reported a work-related fall in the spring causing neck pain. He described sharp and shooting neck pain with occasional shoulder pain and arm tingling and weakness. On examination, Dr. Geary noted decreased cervical range of motion and tenderness and spasm in the cervical spine and upper back. At the January 6, 2015, visit the employee reported improved neck pain with mild residuals during flexion, but continued to have tenderness and hypertonicity in the left cervical region and tender areas in the upper back. On January 16 and 23, the employee reported exacerbations of his neck pain and a return of restricted range of motion after increased activity. The employee testified he received some relief from Dr. Geary’s treatment, but the pain was still there.^[6]

The employee was seen by Dr. Newman twice in January and February 2015 for persistent neck pain and stiffness with little change. He then returned to Apple Valley Medical Clinic on February 23, 2015, requesting an MRI scan to assess whether there were soft tissue or nerve issues. The employee was seen by Dr. Arthur Troedson who noted initial onset of neck pain in a fall in April 2014. On physical examination, the doctor noted decreased neck range of motion with pain on forward flexion, left lateral flexion, and left rotation, and positive Spurling maneuver on the left. Review of the April 4, 2014, x-rays showed multi-level degenerative disease. The employee was referred to Dr. Sinicropi at the Midwest Spine Institute for further evaluation of his chronic neck pain.^[7]

The employee was seen by Matthew Hawkins, PA-C, at Midwest Spine, on March 12, 2015. Mr. Hawkins noted the employee had taken a winter layoff and had returned to work on March 2, 2015. The employee described neck pain, upper back pain, radiating pain into the left arm, and occasional pressure headaches. Mr. Hawkins indicated the employee had had persistent symptoms that had not improved with chiropractic care and had questions about the cause and whether there were other treatment options. Reduced range of motion in the neck was noted on examination, primarily with extension and rotation to the left. The impression was multi-level cervical degenerative disc disease and spondylosis. A cervical MRI scan and x-rays were ordered.^[8]

The MRI scan obtained on March 26, 2015, showed multi-level degenerative disc disease and spondylosis with mild spinal canal stenosis from C3-4 through C6-7; multi-level chronic moderate to severe foraminal stenosis on the left from C3 through C7; and a right-sided posterolateral C7-T1 disc herniation with osteophyte potentially impinging on the C7 nerve root. PA-C Hawkins concluded the employee would likely benefit from a cervical epidural steroid injection and ordered a C7-T1 midline injection. Mr. Hawkins indicated the employee could continue working, but stated that if his symptoms were not overtly improved he might need some time off.[9]

The employee was seen in follow-up by PA-C Hawkins on April 13, 2015. The epidural injection had not been approved. The employee reported that after six weeks of return to work following his layoff, his symptoms had significantly worsened and he was having more and more difficulty with pain. As the employee was getting worse with continued work activities, PA-C Hawkins took the employee off work for four weeks, pending an epidural injection.^[10]

In the meantime, on April 10, 2015, the employee was examined by Dr. Tilok Ghose, an orthopedic surgeon, at the request of the employer and insurer. By report dated April 21, 2015, the doctor reviewed the history he obtained from the employee and reviewed medical records from Apple Valley Medical Clinic, Valley Chiropractic Associates, and Midwest Spine Institute. The employee stated he had no neck injuries prior to the April 4, 2014, fall and had had no prior neck pain. He described his current symptoms including tight muscles with aching and pain, tingling in the cervical spine going down the neck and into the arms, occasional mid-back pain, and occasional pressure headaches. On examination, Dr. Ghose noted reduced cervical range of motion on extension, lateral flexion, and lateral rotation without objective evidence of spasm or tightness, positive cervical compression test, and discomfort in the upper back muscles. The medical records available to Dr. Ghose showed the employee was seen on April 4 and April 9, 2014, at Apple Valley Medical Clinic, followed by a gap in treatment notes until November 15, 2014, when he presented to Valley Chiropractic Associates. Dr. Ghose concluded that from April 4, 2014, to November 2014, there was no evidence of ongoing symptoms, ongoing treatment, or work restrictions. He opined the employee sustained a temporary cervical strain on April 4, 2014, that resolved by April 9, 2014. The doctor acknowledged the employee had objective findings on examination, including limited range of motion, and diagnosed age-related degenerative changes in the cervical spine. Dr. Ghose opined the April 4, 2014, injury was not a substantial contributing factor to the employee’s current condition.

The employee was seen in follow-up at Apple Valley Medical Clinic by Dr. Peter Frederixon on April 22 and May 6, 2015. The employee reported ibuprofen was not helping and was prescribed Flexeril and Hydrocodone/acetaminophen for muscle spasm and pain relief. Dr. Frederixon noted the employee was unable to return to work due to chronic neck pain. Based on Dr. Ghose’s IME report, the insurer denied the employee’s request for approval of the recommended epidural steroid injection. The employee was continued off work by PA-C Hawkins and PA-C Michelle Davis at Midwest Spine Institute through September 18, 2015, pending resolution of the medical request.

Dr. Ghose provided an IME addendum by report dated September 30, 2015, following review of additional medical records provided by the employer and insurer, including the employee’s deposition of September 21, 2015, treatment records from Newman Chiropractic and Wellness, and records from Dr. Roehl at Burnhaven Chiropractic. Dr. Ghose concluded it was apparent from the medical records, including treatment records from Newman Chiropractic dating back to February 2010, that the employee was not truthful regarding his past medical history including previous neck injuries and treatment for neck symptoms. Nor was the history provided to his post-injury medical providers accurate. Dr. Ghose stated that, based on the information provided, his opinions in the April 21, 2015, report had not changed. The doctor additionally opined that the treatment provided by Dr. Roehl, the recommended epidural steroid injection, and the employee’s treatment at Midwest Spine Institute were reasonable and necessary but not causally related to the April 4, 2014, injury.^[11]

At the hearing, the employee testified he was unable to get the epidural steroid injection right away because the workers’ compensation insurer denied the claim and the employer discontinued his medical insurance. His wife obtained medical insurance through her employer in September 2015 and the employee was included on her insurance. The employee stated he received a C7 injection on the left on October 28, 2015, at Fairview Ridges on referral from Midwest Spine. The employee further testified that the injection worked, and, to the date of hearing, he had nearly complete relief from his pain.^[12]

The employer and insurer argue the findings and order are clearly erroneous and unsupported by substantial evidence in the record, and that the preponderance of the evidence does not support the facts or conclusions found by the compensation judge. First, the employer and insurer assert that the medical evidence relied upon by the compensation judge is not adequate. Second, the employer and insurer point to the employee’s testimony and argue the employee has consistently provided inaccurate information. They assert the judge erred in accepting his testimony and finding the employee testified credibly. Finally, the employer and insurer contend the judge expanded the issues beyond what was presented at hearing. To that end, the employer and insurer seek a reversal and a dismissal of all benefits and claims of the employee. We are not persuaded by these arguments.

The compensation judge found the employee testified credibly that he was never pain free from his work injury on April 4, 2014, until October 28, 2015, despite acknowledging in the memorandum that the employee was shown to be an inaccurate and unreliable historian of his prior treatment and prior symptoms.^[13] The employer and insurer argue the judge erred in accepting the employee’s testimony, asserting that despite years of treatment to the neck, shoulders, and upper back before April 2014, as reflected in the Newman Chiropractic treatment records, the employee denied any previous history of similar problems to all of his medical providers. The employer and insurer also point to the January 6, 2015, treatment note from Dr. Geary which identified improvement with little exacerbations even while working on his truck, and the employee’s deposition testimony that Dr. Geary “fixed” him. Moreover, despite untruthful and inaccurate statements at the employee’s deposition, the compensation judge still found the employee credible with respect to his post-injury symptoms. The only evidence, the employer and insurer assert, to support the conclusion that the April 4, 2014, fall resulted in something more than a temporary injury, was the employee’s testimony which was unreliable and inconsistent with the medical records.

The employee asserts his testimony that he was never pain free following the admitted injury on April 4, 2014, until October 28, 2015, is consistent with the medical and chiropractic treatment records. While the employer and insurer repeatedly emphasize on appeal that the employee failed to tell his medical providers about prior chiropractic care with Dr. Newman, recite instances in the medical records where prior treatment was denied or not noted, and point out instances where the employee’s deposition testimony was contrary to his trial testimony, all of this evidence and the same arguments were presented to the compensation judge at the hearing. The employee was vigorously cross-examined and his credibility challenged at trial. The employee did not dispute Dr. Newman’s treatment prior to the injury and acknowledged the disparities in his deposition testimony. The compensation judge stated in his memorandum that he was “aware of the employee’s cervical symptoms and treatment prior to April 4, 2014,” and that the employee had been shown to be an inaccurate and unreliable historian of his prior treatment and prior symptoms.^[14] The judge, nonetheless, found the employee was a credible witness regarding the persistence of his pain symptoms after the April 4, 2014, work injury.

The compensation judge observed the witness and his demeanor. The Minnesota Supreme Court has repeatedly stated that assessment of a witness’s credibility is the unique function of the trier of fact.^[15] While a witness’s recitation of facts on which a claim is based may be characterized as convenient, poor, or nuanced, the weight to be given to that testimony falls squarely within the province of the trier of fact.

This court must give due weight to the opportunity of the trier of fact to judge credibility. As a general rule, it is not the role of the WCCA to make its own evaluation of the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.^[16] The record adequately supports the compensation judge’s credibility assessment, and there is sufficient medical evidence in the record to support the judge’s ultimate conclusion that the work injury was a substantial contributing factor to the employee’s ongoing cervical pain symptoms, disability, and need for medical treatment after April 4, 2014.

The employer and insurer argue the medical evidence relied upon by the compensation judge is based on inadequate treatment records and false information. They contend the employee did not disclose his pre-injury history of neck, shoulder, and upper back injuries and treatment to his providers at Apple Valley Medical Clinic, Burnhaven Chiropractic, Valley Chiropractic Associates, or to PA-C Hawkins at Midwest Spine Institute. The employer and insurer point to records from Newman Chiropractic that show chiropractic treatment between February 2010 and March 28, 2014, for neck pain, upper back pain, left shoulder and arm pain, tingling and numbness in the arms, mid-back pain, electric shocks, and problems sleeping due to neck pain.

The employee does not dispute that he previously treated with Dr. Newman intermittently for neck pain and stiffness, among other complaints. He asserts that Dr. Newman provided periodic chiropractic adjustments to address spinal subluxations that occurred in the course of the employee’s every day activities - shoveling snow, cutting wood, cell phone use, fishing and so on, but that he had never previously required ongoing attention for persistent cervical spine symptoms. Moreover, although Apple Valley Medical Clinic was the employee’s primary care provider for thirty years, there are no prior significant neck injuries or chronic neck problems reflected in the clinic records.

The compensation judge, in his memorandum, stated he found the assessment and diagnosis set forth in the chart notes of Midwest Spine Institute persuasive, and concluded that the weight of the evidence demonstrated that the employee’s condition substantially worsened after the April 4, 2014, fall. The judge further observed that while the employee’s pre-existing condition may have been a factor in the employee’s need for ongoing treatment, the evidence established that the work injury was a substantial contributing factor as well.^[17]

The employer and insurer argue that PA-C Hawkins at Midwest Spine did not have adequate foundation. The competency of a witness to provide expert medical testimony depends both upon the degree of the witness’s scientific knowledge and the extent of the witness’s practical experience with the matter which is the subject of the offered testimony.^[18] The employer and insurer argue that a physician’s assistant is not a medical doctor, and there was no evidence submitted regarding PA-C Hawkins curriculum vitae, scientific knowledge, or practical experience. In addition, the employer and insurer maintain that the chart notes from PA-C Hawkins contain an inadequate and misleading history, as well as an inaccurate recitation of symptoms. Finally, the employer and insurer assert, there was no explanation in the records as to why PA-C Hawkins took the employee off work.

The employee contends there is ample medical evidence to support the compensation judge’s finding that the admitted work injury was a substantial contributing factor to the employee’s ongoing cervical spine condition. The medical records reflect that the employee consistently stated the onset of his neck pain was the fall on April 4, 2014, his reported symptoms remained constant over the course of his treatment following the injury, and the diagnoses of his medical providers was consistent. The employer and insurer essentially question the compensation judge’s reliance on the employee’s medical records alone, and the validity of the assessment and treatment recommendations contained in them. The employee notes that PA-C Hawkins was not a witness and offered no testimony or causation opinion. The records simply reflect the care provided to the employee at Midwest Spine, thus the standards for an adequate foundation for an expert medical opinion do not apply. Moreover, the chart notes of PA-C Hawkins were reviewed by Dr. Sinicropi. Even Dr. Ghose did not question the medical care and treatment offered by Midwest Spine or the provider’s qualifications to assess and treat the employee’s cervical spine condition.

A compensation judge may rely on the employee’s medical records alone, even in the absence of an expert medical opinion, in cases involving the “commoner afflictions” such as the cervical sprain suffered by the employee, when determining whether a work injury is a substantial contributing cause. ^[19] The compensation judge properly did so in this case.

The employer and insurer additionally argue the compensation judge should have accepted instead the opinions of Dr. Diede and Dr. Ghose who concluded the injury of April 4, 2014, was temporary and had resolved by April 9, 2014. They maintain the April 9, 2014, record from Apple Valley Medical Clinic establishes the employee had a normal neck examination with a normal range of motion and normal muscle tone. Based on these findings, Dr. Diede diagnosed a resolved cervical strain and the employee returned to work without restrictions. He did not seek further treatment until two months later, at Newman Chiropractic, with symptoms similar to those he had had before the fall.

The employer and insurer assert that Dr. Ghose’s examination finding of limited cervical range of motion on April 10, 2015, is similarly consistent with the extensive records from Newman Chiropractic that show the employee had neck pain, stiffness, problems with neck rotation and problems looking down well before and shortly after the April 4, 2014, incident. The employer and insurer argue the only physician that provided a causation opinion, and the only medical provider with a complete understanding of the employee’s medical history was Dr. Ghose. Accordingly, the compensation judge erred in accepting the medical evidence submitted by the employee over the chart note of Dr. Diede and the opinions of Dr. Ghose.

The employee asserts that Dr. Diede’s chart note is inconsistent given the employee’s presenting symptoms and the doctor’s recommendations for ongoing self-treatment and instructions for follow-up care in the event the employee saw no improvement or resolution of his symptoms. This is further evidenced by the musculoskeletal systems review [ROS] finding of positive for neck pain “resolving.” The employee argues Dr. Diede apparently anticipated the injury would resolve but it appears the injury, in fact, had not yet resolved. The employee further notes that Dr. Diede did not testify, provide a report, or offer an opinion.

The employee observes that Dr. Ghose’s evaluation did not take place until one year after the injury. At that point the employee had been seen at Midwest Spine Institute. The employee argues that Dr. Ghose based his initial opinion solely upon Dr. Diede’s chart note and the apparent gap in treatment between April 9, 2014, and initiation of the employee’s treatment at Valley Chiropractic Associates at the end of November 2014. The employee told Dr. Ghose that he saw a chiropractor in July 2014 and that he had treated with Dr. Roehl, but Dr. Ghose was not provided with a copy of Dr. Roehl’s records or those of Dr. Newman at the time of the April 2015 examination. Had Dr. Ghose reviewed Dr. Roehl’s treatment notes, he would have known the employee continued to have stiffness and pain in his neck and upper back and was taking medication for his symptoms. In his addendum report, the employee argues, Dr. Ghose took no notice that the records from Newman Chiropractic and Burnhaven Chiropractic evidenced ongoing treatment and symptoms within a short time span after the April 9, 2014, visit with Dr. Diede.

Questions of causation fall within the province of the compensation judge.^[20] It is not necessary to show that the work injury was the sole cause of the employee’s disability, but is only necessary to show that the work injury is a substantial contributing factor.^[21] That an employee has underlying spinal degeneration does not disqualify his claim so long as the work injury aggravated, accelerated, or combined with the infirmity to produce the disability for which compensation is sought.^[22] The medical evidence relied upon by the compensation judge, in combination with the employee’s testimony, is sufficient to support the compensation judge’s determination that the employee suffered a compensable work injury.

The employer and insurer argue the compensation judge improperly expanded the employee’s claim for an epidural steroid injection beyond that presented at the hearing. The employer and insurer assert that, upon information and belief, Midwest Spine Institute did not perform the October 28, 2015, epidural steroid injection and informed counsel for the employer and insurer that they did not have an outstanding bill or balance for any treatment on October 28, 2015.

The question of whether the employee’s claimed epidural steroid injection was reasonable and necessary was clearly at issue at the hearing. At the beginning of the hearing, the compensation judge stated that the parties had agreed the issues for consideration included whether the claimed epidural steroid injection was reasonable and necessary to cure and relieve the effects of the employee’s work injury.^[23] The compensation judge found that Midwest Spine Institute recommended an epidural steroid injection to the employee’s cervical spine on April 13, 2015, and ordered the employer and insurer to pay for the October 28, 2015, epidural steroid injection “the employee received through Midwest Spine Institute.”^[24] The employee asserts that Midwest Spine was the provider that referred the employee for the procedure and that the compensation judge did not say performed by Midwest Spine Institute. The employer and insurer, the employee contends, were well aware the procedure was performed at Fairview Ridges Hospital as testified to by the employee.^[25] The employer and insurer had notice of the recommendation and the claim for the injection since it had denied approval for the procedure.

Substantial evidence supports the compensation judge’s determination and we affirm. ^[26]