CAUSATION – SUBSTANTIAL EVIDENCE; MEDICAL TREATMENT & EXPENSE – SUBSTANTIAL EVIDENCE; EVIDENCE – CREDIBILITY. Substantial evidence supports the compensation judge’s determination that the employee’s work-related motor vehicle accident of February 18, 2014, was a substantial contributing factor to the employee’s current low back condition and need for medical treatment, including a recommended fusion surgery. The compensation judge did not commit reversible error by relying on the employee’s testimony at the hearing.
Compensation Judge: William J. Marshall
Attorneys: Scott A. Teplinsky, Teplinsky Law Group, Ltd., Minneapolis, Minnesota, for the Respondent. Laura L. Myslis, Gislason & Hunter, L.L.P., Minneapolis, Minnesota, for the Appellants.
Affirmed.
DEBORAH K. SUNDQUIST, Judge
Where the record as a whole supports the compensation judge’s determination that the employee’s work-related car accident was a substantial contributing factor to the employee’s low back condition and recommended medical procedures, the compensation judge’s findings are affirmed.
The employee, Jason Jarveis, had worked as a sales representative for the employer, Carroll Distributing, since 2004. His sales territory encompassed the area around Minneapolis, St. Cloud, Alexandria, and Sioux Falls. He typically worked 10 hour days and drove 150 miles a day. He regularly lifted and carried five gallon pails weighing between 50 to 60 pounds. The employee testified he had no problem doing his job, and was able to move the materials and work without restrictions.
On February 18, 2014, while on a business trip in Illinois, the employee was in a car accident while driving a rental car. He was stopped at a stop light when he looked in the rear view mirror and saw a car coming at him from behind. He reached up with his left hand to adjust the mirror and locked his right arm on the steering wheel. The approaching car rear-ended the employee’s car. The employee wore his seatbelt, but was sitting in a twisted position upon impact. His body did not strike the interior of the car. The air bags did not deploy. The rental car suffered minimal damage — the back bumper had two holes which the employee described as about 5/16 of an inch in size. After exchanging insurance information, the employee drove to the business meeting. He testified that he had neck and back pain following the accident.
Prior to the February 18, 2014, motor vehicle accident, the employee had a history of low back pain and treatment dating back 24 years. In 1990, he was hit in the head by a golf ball knocking him backwards off a cement platform resulting in a stiff neck and back. In 1997, he complained of persistent low back pain after an extended hospital stay due to severe headache pain. In July 2000, he claimed a work injury to the low back while sorting through a pile of metal accessories. He was lifting shingles and twisting when he again hurt his back in September 2002. He fell from a ladder in 2005 and again developed low back pain. He complained of low back pain with numbness in both legs in July 2009. And while removing snow from his roof in 2010, he developed low back pain. Much of his care and treatment took place at Affiliated Community Medical Centers (ACMC). Between June 2013 and February 7, 2014, the employee received nine massage therapy treatments at Hands On Therapy. Each time, he complained of low back pain or discomfort. The notes also reflect that he wore a lumbar support.
Following the accident, upon his return to Minnesota, the employee sought treatment with Dr. John P. Skretvedt at ACMC. The initial note of February 20, 2014, makes no reference to a low back injury or low back pain. Instead, the symptoms were minor neck and shoulder aches, and soreness of the right posterior neck and shoulder area with radiating pain into his right arm. The employee also complained of some intermittent numbness over the back of his right hand. He denied any other significant injuries. Dr. Skretvedt assessed a mild cervical strain and recommended the use of pain relievers, icing/heating, and avoidance of any reaching or straining.
The next day, February 21, 2014, the employee sought treatment at Hands On Therapy. The notes reflect the employee presented with moderate to severe pain on the right side, from the top of his head down to the lower mid back with a severe headache. The notes describe the massage therapist’s treatment of the neck and low back, but no specific link was made between treatment for the low back and the car accident.
On February 26, 2014, the employee sought treatment with Dr. Kendall Boline Fenstra, a chiropractor. The employee complained of pain in his lower back, upper back, neck, and right elbow since a motor vehicle accident on February 18. This appears to be the first medical documentation that the employee developed low back pain following the work related car accident.
The employee continued to treat for neck symptoms through ACMC, and for back symptoms with Dr. Boline Fenstra. The employee was referred by Dr. Skretvedt to David Spight, a doctor of osteopathy at the Institute for Low Back and Neck Care (ILBNC), who saw the employee for cervical spine and low back complaints on June 11, 2014. Following a course of physical therapy, the employee returned to Dr. Spight who reported the employee continued to experience low back pain. An MRI scan was ordered that showed bulging discs at L4-5 and L5-S1 without neural compression. EMG results were normal. The doctor provided various injections without lasting improvement. Dr. Spight offered no formal opinion on causation, but described the condition as “posttraumatic lower back pain.” (Ex. E, F.)
After recommending a lumbar discography, Dr. Spight referred the employee to Dr. Jeffrey Pinto, an orthopedic surgeon at ILBNC, who took a history from the employee regarding the accident. Of note, Dr. Pinto recorded that the employee was rear ended, he was wearing a seatbelt, and the airbags did not deploy. He restricted the employee to “light” work beginning August 27, 2015, and continuing. Dr. Pinto reviewed the employee’s past medical history, past surgical history, medications, allergies, family history, and social history from the patient intake forms. The forms make no reference to the employee’s pre-existing low back issues. Dr. Pinto noted the employee’s pain is “quite severe . . . stopping him from being able to work.” (Ex. C.) Dr. Pinto reported the employee had a history of “some minor complaints in the very distant past; however, he had years of pain free existence until the automobile accident.” (Ex. B.) He also reported the employee had low back degeneration prior to the motor vehicle accident, but had had no pain for several years. Dr. Pinto opined the motor vehicle accident was the cause of the employee’s back and leg irritation and recommended anterior spinal fusion surgery.
The employer and insurer sought an independent medical opinion (IME) from Dr. Michael D. Smith, an orthopedic surgeon, who issued two reports. The first report, dated November 1, 2015, outlined the employee’s history of low back pain between 1990 and February 7, 2014. Based on a review of 516 pages of medical records, the employee’s deposition transcript, photographs of the vehicle showing minimal damage, and a physical examination of the employee, Dr. Smith concluded that the accident of February 18, 2014, was not a substantial contributing factor to the employee’s low back condition. He further opined that the employee had reached maximum medical improvement twelve weeks post-injury and assigned a zero percent permanent partial disability. In the second report, dated February 12, 2016, Dr. Smith reviewed notes from the ILBNC, including the discograms ordered by Dr. Pinto. In Dr. Smith’s opinion, the use of discograms as the bellwether for defining operative indications have largely fallen out of favor. He warned against surgery with an obese or deconditioned patient stating there are unacceptable risks of unresolved or worsening back pain after surgery. He recommended instead weight loss, aerobic exercise, and avoidance of narcotic or addictive substances.
The case was heard on April 18, 2016. At the hearing, the employee acknowledged a pre-existing low back condition, but maintained that following the work injury of February 18, 2014, he developed consistent and severe low back pain. He sought payment for the discogram and approval for the fusion surgery recommended by Dr. Pinto. The employer and insurer focused on the employee’s extensive prior low back treatment as well as the delay in reporting a low back injury to his doctors. The employer and insurer argued that due to the employee’s obesity and deconditioning, the success of fusion surgery is likely quite low. They further argued that discograms are controversial citing Dr. Smith’s opinion.
In Findings and Order served and filed May 18, 2016, the compensation judge found the work-related motor vehicle accident of February 18, 2014, was a substantial contributing factor to the employee’s low back condition. He further found the discogram and fusion surgery recommended by Dr. Pinto were reasonable and necessary and causally related to the February 18, 2014, work injury. The employer and insurer appeal.
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 employer and insurer make three arguments: first, the judge erred in concluding that the work accident caused the employee’s lumbar spine condition, need for the discogram, and proposed surgery; second, the judge erred in choosing the causation opinions of Drs. Spight and Pinto which they assert were based on false information; and third, the judge erred in finding the employee’s testimony credible.
In response, the employee argues that the judge’s decision must be affirmed unless clearly erroneous; that the judge’s choice of expert, that of Dr. Pinto, should be upheld because Dr. Pinto had sufficient foundation on which to base his opinion; and that the judge properly found the employee’s testimony credible.
The compensation judge adopted the opinions of Drs. Spight and Pinto with respect to the causal relationship between the February 18, 2014, motor vehicle accident and the employee’s need for ongoing care for the low back, including surgery. Both doctors made references to a causal connection, but neither doctor appears to have been aware of the employee’s pre-existing low back condition or treatment. Dr. Pinto relied on an inaccurate history in concluding the employee had been pain free for years. Dr. Spight noted no history other than the February 18, 2014, car accident.
As the trier of fact, the compensation judge has discretion to choose between competing and conflicting medical experts’ opinions. Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1122 (Minn. 1990). The judge’s choice of experts is not generally upheld if 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 337, 37 W.C.D. 364 (Minn. 1985). In Nord, two medical experts came to opposite conclusions, but the adverse examiner assumed facts that the supreme court determined were not supported by the evidence, resulting in a reversal of the compensation judge’s findings.
Here, when giving his causation opinion, Dr. Pinto stated that the employee was “pain free” for years before the accident, however, the record contradicts this statement. The employee wore a back brace, received multiple treatments for low back complaints since 1990, and complained of low back discomfort during massage therapy at Hands On Therapy between June 2013 and February 7, 2014, just 11 days before the accident. Dr. Pinto’s causation opinion, therefore, appears to be based on facts unsupported by the evidence. Likewise, Dr. Spight’s opinion appears to be based on a history provided by the employee, but the employee apparently neglected to tell him about his prior low back pain.
While we are troubled that Dr. Pinto and Dr. Spight assumed facts not in evidence, we are not inclined to reverse the judge’s findings. The Workers’ Compensation Court of Appeals is limited in the scope of our review. On appeal, this court 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). Findings of fact should not be disturbed “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). Here, a careful review of the record as a whole provides substantial evidence to uphold the compensation judge’s finding that the February 18, 2014, work injury is a substantial contributing factor to the employee’s current low back condition and resulting need for medical treatment.
The record submitted at the hearing shows that prior to the work injury, the employee worked full time without restrictions, regularly lifting 50 to 60 pounds, and driving 150 miles a day. Before the injury, there was no evidence of lost time due to low back pain. The employee’s pre-existing low back discomfort was apparently not serious enough to warrant an MRI scan or other diagnostic testing, nor had any doctor previously recommended surgery.
The extensive medical records submitted establish that after the February 2014 work injury, the employee was restricted to light work, and had difficulty working due to severe pain. An MRI scan, an EMG, multiple injections, and a discogram were ordered by his doctors. Fusion surgery was ultimately recommended to relieve his ongoing severe lumbosacral pain. When a work injury aggravates or accelerates a pre-existing condition, the entire disability is compensable. Vanda v. Minn. Mining & Mfg. Co., 218 N.W.2d 458, 27 W.C.D. 37 (Minn. 1974). Because substantial evidence exists to support the compensation judges’ finding that the work injury is a substantial contributing factor to the employee’s current low back condition, we affirm.
Next, we consider whether substantial evidence supports the conclusion that the discogram and the fusion surgery recommended by Dr. Pinto are reasonable and necessary medical treatment. In arguing that the evidence fails to show the treatment is reasonable and necessary, the employer and insurer cite multiple examples in the record of benign findings which are at odds with the judge’s determination. There was an absence of radiculopathy on the EMG study showing no nerve compression. Injections failed to effectively relieve the employee’s pain. The employer and insurer’s medical expert, Dr. Smith, opined that the use of discograms is unreliable and leads to poor clinical results, and warned that for obese and deconditioned patients, the surgical procedure was risky and may make the pain worse. Yet despite this evidence, it appears that extensive conservative treatment did not relieve the employee’s pain. The employee’s discogram showed concordant pain at two levels, which Dr. Pinto stated provided diagnostic clarity allowing him to make the surgical recommendation. While we may have arrived at a different conclusion than that of the compensation judge, the findings are not clearly erroneous or manifestly contrary to the weight of the evidence as a whole. Northern States Power Co., 229 N.W.2d at 524. We affirm the judge’s finding that the discogram and the recommended fusion surgery are reasonable and necessary to cure or relieve the effects of the employee’s work injury.
Finally, we consider whether the judge erred in relying on the employee’s testimony. The employer and insurer argue the employee’s credibility was repeatedly impeached at the hearing with both prior testimony and medical records. The employee maintains there is no showing that the testimony at trial was false or inaccurate. Furthermore, he argues that whatever tenuous showing there was of prior inconsistent statements, it does not rise to the level of requiring this court to second guess the judge’s finding of credibility. We agree.
The assessment of a witness’ credibility is the unique function of the trier of fact. Brennan v. Joseph g. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988). We must give due weight to the compensation judge’s opportunity to assess the employee’s credibility and we must uphold findings based on conflicting evidence. Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989). We, accordingly, affirm.