CAUSATION - GILLETTE INJURY. Substantial evidence, in the form of a well-founded medical opinion, supports the compensation judge’s determination that the employee did not sustain a Gillette-type injury to his low back.
Compensation Judge: John R. Baumgarth
Attorneys: Michael L. Garbow and Mark L. Rodgers, Rodgers & Garbow, P.L.L.C., Bemidji, Minnesota, for the Appellant. Kelly P. Falsani, Fitch, Johnson, Larson & Held, P.A., Minneapolis, Minnesota, for the Respondents.
Affirmed.
MANUEL J. CERVANTES, Judge
The employee appeals the compensation judge’s determination that no Gillette-type injury was sustained at work with the employer. The employee argues that the judge failed to give proper consideration to the medical evidence in the record. The employer and insurer respond that the judge’s decision is supported by substantial evidence in the record. We affirm.
As a threshold matter, the employer and insurer moved to strike factual information from the employee’s Reply Brief. We grant the motion. The employee moved for reconsideration of this court’s decision to consider this matter without oral argument. This motion is denied.
The employee, Glenn Olson, was employed as an equipment operator and mechanic by the employer, Clearwater Rice, Inc. The employee began full-time work in 1997 and worked on a seasonal basis (roughly from April through fall harvest). The last full season worked by the employee was 2013 and he worked briefly for the employer in June 2014. The employee operated bulldozers, tractors, a rice combine, and a skid loader. This work was more frequent at the beginning and end of each growing season, with less work performed during the summer months.
In 1988, the employee was involved in a non-work-related auto accident. On August 4, 1991, the employee was involved in a non-work-related car accident which resulted in a low back injury. In 1992, the employee underwent a CT scan which showed mild degenerative changes with no stenosis or disc herniation. On March 29, 1993, Dennis G. Sollom, M.D., rated the employee at 15% disability of the whole body as a result of that accident. The employee weighed approximately 200 pounds at that time and was five foot eight inches tall at the time.
The employee experienced low back pain on and off since the 1991 accident. Dr. Sollom prescribed a back brace which the employee frequently wore at work. From December 4, 2002, until April 4, 2013, the employee received treatment from Thomas J. Hanson, D.C. This treatment was infrequent, averaging about once a year. On some occasions, the employee attributed the pain he experienced to operating equipment at work. On other occasions, the employee attributed the pain to recreational activities such as spear fishing, operating a four-wheeler, moving a fish house, or pulling on a deer. There are only two instances where the employee received care from Dr. Hanson connected to an earlier visit. In November and December, 2011, pain of unknown origin was treated at two visits. In March and April, 2013, the employee attributed pain to snow-blowing which was not work-related.
On April 8, 2013, the employee began treating with David Wold, D.C. In the initial evaluation, Dr. Wold noted that the employee described low back pain at 4 (of 10) and posterior neck pain at 7. The employee did not attribute the pain to any specific cause. Dr. Wold prescribed an aggressive plan of treatment that involved nine visits in three weeks. The employee’s low back condition did not improve over this period.
On May 26, 2013, the employee underwent a CT scan which showed L5-S1 disc narrowing with vacuum disc phenomena and bilateral spondylolisthesis. A surgical referral was made with a diagnosis of back pain exacerbation. The employee did not identify any work activity as a source of the back pain at the time.
On August 20, 2013, the employee underwent an MRI which showed multilevel degenerative changes with facet arthropathy and ligimentum flavum hypertrophy. Central disc bulging and degenerative changes at L4-L5 were observed.
On November 20, 2013, the employee underwent an L5-S1 transforaminal lumbar interbody fusion performed by Timothy Lindley, M.D.
On July 8, 2014, the employee underwent an independent medical examination (IME) at the request of employee’s counsel conducted by Larry N. Stember, D.C. Dr. Stember reviewed the imaging from 1992 and 2013-2014 and noted that there were no disc herniations, stenosis, or spondylolisthesis shown in the 1992 CT scan. Dr. Stember rated the employee at 26% permanent partial disability (PPD) under Minn. R. 5333.0390, subps. 4 and 5, for the low back condition. Dr. Stember opined that the employee’s condition was caused by micro-loading his lower back by operating work vehicles through rough terrain resulting in a Gillette-type injury. Dr. Stember attributed the employee’s need for fusion surgery and all of the PPD rating to his work injury.
On September 30, 2014, the employee underwent an IME conducted by David Carlson, M.D., on behalf of the employer and insurer. Dr. Carlson characterized the August 20, 2013, MRI results as “degenerative in nature.” At the time of the IME, the employee weighed 280 pounds. Dr. Carlson assessed the employee’s reactions during the physical examination as consistent with intentional exaggeration of symptoms. Dr. Carlson opined that the employee did not experience a Gillette-type injury and that the employee’s condition was entirely attributable to the employee’s degenerative low back condition that was unrelated to the employee’s work activities. Dr. Carlson opined that substantial contributing causes of the employee’s degenerative low back condition were the automobile accidents in 1988 and 1991 and the employee’s obesity. Dr. Carlson supplemented his opinion on June 9, 2015, noting that his earlier opinions remained unchanged.
On November 10, 2014, the employee underwent an IME at the request of employee’s counsel conducted by Mark Larkins, M.D. Dr. Larkins recounted the history provided by the employee which included mention of the 1991 automobile accident, but no mention of either ongoing low back pain or a 15% PPD rating arising from that accident. Dr. Larkins did note a chart reference to low back and knee pain by Dr. Sollom in 1992 which resulted in conservative treatment. Dr. Larkins diagnosed congenital L5-S1 spondylolisthesis and opined “that really the substantial contributing cause of his flare-up is his work. The other contributors are the passage of time and obesity . . . but really the principal issue is his work problem.” Dr. Larkins opined that the employee’s work-related activity was the substantial contributing cause to the employee’s back condition and need for surgery. On January 22, 2015, Dr. Larkins began treating the employee clinically. On January 27, 2015, Dr. Larkins took the employee off of work completely and opined that the employee was completely disabled. On September 23, 2015, Dr. Larkins supplemented his earlier IME, agreeing with Dr. Stember’s findings. Dr. Larkins agreed that the employee suffered degenerative changes but opined that the employee became symptomatic through his work activities.
The employee filed a Claim Petition seeking benefits which came before a compensation judge on November 17, 2015. The judge found the employee’s testimony to be unconvincing and inconsistent with the statements that he had made to his treating providers. The judge also noted that the pattern of chiropractic treatments were inconsistent with the assertion that work activities resulted in a Gillette-type injury. The judge adopted Dr. Carlson’s opinion regarding the employee low back condition and found that that the employee did not sustain a work-related Gillette-type injury with the employer. The judge found Dr. Carlson’s opinion more persuasive than those of Drs. Stember and Larkins. The employee appealed the decision.
In reviewing cases 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. 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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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 the evidence or not reasonably supported by the evidence as a whole.” Id.
Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the judge are to be upheld. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988); Land v. Washington County Sheriff’s Dep’t, slip op. (W.C.C.A. Dec. 23, 2003). In arriving at a decision, the judge must resolve any conflicts in expert medical testimony, and the judge’s choice of expert opinion is usually upheld unless 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).
Determination of a Gillette-type injury depends primarily on medical evidence. Marose v. Maislin Transp., 413 N.W.2d 507, 512, 40 W.C.D. 175, 182 (Minn. 1987). A medical opinion with adequate foundation will support a compensation judge’s finding as to the existence of a Gillette-type injury. Kranz v. Coca Cola Enters., Inc., 73 W.C.D. 631 (W.C.C.A. 2013). As the medical opinions in this matter are conflicting, the judge must give due weight to the evidence of record and arrive at a conclusion. See Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994); Hosking v. Metro. House Movers Corp., 272 Minn. 390, 398, 138 N.W.2d 404, 409, 23 W.C.D. 673 (1965).
The compensation judge carefully assessed the information relied upon by all of the medical professionals who offered an opinion in this matter. The information relied upon by Dr. Carlson established adequate foundation for his opinion. See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978); Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003). While the employee disputes Dr. Carlson’s opinion, particularly regarding the source of the employee’s low back pain, there is ample support in the medical record for the employee’s long-standing complaints of low back pain that pre-existed the work done for the employer. There is no basis for this court to substitute its judgment for that of the compensation judge in the choice of medical expert.
The employee also contended that the compensation judge erred in assessing the pattern of medical treatment. The employee’s medical history supports an inference that he suffered repeated work-related micro-trauma that could result in a Gillette-type injury. That same medical history supports an inference that the employee suffered from a pre-existing condition that was aggravated at times by work and at times by non-work activities and the employee did not suffer a Gillette-type injury. Based on the compensation judge’s assessment of the evidence of record, the judge concluded that the employee failed to establish by a preponderance of evidence that he sustained a Gillette injury.
The break in the pars interarticularis evident in the May 26, 2013, CT scan (described as bilateral spondylolisthesis) is cited by the employee as demonstrating that the employee’s pre-existing condition is different from his current condition, rather than the “interval change” described by the compensation judge. The employee contends that this demonstrates an error by the compensation judge. The medical record provides several possible causes for the condition that are unrelated to employment. Further, the judge relied on the employee’s own descriptions in his medical records of the source of his back pain in concluding that no Gillette-type injury was suffered. This also supports the judge’s decision.
The employee submitted attachments to the Reply Brief to support the arguments made therein and set forth in the brief factual claims about the employee’s obesity and chiropractic care. None of this evidence was presented to the compensation judge. The employer and insurer moved to strike this information from the Reply Brief. The employee did not make a timely response to the motion. As the information was not available to the judge at the hearing, there is no basis for considering this information on appeal. Hence, the motion to strike is granted.
The employee submitted a request that this court reconsider the decision to address the employee’s appeal without oral argument. The employee did not identify any aspect of this appeal that could be materially aided by an in-person presentation by counsel. The motion to reconsider is denied.
The employee seeks a re-weighing of the evidence on appeal. Long-standing case law compels affirmation where the compensation judge has applied the correct legal standard and substantial evidence supports the decision. As both are present in this case, the compensation judge’s decision is affirmed.