CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence, including adequately founded expert medical opinion, supports the compensation judge’s finding that the employee’s work injury was a substantial contributing cause of his biceps avulsion injury and need for surgery.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Jerry J. Lindberg, Lindberg Law, P.C., Sauk Rapids, Minnesota, for the Respondent. Jeffrey J. Lindquist and Peter J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, P.L.L.C., Minneapolis, Minnesota, for the Appellants.
Affirmed.
PATRICIA J. MILUN, Chief Judge
The employer and insurer have appealed from the compensation judge’s conclusion that the employee’s work-injury was a substantial contributing cause of the employee’s left biceps tendon avulsion. We affirm.
On November 1, 2014, while visiting a friend at St. Cloud Hospital and holding his three-year-old son, Bradley Yde, the employee, reached to grab his son’s costume hat as it was falling and experienced instantaneous left-sided upper extremity pain. He sought immediate treatment in the emergency trauma center at St. Cloud Hospital and was diagnosed with a left elbow injury, questionable biceps tear. Three days later, the employee followed up with treatment at Williams/Integracare Clinic and was treated by Nicole Pelach, a certified nurse practitioner, who recommended physical therapy. The employee was able to perform strengthening exercises while participating in physical therapy. The medical treatment at that time focused on the epicondyles of the elbow. At physical therapy on November 12, 2014, the employee reported another incident where he felt a snap in his elbow while trying to catch his son and experienced increased elbow pain. He also had tenderness at the left lateral epicondyle. On November 21, 2014, he again experienced pain when picking up his son. The employee continued to do his job without restrictions. He did not miss any time from work after these incidents.
On November 25, 2014, the employee performed his duties working as a delivery driver for Viking Coca-Cola, the employer. While delivering product on a two-wheeled cart that contained 15 cases of pop and liters of pop, the employee was pulling the cart into a store entrance when a rug moved from under his feet. He fell, landing on the left elbow, and the cart came down hitting his left arm. The employee reported the event to his supervisor and continued to complete another stop on his route despite his left arm pain. He did notice a balling up of the biceps in his arm. The employee did not seek treatment immediately, but attended an appointment at the clinic on November 28, 2014, which had been previously scheduled for follow-up of the earlier incident. The employee reported left elbow and left shoulder pain. He continued to attend physical therapy sessions.
On December 2, 2014, the employee returned to work delivering bulk loads of beverages. The employee testified that after a pallet of two-liter bottles of pop fell, he picked up all the bottles without assistance and experienced pain in the biceps and inner elbow to the forearm. At the end of the day, the employee iced the arm while at home. Physical therapy records indicate that the employee reported feeling pain while holding his son that day. The following morning of December 3, 2014, the employee awoke with swelling and bruising on his left arm, which was visible when he attended physical therapy at Williams/Integracare Clinic on December 5, 2014. At a follow-up appointment on December 8, 2014, the nurse practitioner took the employee off work and recommended an MRI. An MRI taken December 19, 2014, showed a complete retracted tear of the biceps tendon and mild lateral epicondylitis. The employee was referred to St. Cloud Orthopedics Associates for a surgical consultation.
Dr. David Kaus successfully repaired the left distal biceps tendon avulsion on January 14, 2015. The employee remained off work through March 10, 2015, and then returned to work for the employer with no wage loss until May 15, 2015.
On June 24, 2015, the employee underwent an independent medical examination with Dr. Steven Meletiou for the employer and insurer. Dr. Meletiou opined that the employee’s November 25, 2014, work injury was not a substantial contributing factor to his left biceps tendon rupture. He opined that the November 1, 2014, incident was a sudden forced extension activity that likely resulted in a partial distal biceps tear at that time. He also opined that the employee’s later reports of snapping and pain on November 12th and 21st were consistent with a partial tendon rupture. Dr. Meletiou further stated that the work injury history of a direct blow to the antecubital fossa after falling backward was not consistent with a biceps tendon rupture. He concluded that the full biceps avulsion occurred as of December 5, 2014, likely after holding his son and experiencing pain the night before extensive bruising appeared on his left arm. Dr. Meletiou stated that the employee had reached maximum medical improvement as of March 10, 2015, and that he had no restrictions and no permanent partial disability.
The employee’s treating surgeon, Dr. Kaus, wrote a report dated November 12, 2015, stating that the employee’s November 25, 2014, work injury was a substantial contributing factor to the left biceps avulsion and his need for surgery. Dr. Kaus stated in his report that during the hat incident on November 1, 2014, the employee was unlikely to need to be exerting a substantial amount of force. He further noted that the employee would not have been able to perform the biceps stretching exercises that he did in physical therapy on November 10th if the tear had occurred on November 1st.
A hearing was held on December 12, 2015, on the employee’s March 30, 2015, claim petition for temporary total disability benefits, medical expenses, retraining, and attorney fees. In a report dated December 24, 2015, and submitted after the hearing, Dr. Meletiou reviewed Dr. Kaus’s report, but did not change his opinion that the employee had sustained a partial tendon tear on November 1, 2014, which was intermittently symptomatic until December 2, 2014, when the employee experienced a sharp pain as the complete avulsion occurred. In a letter dated January20, 2016, Dr. Kaus again opined that the employee’s November 25, 2014, work injury was a substantial contributing factor to his left biceps tendon tear and need for surgery. He based his opinion on the inference that as the employee was falling and the cart was tipping, he would have exerted force on the biceps and the extension would have produced the mechanism consistent with biceps avulsion. He recognized that the employee may have had a limited injury on November 1, 2014, but stated that injury mostly involved the epicondyles of the elbow. The compensation judge accepted Dr. Kaus’s opinions over the medical opinions of Dr. Meletiou and awarded temporary total disability benefits, medical expenses, and medical mileage. The employer and insurer appeal.
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.”[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.”[2] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. 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.”[3] 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.”[4] This court reviews questions of law under a de novo standard of review.[5]
The employer and insurer contend the compensation judge erred in determining that the employee’s work injury was causally related to the left bicep tear by erroneously relying on a flawed medical opinion from Dr. Kaus. We are not persuaded by this argument based on the analysis below.
An employer is liable for an employee’s wage loss and medical expenses when the disability and need for treatment is due in substantial part to the work injury. The work injury need not be the sole cause of the disability and need for treatment but may be a substantial contributing factor in the employee’s condition.[6] In the present case, the compensation judge was provided with two expert medical opinions as to whether the work injury and subsequent condition were causally connected. In her findings and order, the compensation judge reviewed, analyzed, and considered the evidence in the record, which included the expert medical opinions of Dr. Kaus and Dr. Meletiou. Dr. Kaus was of the opinion that the mechanism of the November 25, 2014, work injury would be “the most likely to result in a biceps tendon avulsion.”[7] By contrast, Dr.Meletiou was of the opinion that the nonwork-related incidents prior and subsequent to the work injury were the known potential mechanisms resulting in distal biceps tendon avulsion, either partial or complete.[8] Both doctors gave a well-reasoned analysis in support of their opinions.
As the trier of fact, the compensation judge has the discretion to choose between conflicting medical experts’ opinions.[9] Here, the compensation judge concluded that the evidence established the causal connection between the employee’s work injury and his claim for medical treatment and wage loss benefits. The employer and insurer challenge this conclusion, arguing that the judge erroneously relied on a flawed medical opinion from Dr. Kaus in making the ultimate determination.
In response to questions raised by letter, Dr. Kaus wrote the following on November 12, 2015:
. . . I am of the opinion that the substantial and primary contributing factor, which resulted in his need for treatment for avulsion of his biceps tendon was the work injury of November 25, 2014. While he did apparently have some treatment for injury to the left arm based on what I can find in the available records, it would be much more consistent with at most a strain in the biceps muscle of the upper arm. Typically with avulsion of the biceps tendon, the patient injures the arm when exerting a substantial amount of force much more consistent with pulling a cart of soda rather than trying to catch [a] light costume hat. Also of note, the physical therapist notes that they were working on biceps stretching on November 10th. This would not be possible if he had an avulsion at that point. I treated him for the tendon being avulsed off the tuberosity of the radius, which would disrupt the continuity of the biceps and would have been evident to the physical therap[ist] if it had been present on November 10th. The injury of November 1st seems more consistent with a muscle strain in the more proximal or upper part of the biceps as oppose[d] to the tendon tearing off of the bone at the very lower end.[10]
In his supplemental report dated January 20, 2016, Dr. Kaus wrote the following:[11]
As I review the mechanism of injury as described to me by the patient as well as in his deposition, he had a loaded cart with 300 to 400 pounds of product. He was pulling on this cart backing up through a doorway and lifting it up a 7 inch high step which would be loading his biceps. As he went through the first door, the carpet slipped under his feet. He fell backwards, which as he held onto the cart, its weight would have forced the arm into extension. I would presume as part of trying to prevent the cart from tipping, he would have continued to exert force on his biceps again putting the biceps under tension and producing the mechanism which is very consistent with a biceps avulsion. After his cart fell, it did strike his arm and he had some pain there, but this would have been a secondary part of the mechanism of injury, and I would agree that the direct blow . . . [is] not what caused the avulsion but rather the strain on the biceps as he was trying to prevent the cart from falling. He describes that the cart and product landed on him as a result of this fall [and] he landed on his back striking his elbow. Again, it was the moment when he was trying to control the cart with his biceps loaded under tension with the force of the cart forcing his arm in extension that would produce a mechanism very consistent with biceps avulsion. He also noted in his deposition that he noted the balling up of the biceps in his arm consistent with distal tendon avulsion afterwards.
* * *
It is certainly possible the patient may have had limited injury to the biceps as a component of the November 1st injury and certainly he was receiving treatment for elbow pain prior to his injury. But in my review of his treatment notes much of the focus of treatment was for pain about the epicondyles of the elbow. I remain of the opinion that the injury of November 25, 2014 was a substantial contributing factor in bringing about the biceps tendon tear and requirement for surgery.[12]
The foregoing constitutes substantial evidence supporting the compensation judge’s conclusions.
The appellants, however, argue that Dr. Kaus’s opinion is based upon an inadequate factual foundation in that it assumed facts not in evidence and made a presumption regarding the injury that was not supported by the medical record or by the employee’s testimony. We are not persuaded by this argument.
A compensation judge’s choice of a medical expert opinion is generally upheld so long as there is adequate foundation.[13] An expert medical opinion is not competent if it is based on a series of assumptions that lack a factual basis or if it materially relies on the facts contrary to those found by the compensation judge.[14] Here, Dr. Kaus reviewed the physical therapy records prior to the work injury which focused on the pain about the epicondyles of the left elbow on the back side of the arm, which he thought to be symptomatic of an injury to the triceps. Dr. Kaus noted that the physical therapy records indicate that the employee did biceps strengthening in physical therapy on November 10th and he concluded that the employee could not possibly have done that exercise if he had sustained a biceps tear on November 1st. Dr. Kaus also noted that the history the employee gave by deposition was consistent with the medical records. This is also consistent with what the employee told him by way of history at the time of the first office visit on January 9, 2015. These facts serve as the premise for drawing an inference to the mechanism of the injury. The judge also considered and found the employee’s testimony credible at hearing.
Given her own reconciliation of the competing medical opinions, the judge reasonably concluded that Dr. Kaus’s medical opinion was more persuasive than the medical opinion of Dr. Meletiou. We conclude the compensation judge’s reliance on Dr. Kaus’s expert opinion and the employee’s testimony provide sufficient evidence to support the judge’s finding that the employee sustained a work-related injury that arose out of and in the course and scope of employment on November 25, 2014, causing the avulsion of the left biceps tendon. We affirm.
[1] Minn. Stat. § 176.421, subd. 1(3); see also Hengemuhle v. Long Prairie Jaycees, 358N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
[2] Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
[3] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
[4] Id.
[5] Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
[6] See Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 497-98, 40 W.C.D. 117, 122 (Minn. 1987).
[7] Employee’s Ex. J.
[8] Employer and insurer’s Ex. 2.
[9] See Nord v. City of Cook, 360 N.W.2d 337, 342–43, 37 W.C.D. 364, 372–73 (Minn.1985); see also Klapperich v. Agape Halfway House, Inc., 281 N.W.2d 675, 679, 31W.C.D. 641, 650 (Minn. 1979) (“finding of fact from conflicting expert testimony will not be disturbed unless a consideration of all the evidence and the inferences permissible therefrom clearly requires reasonable minds to adopt a conclusion contrary to that of the compensation court”).
[10] Employee’s Ex. A.
[11] Dr. Kaus based his opinion in part on his review of the employee’s description of the injury to him and in the employee’s deposition.
[12] Employee’s Ex. J.
[13] See Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73.
[14] See Klapperich, 281 N.W.2d at 680, 31 W.C.D. at 651 (a compensation judge’s choice of expert medical opinion will not be upheld where the facts assumed by the expert are not supported by the evidence).