APPORTIONMENT. Substantial evidence supports the compensation judge's apportionment determination where there were varying apportionment opinions with adequate foundation.
EVIDENCE ‑ EXPERT MEDICAL OPINION. An otherwise well-founded medical opinion on apportionment constitutes substantial evidence that may be relied upon by the compensation judge, even where the opinion pre-dates some medical care, so long as there is no evidence that the apportionment would have been affected by that care.
Compensation Judge: Sandra J. Grove
Attorneys: Mark J. Freeman, Thill & Freeman, PLLC, St. Louis Park, Minnesota, for the Respondent. M. Elizabeth Giebel, Lynn, Scharfenberg & Hollick, Minneapolis, Minnesota, for the Appellants.
Affirmed.
DEBORAH K. SUNDQUIST, Judge
The employer for the first injury to the employee’s low back sought reimbursement for medical expenses from a subsequent employer following a second low back injury. Although the medical expert’s report upon which the judge relied was drafted before the medical expenses were incurred, the judge did not err in determining that the expert’s opinion rested upon adequate foundation. Because the record as a whole supports the judge’s findings on causation and apportionment, we affirm.
The employee, David J. Oleson, worked as a custodian for two Minnesota school districts for over 30 years. He worked for ISD #272, Eden Prairie schools through December 1995. Thereafter, he worked for ISD #283, St. Louis Park schools.
The employee first injured his low back on March 30, 1995, while changing a light bulb in the course and scope of his employment duties for ISD #272, Eden Prairie schools, a self-insured employer (ISD #272). Over the course of his employment there, which involved heavy work, the employee’s low back symptoms worsened. A CT scan showed facet hypertrophy at L4-5 with hypertrophic spurring originating from the L4 vertebral body that caused neuroforaminal narrowing and impingement on the exiting nerve root. Minimal degenerative changes were observed at L2-3 and L3-4 involving the facet joints. There was a small central disk bulge at L5-S1. Ultimately, the employee underwent a hemilamectomy and foraminotomy on March 21, 1996. The operative report confirmed that there was a large spur removed from the foraminal opening at L4-5 on the right. Following the surgery, the employee’s symptoms improved. On June 10, 1996, the employee was examined on follow-up with his neurosurgeon, Dr. Gaylen Rockswold, and the employee maintained that he was at 100 percent and ready to return to work. The employee received a permanent partial disability (PPD) rating of 15 percent for his low back condition. He was released to return to work without formal restrictions, but self-limited his activities. Upon recovery from surgery, the employee did well. With the exception of pain in 2002 while lifting a 200 pound locker with a co-worker, and an increase in pain in 2012, the employee had few low back symptoms and did not require treatment between 2002 and 2013. It was reported that he was “100% ok.”
The employee had been working for ISD #283, St. Louis Park schools (ISD #283), since December 1995. Eighteen years later, on January 28, 2013, a heavy snow fall made it necessary for the employee to report to work at midnight to begin removing snow from the lots of multiple schools within ISD #283. Driving a 25-year-old pick-up truck with a plow and bad suspension, the employee was jostled repeatedly over the course of six hours. He was tossed in the vehicle upon hitting curbs which caused him to develop low back pain.
The employee sought treatment on January 30, 2013, at the WestHealth Emergency Department/Urgent Care. He was placed on work restrictions. The next day, the employee was examined by Dr. Jennifer A. Huebner who returned him to work without restrictions. The notes of that examination reflect that the employee had moderate discomfort for three days following plowing snow for six hours in an old truck at work. The notes also describe the employee’s previous back surgery and indicated that there were “no ongoing back problems.”[1] Over the next week, the employee’s low back pain worsened with decreased range of motion, and numbness in the entire right lower extremity and the left foot, with weakness in both legs. An MRI scan was performed which showed a mild disk bulge at the L4-5 level which flattened the ventral thecal sac; moderate to severe right and mild left neural foraminal stenosis at the L4-5 level; mild disk bulge with associated annular fissure at the L5-S1 level without significant spinal canal stenosis; moderate left and mild right neural foraminal stenosis at the L5-S1 level.; and small annular fissure and minimal disk bulge eccentric to the left at the T11-12 level. Shortly thereafter, the employee underwent an epidural steroid injection performed by Christina M. Gonzaga, D.O. at Park Nicollet Methodist Hospital. The employee was completely off work from February to March 2013. The employee returned initially to part time work and eventually to full time work with #ISD 283. ISD #283 and its insurer SFM (ISD #283/SFM) denied primary liability citing the employee’s previous low back condition as the cause of the low back pain, disability, and need for medical treatment.
The employee filed a claim petition on May 22, 2013, alleging entitlement to temporary partial disability benefits, temporary total disability benefits, and medical expenses. He filed an amended claim petition on February 18, 2014.
Mark C. Engasser, M.D. examined the employee for ISD #283/SFM. He reviewed the employee’s medical records from multiple providers, took a history from the employee (who Dr. Engasser described as a poor historian), and conducted a physical examination of the employee. Dr. Engasser concluded that the employee did not sustain a low back injury on January 28, 2013, or on any other date during his employment with ISD #283. He described the employee’s symptoms as an ongoing manifestation of the underlying low back condition consistent with his previous low back injury on March 30, 1995. A patient undergoing a lumbar discectomy and decompression, he explained, would be prone to the development of stenosis. Dr. Engasser referenced the almost 18-year time frame between his initial low back injury in 1995, and the development of symptoms in January 2013, as consistent with an age-related degenerative disc condition and central and foraminal narrowing. He assigned a zero percent PPD rating and concluded that medical treatment would not be caused by the incident of January 28, 2013.
Paul Wicklund, M.D. examined the employee on behalf of ISD #272. Dr. Wicklund also reviewed medical records from multiple providers, took a history from the employee and conducted a physical examination. While Dr. Engasser found no injury in 2013, Dr. Wicklund found a new and permanent injury as a result of the employee being tossed about during the snow removal on January 28, 2013. Because the employee continued to have symptoms well over a year after the 2013 injury, Dr. Wicklund reasoned that it was likely permanent in nature. While Dr. Wicklund determined that the employee’s intermittent wage loss from February 7, 2013, to March 19, 2013, was solely due to the January 28, 2013, work injury, he apportioned responsibility for the employee’s condition as 75 percent to the 1995 injury, and 25 percent to the 2013 injury. Dr. Wicklund explained that this apportionment was appropriate because the 1995 injury resulted in surgery, but no further medical treatment for over 10 years and the employee was at 100 percent before the 2013 injury. Dr. Wicklund relied on the employee’s statements that the 2013 injury resulted in more pain in his back and right leg and the need to work in a careful way. Dr. Wicklund assigned no permanent partial disability to the 2013 injury, but he imposed a 50 pound lifting restriction as a result of both work injuries.
A hearing on the claim petition and amended claim petition took place on August 21, 2014, before Compensation Judge Sandra Grove. The issues included the compensability, nature and extent of both injuries, and apportionment of liability. In her Findings and Order served and filed on September 3, 2014, the compensation judge found that the employee suffered a low back injury on March 30, 1995, which contributed to the need for a right L4-5 hemilaminectomy and microforamenotomy at the L4-5 level in 1996. She found that the employee’s work activities on January 28, 2013, substantially aggravated the pre-existing degenerative condition, resulting in a significant increase in low back pain and radicular symptoms. She found that the January 29, 2013, work injury constituted a new injury and was not a mere manifestation or continuation of his pre-existing condition. The judge attributed the need for claimed medical treatment and disability after January 28, 2013, as 75 percent to the March 30, 1995, work injury and 25 percent to the January 28, 2013, work injury. The judge noted that Dr. Wicklund’s opinion was more persuasive than Dr. Engasser’s opinion in arriving at the attribution determination. The Findings and Order was not appealed.
Following the hearing, the employee returned for medical treatment in February 2015. He testified that he was in pain and had difficulty walking and sought care through Orthology Physical Wellness (Orthology). ISD #272 paid the medical bills and on February 22, 2016, filed a Petition for Reimbursement against ISD #283/SFM for 25 percent contribution. ISD #283/SFM objected and the matter proceeded to a subsequent hearing before Judge Grove on December 7, 2016. The issues presented were: 1) whether the previous 2014 findings and order established or precluded an obligation of ISD #283/SFM to contribute to the workers’ compensation benefits; 2) if it did not, then, what was the nature and extent of the employee’s January 28, 2013, work injury (did it contribute to the need for medical treatment and was it permanent?); and 3) what was the appropriate apportionment of liability.
At the hearing, both employers relied on the opinions of their respective IMEs, Drs. Engasser and Wicklund, that had been provided in the previous 2014 litigation. Neither employer submitted any update from either of the IMEs. ISD #283/SFM objected to the admission of Dr. Wicklund’s report arguing that it lacked foundation because the report was drafted before the Orthology medical expenses were incurred. The issue of reasonableness and necessity of Orthology care was not an issue before the court as the parties had stipulated that they were reasonable and necessary medical treatments. The employee was the only witness called to testify.
In a Findings and Order served and filed on December 16, 2016, Judge Grove found that the prior 2014 Findings and Order neither established nor precluded any ongoing obligation of ISD #283/SFM to contribute to the employee’s workers’ compensation benefits. She further found the opinion of Dr. Wicklund to be more persuasive than that of Dr. Engasser. The judge determined that the January 28, 2013, work injury was permanent in nature and substantially contributed to the employee’s need for treatment at Orthology. The judge apportioned liability as 75 percent to the March 30, 1995, work injury (with ISD #272), and 25 percent to the January 28, 2013, work injury (with ISD #283/SFM). ISD #283/SFM 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(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).
Appellant, ISD #283/SFM, argues that Dr. Wicklund’s opinion lacked foundation regarding the Orthology medical bills because his narrative report predated the dates of service. Appellant asserts that there is an absence of an opinion regarding causation in the current treating records and substantial evidence did not support the decision. Appellant maintains that a close examination of the employee’s treatment records shows that the judge overlooked evidence that the employee’s injury had resolved, and that only symptoms relating to the March 30, 1995, work injury were the cause of the employee seeking treatment. Furthermore, they argue that the absence of ongoing restrictions or any additional PPD rating is evidence that the January 28, 2013, work injury was temporary and had resolved.
The foundation objection by Appellant ISD #283/SFM to Dr. Wicklund’s opinion relies entirely on the opinion predating the dates of medical treatment at issue in this proceeding. As the parties stipulated that the medical treatment was reasonable and necessary, the only issue addressed by the opinion is causation. Dr. Wicklund’s opinion was that the employee’s January 28, 2013, work injury was permanent. That this opinion is being used to support a claim for later medical treatment does not disqualify the opinion from introduction into the record. The date of the opinion in this case only affects the weight to be afforded the opinion in the overall assessment of the record. It bears noting that earlier IME opinions are commonly introduced into evidence in disputes over subsequent medical treatment. There is nothing defective in such submissions. See e.g. Melby v. Corning Donahue, Inc., slip op. (W.C.C.A. Jan. 29, 1994)(IME apportionment opinion that pre-dated last employee injury had adequate foundation under circumstances of the case); Jones v. Barry Blower/Marley Co., slip op. (W.C.C.A. Feb. 21, 1990); see also Stacken v. Peace Villa Apartments, slip op. (W.C.C.A. Oct. 21, 1994).
In determining whether a work-related incident is a temporary or permanent aggravation of a pre-existing condition, factors to be considered include: 1) the nature and severity of the pre-existing condition (including the extent of any restrictions and disability); 2) the nature of the symptoms and extent of medical treatment prior to the aggravating incident; 3) the nature and severity of the aggravating incident and the extent of subsequent restrictions and disability; 4) the nature of the symptoms and extent of medical treatment following the aggravating incident; 5) the nature and extent of the employee’s work duties and non-work activities during the relevant period; and 6) medical opinions on the issue. Wold v. Olinger Trucking, slip op. (W.C.C.A. Aug. 29, 1994); Weigand v. ISD No. 2342, No. WC14-5707 (W.C.C.A. Sept. 23, 1014). The application of these factors in a particular case is a question of fact for the compensation judge. Wold.
ISD #283/SFM correctly notes that there was no additional PPD rating assigned to the January 28, 2013, work injury and that the employee continued to work as a custodian without formal restrictions. From this ISD #283/SFM contends that there is no substantial evidence to support the judge’s finding of a permanent injury in in 2013. We disagree.
The compensation judge considered the employee’s lack of significant ongoing low back symptoms following his recovery from the 1995 injury to be important in determining that the employee suffered a new injury on January 28, 2013. The employee testified that he has experienced daily low back and leg symptoms since January 28, 2013, and that he has not returned to his preinjury condition. He also testified that his low back and leg symptoms were so severe in February 2015, that he sought medical treatment at Orthology. The medical records from Orthology describe an injury at the job site to his low back the previous year.[2] Explicitly relying on the opinion of Dr. Wicklund, who assigned formal work restrictions of no lifting over 50 pounds as a result of both work injuries, the judge concluded that the injury was permanent in nature and had not resolved. The record taken as a whole appears to support the judge’s finding that the employee continued to suffer low back pain and other symptoms that arose out of the January 28, 2013, work injury. We see no reason to reverse the compensation judge’s finding that the January 28, 2013, work injury was a permanent injury.
As there is no explicit medical opinion in the record that attributes causation of the medical treatment, ISD #283/SFM argues that there is no substantial evidence in the record to support the compensation judge's award. This argument overlooks the explicit statements in the employee's medical records referencing the work injury suffered by the employee in 2013, described in detail in the discussion above on permanence.
Further, this court has consistently followed the principle that the employee is the person most familiar with the severity of his or her symptoms, and that a compensation judge may rely on the employee’s testimony to find causation regarding a current condition and the need for treatment. House v. Heartland Homecare, No. WC12-5474 (W.C.C.A. Jan. 28, 2013)(citing Brening v. Roto-Press, Inc., 306 Minn. 562, 237 N.W.2d 383, 28 W.C.D. 225 (Minn. 1975)). The employee's testimony is sufficient to support an inference that the employee's low back symptoms were caused by the January 28, 2013, work injury.[3]
This court concludes that the judge did not err in apportioning liability at 75 percent for the March 30, 1995, work injury and 25 percent to the January 28, 2013, work injury. In Schlemmer v. Lehmann Woodworks, slip op. (W.C.C.A. March 3, 2003), the legal standards for apportionment of responsibility were set out as follows:
Equitable apportionment is not purely a medical question but is ultimately a question of fact for the compensation judge. Ringena v. Ramsey Action Programs, 40 W.C.D. 880 (W.C.C.A. 1987), summarily aff’d (Minn. Mar. 28, 1988). Equitable apportionment is not a finding based on a precise formula but instead is based on all the facts and circumstances of a case. Factors to be considered in reaching an apportionment decision include, but are not limited to, the nature and severity of the initial injury, the employee’s symptoms following the initial injury up to the occurrence of the subsequent injury, and the nature and severity of the subsequent injury. Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 226 N.W.2d 888, 27 W.C.D. 797 (1975). Where the record would support almost any number of apportionment determinations, we will not substitute our judgment for that of the compensation judge. Giem v. Robert Giem Trucking, 46 W.C.D. 409, 418 (W.C.C.A. 1992).
The compensation judge explicitly relied on the opinion of Dr. Wicklund in the 75/25 apportionment decision. As that decision was well-supported and explained in the unappealed 2014 Findings and Order (which was incorporated by Finding 2), and nothing in the subsequent medical care affects apportionment, there is substantial evidence to support the compensation judge’s adoption of the same percentages in this matter. DeNardo v. Divine Redeemer Memorial Hosp., 450 N.W.2d 290, 293 (Minn. 1990); Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60 (Minn. 1984); Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The September 3, 2016, Findings and Order of the compensation judge is AFFIRMED.
[1] Exhibit 12.
[2] Exhibit 5. February 17, 2015. The history given was that the employee had “injured his low back last year at his job sight (sic).” While it was not “last year,” but 2013 when the employee injured his low back, that was the only recent low back injury suffered and the employee is noted to be a poor historian.
[3] Tr. 36. Q: “So you have testified that since January of 2013, or at least at the present time anyway, you’ve got pain in your back and what you’ve described at sciatic pain every day? A. Yes. Q. Okay. A. And that’s what I went to OSI [Orthology] for.”