EVIDENCE – CREDIBILITY. Assessment of credibility is the unique function of the compensation judge, and this court will not disturb the credibility findings and reasonable inferences made in the findings.
EVIDENCE – EXPERT MEDICAL OPINION. Where the treating physician had enough facts to form a reasonable opinion, and his opinion was not based upon speculation or conjecture, that opinion is adequately founded and may be relied upon by the compensation judge.
Compensation Judge: Sandra J. Grove
Attorneys: Daniel J. Brennan, Gadtke Law Firm, P.A., Maple Grove, Minnesota, for the Respondent. Eric S. Westphal and Mackenzie R. Moy, Heacox, Hartman, Koshmrl, Cosgriff, Johnson, Lane & Feenstra, P.A., St. Paul, Minnesota, for the Appellant.
Affirmed.
DAVID A. STOFFERAHN, Judge
The self-insured employer has appealed from the compensation judge’s determination that the employee’s work injury is a substantial contributing factor in his need for medical treatment, including lumbar fusion surgery. We affirm.
Donald Jungwirth was employed as a dockman and city delivery driver for YRC International on November 30, 2011. He was injured on that date when a loading dock door weighing about 200 pounds fell on his back as he was bending over. The self-insured employer admitted liability for the work injury. The employee’s initial medical care was with HealthPartners. A physician there diagnosed the employee’s condition as acute muscular back strain and contusion. The employee was treated with medication and physical therapy.
The employee was referred to Dr. John Dowdle in April 2012. Dr. Dowdle’s initial diagnosis was mechanical low back pain and degenerative disc disease. Dr. Dowdle referred the employee for medial branch injections and radiofrequency neurotomies. While these procedures provided significant relief, the effect was short-lived. Further treatment, which included passive therapy and epidural steroid injections, improved the employee’s symptoms for only a few weeks. In August 2012, Dr. Dowdle concluded the work injury was permanent and rated the employee as having 10 percent permanent partial disability pursuant to Minn. R. 5223.0390, subp. 3.C.(2). At Dr. Dowdle’s recommendation, an MRI scan was done on October 19, 2012, and was read as showing multilevel endplate changes, facet arthropathy, degenerative disc disease with bulging discs at L3-4 and L4-5, and spondylolisthesis at L4-5. (Joint Ex. 5.)
The employee was seen for an independent medical examination (IME) by Dr. Daniel Randa on October 23, 2012. It was his opinion that the employee had sustained a lumbar musculoligamentous strain on November 30, 2011, that had resolved by the date of his evaluation. Dr. Randa also opined there were no objective findings to support the employee’s complaints, the employee would need work restrictions for no more than a few weeks upon returning to work but should seek assistance with heavy lifting, and further medical treatment for the work injury was not necessary. Based on Dr. Randa’s report, the employer discontinued workers’ compensation benefits and offered regular unrestricted employment to the employee. When the employee declined the offer, his temporary total disability benefits were discontinued, he was terminated from employment, and he lost his health care coverage.
Dr. Dowdle saw the employee at a follow-up appointment on December 18, 2012. On examination, Dr. Dowdle found limited range of motion in the lumbar spine, pain with flexion and extension, and paraspinal muscle spasm. In the history portion of his chart notes, Dr. Dowdle commented, “He has been told on an IME that he is normal and can go back without restrictions or limitations. That to me is not [a] realistic view.” (Joint Ex. 2.)
Dr. Dowdle prepared a report dated July 23, 2013, which was sent to the employee’s attorney. In the report, Dr. Dowdle stated the employee “has degenerative disk [changes] particularly at the L4-5 level. He has facet inflammation at that level and mechanical symptoms with bending, lifting, or any type of prolonged single position.” (Employee’s Ex. B.) Dr. Dowdle recommended restrictions of 20 to 30 pounds maximum lifting, avoidance of repetitive bending, and avoidance of prolonged single positions. Dr. Dowdle restated his conclusion that the employee sustained a permanent injury that occurred on November 30, 2011, and rated the injury under Minn. R. 5223.0390, subp. 3.C.(2) for 10% permanent partial disability of the body as a whole.
At the employee’s request, Dr. Dowdle released the employee to return to work on February 4, 2014, without restrictions. Dr. Dowdle commented in his chart note, “I sent him back to work without restrictions with the idea that he has seniority to keep him on a light job doing yard work, but no heavy lifting. If the only job that is available is a heavy lifting job, then he needs to be on limitations and restrictions to prevent him from flare of back and neck pain due to degenerative disk disease.” (Joint. Ex. 2.)
In March 2014, the employee settled his workers’ compensation case with his employer on a full, final and complete basis, leaving open only claims for certain medical benefits.
In May 2014, the employee returned to Dr. Dowdle’s office reporting an exacerbation of low back pain and sciatic pain with no inciting cause. A Medrol Dosepak and oxycodone were prescribed by the physician’s assistant he saw on that date.
The employee returned to Dr. Dowdle’s office on November 22, 2015, and was assessed as having “acute on chronic low back pain with component of sciatica.” (Id.) An x-ray showed anterolisthesis at L4-5. In February 2016, the employee was seen at his general health clinic for a physical examination. He reported: “Pain in the low back. Will have pain down his left leg almost all of the time and now happening on the right side.” (Joint Ex. 4.)
The employee did not return to see Dr. Dowdle until December 2016. He reported pain at a level of 7 out of 10 with symptoms into his left leg. An MRI was performed which was similar to his previous MRI, but also showed posterior annular bulging with severe narrowing of the central spinal canal and severe lateral recess stenosis. Dr. Dowdle referred the employee to Dr. Nicholas Wills, an orthopedic surgeon at Summit Orthopedics. After the employee’s visit and examination on February 28, 2017, Dr. Wills diagnosed unstable spondylolisthesis at L4-5 and stenosis with low back and bilateral leg pain. Dr. Wills recommended fusion surgery at L4-5. The employer denied the surgery request.
At the request of the employer, Dr. Daniel Hanson saw the employee for an independent medical examination on August 16, 2017, and reviewed his medical records. Dr. Hanson agreed with Dr. Wills’ diagnosis and also agreed that the surgery recommended by Dr. Wills was appropriate. His opinion was that the employee’s work injury was limited to a spinal contusion that had resolved by October 23, 2012, the date of the employee’s evaluation by Dr. Randa, and that the spondylolisthesis and stenosis were not related to the work injury.
The employee’s attorney sent Dr. Dowdle a letter on October 9, 2017, detailing the employee’s medical history and treatment since the 2011 work injury. Dr. Dowdle’s opinion was requested as to the employee’s diagnosis, the recommended surgery, work restrictions, and causal relationship with the work injury. Dr. Dowdle responded on October 24, 2017, and stated that the care and treatment the employee had received since the injury had been reasonable and he agreed with Dr. Wills that surgery was appropriate. Dr. Dowdle also stated that the November 30, 2011, work injury was a significant contributing factor in the employee’s treatment and need for surgery.
The employee filed a claim petition which was heard by a compensation judge on December 15, 2017. The issues before the compensation judge at hearing were whether the employee’s medical treatment after October 2012 and the lumbar fusion surgery at L4-5, as proposed by Dr. Wills and Dr. Dowdle, were causally related to the work injury of November 30, 2011. There was no dispute as to the reasonableness of the surgery.
In Findings and Order issued January 7, 2018, the compensation judge found that a preponderance of the evidence established that the November 30, 2011, work injury substantially aggravated and accelerated the employee’s pre-existing degenerative condition. (Finding 41.) The employee testified at the hearing that he did not seek medical treatment for his continuing back pain for some time after May 2014 because the various treatment modalities had not provided much relief. He decided instead that he would tough it out. The compensation judge specifically found this testimony to be credible, (Finding 27) and found the medical treatment at issue was reasonably required to cure and relieve the employee’s low back work injury (Finding 42), and the proposed lumbar fusion surgery is reasonably required to cure and relieve the effects of the work injury. (Finding 43.) In making these findings, the compensation judge found Dr. Dowdle’s opinion to be more persuasive than those of Drs. Randa and Hanson. (Finding 40.)
The self-insured employer has appealed.
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).
The self-insured employer argues on appeal that the compensation judge’s decision is not supported by substantial evidence and should be reversed. The employer contends that the compensation judge erred in finding the employee’s testimony was credible and erred in relying on Dr. Dowdle’s opinion, which the employer claims lacked adequate foundation to serve as the basis of the compensation judge’s decision.
“Assessment of witnesses’ credibility is the unique function of the trier of fact.” Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989). In considering credibility, we have noted in other cases the judge’s unique opportunity to consider credibility during direct and cross examination of the witnesses. It is an opportunity this court lacks. We are reluctant to reverse a compensation judge on a credibility finding and insert our own second-hand determination. See Folstrom v. Northgate Liquors, 77 W.C.D. 955 (W.C.C.A. Nov. 9, 2017); Strohecker v. Mike’s Auto Repair & Tire, LLC, No. WC12-5437 (W.C.C.A. Aug. 7, 2012).
The self-insured employer alleges that the employee’s testimony was not credible because it was not consistent with the medical records. Specifically, the employer refers to the gap in treatment after May 2014. The employer states that this gap is not consistent with the employee’s testimony that he had low back problems during that time and instead demonstrates that the work injury had resolved.
In his direct testimony and on cross-examination, the employee was asked about this gap in treatment. He testified that the treatment he had received had not been particularly helpful and decided to “tough it out.” The medical records contain no statements from the employee that his condition had significantly improved or resolved. In fact, Dr. Dowdle’s records demonstrate that the employee provided a consistent history of low back pain and radiation of pain into his legs ever since the employee began treating with him. We note further that as early as August 2012, Dr. Dowdle had concluded the employee’s work injury was permanent and had resulted in permanent partial disability. Dr. Dowdle reaffirmed that opinion in his October 24, 2017, report.
We find no basis for reversing the compensation judge’s determination that the employee’s testimony was credible.
The self-insured employer argues that the compensation judge erred in relying on the opinion of Dr. Dowdle because his opinion lacked foundation. We disagree.
Dr. Dowdle began treating Mr. Jungwirth in April 2012. The employee has seen Dr. Dowdle numerous times since then. In addition, Dr. Dowdle was provided with background letters prepared by the employee’s attorney in July 2013 and again in October 2017. The employer states in its brief that no foundation letter had been provided by the employee’s attorney for Dr. Dowdle’s October 2017 report, apparently overlooking the employee’s Exhibit C, the October 9, 2017, letter from the employee’s attorney to Dr. Dowdle. The employer provides no other basis for arguing that Dr. Dowdle’s opinion lacked foundation. We find adequate foundation existed for Dr. Dowdle’s opinion. See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978); Groetsch v. Kemp’s, LLC, 76 W.C.D. 775 (W.C.C.A. 2016), summarily aff’d (Minn. Oct. 3, 2016).
The balance of the employer’s argument is that the compensation judge should have found the opinions of Drs. Randa and Hanson, each of whom saw the employee one time, more persuasive that the opinions of the employee’s treating doctors. We have held previously that the choice between competing medical opinions is one for the compensation judge and the compensation judge’s choice in that regard will not be disturbed so long as the opinion relied upon has adequate foundation. See Nord v. City of Cook, 360 N.W.2d, 337, 37 W.C.D. 364 (Minn. 1985); Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003), summarily aff’d (Minn. Aug. 15, 2003).
We see no reason to depart from this well-established rule in the present case.
The decision of the compensation judge is affirmed in all respects.