APPORTIONMENT. Substantial evidence supports the compensation judge’s apportionment determination where there were varying apportionment opinions with adequate foundation.
Compensation Judge: William Marshall
Attorneys: Michael F. Scully, Sieben Carey, P.A. Minneapolis, Minnesota, for the Respondent. Melissa S. Hareid Cashman, Fitch, Johnson, Larson & Held, P.A., Minneapolis, Minnesota, for the Appellants. Stephen P. Ward, Heacox, Hartman, Koshmrl, Cosgriff, Johnson, Lane & Feenstra, P.A., St. Paul, Minnesota, for the Respondent.
Affirmed.
DAVID A. STOFFERAHN, Judge
NewMech Companies, Inc. and QBE Insurance f/k/a General Casualties Companies/Sedgwick Claims Management Services, Inc.’s (NewMech) appeal from the compensation judge’s award of contribution to Harris Companies and Creative Risk Solutions (Harris). We affirm.
Kevin Sather was employed as a plumber for NewMech when he sustained a low back injury on March 27, 1998.[1] He was working on a ladder and experienced low back pain as he reached and lifted with his arms extended out to the side. Responsibility for the injury was accepted by NewMech.
At the direction of Dr. Ibrahim Mujir, the employee began physical therapy in April 1998. He was discharged from physical therapy with no change noted in his pain level, range of motion, or functional status. It was also stated that the employee had been unable to tolerate strength exercises.
The employee saw an orthopedist, Dr. Paul Crowe, who recommended conservative treatment. A CT scan ordered by Dr. Crowe in May 1998 was read as showing a small L5-S1 disc herniation. Dr. Crowe noted no significant change in the employee’s complaints despite the ongoing treatment, and in February 1999, placed permanent work restrictions on the employee of no lifting over 50 pounds. In March 1999, Dr. Crowe determined the employee was at maximum medical improvement and rated the employee as having 10 percent permanent partial disability pursuant to Minn. R. 5223.0390, subp. 3.C.(2).[2] NewMech paid the permanent partial disability benefits.
The employee saw a number of providers for his low back complaints after 1999. The medical records indicate he saw Dr. Gregory Harrison at Millennium Neurosurgery in October 2002 with significant low back pain after playing golf. He recounted a number of other exacerbations to Dr. Harrison. A CT scan was performed, which Dr. Harrison read as showing a mild to moderate degree of degenerative changes throughout the lumbar spine with mild disc bulging at L3-4 and L5-S1.
The employee consulted further with Dr. Mujir in 2008 and also made a visit to an emergency room in 2008 with complaints of low back pain. In 2009 Dr. Mujir referred the employee to Mayo Clinic for an evaluation of the employee’s back condition as well as other medical issues. In July 2012, the employee underwent a CT scan of his lumbar spine which showed mild degenerative disc disease at L1-2 and L3-4 and also showed moderate bulging of the L3-4 disc. In July 2012 the employee received lumbar epidural steroid injections at Minneapolis Radiology Associates. His pain level prior to discharge was noted to be 8/10.
On October 24, 2013, the employee was seen in the emergency room at Maple Grove Hospital with complaints of an acute exacerbation of chronic low back pain that was described as existing for several years. It was noted that he was using Vicodin for the pain but he continued to have pain that radiated down both legs. An appointment was made for the employee to return to Dr. Crowe.
Less than one week later on October 30, 2013, the employee sustained another low back injury while working for Harris Companies. He was on a ladder and using a stud punch. As he was pushing and pulling on the punch, he experienced pain in his low back and right leg. He was taken to Minnesota Occupational Health where he saw Dr. Vijay Eyunni. He was diagnosed with an acute lumbar sprain and was prescribed pain medication.
The employee saw Dr. Crowe on October 31, 2013, for his previously scheduled appointment. A CT myelogram was performed, which Dr. Crowe thought was indicative of congenital canal stenosis. An epidural injection at L3-4 was administered on December 23, 2013. A December 30, 2013, EMG was significant for right L5-S1 radiculopathy. On January 8, 2014, Dr. Crowe performed a decompression at L2-3 and L3-4. No relief was reported from the procedure. Fusion surgery at L3-4 was performed by Dr. Crowe on February 10, 2016.
Dr. Mark Larkins examined the employee on behalf of Harris on January 8, 2016. Dr. Larkins concluded that the employee’s medical care had been reasonable and necessary as well as related to the October 30, 2013, injury. Dr. Larkins opined the 2013 injury was a permanent aggravation of the employee’s underlying condition.
In May 2016, the employee entered into a settlement with Harris resolving all claims except medical expenses on a full, final and complete basis. Contribution claims by Harris against NewMech were expressly left open.
Dr. Larkins was provided additional medical records and completed a record review on October 19, 2016, and was asked to address the issue of apportionment between the 1998 injury at NewMech and the 2013 injury at Harris. He amended his initial opinion and concluded that the 1998 injury was a substantial contributing factor in the employee’s spine condition and need for treatment. He also concluded that he “would not apportion anything to the October 30, 2013 injury.” On the basis of Dr. Larkins’ opinions, Harris filed a Petition for Contribution and Reimbursement against NewMech in November 2016.
Dr. Terry Hood examined the employee on behalf of NewMech on April 20, 2017. In his report, he concluded that the injury at NewMech had resolved sometime before the 2013 work injury at Harris. In Dr. Hood’s opinion, the 1998 injury was not a substantial contributing factor in the employee’s spine condition in 2013 or in the employee’s need for subsequent treatment and surgery. He apportioned 100 percent responsibility for the employee’s condition to the 2013 injury.
Dr. Larkins reviewed Dr. Hood’s report and issued a supplemental report on August 24, 2017. He reiterated his opinion that the employee’s condition “is clearly related to a longstanding, ongoing problem from 1998 . . . .”
Harris’s contribution claim against NewMech was heard by a compensation judge on March 12, 2018. In Findings and Order served and filed May 8, 2018, the compensation judge found that the March 28, 1998, injury was a substantial contributing factor in the employee’s symptoms and need for treatment from October 30, 2013, forward. (Finding 27.) The compensation judge also determined that the injuries of March 28, 1998, and October 30, 2013, were equally responsible for the employee’s symptoms and treatment from and after October 30, 2013. (Finding 28.) NewMech was ordered to reimburse Harris 50 percent of the expenses paid related to the employee’s low back injuries since October 30, 2013. NewMech 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 issues presented to the compensation judge at the hearing were whether the 1998 and 2013 work injuries were substantial contributing factors in the employee’s condition after October 30, 2013, and if so, the apportionment of responsibility between each employer and insurer. The compensation judge determined both injuries were substantial contributing factors and apportioned responsibility 50 percent to each injury. NewMech and its insurer have appealed both of these findings.
The determination of apportionment is a question of fact for the compensation judge. Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 226 N.W.2d 888, 27 W.C.D. 797 (1975); Keck v. Indep. Sch. Dist. #877, 71 W.C.D. 661 (W.C.C.A. 2011). As is true with other factual determinations, our review here is whether the compensation judge’s decision is supported by substantial evidence when considering the record as a whole. Hengemuhle v. Long Prairie Jaycees, 358 N.W. 2d 54, 37 W.C.D. 235 (Minn. 1984).
Appellants contend that this standard has not been met because the compensation judge’s decision is not supported by the employee’s testimony, by the medical records, or by a medical opinion with adequate foundation.
The employee was the only witness at the hearing. As appellants point out in their brief, the employee testified that he felt “fine” after his 1998 injury. While that single quote from the record is accurate, it is not consistent with the remainder of the employee’s testimony. The attorneys for both NewMech and Harris asked the employee to identify symptoms he might have had when he saw doctors for his low back pain and to restate what he told those doctors over the course of twenty years of treatment. Generally, the employee could not recall what his symptoms were or what he might have said in the course of his numerous visits. We find no conflict between the employee’s testimony and the compensation judge’s findings and conclusions.
Appellants also question whether the medical records adequately support the compensation judge’s decision. The compensation judge made a number of findings concerning the employee’s treatment for his low back from the time of his 1998 injury. (Findings 2 through 22.) The compensation judge noted that Dr. Paul Crowe had reported a small L5-S1 disc herniation in May 1998. (Finding 4.) Dr. Crowe placed permanent work restrictions from the 1998 work injury. (Finding 5.) Dr. Crowe also rated the employee as having 10 percent permanent partial disability as a result of the 1998 injury. Appellants fail to mention these conclusions of Dr. Crowe, which are key in assessing the employee’s course of treatment as reflected in his medical records. We conclude the compensation judge’s findings and determination are supported by the employee’s medical records.
Finally, Appellants raise the question of foundation for the medical opinions in this case. Dr. Terry Hood reviewed numerous medical records which he referred to and summarized in his 18-page report of May 30, 2017. Dr. Hood’s opinion was that NewMech had no liability for the employee’s ongoing condition and that all responsibility rested with Harris. Dr. Larkins evaluated the employee and reviewed records for his initial report of February 4, 2016, he reviewed numerous additional records for his October 19, 2016, supplemental report and considered Dr. Hood’s opinion and prepared an additional report of August 24, 2017. It was his opinion that Harris had no liability for the employee’s condition and that responsibility rested with NewMech.
Both doctors had more than adequate foundation for an opinion on the issues in this case. Scott v. Southview Chevrolet, 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978). “In weighing medical evidence, a compensation judge has the discretion as the trier of fact to choose between competing and conflicting medical experts’ reports and opinions.” Gianotti v. Indep. Sch. Dist. 152, 889 N.W.29 796, 803, 77 W.C.D. 117, 126 (Minn. 2017). The judge in this case did not adopt either medical opinion in its entirety, but instead weighed the well-founded opinions of both doctors in light of the employee’s testimony and medical records. In doing so, the compensation judge did not abuse his discretion.
The decision of the compensation judge is affirmed.
[1] The date of the injury also appears as March 28, 1998, in the records. In the Findings and Order, the compensation judge uses both dates.
[2] This provision requires symptoms of pain or stiffness in the region of the lumbar spine at multiple levels, substantiated by persistent objective clinical findings.