CAUSATION – TEMPORARY INJURY. Substantial evidence in the record, including medical records and expert medical opinion, supports the compensation judge’s determination that the employee’s work injury was temporary, had resolved, and was not a substantial contributing factor to any ongoing or alleged consequential conditions.
Compensation Judge: Stacy P. Bouman
Attorneys: Aaron W. Ferguson, Aaron Ferguson Law, Roseville, Minnesota, for the Appellant. Tracy M. Borash, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Respondents.
Affirmed.
SEAN M. QUINN, Judge
The employee appeals from the compensation judge’s findings that his work injury was temporary and that he did not sustain a consequential mental health injury. We affirm.
The employee, Gonzalo Rivera Cienfuegos, was born in Mexico, but has lived in the United States since 2003. Spanish is his primary language, and he does not read English. On December 30, 2014, the employee suffered an injury working for the employer, Lucky’s 13 Pub, while cleaning a grill hood. To access the hood, he stood on top of a piece of cardboard that was placed over the top of the grilling surface. While standing on the grill, he fell backwards, landing on his buttocks and right side. He hit his right elbow on the grill as he fell. At the time of the injury, the employee also had a second job as a cook at a hotel. Between both jobs he was working as much as 80 hours per week.
On the date of the injury, the employee drove himself to the emergency room at Regions Hospital in St. Paul. He did not have an interpreter at this medical visit. The medical record states that the employee described falling off a four-foot-high stack of boxes and landing on his right side and right arm. He had complaints of shoulder, elbow, and forearm pain on the right, with some numbness of the right hand. On examination, he had no tenderness or loss of motion of the neck but did have tenderness of the bilateral trapezius muscles at the low back. He walked without difficulty. His right arm revealed a contusion that the doctor thought was significant enough to warrant x-rays and, because of the employee’s hand numbness, the doctor also ordered a cervical CT scan. The CT scan revealed endplate spurring. The x-rays of the right upper arm, lower arm, and elbow showed no fractures. The employee was discharged and advised to use ibuprofen and to follow up with his primary physician in the next two to three days if symptoms persisted.
At the hearing, the employee testified that he was unable to get up from bed the next day due to his symptoms. The employee’s wife, however, testified that by the time she woke up that day, the employee had already left for work.[1] The employee continued to work at both of his jobs over the next few weeks. In mid-January 2015, he quit his job with the employer for reasons unrelated to the work injury but continued to work at the hotel on a full-time basis, plus regular overtime. He testified that although he was able to work full hours, he needed help to do his work tasks due to pain. He also testified that he used over-the-counter medications to treat his pain symptoms and, sometime in 2015, sought care from a cultural provider, either a “sobador” or “huesero,” on two occasions.[2]
On November 2, 2015, more than ten months after the work injury, the employee began treating with Dr. Josey Perez, a chiropractor at Premier Health of South Minneapolis. He complained of pain in his low, mid, and upper spine, and told Dr. Perez that the pain had been present in varying degrees since the work injury. Dr. Perez prescribed ongoing manual manipulation, moist heat, diathermy, electrical stimulation, mechanical traction, and cryotherapy. The employee continued with chiropractic care at Premier Health, mostly with Dr. Peter Ladd, until June 2018. At the first visit, Dr. Perez restricted the employee from working and advised him not to lift, to avoid repetitive motions for his low back and right arm, and not to vacuum or mop.[3] The employee nevertheless continued to work at the hotel on a full-time basis, plus regular overtime. He testified that not working was not a financial option because he had a family to support. The hotel described him as an excellent employee. The employee was laid off in 2020 due to the COVID-19 pandemic. The employee also periodically worked without pay at his in-laws’ restaurant. After he was laid off, he worked as a personal care assistant (PCA) for his nephew.
Dr. Ladd referred the employee to Dr. Alfonso Morales of the Central Medical Clinic. Dr. Morales first examined the employee on May 18, 2016. Based upon the employee’s low back pain, he ordered an MRI of the lumbar spine. The scan report of May 26, 2016, noted “conus extends to the L3 level consistent with tethered cord syndrome.”[4] (Ex. K2.) Otherwise, the scan primarily showed age-specific degeneration. An MRI of the neck on the same day showed annular bulging at C3-4 and herniations at C4-5 and C5-6, with a reversal of the lordotic curve. The employee saw Dr. Morales two more times over the next two months for back and leg pain, but no neurological symptoms were noted.
In September 2016, the employee presented to the emergency room at United Hospital with an enlarged umbilical hernia. The doctor manipulated the hernia to reduce the swelling and referred to employee to a surgeon. Surgery to repair the hernia was performed on December 16, 2016.[5]
At the request of the employer and insurer, the employee was examined by Dr. Mark Friedland on September 20, 2016. A report was issued the same day. During the examination, the employee complained of pain at his neck, low, mid, and upper back. He also had complaints of weakness in his right arm and of “discomfort,” which was described as something different from “true pain,” in his left leg when driving. No neurological symptoms were noted other than tingling in the right arm, which Dr. Friedland described as nonanatomic. Dr. Friedland noted that the employee gave a different description or history of the work injury than he gave at the emergency room on the date of the injury. Accordingly, Dr. Friedland wrote that the employee’s “understanding of and/or memory with respect to his claimed injury of December 30, 2014, is questionable.” Because of an essentially normal examination, the lack of medical care for nearly 11 months after the emergency room visit the day of the work injury, and the lack of any neck complaints at the emergency room visit, Dr. Friedland opined that the employee had not suffered any neck injury. He likewise concluded that the employee had only suffered temporary strain/sprain injuries to his mid and low back, which resolved by January 13, 2015. Dr. Friedland noted further support for his opinion in the employee’s ongoing ability to work on a more than full-time basis without restrictions or medical care.
On February 17, 2017, over two years after the December 2014 work injury, the employee was seen by Dr. Vanda Niemi of the Noran Neurological Clinic. He complained of low back and neck pain that had persisted since his work injury. Dr. Niemi concluded that the employee was still suffering from the effects of a work-related strain/sprain and ordered physical therapy. Upon reviewing the employee’s prior MRI scans, Dr. Niemi noted the presence of tethered cord syndrome, but considered it unrelated to the work injury. After he was told by Dr. Niemi’s office that he had an unrelated tethered cord syndrome, the employee requested an appointment to discuss this with Dr. Niemi. That appointment took place on April 3, 2017. During this visit, the employee reported weakness in his legs and frequency in urination. This is the first mention of these symptoms in the medical records. Dr. Niemi ordered a new MRI and referred the employee to a neurosurgeon. An MRI scan of the low back was done on April 4, 2017. It showed mild to moderate scoliosis and moderate to severe degenerative changes, as well as tethered cord syndrome.
On April 28, 2017, upon referral from Dr. Niemi, the employee was first examined by Dr. Mahmoud Nagib of Neurosurgical Associates. The employee reported to Dr. Nagib that he had experienced intractable low back pain and bilateral radiculopathy since the work injury of December 2014. He also reported bladder and bowel frequency and urgency, which Dr. Nagib attributed to the tethered cord syndrome. Dr. Nagib opined that the tethered cord syndrome became symptomatic as a result of the work injury “since he was absolutely asymptomatic before.” (Ex. II.) He noted that it was not uncommon for trauma to cause an asymptomatic tethered cord syndrome to become symptomatic. He recommended surgery to untether the cord, which the employee wished to undergo.
On May 24, 2017, Dr. Friedland issued a supplemental report after having received additional medical records, including the records of Dr. Nagib and Dr. Niemi. Dr. Friedland stated that his opinions regarding the nature and extent of the employee’s work injury remained unchanged. He opined that the employee’s tethered cord syndrome is a congenital condition that was neither aggravated nor accelerated by the work injury. He noted that tethered cord syndrome is accompanied by neurological symptoms or findings, such as lower leg pain, numbness, tingling, and bowel or bladder dysfunction, but that no such complaints or findings were noted at any time after the injury until the employee’s second visit with Dr. Niemi in April 2017.[6] Although he agreed the employee’s tethered cord syndrome needed surgical repair, he opined that it became symptomatic and in need of care “merely [as] a consequence of the natural history of congenital tethered cord syndrome.” (Ex. 1.)
On August 18, 2017, Dr. Nagib wrote a report to the employee’s attorney in which he stated that:
. . . tethered cord syndrome is a congenital lesion. Prior to the incident of November [sic] 2014, the patient was asymptomatic. Therefore, it is reasonable to state the incident precipitated symptoms in a prior asymptomatic patient with low lying cord, i.e., a tethered cord. In other words, a tethered cord syndrome became symptomatic after the traumatic event, which is not an uncommon occurrence.
(Ex. F.) Similarly, in a report dated September 19, 2017, Dr. Niemi wrote that “there has been aggravation of a tethered cord resulting in symptoms such that surgery has been recommended. There was no report of symptoms prior to the fall to either myself or Dr. Nagib. He was able to work two jobs prior to the fall.” (Ex. G.)
On September 6, 2017, the employee went to the emergency room at United Hospital reporting back pain and bilateral leg numbness from pushing a refrigerator at work earlier in the day. He had no other neurological complaints, including no leg weakness nor bowel or bladder incontinence. He was advised to take ibuprofen and return if his symptoms persisted or worsened.
The employee saw his family doctor in April 2018 for sexual dysfunction treatment. He was given medication, although he was told that it may not help if the problem was neurological. On June 8, 2018, the employee returned to Dr. Niemi with ongoing neck and back pain, sexual dysfunction, and urinary and bowel difficulties. He also returned to Dr. Morales in November 2018 with back pain as well as numbness and tingling in his bilateral legs.
On September 17, 2018, Dr. Friedland issued a second supplemental report after receipt of more medical records. His opinions regarding the employee’s work injury diagnosis and the cause of his tethered cord syndrome remained unchanged.
Repeat MRI scans of the employee’s neck and low back were completed on November 29, 2018. The neck scan again showed straightening of the lordotic curve and an increase in the annular bulges. The lumbar scan again showed the tethered cord syndrome, multilevel bulges that had progressed since the prior MRI, and straightening of the lordotic curve.
Beginning in October 2018, the employee began receiving mental health care at the Associated Clinic of Psychology. He complained of depression that began with the work injury. He was worried about needing surgery, being off work and not being able to provide for his family, sexual dysfunction affecting his marriage, and gaining weight due to being less active because of his back pain. He was diagnosed with major depressive disorder. He returned to the clinic for additional mental health services through January 2021. During these visits, he also expressed suicidal thoughts and an increased concern that his marriage might end in divorce.[7] On May 14, 2021, the Associated Clinic of Psychology terminated treatment due to several no shows. None of its providers or other experts expressed a causation opinion regarding the employee’s mental health condition.
On December 30, 2019, Dr. Paul Arbisi issued a report after meeting with the employee on October 31, 2019, at the request of the employer and insurer. Dr. Arbisi concluded that the employee suffered from adjustment disorder with mixed anxiety and depressed mood. He related these conditions to the employee’s financial difficulties and marital discord. He noted that the employee did not tell his mental health providers that a physical component was causing his mental health problems, but rather, worry over his finances and his marriage. Dr. Arbisi opined that, based on the contemporaneous medical records and the interview he conducted with the employee, pain or other symptoms arising from the work injury had not played a role in the employee’s mental health issues.
On August 16, 2021, the employee returned to Noran with new complaints of left arm numbness. A repeat cervical MRI scan was done on September 28, 2021. No herniations, stenosis, or foraminal narrowing were observed. Subtle straightening of the lordosis was seen, with minimal facet arthropathy at multiple levels. Subsequently, blood work testing was ordered to see if the employee’s symptoms might be due to B-12 deficiency, but the testing revealed normal levels.
At the request of his attorney, the employee was examined by Dr. Daniel Hanson on December 22, 2021. In his December 30, 2021, report, Dr. Hanson opined that the employee suffered from chronic neck and low back pain as well as tethered cord syndrome. He found the work injury to be a substantial contributing factor to these diagnoses due to the absence of symptoms or need for work restrictions until after the work injury. He agreed that the employee should have surgery to release the tethered cord. He also recommended injections for both the neck and low back conditions. He rated the employee with ten percent permanent partial disability (PPD) for the neck and ten percent PPD for the low back, deferring any PPD rating for the tethered cord to a neurologist.
The employee’s claim petition came on for hearing before a compensation judge on January 27 and March 2, 2023. On June 23, 2023, the compensation judge issued her findings and order. She found, consistent with Dr. Friedland’s opinion, that the employee sustained temporary injuries to his neck, low back, and right arm, which resolved approximately two weeks to one month after the injury. She also found that the employee’s tethered cord syndrome was not caused, aggravated, or accelerated by the work injury and that the employee did not suffer a consequential mental health injury. Except for the charges for the emergency room visit on the date of the injury, the compensation judge denied the employee’s claims for medical, wage loss, and PPD benefits. The employee 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).
The employee sought benefits based on ongoing neck, low back, and mental health conditions which he claimed were caused or aggravated by the work injury. In denying the employee’s claims, the compensation judge relied upon the opinions of Dr. Friedland and Dr. Arbisi, who concluded that the employee’s work injury caused only a one-month temporary physical injury and did not result in a consequential mental health injury. The compensation judge also found the employee lacked credibility.
The employee argues on appeal that the compensation judge’s credibility determinations were erroneous and unsupported by substantial evidence. He argues that the compensation judge’s decision to accept the opinions of Dr. Friedland and Dr. Arbisi was the result of this erroneous credibility determination, and thus was the principal basis for the compensation judge’s conclusions that the employee’s physical injury was temporary and had resolved and that his mental health condition was not causally related to the work injury. The employee seeks a remand for new findings and an award of benefits.[8] We are not persuaded.
The employee’s credibility argument is based on his lack of English proficiency and the lack of an interpreter at his first medical visit immediately after the work injury, resulting in what appeared to be “inconsistencies” in his description of the injury among different medical records. He argues that if the compensation judge had found the employee credible, she would not have accepted the opinion of Dr. Friedland.[9]
Under the facts of this case, the compensation judge’s credibility determinations were not ultimately material to her findings and order nor to the outcome of this appeal.[10] Dr. Friedland predicated his conclusion that the employee suffered a temporary injury on the absence of professional medical treatment for nearly one year after an initial emergency room visit following the injury. While the employee apparently sought treatment from cultural healers on two occasions, there are no records that show significant complaints or symptoms during that year-long interval.
It is also undisputed that the employee continued to work at two concurrent labor-intensive jobs for a month and was able to perform substantial overtime at the job he held thereafter until he was laid off because of the COVID-19 pandemic. Subsequently, he continued to work at his in-laws’ restaurant and as a PCA. Although he testified that he was in pain during that time, his pain did not rise to a level that caused him to seek medical care, other than two cultural treatments, for nearly a year. That the employee sought care for other ailments, including a lumbar strain from pushing a refrigerator, demonstrated that his failure to seek further treatment for the injury was not from an inability to obtain or to afford care.[11] We also note the employee described no neurological symptoms from the back strain, which occurred after April 2017 when he first began describing such symptoms to his other providers. Based on the employee’s ability to work and the prolonged lack of medical care, it was reasonable for the compensation judge to conclude that the work injury was temporary. These factors provide substantial support for the compensation judge’s choice of expert opinion, regardless of whether the employee’s testimony was deemed credible by the compensation judge.
Moreover, in addressing the symptoms of tethered cord syndrome, Dr. Friedland opined that tethered cord syndrome is typically accompanied by bowel, bladder, and sexual dysfunction, as well as numbness and tingling. The employee’s symptomatic complaints during the two and one-half years after the work injury that he described in his testimony, however, consisted solely of pain. His testimony fails to identify any neurological symptoms from the December 2014 work injury until his April 2017 visit with Dr. Niemi, the date of the employee’s first complaints of any neurological symptoms. Dr. Friedland opined that this time gap was too significant to relate the tethered cord syndrome to the work injury. While the employee’s experts did find a causal link, it was based solely on the absence of tethered cord syndrome symptoms before the work injury. Neither expert explained why the employee’s neurological tethered cord syndrome symptoms did not arise until nearly two and one-half years after the work injury. The compensation judge did not clearly err in accepting the opinion of Dr. Friedland that the employee’s tethered cord syndrome had not been aggravated by the work injury.
Because the employee’s physical injury was found to be temporary and had resolved within one month, substantial evidence, including Dr. Arbisi’s opinion and the lack of any contrary opinion offered by the employee, supports the compensation judge’s additional finding that the employee did not suffer a consequential injury.
Substantial evidence, including well-founded expert medical opinion, supports the compensation judge’s findings. Therefore, we affirm.
[1] The compensation judge found the employee’s wife to be credible and that the employee’s testimony in this regard was inconsistent with that of his wife. This is the first of several credibility determinations made by the compensation judge that are disputed by the employee on appeal, asserting that his testimony was misconstrued due to language or cultural differences.
[2] A sobador is a person who provides care similar to that provided by a message therapist, while a huesero provides care similar to that provided by a chiropractor. The employee was deposed twice before the hearing took place. When he was asked whether he had sought medical care in between the initial emergency room visit and the time he began care with a chiropractic clinic in November 2015, he did not disclose the two visits to the sobador or huesero. At the hearing, he testified that he did not consider seeing a cultural healer as medical care, and so believed he had answered honestly at the depositions.
[3] Various other medical providers placed the employee on work restrictions in the subsequent months and years, including restrictions due to mental health concerns.
[4] Tethered cord syndrome is “a disorder of the nervous system caused by tissue that attaches itself to the spinal cord and limits the movement of the spinal cord.” National Institutes of Health, https://www.ninds.nih.gov/health-information/disorders/tethered-spinal-cord-syndrome.
[5] The employee also went to Urgent Care at Allina Heath in Inver Grove Heights in 2018 with a report of having injured his foot by stepping on a nail at home.
[6] The employee argues on appeal that Dr. Friedland noted diffuse symptoms during his examination of the employee in September 2016 and that this is a symptom of tethered cord syndrome, which shows he had demonstrated symptoms of tethered cord syndrome earlier than April 2017. We note, however, there is no evidence in the record that diffuse pain is a symptom of this syndrome. Neither the employee’s experts nor Dr. Friedland offered such an opinion.
[7] Beginning in 2018, the employee also told several of his non-mental health providers of his depression.
[8] The employer and insurer argue in their brief that the employee exclusively argues about the credibility findings and thus has waived any argument against the findings denying the employee’s claims for benefits. We do not read the employee’s brief that narrowly.
[9] The employee relies on similar arguments regarding other factual findings that might be associated with issues of credibility, including the determination that he and his wife gave inconsistent testimony regarding his symptoms on the day after the work injury, and the failure to disclose during his depositions the visits to the cultural healers on two occasions in 2015. These are other examples, the employee argues, of language or cultural misunderstandings, and not a lack of credibility.
[10] The assessment of witness credibility is a unique function of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). It is not the role of this court to reevaluate the credibility and probative value of witness testimony, or to choose different inferences than those of the compensation judge. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990).
[11] The employee had medical insurance through his job at the hotel.