Michael W. Mucker v. Metro Transit, No. WC19-6286 (October 24, 2019)
The employee was involved in a motor vehicle accident in 2004 with a different employer. He sustained cervical injuries and ultimately underwent a cervical decompression, discectomy, and fusion. Dr. Larkins conducted an IME in 2004 and opined the employee had pre-exiting myelomalacia and stenosis conditions which were aggravated by the injury and substantial contributing factors to his need for surgery and restrictions. His treater issued a HCPR in August 2005 placing him at MMI with 12.5% PPD.
Employee began at Metro Transit in July 2005 as a bus driver. In January 2006 he reported increasing neck pain, and was told there’s a 10% chance he’d need further surgery if his degenerative condition progressed.
In 2013 he sustained an admitted work-related injury in a bus/vehicle accident and treated the next day by Dr. Dorff for neck pain. He was released the next day without restrictions, but continued treating with a chiropractor, injections, and med management that he’d been on prior to this incident.
February 2013 he continued his care and had a cervical MRI which showed a moderate bulge at C6-7 and moderate stenosis at C5-6. Dr. Ekstrom opined this stenosis appeared worse than previous scans and recommended injections. Dr. Ekstrom opined in November 2013 that the 2013 work injury substantially contributed to exacerbating his conditions and assigned a 10% PPD rating. He did not say whether this was temporary or permanent.
In October 2017 the employee tripped on the bus steps and fell, striking his right shoulder on the fare box. He was diagnosed with a strain and not given any work restrictions.
His reported worsening pain in his neck since he fell on his shoulder and by April 2018 was taken off work and was treating with injections at PT. He was recommended for an ACDF surgery from C3-C7.
Dr. Larkins re-reviewed the employee in June 2018 and found the employee’s underlying cervical condition was permanently aggravated by 2004, but was not substantially caused, aggravated, or accelerated by 2013 or 2017. The employee underwent the surgery in August 2018. The surgeon opined the 2013 assessment of Dr. Ekstrom that 2013 “substantially contributed to the employee’s condition” but then also stated “it is at least equally likely” that natural cervical spine degeneration had occurred. He opined 2017 aggravated the pain but did not cause new pathology. Regarding causation, the surgeon opined he could not state with certainty that 2013 and 2017 were ultimately the direct or majority cause of the need for surgery.
Larkins issued a supplemental report finding the employee’s 2013 injury was not a substantial contributing factor to his condition.
The compensation judge found the employee sustained an injury in 2017 which resulted in temporary right shoulder pain, and that the 2018 surgery was not related to 2013 or 2017 work injuries and denied the wage loss. The judge found the October 2017 medical appointment was related to the 2017 injury and North was entitled to reimbursement for that visit.
The employee argued the judge erred in framing the issues in her Findings and Order in a manner that changed the focus from 2013 to 2017. He argued this led to a course of improper reasoning which altered the evidence, misstated crucial facts, and took statements out of context.
The WCCA found that as a general rule a compensation judge may consider the evidence from any perspective that reasonably addresses the issued raised by the parties and the WCCA will not micromanage that.
The employee also complained that the contemporaneous medical records from Dr. Dorff from 2013-2014 inaccurately portrayed his medical history. The WCCA noted the employee had longstanding history of chronic neck pain and the judge considered the medical history in light of all the evidence. Substantial evidence therefore supports the judges determination. The judge weighed the medical evidence and the competing medical opinions of the surgeon and Dr. Larkins noting the “at least as likely” comment by the surgeon which weakened his opinion.
Takeaway: The compensation judge has discretion to reframe the issues however they see fit so long as it takes all the evidence into consideration.