JEROME CHRIST, Employee/Appellant, v. BERWALD ROOFING CO. and INSURANCE CO. OF THE STATE OF PA./CRAWFORD & CO., Employer-Insurer, and BERWALD ROOFING CO., SELF-INSURED, adm'd by BRAC, Employer, and BLUE CROSS/BLUE SHIELD OF MINN., SHEET METAL #10 BENEFIT FUND, and MEDICARE, PART B, Intervenors, and SPECIAL COMP. FUND/UNINSURED.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 6, 2002
EVIDENCE - MEDICAL EXPERT OPINION. Although the medical expert retained by the employer and Crawford & Company testified that he did not accept the legal concept of a Gillette injury, the compensation judge could properly consider and rely upon the doctor=s medical opinion to the extent that it provided evidence of other factors or disease processes arguably causing or contributing to the employee=s arthritis condition.
CAUSATION - GILLETTE INJURY. The compensation judge=s finding that the employee did not sustain Gillette injuries to his left hip and knees is not clearly erroneous or unsupported by the evidence in view of the entire record.
CAUSATION - CONSEQUENTIAL INJURY. Since the judge found the employee did not sustain a Gillette injury to his left hip, the employee=s claim that he sustained a compensable injury to his low back as a consequence of surgery to his left hip was properly denied.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. The compensation judge=s determination that the employee failed to prove he was permanently and totally disabled is not clearly erroneous.
Determined by: Johnson, C.J., Rykken, J., and Pederson, J.
Compensation Judge: Joan G. Hallock
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s findings that he did not sustain Gillette injuries to his left hip or to his left or right knee, and did not sustain a consequential injury to his low back, and the judge=s denial of permanent total disability benefits. We affirm.
Jerome Christ, the employee, was employed as a sheet metal worker for Berwald Roofing Company, the employer, from September 1970 through November 30, 1992. On January 28, 1982, the employee sustained an admitted low back injury when a truck he was driving was rear-ended by another truck. The employee=s wage was $645.60. The employer and Insurance Company of the State of Pennsylvania/Crawford & Company admitted liability for the employee=s personal injury.
Following his injury, the employee received medical treatment from his family doctor, Dr. John Gertner and from Dr. Donald Smiley. He ultimately came under the care of Dr. John McMahon, whom the employee first saw on December 7, 1983. A lumbar CT scan showed broad-based central bulging of the L5-S1 disc with degenerative changes from L3 through S1. In January 1984, the doctor placed the employee in a flexion body cast for six weeks. On December 3, 1987, Dr. McMahon performed an L5-S1 bilateral hemilaminectomy with excision of the L5-S1 disc and a fusion from L4 through S1. Dr. McMahon later rated a 30 percent permanent partial disability of the spine secondary to the January 1982 personal injury.
Following the surgery, in November 1988, the employee returned to his regular job as a sheet metal worker with the employer. In his job, the employee loaded sheet metal onto a truck. Each sheet was approximately 10 feet long and 12 inches wide and weighed two to three pounds. Typically, the employee would grab five or six sheets at a time and load them on the truck. After arriving at the job site, the employee was then responsible for getting the sheet metal up on the roof of the building. For the first ten years that he worked, the employee placed the sheet metal on his shoulders and climbed up a ladder to the roof. Thereafter, the employee rigged a pulley system to get the metal onto the roof. During the last few years the employee worked, a crane would occasionally set the metal on the roof. The employee then installed the sheet metal on the roof using nails. This job required the employee to bend from the waist and work on his knees quite a bit of the time. The employee wore knee pads when he had to kneel. The employee performed the same activities for the entire 22 years he worked for the employer.
On May 10, 1989, the employee returned to see Dr. McMahon for a recheck on his back. The employee reported he was doing reasonably well at work but did complain of left hip pain. The doctor prescribed Motrin. On May 29, 1991, the employee returned for an evaluation of his back, left hip and left knee. The employee complained of increased back, hip and knee pain with lifting, bending and weight bearing. Dr. McMahon diagnosed degenerative arthrosis of the lumbar spine from L1 to L4, degenerative arthrosis of the left hip and prepatellar bursitis of the left knee. The doctor prescribed an anti-inflammatory for the employee=s left hip but suspected he would eventually need surgery. The doctor stated the employee=s options for his left knee were to live with it or undergo an excision of the bursa. X-rays on April 13, 1992, showed further degeneration of the left hip. Dr. McMahon stated the employee would certainly require surgery in the future. On October 12, 1992, the employee told Dr. McMahan he was having a difficult time working and decided to have surgery.
The employee left his job with the employer on November 30, 1992. On December 1, 1992, Dr. William Park performed a total left hip replacement. The employee returned to see Dr. McMahon on February 10, 1993, complaining of an onset of low back pain in January. On examination, the doctor found what he described as an obvious left leg length discrepancy. The employee was wearing a shoe build-up, but Dr. McMahon still found a half-inch difference in leg length with considerable pelvic tilt. The doctor opined the employee had a progression of the deterioration of his back which was aggravated by the recent surgery and the leg length discrepancy. The doctor opined the employee could not return to his job as a sheet metal worker. In March 1993, Dr. Park noted the leg length discrepancy and diagnosed severe end-stage degenerative disc disease at the fusion site. Dr. Park also felt the employee could not return to sheet metal work.
On November 8, 1996, Dr. McMahon diagnosed a failed left hip arthroplasty and osteoarthritis in the right hip. On January 16, 1997, Dr. McMahon did a revision of the left hip arthroplasty. The employee saw Dr. McMahon on April 23, 1997. X-rays revealed moderate severe degenerative arthrosis of both knees. On October 30, 1997, Dr. McMahon performed a bilateral total knee arthroplasty.
On February 3, 1999, the employee filed a claim petition seeking permanent total disability benefits commencing November 30, 1992 resulting from his admitted injury of January 28, 1982. The employee further claimed Gillette injuries to his left hip and both knees and a consequential low back injury on November 30, 1992. On that date, the employer was self-insured with claims administered by BRAC and the employee=s wage was $722.93. In their answer, the employer and Crawford admitted the employee sustained a personal injury in 1982, but denied the employee was permanently and totally disabled and denied the 1982 injury was a substantial contributing cause of such disability. The employer and BRAC denied the employee sustained Gillette injuries or a consequential low back injury in November 1992. They further denied notice and knowledge of the alleged injuries and denied the employee was permanently and totally disabled.
On July 16, 1999, the employee was examined by Dr. Paul T. Wicklund at the request of Crawford, and his deposition was taken on March 27, 2001. The doctor obtained a history from the employee, reviewed his medical records and conducted a physical examination. His diagnosis was lumbar fusion, left hip arthroplasty, bilateral degenerative arthritis of the knees and a one centimeter leg length discrepancy. Dr. Wicklund opined the employee=s work activities with the employer through November 30, 1992 were a substantial contributing cause of the progression of the employee=s left hip arthritis, the need for the total hip replacement in 1992 and his revision surgery in October 1997. The doctor also opined the employee=s work activities worsened the employee=s pre-existing degenerative knee condition and ultimately led to the total knee replacements in January 1997. Dr. Wicklund further stated the employee=s leg length discrepancy after the hip arthroplasty resulted in a consequential low back injury which was also a substantial contributing cause of the employee=s disability. The doctor restricted the employee from repetitive bending, twisting and stooping, no climbing, kneeling or running, 25 pounds of lifting and only 45 minutes on his feet followed by a 30 minute rest.
Dr. Paul G. Dworak examined the employee on October 27, 1999, on behalf of BRAC, and his deposition was taken on April 18, 2001. The doctor obtained a history from the employee, reviewed his medical records and performed a physical examination. Dr. Dworak diagnosed degenerative disc disease at L2-3, status post L3-sacral fusion, status post left total hip arthroplasty, with revision and total knee arthroplasty, both secondary to degenerative osteoarthritis. The doctor opined the employee=s left hip and knee problems were a classic presentation of degenerative osteoarthritis and were not the result of the employee=s work activities. Rather, he opined the employee would have progressed to the point where he needed both a hip and bilateral knee replacements regardless of his work activities. The doctor stated he was aware of no prospective study that shows that climbing ladders, repetitive and prolonged kneeling or pushing, pulling, lifting of heavy objects causes, aggravates or accelerates arthritis. Dr. Dworak testified AI don=t know about this Gillette condition, because I don=t believe that this microscopic, you know, heavy labor stuff accelerates all this arthritis. I believe it=s more of an attorney game with this Gillette stuff because there=s nothing in the literature that supports this. I see no study in the literature that supports a Gillette injury accelerating the arthritis in a person with osteoarthritis.@ (BRAC Ex. 1, p. 49.) Finally, the doctor opined the employee could work within restrictions.
Dr. McMahon=s deposition was taken on April 24, 2001. The doctor testified his diagnosis was osteoarthritis of the right and left hips and osteoarthritis of both knees with a varus deformity. The doctor opined the employee=s work activities with Berwald Roofing through November 30, 1992, were a substantial contributing, aggravating and accelerating factor to the employee=s hip and knee conditions and constituted a Gillette injury. The doctor further opined the employee sustained a consequential injury to his low back as a result of the left hip replacement surgery performed on December 1, 1992. The doctor stated the hip surgery resulted in a leg length discrepancy and caused a pelvic tilt which aggravated the employee=s low back above the fusion site. Dr. McMahon opined the employee was unable to return to his job as a sheet metal worker due to his injuries. He stated the employee could bend only occasionally, limit his walking to a few minutes at a time, limit pushing and pulling to ten pounds and avoid kneeling and climbing. In addition, the employee should be able to take frequent breaks from his work activities. Within these restrictions, the doctor indicated, the employee was capable of working.
L. David Russell, a qualified rehabilitation consultant (QRC), performed a vocational evaluation of the employee in December 2000. Mr. Russell obtained a general and employment history from the employee, reviewed his medical records and administered certain achievement and aptitude tests. Mr. Russell recorded the employee was then 61 years of age, graduated from high school in 1957, served in the Army from 1958 to 1960, completed a five-year apprenticeship in sheet metal work and worked for the employer for 21 years, until November 30, 1992, but had not worked since. Mr. Russell concluded the employee had certain transferrable skills including the use of hand and power tools, measurement and layout, machinery operation and reading blue prints and plans. Based on Dr. McMahon=s work restrictions, Mr. Russell concluded the employee was disabled from working in any occupation. Considering Dr. Wicklund=s and Dr. Dworak=s opinions, however, Mr. Russell concluded the employee was capable of select employment alternatives in the light to medium duty work classifications. Mr. Russell opined the employee=s current earning capacity was in the range of $7.00 to $20.00 an hour, with an average of $10.23 an hour. Adjusting these numbers to 1992 wage levels, the range was $5.80 to $16.60 per hour with an average wage expectation of $8.50 an hour. Within this range, Mr. Russell identified a number of job titles which he found consistent with the employee=s physical restrictions, education, vocational training and locale.
In February 2001, Debra A. Bourgeois, a QRC, conducted a vocational assessment of the employee at the request of his attorney. Ms. Bourgeois also testified at the hearing. Ms. Bourgeois obtained a history from the employee, reviewed his medical records and reviewed the vocational evaluation and testing reports from Mr. Russell. Ms. Bourgeois concluded the employee was not a candidate for competitive employment given his age, significant disabilities and ongoing medical problems. She opined the employee would not be able to work in any job on a consistent basis.
The case was heard by a compensation judge at the Office of Administrative Hearings on April 19, 2001. In a Findings and Order filed July 26, 2001, the compensation judge found the employee did not sustain Gillette injuries to his left hip or his knees and did not sustain a consequential back injury on November 30, 1992. The compensation judge went on to find the employee failed to give the employer proper notice of the alleged November 30, 1992 injuries and found the employee=s claim was barred by the statute of limitations. Finally, the compensation judge found the employee has not been permanently and totally disabled since November 30, 1992 and denied his claim for benefits. The employee appeals.
1. Gillette Injuries
The employee appeals the compensation judge=s finding that he did not sustain Gillette injuries to his left hip, left knee and right knee. Although the testimony of Dr. Dworak, accepted by the compensation judge, supports this decision, the employee contends the doctor=s opinion lacks foundation and could not be relied upon by the compensation judge. Dr. Dworak, the employee asserts, testified he does not accept the concept of a Gillette injury but suggested Aits more of an attorney game with this Gillette stuff because there=s nothing in the literature that supports this.@ Citing Michaud v. Ramsey County Sheriff=s Dept., 43 W.C.D. 523 (W.C.C.A. 1990), the employee contends the testimony of Dr. Dworak must be discounted and, therefore, lacks adequate foundation. We disagree.
In Courtney v. City Orono, 424 N.W.2d 295, 40 W.C.D. 1117 (Minn. 1988), the Supreme Court reversed a determination by the Workers= Compensation Court of Appeals that the defense=s medical expert=s opinion regarding the cause of the employee=s heart attack lacked evidentiary value because the expert rejected the theory that stress can contribute to the development of heart disease. The court held that the medical expert=s opinion as to other causative factors for the employee=s heart attack could properly be considered by the factfinder. In the Michaud case, in comparison, the compensation judge discounted a doctor=s opinion regarding the effect of the employee=s work stress also because the doctor did not accept the theory that stress could substantially contribute to the development of heart disease. In affirming this conclusion the court stated the doctor=s opinion that stress did not cause the employee=s heart disease was legally insufficient to rebut the statutory presumption contained at Minn. Stat. ' 176.011, subd. 15, citing Courtney. We conclude, therefore, that the compensation judge could properly consider Dr. Dworak=s opinion, to the extent that it provides evidence of other factors or disease processes arguably causing the employee=s condition.
The question of whether a Gillette injury has occurred primarily depends upon the medical evidence. Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994). An expert=s opinion must, however, be based on adequate foundation. Grunst v. Immanuel-St. Joseph=s Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1984). The competency of a witness to provide expert medical testimony depends upon both the degree of the witness= scientific knowledge and the extent of the witness= practical experience with the matter which is the subject of the offered testimony. Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).
Dr. Dworak obtained a history from the employee, reviewed the employee=s medical records and examined the employee. At his April 18, 2001 deposition, Dr. Dworak was provided a hypothetical question. As a general rule, this level of knowledge establishes a doctor=s competence to render an expert opinion. See Grunst, at 68, 40 W.C.D. 1132-33. The doctor denied the employee=s work activities caused, aggravated or accelerated his underlying osteoarthritis. Rather, the doctor opined the employee=s condition degenerated as a result of the disease process itself, the work activities notwithstanding. Thus, Dr. Dworak offered another causative factor for the employee=s condition. Even assuming, therefore, that Dr. Dworak does reject the legal concept of a Gillette injury, such rejection would, in this case, go to the weight to be afforded the doctor=s opinions rather than their admissibility. See Drews v. Kohl=s, 55 W.C.D. 33 (W.C.C.A. 1996).
Dr. Dworak opined the employee had an underlying idiopathic or genetic osteoarthritis which would have resulted in hip and knee surgery regardless of the employee=s work activities. In support of this opinion, the doctor noted the employee=s hip and knee conditions worsened even after he quit working in November 1992. The compensation judge specifically adopted Dr. Dworak=s opinions. We acknowledge the employee engaged in repetitive bending and kneeling for 22 years with the employer, and have reviewed Drs. Wicklund and McMahon=s opinions that the employee did sustain Gillette injuries to his hips and knees. However, it is the function of the compensation judge to choose between conflicting expert opinions. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). While we might well have reached a different decision were we the factfinder, we cannot conclude the compensation judge=s decision is clearly erroneous or unsupported by substantial evidence in view of the entire record. See Minn. Stat. ' 176.421, subd. 1 (1992). Accordingly, the judge=s decision must be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
2. Consequential Injury
The employee appeals the compensation judge=s finding that he did not sustain an injury to his low back as a consequence of a Gillette injury to his left hip. The employee contends this finding is unsupported by substantial evidence.
As a general rule, a subsequent injury, whether it is an aggravation of the original injury or a new injury, is compensable if it is the direct and natural result of a compensable injury. Wallace v. Judd Brown Constr. Co., 131 N.W.2d 540, 23 W.C.D. 362 (Minn. 1964). In this case, the employee contended he sustained a low back injury as a consequence of a Gillette injury to his left hip and the resultant surgery. Since we have affirmed the judge=s finding that the employee did not sustain a Gillette injury to his left hip, the claimed consequential injury to the employee=s low back cannot be compensable.
3. Permanent Total Disability
The employee next argues the compensation judge=s denial of permanent total disability benefits is unsupported by substantial evidence. The employee testified he needed to take frequent breaks during the day and can only function with significant pain. Ms. Bourgeois testified that based on the employee=s age, education, work experience and current restrictions, he is not employable. Dr. McMahon placed significant restrictions on the employee=s ability to work which, in practice, render the employee permanently and totally disabled. The employee contends Dr. McMahon, as the treating doctor, was in the best position to determine the employee=s restrictions. For these reasons, the employee seeks a reversal of the compensation judge=s denial of total disability benefits.
Dr. McMahon placed significant restrictions on the employee=s ability to work, including the requirement that he take frequent breaks from whatever he is doing. Ms. Bourgeois testified she was aware of no available employment that allowed an employee to take a break every 15 minutes. Accordingly, she concluded the employee was totally disabled. Dr. Wicklund and Dr. Dworak both assigned lesser restrictions than did Dr. McMahon, and both opined the employee was capable of working on a full-time basis. The compensation judge apparently accepted their opinions. This is the function of the compensation judge. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Ms. Bourgeois stated the restrictions of Dr. Dworak placed the employee in the sedentary to light range of employment. Within that employment range, Ms. Bourgeois agreed jobs were available to the employee. Mr. Russell opined, based on the restrictions of Dr. Dworak and Dr. Wicklund, that jobs were available that the employee could do, since November 1992. Mr. Russell=s labor market survey identified several available jobs, including security/monitoring jobs. With some skill enhancement, Mr. Russell opined more jobs would be available. This testimony supports the compensation judge=s decision. Again, had we been the factfinder, we may well have reached a different conclusion. Considering the evidence, however, we cannot conclude the compensation judge=s decision was clearly erroneous and must, therefore, be affirmed.
4. Notice and Statute of Limitations
The employee also appeals the compensation judge=s findings regarding notice and the statute of limitations. Because we have affirmed the compensation judge=s finding that the employee did not sustain Gillette injuries on November 30, 1992, we need not reach these issues.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).