SUSAN A. ENGER, Employee, v. THE BUREAU, SELF-INSURED/ASU RISK MANAGEMENT SERVS, LTD., Employer/Appellant, and GRAPHIC COMMUNICATIONS LOCAL 1B HEALTH & WELFARE FUND, FAIRVIEW HEALTH SERVS., and MN DEP=T OF ECONOMIC SEC., Intervenors.
WORKERS' COMPENSATION COURT OF APPEALS
JULY 8, 2002
CAUSATION - GILLETTE INJURY. Substantial evidence, including expert medical testimony, lay testimony and medical records, supported the compensation judge=s finding that the employee sustained a work-related Gillette injury culminating with the onset of her symptoms at work on February 15, 2000.
Determined by Wilson, J., Pederson, J., and Stofferahn, J.
Compensation Judge: Danny P. Kelly
DAVID A. STOFFERAHN, Judge
The self-insured employer appeals from the judge=s finding that the employee sustained a work-related Gillette-type injury culminating on February 15, 2000. The employer also appeals the award of a rehabilitation consultation. We affirm.
The employee, Susan A. Enger, graduated from high school in 1967 and subsequently worked for a variety of employers as a file clerk, receptionist and cashier. For about three to four years in the mid- to late-1980s she worked for employer Circuit Science verifying and repairing printed circuit boards. After a few years performing in-home day care, the employee again worked verifying circuit boards from 1994 to late 1998 for employer Precision Diversified.
Since at least 1987, the employee had been experiencing chronic symptoms of pain in her left buttock and posterior left thigh with radiation into the left foot. She started seeing a physician for these symptoms in 1991 and underwent a variety of conservative treatment without significant improvement. Epidural injections in 1994 gave only temporary relief. The employee came under the care of Dr. John A. Wilson at Orthopedic Consultants in 1996. His initial assessment was sciatica. In a consult note of January 14, 1997, it was stated that eighty percent of the employee=s symptoms were due to leg pain and twenty percent due to back pain. Dr. Wilson recommended spinal surgery and on October 9, 1997 the employee underwent a hemilaminectomy and bilateral discectomy at the L5-S1 level for Asciatica, left leg." Following the surgery her symptoms entirely resolved and she returned to work in January 1998, with no further treatment. Over the next two years she experienced no symptoms of back or leg pain and had no physical difficulty in performing her work duties.
In 1998 the employee began working for The Bureau, the appellant employer. Her duties there included running an "AOI machine" inspecting circuit boards, "verifying" circuit boards, and occasionally repairing boards or operating a machine known as "the punch". Her duties generally involved repetitive twisting, leaning forward, pushing and pulling. The AOI machine job required the employee to repetitively reach behind her to take boards from a cart and place them on the machine in front of her, and to periodically push cartloads of inspected boards to another location. Operating the "punch" similarly involved taking boards from the left and bending forward to line up the boards on the machine. Repairing and verifying were both performed leaning forward over a microscope, and periodically required the employee to carry stacks of boards to a table. The employee did not experience any back or leg pain while performing this work.
In late 1999 the employee was assigned by the employer primarily to repairing circuit boards. Thereafter about 95 percent of her workday was spent sitting bent forward looking at circuit boards through a microscope, and occasionally sliding racks of repaired circuit boards into and out of an oven.
On January 19, 2000 the employee called in to work to report that while she was cleaning snow off her car she had slipped on ice, landing on her knee. She told the employer that she thought she had hurt her back and knee. She was off work that day but returned to work the following day with no knee or back pain and no continuing symptoms. She did not seek any medical care for this incident.
On February 15, 2000 the employee suddenly experienced a shooting pain in her left leg at work while performing her circuit board repair duties. She got up, walked a bit hoping the pain would go away, and then sat back down at her work station. However, her pain continued to worsen. The employee has not been able to recall any specific activity associated with the onset of the pain. She thought it began about 15 to 30 minutes after she had taken some racks of circuit boards out of the oven, but was not able to say with certainty that this particular activity had caused the onset of pain. The employee finished her shift. By the time she left work she was experiencing severe pain throughout the left buttocks part way down the left leg, accompanied by slight back pain. The employee testified that the pain differed from that she had experienced prior to the 1997 surgery in that her entire left buttock and upper leg were painful, rather than merely one side of the buttock and leg. That night at home the employee applied ice and when she arose the next day the pain had largely resolved. She returned to work that day as scheduled but after about a half an hour the symptoms returned while she was sitting on a chair looking through a microscope repairing circuit boards. Approximately two hours into her shift the employee reported her injury to her supervisor and went home.
The employee was unable to return to work the following Monday due to severe pain. She treated thereafter with various physicians and eventually was referred back to Dr. Wilson, who had performed her 1997 surgery. The employee was treated with an epidural steroid injection, physical therapy and nerve blocks, without improvement. An MRI scan of the employee's low back performed on March 6, 2000 showed degenerative changes at L5-S1 and mild central stenosis and an annular tear with central disc herniation at L4-5, but no neural compression at either level. The employee was diagnosed with an L5-S1 radiculitis. Dr. Wilson referred the employee to an orthopedic surgeon, Dr. Jeffrey Dick, M.D., who first examined the employee on April 14, 2000. As of that date, the employee's symptoms were 90 percent back pain and 10 percent leg pain, which was essentially the reverse of the pain distribution she had experienced prior to the 1997 surgery. Dr. Dick initially continued conservative treatment and the employee experienced sufficient improvement to attempt a return to work under restrictions in June 2000. However, the employee's symptoms again worsened and she was taken off work in late August, 2000 preparatory to surgery recommended by Dr. Dick. On October 9, 2000 the employee underwent an anterior discectomy and fusion at the L5-S1 and L4-5 levels.
The employee unsuccessfully attempted a part-time return to work under restrictions on January 29, 2001, and was again taken off work. Shortly thereafter she was terminated by the employer but regained her job through a union grievance process, and returned to work part time on a progressive work hardening basis on March 19, 2001. On April 13, 2001, before the employee had progressed back to full-time hours, she was laid off by the employer as part of a company downsizing. The employee had not found other work within her restrictions thereafter through the date of the hearing. The parties stipulated that the employee reached maximum medical improvement as of August 15, 2001. Dr. Dick has imposed a permanent 30-pound lifting restriction. In unappealed findings, it has been determined that the employee's low back condition is ratable at 20 percent permanent partial disability with seven percent being attributableto her preexisting condition subsequent to the 1997 surgery.
The employer and insurer denied primary liability on the basis that the employee's condition was solely the result of a natural progression of her underlying back condition, rather than a work-related injury. The matter came on for hearing on August 22, 2001 before a compensation judge of the Office of Administrative Hearings. Following the hearing, the judge found that the employee had sustained a Gillette-type injury, in the form of a permanent aggravation to her pre-existing low back condition, culminating on February 15, 2000. The judge further found that this work injury was a substantial contributing cause of the employee's subsequent disability and need for surgery, and awarded medical and wage loss benefits. The employee was also awarded a rehabilitation consultation. The self-insured employer appeals.
1. Causation - Gillette Injury.
The appellant employer argues, in essence, that the employee's inability to identify a specific event at work causing the onset of her symptoms, together with the similarity between her new symptoms and her prior symptoms leading to her 1997 surgery, factually contradicts the idea of a new injury. Accordingly, the employer contends, the compensation judge should have found that the onset of symptoms on February 15, 2000 was a mere reoccurrence of the employee=s prior low back problems unrelated to any work activity. The employer further contends that there was neither sufficient expert testimony nor sufficient lay testimony linking the specific duties of the employee=s job to the emergence of her symptoms to form a legally adequate basis for the compensation judge=s finding of a Gillette injury.
In order to establish a Gillette injury, an employee must "prove a causal connection between her ordinary work and ensuing disability." Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). While evidence of specific work activities causing specific symptoms leading to disability "may be helpful as a practical matter," determination of a Gillette injury "primarily depends on medical evidence." Id; see also Marose v. Maislin Transp., 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987). Further, it is well settled that injuries are compensable if the employment is a substantial contributing factor not only to the cause of the condition but also to the aggravation or acceleration of a pre‑existing condition. Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975) (emphasis added). An employee need not prove that the employment was the sole cause, only a substantial contributing cause of the disability for which benefits are sought. Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94‑95 (Minn. 1989). Ultimately, questions of medical causation fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).
Two physicians offered expert medical opinions in this case. Dr. Thomas J. Raih, who examined the employee on behalf of the self-insured employer on October 30, 2000, opined that while the employee did sustain a work-related injury on February 15, 2000, the effects of that injury were temporary in nature and would have lasted about three months, so that the employee's condition by the date of surgery on October 9,2000 was substantially caused by the employee's pre-existing L5-S1 disc disease.
Dr. Dick, the employee's treating physician, agreed with Dr. Raih that the employee=s pre-existing condition had been a substantial contributing factor to the employee=s disability and need for surgery in October 2000, but in his opinion the work injury on February 15, 2000 was permanent in nature and had contributed to the employee=s disability and need for surgery to a greater extent than had her pre-existing back condition. Dr. Dick acknowledged that the specific changes to the employee=s back did not show up on radiologic scans, but considered it highly significant that the employee had been totally asymptomatic following recovery from the 1997 surgery until February 15, 2000. He explained that the employee=s October 9, 2000 surgery was required principally as a result of her low back symptoms, rather than leg pain, and contended that the predominance of low back pain over leg pain subsequent to the February 15, 2000 onset of symptoms, contrasted with the reverse situation prior to the 1997 surgery, demonstrated that the October 9, 2000 surgery was necessitated principally by the February 15, 2000 work injury.
Dr. Dick did not specifically offer a precise explanation as to how the employee=s repetitive work activities for the employer might have brought about the onset of the employee=s symptoms on February 15, 2000. In part, this was because, as the doctor admitted, the precise etiology of the employee=s back pain was not clear from the radiological tests. Dr. Dick was, however, adamant as to his opinion that the employee had sustained a work-related injury on February 15, 2000. Expert opinion testimony need not be couched in terms of absolute certainty, especially in situations where the diagnosed condition is of unknown specific cause. Boldt v. Jostens, 261 N.W.2d 92, 30 W.C.D. 78 (Minn. 1977); Zweber v. Rosemount, Inc., 419 N.W.2d 70, 40 W.C.D. 771 (Minn. 1988). Here there was ample objective medical evidence available for the scrutiny of the judge in addition to formal expert medical opinion. The employee testified as to the differences between her symptoms preceding her 1997 surgery and following February 15, 2000. She also testified at length describing her work activities and the repetitive activities and postural positions involved, as well as with respect to how those activities affected her symptoms after their February 15, 2000 onset during her attempts at returning to work for the employer.
Much of the employer=s brief on appeal was directed at attempting to demonstrate the contention that the employee's testimony was "wildly inconsistent" [employer's brief at 7] and thus not credible regarding the onset of her symptoms on February 15, 2000 and the nature of her subsequent symptoms. Among the alleged inconsistencies cited by the appellant employer are that at least one physician understood the employee to indicate that onset of symptoms occurred while carrying circuit boards, rather than without any specific event; that the employee was imprecise about the time of onset and whether it was gradual or sudden; that there was inconsistency in the employee=s testimony and statements as to whether she had injured her back as well as her knee while cleaning off her car in January 2000; that the Apercentages@ of pain the employee had attributed to her back and left leg on various dates were not consistent; and that the employee=s testimony that she had experienced some right leg pain subsequent to February 15, 2000 was not clearly reflected in the medical records.
We note, first, that the compensation judge did not find the employee=s testimony lacking in credibility. Generally, a finding based on credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary. See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225‑26 (Minn. 1989). We have closely examined the evidence relating to the various inconsistencies and conclude that they are not so significant as to suggest that the compensation judge would clearly have erred in accepting the employee=s testimony as credible.
We note, second, that none of the alleged inconsistencies were ultimately significant in the context of the foundation for the medical opinion of Dr. Dick. During his deposition testimony, Dr. Dick was advised of the aspects of the employee=s testimony that differed from his own record of the employee=s medical history, but stated that his opinion was not affected by any of these potential discrepancies.
We note, third, that although the employer denied primary liability, Dr. Thomas Raih, who performed an IME on behalf of the employer, concluded that the employer sustained a work injury on February 15, 2000. Since Dr. Raih stated that no specific injury occurred on that date, it must be assumed that he found the employee had a Gillette injury. The issue for the compensation judge was whether to accept the opinion of Dr. Raih that the February 15, 2000 work injury was a temporary aggravation of a preexisting condition or to accept the opinion of Dr. Dick that the February 15, 2000 injury was a substantial contributing factor in the employee=s ongoing disability and need for surgery.
The compensation judge accepted the causation opinion of Dr. Dick over that of Dr. Raih. The compensation judge's choice between conflicting expert opinion is to be upheld unless the expert's basis for the opinion rendered was without adequate foundation in the record. Nord v. City of Cook, 360 N.W. 2d 364, 37 W.C.D. 364 (Minn. 1985). We conclude that the compensation judge=s finding that the employee sustained a Gillette injury on February 15, 2000 which was a substantial contributing factor in her disability and medical treatment is supported by substantial evidence in the record, and must be affirmed. Minn. Stat. ' 176.421, subd. 1 (1992). Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
2. Rehabilitation Consultation.
The compensation judge found that the employee, whose work injury resulted in a ratable permanent partial disability and medical restrictions, had established a right to a rehabilitation consultation pursuant to Minn. Stat. '176.102. The self-insured employer argues that the employee is not entitled to Arehabilitation benefits@, contending that the employee=s restrictions did not preclude her from returning to work for the employer. However, the issue is not whether the employee is a qualified employee for rehabilitation services, but rather whether the employee is entitled to a rehabilitation consultation.
In the present case, the injured employee is entitled to a rehabilitation consultation as a matter of law. Minn. Stat. ' 176.102, subd. 4(a). The purpose of the rehabilitation consultation is to determine whether the employee is a "qualified employee." Thus, the employee=s eligibility for statutory rehabilitation services is not at issue in determining entitlement to a rehabilitation consultation, but is to be made in the course of the consultation by the assigned QRC. See Goodwin v. Byerly=s Inc., 52 W.C.D. 90 (W.C.C.A. 1994); Wagner v. Bethesda Hosp., No. 468‑02‑2322 (W.C.C.A. Jan. 5, 1995).
The award of a rehabilitation consultation is therefore affirmed.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).