LILA J. PORTER, Employee, v. DOUGLAS COUNTY HOSP., and MINNESOTA COUNTIES INS. TRUST, adm=d by RSKCO, Employer-Insurer/Appellants, and BROADWAY MEDICAL CTR., BLUE CROSS/BLUE SHIELD OF MINN., MN DEP=T OF HUMAN SERVS., DOUGLAS COUNTY HOSP., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 6, 2002
CAUSATION - GILLETTE INJURY. Substantial evidence of record, including expert medical opinion, supports the compensation judge=s finding that the employee sustained an ultimate breakdown of her shoulder condition on June 4, 1999, as a result of her work activities performed for the employer, and that her injury represented an aggravation of her pre-existing shoulder condition.
PERMANENT PARTIAL DISABILITY - SHOULDER. Substantial evidence of record, including expert medical opinion, supports the compensation judge=s finding that the employee sustained a permanent partial disability to her shoulder to the extent of 3% whole body impairment, as a substantial result of her Gillette injury of June 4, 1999.
Determined by Rykken, J., Stofferahn, J., and Pederson, J.
Compensation Judge: William R. Johnson.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge=s findings that the employee sustained a Gillette injury to her right shoulder culminating on June 4, 1999, and from the compensation judge=s award of temporary total disability and permanent partial disability benefits, as well as medical and rehabilitation expenses. We affirm.
Lila Porter, the employee, has worked for Douglas County Hospital, the employer, since June 2, 1980. She has worked as a dishwasher and cook=s helper, holding a variety of jobs within those positions, identified as early cook, late cook, early tray, early tray diets, early dining, cook=s helper, and late dish jobs. Her various duties included food preparation and service, preparing food trays, unloading food trays from carts, clearing off food trays, lifting dishes and pans, washing pots and pans, pulling a hose down from shoulder height to spray plates and then loading the plates into a dishwasher, unloading supplies in the freezer, and polishing kitchen machinery. The employee worked full-time in June and July 1980, part-time between July 1980 and 1990, and full-time thereafter.
The employee=s medical history includes treatment in 1990 for left lateral epicondylitis, including physical therapy, a prescription for elbow bands and assignment of work restrictions. In early 1991, the employee fell on her right wrist and underwent physical therapy for that injury. In November 1992, the employee treated for right arm problems, reportedly arising from overuse activities at work. The employee was diagnosed with flexor and extensor insertional tendinitis, and underwent conservative treatment.
In December 1993, the employee sustained a right shoulder injury after slipping and falling on ice, a nonwork-related incident. She eventually was diagnosed with a right shoulder strain with probable rotator cuff injury or tear. The employee obtained medical treatment between 1993 and 1996 for her right shoulder condition, primarily through Alexandria Orthopedic Associates, with whom she had treated for her left and right arm conditions. Medical chart notes from March 1994 state that the employee=s right shoulder condition was aggravated by her work activities. An MRI scan performed on her right shoulder on March 18, 1994, was interpreted as showing mild to moderate superficial and intra substance tendinosis/tendinitis with no evidence of a tear. On March 29, 1994, Dr. David Larson performed a subacromial injection on the employee=s right shoulder, and advised that the employee may be a candidate for arthroscopic decompression if the injection did not adequately relieve her symptoms. By the next day, March 30, 1994, however, Dr. Larson stated that he was unsure of the employee=s definite diagnosis, based on the employee=s negative response to the subacromial injection, and therefore deferred his recommendation for surgery. Instead, he referred the employee for a neurological consultation to evaluate the employee=s right shoulder, arm and neck pain.
Dr. Stanley Skinner, neurologist, conducted an EMG of the employee=s right upper extremity on July 4, 1994, which had normal results. Dr. Skinner examined the employee on July 20, 1994, and concluded that it was likely that the employee had sustained a soft tissue injury to her shoulder. He recommended cervical x-rays to rule out any radiculopathy or entrapment. Those x-rays showed early calcification of discs at C5-6 and C6-7 levels, but no bony foraminal stenosis in the neck. Dr. Skinner advised the employee that Amost of her trouble is with reference to the shoulder and I do not think we have a neurological problem.@ He recommended an MRI of the neck if the employee=s symptoms did not improve.
There are no medical records in the record between August 1994 and December 1995 that refer to treatment to the employee=s right shoulder. On December 6, 1995, the employee again consulted Dr. Larson due to a gradual worsening of her right shoulder pain. Dr. Larson diagnosed rotator cuff tendinitis with impingement and possible tears. He advised the employee that he thought she would need surgery in order to get relief. The employee reportedly expressed concern about the cost of another MRI scan and her potential lost time from work necessitated by surgery. Dr. Paul Dale, a colleague of Dr. Larson who continued the employee=s orthopedic treatment, examined the employee on December 20, 1995, and advised that the employee should undergo vigorous outpatient physical therapy for rotator cuff strengthening, and possibly a subacromial decompression if therapy proved to be unsuccessful. The employee did undergo physical therapy; by January 11, 1996, the employee still reported discomfort in her right shoulder but also reported a significant improvement in her range of motion. In his chart note of that date, Dr. Dale stated as follows:
Her exam continues to show significant discomfort in the subacromial space and a markedly positive impingement sign. The options of continued therapy and modified activities versus surgical intervention were reviewed and she is very hesitant to proceed with any surgery at this point. She understands that this would be purely for pain relief only and would not substantially impact on her ROM or strength of the shoulder.
Dr. Dale restricted the employee from work between December 20, 1995, and January 22, 1996. The employee returned to work, and again consulted Dr. Dale for follow-up treatment on May 31, 1996, at which time he assigned work restrictions of no lifting over 5 pounds, and no repetitive activities performed above chest level with her right upper extremity. On July 25, 1996, the employee reported to the hospital emergency room, reporting increased pain in her right shoulder for the past several days. She also reported that her work involved Aconsiderable physical labor.@ She was provided pain medication, and was advised to follow-up with Dr. Dale. The employee continued to work for the employer, and testified that she performed her regular job duties after 1996, although operating the spray hose for the Alate dish@ position caused her continued right shoulder pain.
In 1997, the employee injured her left arm and hand in an automobile accident. She received treatment at the hospital emergency room, was prescribed Tylenol, and was released the same day. On April 7, 1999, the employee injured her right arm and neck as a result of a second automobile accident. She was diagnosed with a left trapezius strain, and underwent physical therapy for that strain. The employee testified that she did not have any problems with her right shoulder as a result of that automobile accident.
There is no record of additional medical treatment for the employee=s right shoulder condition between 1996 and May 13, 1999, when she consulted her family physician, Dr. Kristi Ariel, Broadway Medical Center, for shoulder symptoms. The employee reported that she experienced severe pain when she worked the night shift dishwashing, as that involved working in a stooped position using her right arm. Dr. Ariel prepared a work slip restricting the employee from her Alate dish@ shift until after she consulted an orthopedist. On June 4, 1999, the employee was examined by Dr. Robert Scheuerell, St. Cloud Orthopedics, at the referral of Dr. Ariel. The employee reported difficulty with her right shoulder since 1993, and advised Dr. Scheuerell that she had missed work as a dish machine operator during the past year due to her symptoms. The employee also reported neck symptoms. Dr. Scheuerell treated the employee with a steroid injection in her right shoulder. He opined that the employee=s employment exacerbated her shoulder and neck pain, and assigned physical work restrictions.
Dr. Scheuerell referred the employee for an MRI scan, which was taken on June 16, 1999, and which he interpreted as showing a down sloping acromion and bursal side shoulder tendinitis, and severe foraminal stenosis at the C4-5 vertebral level. Dr. Scheuerell diagnosed a possible rotator cuff injury, tendinitis and cervical degenerative changes, and concluded that the employee would be a candidate for an acromioplasty. He also referred the employee to another physician for a cervical spine surgery consultation. In his chart note of June 4, 1999, Dr. Scheuerell commented that the employee was not interested in surgery to either her right shoulder or neck at that point. Dr. Scheuerell concluded that the employee=s neck symptoms were work-related but that her shoulder condition was not work-related.
The employee testified that she reported her right shoulder symptoms to her supervisor in June 1999, and that she provided her employer with physicians= work slips and assigned work restrictions relative to her right shoulder complaints. The employee testified that she specifically asked to be taken off of the Alate dish@ position, but was advised by the employer that she could not be removed from that position.
The employee again consulted physicians at Broadway Medical Center in 2000; they prepared periodic Reports of Work Ability, outlining the employee=s work restrictions. The employee consulted Dr. Dale on April 19, 2000, complaining of right shoulder discomfort. Dr. Dale diagnosed Achronic ongoing right shoulder impingement tendinitis and AC arthrosis@ and Asome significant cervical spine degenerative disease contributing to her paracervical discomfort.@ He concluded that the likelihood of the employee requiring subacromial decompression and distal clavicle excision was high, but recommended attempting physical therapy and work restrictions before contemplating surgery.
According to testimony by a representative of the employer, by May 9, 2000, the employer granted the employee a leave of absence from her job, due to her medical condition. After additional physical therapy provided no symptom relief, the employee underwent a right shoulder acromioplasty and distal clavicle excision on June 2, 2000, performed by Dr. Dale. Following surgery, the employee underwent physical therapy, a work hardening program and a home exercise program.
On June 23, 2000, the employee underwent a rehabilitation consultation, conducted by Ione Tollefson, qualified rehabilitation consultant (QRC). Ms. Tollefson determined that the employee was eligible for rehabilitation assistance, and provided periodic rehabilitation assistance until September 2000. Dr. Dale released the employee to return to work within physical work restrictions between September 11 and October 8, 2000, and released her to work without restrictions as of October 9, 2000. The employee has continued to work for the employer on a full time basis since October 2000.
The employee again consulted Dr. Dale on January 17, 2001, reporting ongoing discomfort in her right shoulder due to her work activities. On January 18, 2001, the employee was examined by Dr. Gary Wyard at the request of the employer and insurer. In his report, Dr. Wyard noted that the employee had long-standing cervical degenerative disc disease of the neck and a right shoulder problem present for years, referring to her specific right shoulder injury in 1993, which he determined had caused her problems since that date. Dr. Wyard concluded that the nature of the employee=s work activities did not cause, aggravate or accelerate her right shoulder condition. Instead, he found that the employee=s condition and her resulting surgery in 2000 related to her condition present before June 4, 1999. He based this conclusion, in part, on the findings on MRI scan taken on March 18, 1994. Dr. Wyard determined that the employee had sustained a 3% permanent partial disability of her whole body relative to her right shoulder, but concluded that her permanency rating was not related to her work activities. Dr. Wyard concluded that the employee had reached maximum medical improvement and did not recommend any additional care or treatment for her right shoulder. He did, however, assign work restrictions including no use of her right arm above chest level or overhead on a prolonged or repetitive basis, no lifting over 30 pounds above chest level, and assignment of work that would allow her to hold her neck in a natural position and that would allow flexibility in how she positions her head and right upper extremity. Dr. Wyard related all those work restrictions to the employee=s pre-existing condition and not to her work activities for the employer.
In his chart note of February 5, 2001, Dr. Dale concluded that the employee=s ongoing symptoms were due to her excessive work activities. He stated that
Patient returns today having under gone her IME by Dr. Wyard and I have had a chance to review his notes. His recommendations are to avoid repetitive over chest level activities with the right upper extremity, limit her to 30 lbs. of lifting, and avoid unusual neck positions. I would totally agree with these limitations. The major question is whether these limitations are due to the results of a work related injury or whether her shoulder problems are not work related. I tried to explain the difficulty in trying to assign her shoulder pain and eventual shoulder surgery to a work related phenomenon since she has had problems in the shoulder in the past specifically seeing Dr. Larson back in December 1993 following a fall outside the VFW. She eventually underwent an MRI scan of the right shoulder which showed some superficial supraspinatus tendinosis and tendinitis. Her job at the hospital most certainly exacerbates her problem and that [sic] she has to frequently reach out away from her body above chest level and I suspect this played a part in her eventually experiencing enough pain to finally undergo her surgical subacromial decompression and distal clavicle resection. Following this surgery, she has found it difficult to tolerate those same activities. She finds that she is quite comfortable when she lays off those activities and I suspect that she will have some permanent limitations and these have actually been spelled out in an FCE which had been performed following the surgery. It is my opinion that her occupation was a contributing factor to her shoulder pain which eventually necessitated the surgical intervention.
As of February 5, 2001, Dr. Dale advised that he had Anothing additional to offer her except the recommendations to refrain from repetitive over chest level activities.@ According to a chart note by Dr. Dale on April 2, 2001, the employee continued to report symptoms in her right shoulder, specifically when performing work activities requiring repetitive reaching to her right side or extending activities reaching up to her chest level and above. Dr. Dale recommended that the employee avoid repetitive reaching at the chest level and above. He noted that the employee might not be able to continue to function satisfactorily in her present occupation with the employer.
On October 30, 2000, the employee filed a claim petition, alleging an injury to her right shoulder and cervical spine, and seeking temporary total disability benefits, medical expenses, rehabilitation benefits and permanent partial disability benefits. In their answer, the employer and insurer denied primary liability for her claimed injury of June 4, 1999, and alleged that the employee=s disability, if any, and her need for medical treatment related solely to other significant disease processes, superseding or intervening injuries, or nonwork-related activities for which the employer and insurer were not liable. A formal hearing was held on December 7, 2001, and in his findings and order served and filed February 5, 2002, the compensation judge concluded that the employee sustained a Gillette injury to her right shoulder which culminated on June 4, 1999, as a result of her employment with the employer. The compensation judge concluded that the employee=s work activities were a significant contributing factor in aggravating her pre-existing right shoulder condition. The compensation judge awarded temporary total disability benefits from June 20 through September 10, 2000, the period following the employee=s surgery, permanent partial disability benefits based upon a 3% whole body impairment rating, payment of medical expenses and reimbursement of rehabilitation services. The employer and insurer appeal.
STANDARD OF REVIEW
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 (1992). 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 the 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).
The employer and insurer appeal from the compensation judge=s finding that the employee sustained a Gillette injury on June 4, 1999, as a result of her work activities. They specifically argue that the compensation judge erred by failing to articulate the standard he applied to the question of whether the employee sustained a Gillette injury or aggravation as a result of her work activities. The employer and insurer point to the compensation judge=s finding that the employee sustained a Gillette injury, even though he stated in his memo that there is a Apaucity@ of medical evidence supporting the employee=s claim. The issue before this court is whether the compensation judge=s conclusion that the employee sustained a Gillette injury as a result of her work activities is supported by substantial evidence of record and is not clearly erroneous.
The question of whether a Gillette injury has occurred primarily depends on medical evidence. Marose v. Maislin Transport, 413 N.W.2d 507, 512, 40 W.C.D. 175 (Minn. 1987). The employee "must prove a causal connection between her ordinary work and ensuing disability. . . . Whether given by testimony or written report, an opinion by a medical expert as to the causal link between the claimant's disability and the job must be based on adequate foundation." Steffen v. Target Stores, 517 N.W.2d 579, 582, 50 W.C.D. 464, 467 (Minn. 1994). 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). An employee claiming workers= compensation benefits has the burden of proving that a work-related injury caused her disability, but it is not necessary for the employee to show that the work-related injury was the sole cause of her disability, only that the injury was a legal cause--that is, an appreciable or substantial contributing cause. Salmon v. Wheelbrator Frye, 409 N.W.2d 495, 497-98, 40 W.C.D. 117, 122 (Minn. 1987). Moreover, it remains a longstanding rule with regard to temporary disability
that when the usual tasks ordinary to an employee=s work substantially aggravate, accelerate, or combine with a preexisting disease or latent condition to produce a disability, the entire disability is compensable, no apportionment being made on the basis of relative causal contribution of the preexisting condition and the work activities.
Vanda v. Minnesota Mining & Mfg. Co., 300 Minn. 515, 516, 218 N.W.2d 458, 458, 27 W.C.D. 379, 379 (1974) (emphasis added); see also Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975).
The employer and insurer argue that the compensation judge did not utilize the proper legal standard in determining whether the employee sustained a Gillette injury or aggravation as a result of her work activities. They point to the compensation judge=s statement, in finding number 2, that Dr. Dale gave no explanation as to how he reached his conclusion that the employee=s condition was aggravated by her work activities. The employer and insurer also point to statements in the compensation judge=s findings and order that the employee Afailed to develop much on the record to explain how the problems developed,@ and that the relationship between the employee=s need for surgery and her work activities Acould have been more fully explored with the doctors but was not.@ Based on the compensation judge=s comments about the limited medical evidence supporting the employee=s claim, the employer and insurer argue that this evidence falls short of what is required under the legal standard articulated in Steffen and that the compensation judge=s finding of a causal relationship should be reversed.
The employer and insurer further argue that the employee=s work activities, and specifically the Alate dish@ duties she performed, did not cause, aggravate or accelerate her pre-existing shoulder injury, and that while it may be true that the employee experienced symptoms while performing her work, those symptoms do not equate with a finding of causal relationship. We are not persuaded.
The compensation judge reviewed the various medical opinions and records to determine whether the employee developed a Gillette injury as a result of her employment with the employer, and specifically to determine whether the employee=s work activities prior to June 4, 1999, caused, aggravated, or accelerated the employee=s right shoulder condition. The compensation judge=s findings and order and memorandum refer to his review of Dr. Dale=s and Dr. Wyard=s medical reports. Dr. Dale, one of the employee=s treating physicians, rendered an opinion that the employee=s work activities over a period of time eventually led to a break down of her right shoulder condition. Dr. Dale was apprised of the employee=s work activities. The employee consistently testified about the nature of her work activities and how they aggravated her right shoulder condition. The compensation judge specifically adopted Dr. Dale=s opinion on causation, and relied on the employee=s testimony regarding her job activities, in determining that the employee had established that her work activities caused a Gillette injury culminating on June 4, 1999. As the judge noted, the letter report signed by Dr. Dale on June 15, 2001, did not provide an explanation of how he reached his conclusion on causation. However, his chart notes and assigned work restrictions contained in the record clearly indicate that Dr. Dale was aware of the employee=s work duties.
Under these circumstances, and in view of the employee=s testimony about her work and the development of her symptoms, the compensation judge was entitled to accept Dr. Dale=s opinion in reaching his ultimate conclusion. In the end, this case rests simply on the judge=s legitimate choice between conflicting expert opinions. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). We agree with the compensation judge that this was a close case, but it is evident that the judge considered the evidence very carefully, and we cannot conclude that his decision concerning the causation of the employee=s right shoulder condition, and his award of benefits, was clearly erroneous or unsupported by the record as a whole. The compensation judge applied the correct standard in reaching his conclusion that the employee sustained an ultimate breakdown of her shoulder condition on June 4, 1999, as a result of her work activities performed for the employer, and the record as a whole supports that conclusion. We therefore affirm that finding and the related award of benefits.
Permanent Partial Disability
The compensation judge found that the employee has sustained 3% permanent partial disability of the whole body pursuant to Minn. R. 5223.0450, subp. 2(C). The employer and insurer appeal from this finding, and argue that the compensation judge=s award of permanent partial disability benefits was inappropriate and was inconsistent with his other findings. We disagree.
Both Dr. Dale and Dr. Wyard assigned a 3% permanent partial disability rating relative to the employee=s shoulder surgery. Dr. Dale opined that the employee=s work activities substantially contributed to her need for surgery and consequentially to her permanency rating. The compensation judge accepted Dr. Dale=s causation opinion. Dr. Wyard found no causal relationship between the employee=s work activities and her surgery and resulting permanency; the compensation judge rejected Dr. Wyard=s causation opinion.
The employer and insurer argue that the compensation judge=s limitation on medical expenses is inconsistent with his award of permanency benefits, because it signaled his reliance on Dr. Wyard=s opinion. The compensation judge limited his award of medical expenses to those incurred through January 18, 2001, the date the employee was examined by Dr. Wyard. In that regard, he did accept Dr. Wyard=s opinion on the duration of reasonable and necessary medical expenses. However, a Acompensation judge generally is free to accept a portion of an expert=s opinion while rejecting other portions.@ Johnson v. L.S. Black Constr., Inc., slip op. (W.C.C.A. Aug. 18, 1994) (citing City of Minnetonka v. Carlson, 298 N.W. 2d 763, 767 (Minn. 1980) (a factfinder generally Amay accept all or only part of any witness= testimony.@)); see also Klasen v. American Linen, 52 W.C.D. 284, 292 (W.C.C.A. 1994). The compensation judge could reasonably rely on a portion of Dr. Wyard=s expert medical opinion, while rejecting another portion of that opinion, without creating any inconsistency in his findings.
Generally, a compensation judge's finding regarding the rating of permanent partial disability is one of ultimate fact and must be affirmed if it is supported by substantial evidence. Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274, 39 W.C.D. 771, 778 (Minn. 1987). As trier of fact, a compensation judge is responsible for determining the degree of disability after considering all evidence and relevant legal factors in a case, and medical testimony is considered helpful but not dispositive on the issue of disability. Erickson by Erickson v. Gopher Masonry, Inc., 329 N.W.2d 40, 43, 35 W.C.D. 523, 528 (Minn. 1983); see Jensen v. Best Temporaries, 46 W.C.D. 498, 500 (W.C.C.A. 1992); Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 529, 41 W.C.D. 634, 640 (Minn. 1989). We find no inconsistency in the compensation judge=s award of permanency benefits. That award is consistent with the judge=s reliance on Dr. Dale=s opinion and his conclusions concerning the causation of the employee=s Gillette injury, which we earlier determined to be supported by the record as a whole. Substantial evidence supports the compensation judge=s finding that the employee has sustained 3% permanent partial disability of the whole body pursuant to Minn. R. 5223.0450, subp. 2(C). Accordingly, we affirm that award.