CLAUDETTE BOELTER, Employee/Appellant, v. STEVEN SCOTT MGMT., INC. and AMERICAN COMP. INS. CO., Employer-Insurer, and STEVEN SCOTT MGMT., INC. and INSURANCE CO. OF STATE OF PA., Employer-Insurer, and LASALLE MGMT. GROUP, LTD. and TRI-STATE INS. CO., Employer/Insurer, and MEDICA/HEALTHCARE RECOVERIES, INC., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 9, 2003
CAUSATION - PRE-EXISTING CONDITION. Substantial evidence, including the employee=s testimony, medical records, and expert medical opinion, supported the finding that the employee=s cervical condition was causally related to a pre-existing condition and not the result of her work activities.
Determined by Pederson, J, Rykken, J., and Stofferahn, J.
Compensation Judge: Jennifer Patterson
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s findings that she did not sustain work related injuries to her cervical spine which resulted in permanent partial disability. We affirm.
The employee, Claudette Boelter, filed a claim petition on February 7, 2001, alleging that she had sustained a permanent partial disability to her neck as the result of injuries on October 25, 1996 and April 25, 1997 when she was employed by Steven Scott Management, Inc. (Scott), while it was insured by American Compensation Insurance Co/RTW (RTW), an injury on March 20, 1999 when she was employed by Scott while it was insured by Insurance Company of the State of Pennsylvania (Pennsylvania), and an injury on July 28, 2000 when she was employed by LaSalle Management Group, Ltd. (LaSalle) while it was insured by Tri-State Insurance Co. (Tri-State).
The employee has a history of cervical problems. In February 1976, she sustained an injury involving her neck and upper back in an automobile accident in Colorado. She was treated with pain medication, muscle relaxers and physical therapy and was eventually referred to a neurosurgeon for evaluation, after which she underwent two weeks of neck traction at St. Joseph=s Hospital in Denver. In April 1976 she was involved in a second automobile accident which injured her low back and further aggravated her prior neck injury, after which she began experiencing numbness and tingling down her arms and shoulders. In January 1977 the employee underwent bilateral rib resection surgery for thoracic outlet syndrome related to the 1976 automobile accidents. In February 1977 she was hospitalized in Colorado for a further recurrence of her neck complaints. A myelogram performed at that time was normal.
In 1981 the employee re-injured her low back when she fell while working as a cocktail waitress. There is no indication that the employee re-injured her neck in this incident. On March 10, 1982 the employee slipped and fell on a wet floor while working for a Byerly=s food store. On March 27 she began treating with a chiropractor, Dr. James Zimmerman, who diagnosed a lumbosacral sprain, myofascial fibrositis of the posterior thorax, and acute traumatic cervical strain with radiculitis, myofascial fibrositis and cervical spine instability. The employee quit working for Byerly=s in June 1982 and began working in property management.
At first she worked for an employer called L & D Management but was unable to do the physical work required in that job due to her neck and back symptoms and was discharged by that employer by August 1982. Subsequently, she continued to work in the property management field.
On February 23, 1983 the employee was seen for a medical examination on behalf of Byerly=s by an orthopedic surgeon, Dr. Paul Yellin. Dr. Yellin found the employee=s history consistent with episodes of cervical, thoracic and lumbar strain. He opined that the March 1982 injury was most likely a temporary aggravation of the employee=s pre-existing problems.
The employee was seen by Dr. John W. Hammond, a chiropractor, on March 7, 1983. Among her presenting complaints were recurring episodes of occipital headaches two to three times per week, cervical spine pain, mid-dorsal spine pain, thoracolumbar spine pain, and pain and paresthesias in the left lower extremity to the foot. Dr. Hammond diagnosed myofascial fibrositis of the cervical paravertebral musculature.
On September 18, 1983 the employee was working on some steps cleaning in a job as an apartment manager when she fell and landed on her back. There is no specific evidence of an injury to her neck at this time. In June and July 1988 the employee was treated with physical therapy for nine sessions at the Park Nicollet internal medicine clinic as a result of left cervical and upper back pain with intermittent left elbow and forearm pain and radiation into the left upper extremity. The diagnosis was of a cervical strain. The employee returned to Park Nicollet in March 1990 complaining of right-sided neck pain for the past four days which radiated to the right shoulder. She was treated for cervical strain through March 27, 1990 with six sessions of physical therapy. In October 1991, the employee treated at the Park Nicollet internal medicine clinic for low back pain, but also was diagnosed with myofascial neck pain.
On October 25, 1996 the employee sustained the first of the four work injuries at issue. On that date, she was working for Scott when she experienced an onset of low back pain while moving a five-gallon paint bucket in a storage closet with her feet. She then tried instead to lift the bucket and experienced the onset of neck pain with tingling down the outside of her right arm. When first seen by her chiropractor, Dr. Susan Marty-Eldridge, the employee=s chief complaint was of lower back pain, but she also reported upper back pain and neck pain with headaches. She lost no time from work due to this injury but did receive 15 chiropractic treatments between October 1996 and late February 1997. By November 6, 1996 Dr. Marty-Eldridge noted that the employee=s neck pain symptoms had become secondary in importance to her acute back pain. On February 21, 1997 Dr. Marty-Eldridge signed a report indicating that the employee had sustained no permanent partial disability due to this injury. Scott and RTW accepted liability for a temporary injury to the employee=s low back and neck.
The employee sustained the second injury here at issue on April 25, 1997 when she lifted a heavy carry-on suitcase into an overhead luggage rack in an airplane while traveling for her employer. She again treated with Dr. Marty-Eldridge for eight sessions through June 16, 1997, primarily for low back complaints. Scott and RTW admitted a low back injury of a temporary nature. The employee testified at the hearing below that she also had some neck and arm symptoms following this incident, and there is some support for this contention in Dr. Marty-Eldridge=s records. Again the employee lost no time from work and on August 1, 1997, Dr. Marty-Eldridge again reported that the employee had sustained no permanent partial disability. The employee testified that she also treated during the same period with an internal medicine specialist, Dr. C.H. Fernandez, who prescribed pain medication and muscle relaxants.
In December 1998 the employee=s duties for Scott changed and thereafter she was responsible for supervising twelve employees. Much of her time was spent at a desk working at a computer and using the telephone. The employee frequently kept her hands free to type at the computer by crooking her neck sideways to hold the telephone handset between her ear and shoulder. On March 17, 1999, the employee woke up at home with a stiff neck. The employee initially told her chiropractor that her neck pain started in association with emotional stress at work, but eventually attributed the onset of the neck pain to holding the telephone handset between her ear and shoulder. She treated with her chiropractor for neck and upper back pain eight times between March 20 and April 16, 1999, again losing no time from work. On April 16, 1999 she reported that she was now feeling less acute symptoms. The employee testified that her symptoms subsided after her employer got her a headset to use for telephone calls. The employee has alleged a Gillette injury culminating on March 20, 1999. Scott and Pennsylvania have denied the alleged injury.
The employee continued to work for Scott through November 1999 when she stopped working there for reasons not disclosed in the record. After four months of unemployment she began work for LaSalle. Her primary duties were providing software support and training for the employer=s property management software. More than half of her job was performed at about 25 locations away from the employer=s offices. She generally visited from one to three of these locations each work day. The employee testified that when she drove to these locations, she customarily took along a heavy briefcase and a 25-pound laptop computer, carrying them with shoulder straps up to a block at a time to and from her car.
The employee alleges a Gillette injury in this employment culminating on July 28, 2000. On that date, the employee saw Dr. Fernandez and reported a six-week history of right shoulder pain. Dr. Fernandez ordered a cervical CT scan. The scan was performed on August 18, 2000 and showed two-level degenerative spondylosis at C5-6 and C6-7, a moderate-sized right posterolateral and medial foraminal disc herniation at C5-6, and a broad-based moderate disc herniation with cord flattening at C6-7.
Dr. Fernandez referred the employee to a neurosurgeon, Dr Edward G. Hames, who ordered further tests including a CT, myelogram and EMG. These tests were performed on September 22, 2000. The EMG indicated a cervical radiculopathy, and the CT scan showed disc herniations at C5-6 and C6-7 along with foraminal narrowing secondary to uncinate spurs bilaterally at C5-6. Dr. Hames opined that the employee=s symptoms resulted from the disc herniations and the spurs and recommended that she either undergo surgery or treat conservatively
with an exercise program through a health club. The employee elected to proceed with conservative treatment.
In a letter dated October 16, 2000, the employee=s chiropractor, Dr. Marty-Eldridge, noted that she had not seen the employee since April 1999 but that it was probable in retrospect that the employee already had the recently identified disk herniations at that time, although without any significant arm symptoms. The doctor opined that the employee=s 1976 injury and various work-related injuries, especially the incident in April 1997 when lifting luggage, all had made her neck more prone to injury. She offered the further opinion that prolonged flexed posture at work had also contributed to the employee=s present condition and the need for treatment since 1997.
Dr. Fernandez, in a report dated December 27, 2000, offered the view that the employee=s October 1996 injury when moving a bucket of paint was Amost likely the initiation of her cervical herniation@. He believed that employee had re-injured her neck in April 1997, and that recent activities such as long hours at a computer terminal, holding a phone ear to shoulder, and moving parcels and a laptop computer, were all contributory to another exacerbation of her symptoms.
A cervical MRI was performed on March 26, 2001. It was read as significant for canal stenosis at C5-6. Comparison with prior radiologic studies showed progressive effects at the sites of the herniations including progressive calcification and discogenic spurring.
The employee was seen by Dr. Joel I. Gedan, M.D. on behalf of Pennsylvania on June 13, 2001. Dr. Gedan noted that the employee gave a history of a good recovery and return to baseline after the October 1996 and April 1997 injuries. The employee attributed her symptoms on July 28, 2000 to working on the phone and computer and carrying a laptop and shoulder bag. In Dr. Gedan=s opinion, the October 25, 1996 work injury, the April 25, 1997 work injury, and the March 20, 1999 injury were all minor cervical strains constituting temporary aggravations of the employee=s neck and back pain that resolved and returned to baseline with no permanent effects. Dr. Gedan opined that there had been a change in the employee=s condition on July 28, 2000, and considered 100 percent of the employee=s symptoms and treatment after that date to relate to an onset of symptoms in July 2000. He noted, however, that it was not clear from the medical records that any work-related injury had occurred on or around that time.
The employee was examined on August 29, 2001 by Dr. Paul T. Wicklund, M.D. for an independent medial examination at the request of Tri-State. He noted that the employee related that her symptoms after October 25, 1996 were temporary and that her most serious injury had occurred on April 25, 1997, after which she had continued to experience intermittent discomfort in her neck. He diagnosed multilevel degenerative disk disease with right C5-6 and C6-7 disk herniations. In his view, the symptoms that developed in July 2000 were unrelated to any activity at LaSalle Management Group. He opined that carrying a computer or briefcase would not cause either a two-level disk herniation or narrowing and spur formation at C5-6 and C6-7. In his view, these findings pre-existed her employment at LaSalle and the employee had a pre-existing degenerative cervical condition which came on slowly over many years. He concluded that a variety of injuries had played a role in causing her neck and back pain, but considered the April 1997 lifting injury on the airplane to have been the most significant. He assessed the employee=s permanency at 18 percent and advised restrictions to include no repetitive work with neck extended and no lifting above shoulder height at more than 10 pounds. He related her restrictions to her pre-existing degenerative disk disease.
The employee was seen by Dr. Robert Barnett, M.D. on behalf of RTW on March 8, 2002. Dr. Barnett stated that he had not seen the notes for the treatment of her April 1997 work injury but noted that the employee told him that, following this injury, her neck pain was both different in nature and an ongoing problem which did not resolve with chiropractic treatment. Instead, she continued to have on again/off again episodes of neck pain alternating between tolerable and intolerable at work. The doctor understood from the employee that her symptoms had continued in this way until she was evaluated by Dr. Fernandez in July 2000. He opined that the October 1996 injury was not a substantial contributing cause of the employee=s cervical spine condition and that the employee had reached maximum medical improvement from that injury without permanent aggravation of her underlying condition.
The employee filed a claim petition on February 7, 2001, seeking permanent partial disability of 12 percent for the C6-7 herniation and 13 percent for the C5-6 herniation, as well as various medical expenses. On July 26, 2002 a hearing was held before a compensation judge of the Office of Administrative Hearings to determine various issues raised by the employee=s claim petition, including primary liability for the employee=s cervical condition among and between the employee=s pre-existing condition and the two admitted and two alleged work injuries. Following the hearing, the compensation judge found that the first three claimed work injuries were temporary aggravations to a pre-existing condition, that the employee did not sustained a new Gillette injury on or about July 28, 2000, and that the employee=s symptoms after that date were the result of her pre-existing condition. The employee appeals from the judge=s findings denying that she sustained a Gillette injury or that any of the other admitted or alleged work injuries were a substantial contributing cause of her cervical condition and permanent partial disability.
The employee contends on appeal that the compensation judge=s findings denying that the four alleged injuries were substantial contributing causes of her permanent partial disability for a cervical disc condition were insufficiently supported by the medical evidence. The employee further asserts that the compensation judge mischaracterized some of her work activities for employer LaSalle, and that a case mentioned by the compensation judge in her memorandum was improperly applied. She asserts that the judge=s findings were, accordingly, clearly erroneous such as to warrant reversal.
The issues presented in this appeal revolve around whether the employee has established work-related causation for her cervical disc herniations whether from her admitted work injuries in 1996 and 1997 or from alleged Gillette injuries in 1999 and 2000. Questions of medical causation are issues of fact which fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). Similarly, whether an employee has proven that she sustained a Gillette injury, including whether she proved a causal connection between her employment and her disablement, is a question of fact for the compensation judge. See Johnson v. Diamond Tool and Horseshoe, 55 W.C.D. 104, 109 (W.C.C.A. 1996).
Examining the judge=s findings regarding each of the four admitted and alleged cervical injuries in order, we conclude that substantial evidence does support the findings. The first work injury at issue was that sustained in October 1996 when the employee tried to lift a heavy paint can. The compensation judge found that this injury had resulted in only a temporary aggravation to the employee=s pre-existing cervical condition. Dr. Gedan, Dr. Wicklund and Dr. Barnett all offered the opinion that this 1996 injury had been temporary in nature. Dr. Marty-Eldridge, the employee=s treating chiropractor for this injury, had signed a report in 1997 stating that the employee had sustained no permanent partial disability from this injury. In addition to these expert medical opinions, the compensation judge=s finding of a temporary aggravation to the employee=s pre-existing condition is supported by the employee=s testimony that her symptoms after this injury were similar to those she previously experienced subsequent to her 1976 non work cervical injuries, as well as by the relatively short duration of treatment and the absence of lost time from work associated with this injury.
The next injury was that which the employee sustained when she was lifting her suitcase into an overhead airplane luggage rack in April 1997. Both Dr. Wicklund and Dr. Barnett considered this injury the most significant of the four claimed injuries. However, the compensation judge=s finding of a temporary injury was supported by the expert medical opinion of Dr. Gedan, who considered this injury also to have constituted a temporary aggravation of the employee=s pre-existing condition. The trier of fact=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 342‑43, 37 W.C.D. 364, 372‑73 (Minn. 1985). We are aware of no foundational defect in Dr. Gedan=s opinion, and we must affirm the compensation judge=s choice among the divergent medical opinions. As with the 1996 work injury, the treating chiropractor, Dr. Marty-Eldridge, again signed a report denying any permanent partial disability from this injury. We note further that the compensation judge=s finding of a temporary cervical injury is here also supported by the virtual absence of cervical complaints or treatment in the medical records for this primarily lumbar injury, as well as by the absence of lost time from work.
The compensation judge accepted the employee=s claim that her work activities between December 1998 and March 17, 1999, particularly holding a telephone between her ear and shoulder, resulted in a Gillette injury to her neck which culminated in disability on March 20, 1999 when the employee treated for an exacerbation of neck symptoms with Dr. Marty-Eldridge. The employee disputes the compensation judge=s further finding that this March 20, 1999 work injury was a temporary aggravation of the employee=s pre-existing neck condition. We note that the compensation judge=s findings regarding this injury again had expert medical support in the opinion of Dr. Gedan. The compensation judge=s finding of a temporary aggravation has further support in the short length of treatment, from March 20 through April 16, 1999, the absence of lost time from work, and the employee=s testimony that her symptoms subsided after the employer provided a headset to use for her telephone calls.
The compensation judge also found that the employee=s ratable permanent cervical disability was not the result of a final alleged Gillette injury alleged by the employee. AA Gillette injury is a result of repeated trauma or aggravation of a pre‑existing condition which results in a compensable injury when the cumulative effect is sufficiently serious to disable [the] employee . . . ." Zipse v. Hy‑Vee Food Stores, 55 W.C.D. 337, 342 (W.C.C.A. 1996). "[T]he question of a Gillette injury primarily depends on medical evidence." Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). In order to establish a Gillette injury, an employee must "prove a causal connection between [the employee=s] ordinary work and [the] ensuing disability." Id., 50 W.C.D. at 467. Although the compensation judge apparently accepted the view of Dr. Gedan that there was a significant change in the employee=s symptoms in July 2000, she did not find persuasive the employee=s claim of a work-related Gillette injury which the employee attributed principally to carrying a laptop computer and a briefcase using shoulder straps.
The compensation judge expressly relied upon the opinion of Dr. Wicklund, who opined that the actions the employee described, of carrying a computer and a briefcase using shoulder straps, would not cause either a two-level disk herniation or narrowing and spur formation. The employee objects that the compensation judge mischaracterized the employee=s description of her duties and that the compensation judge=s reliance on Dr. Wicklund=s opinion was therefore inappropriate. Specifically, the employee points out that, after beginning work for LaSalle she worked part of each day on the telephone with her head tilted to trap the receiver between her ear and shoulder, but that the compensation judge did not specifically address this aspect of her duties in the findings or memorandum. In addition, she points out that the compensation judge erred in describing the briefcase as Aa heavy purse@ and the laptop computer in its case as Aa laptop computer [put] into a briefcase.@ The employee acknowledges that Dr. Wicklund correctly described what the employee carried but objects to the wording he used when he stated that neither of these would cause the cervical conditions exhibited by the employee.
We are not persuaded. A compensation judge is not required to expressly discuss each specific point of evidence or testimony in her findings, and we cannot conclude that the failure to specifically discuss the employee=s telephone work demonstrates that she was unaware of or failed to consider this testimony. Nor do we see a basis for reversal in the judge=s description of the shoulder bags carried by the employee. The judge was clearly aware that the employee had been carrying two bags, one containing a laptop computer, and that both were relatively heavy. Thus any error in the specifics of the description does not appear to be material. Nor do we think that the semantics of Dr. Wicklund=s statement was material where it is clear from the doctor=s opinion taken as a whole that he did not believe that the activities of carrying these bags caused the employee=s permanent partial disability.
Finally, the employee points to a passage in the compensation judge=s memorandum quoting from Klapperich v. Agape Halfway House, 291 N.W.2d 675, 31 W.C.D. 641 (Minn. 1979). The compensation judge used the quoted material in partial explanation of some of her reasoning in rejecting the medical opinions of Dr. Fernandez and Dr. Marty-Eldridge, who had opined that all of the employee=s claimed work injuries contributed to some extent to the overall deterioration of the her cervical condition. The employee points out that the holding in Klapperich involved a rejection of medical opinion where foundation for the opinion was absent, and that this situation was not present with respect to the opinions of Dr. Fernandez or Dr. Marty-Eldridge. Thus, the employee argues, the compensation judge erred in her rejection of those opinions. We conclude, however, that the quoted material was not intended to reflect the holding of the case. It was taken from dictum in the case, and merely supports the concept that causation as applicable to proof of a workers= compensation injury involves a legal, rather than purely medical standard, in which an activity or incident must be a substantial contributing cause to injury or disability. The compensation judge=s use of the quoted dictum as illustrative of her interpretation of the opinions of Drs. Fernandez and Marty-Eldridge does not here indicate that she improperly applied the holding in Klapperich by rejecting these opinions for want of foundation.
We affirm the decision of the compensation judge.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).