PAMELA J. GIESEKE, Employee/Appellant, v. KRAFT FOODS, SELF-INSURED/HARTFORD, Employer, and KRAFT FOODS and KEMPER INS. GROUP, Employer-Insurer, and MN DEP=T OF ECON. SEC. and BLUE CROSS/BLUE SHIELD/BLUE PLUS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 30, 2003
CAUSATION - GILLETTE INJURY. Where the judge=s decision was supported by expert medical opinion, where the employee=s job was essentially light work that did not involve repetitive activities, where the employee had been unable to testify to the existence of any particular activity at work that was particularly painful or contributory to her right arm problems, and where there was nothing in the judge=s findings or his memorandum to support the argument that the judge=s finding as to depression in the employee=s life was inaccurate or improperly pervaded the judge=s decision, the compensation judge=s conclusion that the employee did not prove that her right arm symptoms were the result of a work-related injury was not clearly erroneous and unsupported by substantial evidence.
Determined by Pederson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Ronald E. Erickson.
Attorneys: Matthew T. Nielsen, Scott & Nielsen, Fairmont, MN, for Appellant. Jerome D. Vehanen, Thomas J. Peterson, Richard J. Sullivan, McCollum, Crowley, Moschet & Miller, Ltd., Minneapolis, MN, for Employer.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s finding that the employee=s right arm condition was not the result of a work-related injury on August 3, 2001. We affirm.
Pamela Gieseke [the employee] began working for Kraft Foods [the employer] in April 1989. Her job duties required the repetitive use of her upper extremities, and by late 1989 she began to notice pain in her left elbow. After a considerable period of conservative treatment, the employee eventually underwent two surgical procedures to her left elbow in 1992 and 1993, performed by Dr. Jeffrey Garske. The employer had denied liability for the injury, but in a Findings and Order issued December 20, 1993, Compensation Judge Harold Schultz found the employer liable for a June 4, 1990, injury to the employee=s left upper extremity. On the date of injury, the employee was thirty-one years old and was earning a weekly wage of $368.80.
In July of 1995, the employee completed a two-day functional capacities evaluation [FCE] at Wenger Physical Therapy in Mankato. As a result of the FCE, the employee became essentially restricted from repetitive gripping, grasping and manipulating, and pushing and pulling with her left arm. Those restrictions were approved by Dr. Garske.
On December 28, 1995, the employee and her rehabilitation consultant, Linda Steffensmeier, met with Dr. Garske to review a job titled Asenior rotating analyst@ within the employer=s Quality Department. This job, also known as the Alab job,@ typically involved testing two-pound blocks of cheese to make sure that they were within moisture and fat content and other standards. Some of the cheese also came in five-pound loaves. The employee carried cheese samples in a handled basket, using her right arm. Dr. Garske reviewed a video of the job and noted that Athis does not appear to be near as strenuous as some of the line jobs that she has previously been on. I see no absolute contraindication to her performing this job, and some modifications can be made in the very occasional lifting requirement of some baskets of materials.@ The employee apparently began working at the lab job in January of 1996.
The employee returned to see Dr. Garske in September of 1996, complaining of a painful right elbow. She indicated that she was unaware of any particular activities that may have brought this on. She had no numbness, tingling, or paresthesias and demonstrated a full range of motion of the elbow. Dr. Garske diagnosed tendinitis of the elbow and recommended a tennis elbow strap along with some physical therapy.
A year later, on September 19, 1997, the employee returned to see Dr. Garske for Aa final check regarding bilateral chronic elbow pain.@ The employee had full range of motion of the right elbow without limitation. She had minimal tenderness and no pain with resisted finger extension or wrist extension. Dr. Garske concluded that the employee had reached maximum medical improvement [MMI] with regard to the right elbow and had reached MMI with regard to her left elbow two years after her last surgery in July of 1993. The employee was advised to continue to use ice, heat, and over-the-counter preparations for pain control. The employee=s restrictions were remained as previously outlined by the FCE in 1995.
Some time during the spring of 2001, the employee was advised by her employer that five lab analyst positions were being eliminated and that her job was one of the five slated for elimination by mid September 2001.
On July 11, 2001, the employee was seen by Dr. Garske for evaluation of a painful right elbow. The employee advised the doctor that her right elbow had been symptomatic for a little over a year. She stated that Ashe feels that her discomfort has come on with the repetitious work activities at the lab at Kraft. Activities require a lot of repetitious gripping, and grasping and at times lifting objects up to about 30 pounds.@ Dr. Garske diagnosed Aposterior interosseous syndrome, right arm@ and Aprobable early tendonitis.@
Dr. Garske examined the employee in follow-up on August 3, 2001. At this visit, the doctor noted that the employee had had a slow progressive onset of right elbow and forearm complaints Afelt to be due to her work activities.@ The doctor reported that the employee=s work environment was about to change. He noted that the employee=s present job allows her to change the type of activities she does and that, Aas long as she does not have to do the repetitious gripping, grasping, pushing, and pulling continuously in the same fashion throughout the day[,] she has been doing okay.@ The doctor noted that the employee had expressed concern about being placed in another job that may not have this flexibility. He indicated also that he had not imposed any restrictions on her Apresent job duties@ and that his diagnosis and treatment recommendation remained the same.
On September 14, 2001, the employee was laid off from her job with the employer. On December 3, 2001, she filed a claim petition alleging a left arm injury on June 4, 1990, a right arm injury on August 3, 2001, and entitlement to temporary total disability benefits continuing from September 14, 2001. On August 3, 2001, the employee was earning approximately $705.00 per week. The employer and insurer asserted that the employee had reached MMI with regard to the 1990 injury and denied liability for the claimed injury of August 3, 2001.
On February 26, 2002, the employee was re-examined at the request of the employer by Dr. Van Dyne. Dr. Van Dyne obtained a history from the employee, reviewed her medical records, and conducted a physical examination. The doctor was of the opinion that the employee did not sustain either a specific injury or a Gillette-type injury to her right upper extremity on or about August 3, 2001. He stated,
I don=t believe that she was involved in work activities that required highly repetitious and patterned use of the right upper extremity while employed in the several years prior to 8/3/01, and by her own history, her job involved considerable variability in her work activities throughout any given day. She also does not have any findings on examination at this time that are consistent with any residual injury as the basis for her non-specific right lateral elbow symptoms.
The employee was also examined on behalf of the employer on March 5, 2002, by upper extremity specialist Dr. William Call. Dr. Call also obtained a history, reviewed the employee=s medical records, and performed a physical examination. In a report dated March 12, 2002, Dr. Call opined that the employee had not sustained any specific or Gillette injury to her right arm on August 3, 2001.
The employee was last examined by Dr. Garske on June 17, 2002. At that time, she was placed on light-duty restrictions consistent with those identified by the FCE in 1995. Dr. Garske continued to diagnose chronic lateral epicondylitis of the left elbow, as well as a posterior interosseous syndrome with residual pain and weakness. He also diagnosed chronic lateral epicondylitis of the right elbow. In a letter to the employee=s attorney dated January 2, 2003, Dr. Garske reported that the employee has reached MMI from both injuries. He did not believe that the employee qualified for a permanent partial disability rating for her right elbow and forearm. Dr. Garske noted that he had reviewed the various independent medical evaluation reports generated by the employer, but did not offer any comments as to the conclusions drawn by those examiners. Although Dr. Garske did refer to an injury date of August 3, 2001, he did not render a causation opinion.
The employee=s claim for benefits came on for a hearing before Compensation Judge Ronald E. Erickson on March 19, 2003. In a Findings and Order issued April 25, 2003, the compensation judge found that the employee had reached MMI from the effects of her June 4, 1990, injury as of May 26, 1995; that the evidence did not establish that the employee was medically unable to continue in her lab job with the employer but that she was separated because of an economic slowdown; and that the preponderance of the evidence failed to establish that the employee had sustained a work injury to her right arm on August 3, 2001. Consequently, the judge denied the employee=s claim for temporary total disability benefits related to either injury date. The employee appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.@ Id.
The employee contends that the compensation judge=s finding that she did not sustain a compensable injury on August 3, 2001, is clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted. She asserts that the facts in the record were not the facts utilized by the judge in his findings. She claims that her testimony as to her work duties and their effect on her upper extremities was uncontroverted by the employer. That testimony, she argues, is clearly at odds with the judge=s finding on liability. She also contends that no evidence was offered to suggest that the employee=s injury occurred in any fashion other than that she has alleged and that, given her significant left upper extremity injuries, her overuse of her right upper extremity was reasonable within the context of her job duties. Accordingly, she asserts, the judge=s factual finding that she did not sustain an injury should be reversed. We are not persuaded.
At Finding 14, the judge determined that the employee failed to establish by a preponderance of the evidence that she sustained a work-related injury on or about August 3, 2001. In a memorandum accompanying his Findings and Order, the compensation judge explained the basis for Finding 14. He noted that the lab job accepted by the employee in 1996 was reviewed in some detail by Dr. Garske prior to the employee=s acceptance of it. He noted that the doctor had reviewed a video of the job and had noted that it was not particularly strenuous and that the very occasional lifting requirements could easily be modified to accommodate the employee=s restrictions. The judge indicated that he had listened to the employee=s testimony regarding her job duties and had concluded that the job was essentially light work that did not involve repetitive activities. He also noted that the employee in her testimony was not able to identify any particular activity at work that was particularly painful or was contributory to her right arm problems. The judge=s assessment of the nature of the employee=s job and its effect on her right arm is amply supported by the record, including the employee=s own testimony. The judge was not required to accept the employee=s suggestion that, just because she had significant work-related left-arm injuries, her right arm symptoms are due to her employment as well. The burden of proof rests upon the employee to establish that her injury arose out of and in the course of her employment. Minn. Stat. ' 176.021, subd. 1. The compensation judge=s conclusion that the employee=s work activities with the employer were light in nature was not clearly erroneous.
At Finding 10, the judge concluded as follows:
In July 2001 the employee was seen by Dr. Garske for significant depression. She seemed to be mainly concerned over the prospect of losing her job at Kraft. She was also caring for a handicapped son at home. Her son had muscular dystrophy and was staying at home due to a shortage of space outside the home. The employee was seen for continuing treatment of depression on August 29, 2001.
The employee argues also that this finding apparently provides the basis for the judge Ato find the mind-set of the employee as having generic functional overlay as opposed to a true injury.@ She asserts that the compensation judge=s findings as to significant depression and as to her care of her son are not supported anywhere in the record. She contends that Finding 10's inaccurate focus on depression pervades the judge=s logic throughout, rendering all of the judge=s material findings invalid. We are not persuaded.
We see nothing in the judge=s findings or his memorandum that supports the employee=s argument. The judge did not in any way suggest that the employee=s depression or other stresses in life played any part in his conclusion that she did not establish an injury. What he did suggest is that the employee=s job in the laboratory was very light and did not involve repetitive activities, that the employee was unable to identify any specific work activity that may have occasioned her problems, and that there was no significant medical evidence of record establishing the work injury. These conclusions of the compensation judge are supported by substantial evidence. A finding as to a Gillette injury is primarily dependent on the medical evidence. Marose v. Maislin Transp., 413 N.W.2d 507, 512, 40 W.C.D. 175, 182 (Minn. 1987). In this case, the judge=s conclusion that the preponderance of the evidence does not support a finding of a Gillette injury is reasonably supported by the medical evidenced as well as by the evidence as a whole. Accordingly, we affirm.
 The employee also appeals from the judge=s finding that the employee did not conduct a diligent job search from September 17, 2001, through February 18, 2002. Because we are affirming the judge=s determination that the employee did not sustain an injury on August 3, 2001, we need not address the employee=s job search.
 The employer had obtained a medical examination with neurologist Dr. Bruce Van Dyne on February 2, 1995, and had served the employee with Dr. Van Dyne=s report, which included an MMI opinion, on May 26, 1995. The employee asserted no claim for right elbow injury in 1996 or 1997.
 The compensation judge did not issue a finding on the employee=s wage for the claimed injury on August 3, 2001.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).