DAVID E. MOE, Employee/Appellant, v. DR. MATTHEW A. GAHN and MINN. ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS, Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF MINN., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 31, 2003
CAUSATION - SUBSTANTIAL EVIDENCE. Where the judge did not disregard the opinions of the employee=s treating doctors, and where the judge=s decision was affirmatively based on other expert medical opinion, the compensation judge=s conclusion that the employee=s allergic condition was not causally related to his employment was not clearly erroneous and unsupported by substantial evidence.
Determined by Pederson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Donald C. Erickson.
Attorneys: James W. Balmer, Bill L. Thompson, Falsani, Balmer, Peterson & Quinn, Duluth, MN, for Appellant. Steven E. Sullivan, Fitch, Johnson, Larson, Walsh & Held, Minneapolis, MN, for Respondent.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s finding that the employee did not sustain a work-related personal injury or occupational disease on or about May 31, 2002. We affirm.
David E. Moe began working as an optician for Dr. Matthew Gahn in August of 1997. Mr. Moe [the employee] had completed a one-year optician=s course at the Eveleth Technical College in 1971 and had worked continuously as an optician between 1984 and May 31, 2002. The employee=s job with Dr. Gahn [the employer] was to assist patients/customers with the selection and proper fitting of eyewear. The employer=s clientele was more female than male. A beauty salon was located adjacent to the employer=s optical clinic in the same building. Odors from the beauty salon were prevalent in the optical clinic.
Prior to commencing employment with the employer, the employee had no history of allergic reactions but was treated in 1992, at the East Range Clinics in Virginia, for a bout of eczema. The employee was married on June 9, 2000. After that marriage, the employee=s wife found it necessary to change her hairspray, perfumes, soaps, and bodywash, noticing that the employee reacted to them. The employee evidently noted that the odors emanating from the beauty salon were more noticeable to him in the fall of 2001. He began to experience itching sensations and rashes on various portions of his body. His symptoms increased in frequency and severity, and he developed new symptoms, including a sense of fatigue, frequent headaches, tinnitus, pain in his facial sinuses, wheezing, and a feeling of confusion. At the eventual hearing in this matter, the employee testified that he noticed that his symptoms would increase as the day progressed and on days when the odors from the beauty salon were more prominent. He also felt that his symptoms were exacerbated if the clients on whom he was waiting wore perfumes, hairspray, or other cosmetics. And he noted that his symptoms would improve in the evenings and on weekends, when he was not working.
In the spring of 2002, the employee sought medical attention for his various symptom complaints. On May 3, 2002, he was seen by dermatologist Dr. Benjamin Yokel at the Duluth Clinic--Virginia, to whom he reported Aa rash in the inguinal region, nasal stuffiness, itching whenever he is around anybody with perfume and when he is around certain chemicals.@ Dr. Yokel noted that a patch test undergone by the employee had been positive for fragrance and formaldehyde. He recommended that the employee quit smoking to eliminate formaldehyde exposure related to that sensitivity, and he prescribed Allegra, Zyrtec, and an ointment to treat the employee=s allergic rhinitis and contact dermatitis.
On May 7, 2002, the employee was examined by Dr. Edmund Draper, at the Duluth Clinic--Eveleth, Ato discuss allergies.@ The employee complained to Dr. Draper of some chest tightness with dyspnea and some wheezing at night. The doctor ordered laboratory tests and a pulmonary function test. Dr. Draper indicated it would be necessary Ato exclude cardiac causes for the symptoms.@
On May 31, 2002, the employee was examined by Dr. David Morris at Allergy Associates of LaCrosse. Dr. Morris performed various tests for allergies and found that the employee reacted very strongly to dust mites, formaldehyde, and quaternium. In a letter to Dr. Yokel dated June 14, 2002, Dr. Morris noted that the employee=s Ahistory correlates with severe allergy problems and at the present time, he has had difficulty in his workplace.@ He reported that the employee didn=t feel able to return to work at the present time. Dr. Morris stated, however, that he was Aconfident that over a period of months, we can help him tolerate more, so he could return to a relatively hypoallergenic environment.@
The employee stopped working for the employer on May 31, 2002. On that date, he was fifty years old and earning a weekly wage of $594.00.
In a letter dated June 14, 2002, and addressed ATo Whom It May Concern,@ Dr. Yokel reported that he had
seen David Moe for evaluation of hives and itching. We did perform patch testing to evaluate for contact allergies that may trigger his symptoms and found that he has significant allergies to formaldehyde and to Quaternium-15 (a formaldehyde releaser). He also has significant reaction to fragrance. The patient does work bending plastic glass frames and these do require heating. This is definitely a potential source of formaldehyde release and may contribute to his symptoms. He also could potentially react to airborne fragrances in the workplace.
Also on June 14, 2002, Dr. Morris also addressed a letter ATo Whom It May Concern,@ in which he reported that he had started the employee on sublingual treatment to gradually desensitize him to allergens. Regarding the employee=s ability to work, he indicated that, A[a]t the present time, he is unable to work. The history he gives is that he was in contact with formaldehyde and other chemical odors at his place of employment.@
The employee returned to see Dr. Morris on August 2, 2002. In a report to the employee=s attorney on the following day, Dr. Morris reported that the employee had shown some improvement but was still affected by exposure to chemicals and to mold. He stated that the employee Awill be off work at least another three to six months, and I cannot be certain that he will be able to work in a job with even moderate exposure to dust, molds, and chemicals.@
On September 9, 2002, the employee filed a claim petition seeking temporary total disability and medical benefits as a result of Asevere allergic sensitivity to materials in the workplace.@ The employer and its workers= compensation insurer denied liability for the employee=s condition.
On January 15, 2003, the employee was examined at the request of the employer and insurer by pulmonary specialist Dr. Thomas Mulrooney, who reviewed the employee=s medical records, obtained a history, and performed a physical examination. Dr. Mulrooney diagnosed the employee=s condition as atopy, Awhich is an underlying tendency to develop allergies to various substances.@ It was Dr. Mulrooney=s opinion that there was very little evidence to suggest that the employee=s work with the employer contributed to his health complaints. In particular, the doctor did not believe that it had caused the employee=s atopy, Awhich is a genetically determined condition.@ And he did not believe that the employee=s workplace had played a greater role in his allergic illness than had his activities outside the workplace. Dr. Mulrooney also opined that many of the employee=s symptoms, including his complaint of memory problems, confusion, ear ringing, headache, and chronic fatigue, had nothing to do with allergy and no link whatever to the employee=s work environment.
On February 5, 2003, the employee wrote to Dr. Morris and provided him with a daily diary of his symptoms over the period of December 2, 2002, to February 5, 2003, a period commencing about six months after the employee last worked. The employee described symptoms of fatigue, headaches, itching, and ears ringing on a daily basis. Dr. Morris responded on February 14, 2003, stating that A[i]t will take three to five years to get you more tolerant of inhalants and chemicals. We should see some gradual improvement over time. . . . At this point, you are still unable to work.@
The employee=s claims for allergic sensitivity and consequent benefits came on for hearing before a compensation judge on March 21, 2003. In a Findings and Order issued June 20, 2003, the judge denied the employee=s claims for benefits, concluding in part that risk of allergic reactions such as the employee=s was not a hazard characteristic of and peculiar to the occupation of optician and that there was insufficient evidence that the employee was more exposed to the hazards of formaldehyde, odors, and perfumes in his workplace than he would be outside of his workplace. The judge also accepted the expert opinions of Dr. Mulrooney over those of the treating doctors. 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.
On appeal, the employee contends that the compensation judge=s findings are clearly erroneous and unsupported by substantial evidence. He argues that evidence submitted on his behalf clearly supports his claim that his work either caused or substantially contributed to his allergic sensitivity. He argues that he was not experiencing any significant symptoms prior to his employment with the employer herein and that since leaving that employment his symptoms have improved. He argues further that Drs. Yokel and Morris have both indicated that his work environment exacerbated the his symptoms. He notes also Dr. Morris=s conclusion that the chemicals causing his symptoms can be found in the workplace and that same doctor=s recommendation that the employee not return to work at all until his tolerance for these chemicals grows over time. Finally he argues that this evidence is uncontroverted and that the compensation judge should have found his condition work-related. We are not persuaded.
The issue for this court is not whether there exists evidence in the record that may have supported the employee=s claim but whether substantial evidence supports the compensation judge=s decision. The conclusion that the employee=s work environment was not a substantially contributing factor to his allergic illnesses is supported by the medical report of Dr. Mulrooney. 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. 1984). 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). In this case, the employee does not argue that the compensation judge erred by accepting the testimony of Dr. Mulrooney but that the judge should have accepted the testimony of the treating physicians. It is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). We find no error in the judge=s acceptance of Dr. Mulrooney=s opinions, and accordingly this determination of the compensation judge is affirmed.
The employee also contends that the compensation judge improperly disregarded the opinions of the employee=s treating doctors. We disagree. We see no basis to conclude that the judge disregarded the opinions of these doctors. In fact, the compensation judge issued a number of findings directly commenting on the treating physicians= opinions and findings on examination. Rather than disregarding their opinions, the judge simply resolved the conflict in expert testimony in favor of the employer and insurer. Accordingly, the decision of the compensation judge is affirmed in its entirety. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.