MARK E. RICE, Employee/Appellant, v. UNITED PARCEL SERV. and LIBERTY MUT. INS. CO., Employer-Insurer, and DOUGLAS CO. HOSP. and ALEXANDRIA CLINIC, P.A., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 5, 2003

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including the opinion of the independent medical examiner, supports the compensation judge=s determination that the employee did not sustain a Gillette injury to his knees as a result of his work activities for the employer.

 

Affirmed.

 

Determined by Johnson, C.J., Wilson, J., and Stofferahn, J.

Compensation Judge:  Jennifer Patterson.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s finding that he did not sustain a Gillette-type injury[1] to his knees as a result of his work for United Parcel Service.  We affirm.

 

BACKGROUND

 

In 1971, Mark E. Rice, the employee, injured his left knee while playing baseball.  The injury was a tear of the anterior cruciate ligament with damage to both the lateral and medial menisci.  The employee ultimately had surgery on his left knee in the nature of an open arthrotomy with removal of the damaged menisci and a repair to the ligament with a pes anserine transfer.  In 1974, the employee injured his right knee while playing football.  The nature of the injury was a rupture of the anterior cruciate and medial collateral ligaments and a tear of the medial meniscus.  The knee was treated with an open arthrotomy with an excision of the medial meniscus and a repair of the ligaments with a pes anserine procedure.  The employee obtained good relief of symptoms from the 1971 and 1974 surgeries.  He remained active in sports and was an avid runner until the late 1980s.

 


In June 1978, the employee went to work for United Parcel Service, the employer, as a package car driver.  Initially, the employee worked part-time, but in January 1979 the job became full-time.  From 1979 through 1985, the employee worked in the Slayton, Minnesota, area.  His duties included loading packages into his delivery van, driving to the delivery locations and hand-carrying packages to customers.  During that time, the employer had a 50-pound maximum weight on the packages they would handle. 

 

During the first hour and a half of each shift, the employee loaded his vehicle, taking packages from a conveyor belt and stacking them from the floor to the ceiling of the van.  The employee then drove to the locations of the customers, driving up to 150 miles a day.  The employee unloaded packages either from behind the seat through the side door of the van or from the rear of the delivery vehicle.  To unload the packages from the delivery van, the employee had to climb up and down steps of the vehicle or step onto the rear bumper of the vehicle.  Each delivery involved removing one or more packages from the truck and then carrying the package to the customer, often climbing stairs.

 

In 1985, the employee transferred to the Alexandria, Minnesota, facility, again work­ing as a package car driver.  By this time, the maximum weight limitation had risen to 70 pounds.  In Alexandria, the employee worked a number of different routes.  Again, the employee spent approximately an hour and a half each day loading packages into his vehicle.  On his normal delivery route, the employee delivered to approximately 70 customers and drove 150 miles.  The employee also had a downtown route on which he drove approximately 30 miles each day but delivered to 150 customers.  At some point in the mid to late 1980s, the weight limit went up to 150 pounds per package.  There was no provision for obtaining help lifting or carrying packages in excess of 70 pounds, but drivers were provided with two-wheeled dollies.

 

In the early 1990s, the employee took a route delivering to the towns of Garfield, Brandon and Alexandria.  His duties remained the same as before, but the number of stops increased to approximately 85 and his miles driven decreased to approximately 130 miles per day. 

 

In 1996, there was a strike at UPS.  Following the resolution of the strike, the employee returned to work, but his job duties changed.  The employee no longer loaded his vehicle in the morning, but he was required to make approximately 100 stops a day and he drove over 200 miles per day.  The employee noticed an increase in his symptoms in his knees during this time.

 

The employee sustained several injuries to his knees while working for the employer.  On November 26, 1984, the employee sustained a personal injury to his left knee.  The employer and its insurer admitted liability for this personal injury.  In December 1984, the employee underwent arthroscopic surgery to remove a loose body from his left knee.  The employee had a good result from this surgery and returned to his regular job with the employer.

 

On May 6, 1985, the employee sustained a personal injury to his right knee while working for the employer.  The employer and its insurer admitted liability for this personal injury.  In May 1985, the employee underwent arthroscopic surgery to remove a loose body from the right knee.  The employee had a good result from this surgery and returned to his regular job duties.

 


On November 13, 2001, the employee stepped up from the ground approximately thirty inches to the bumper of his vehicle and felt a pop in his right knee with the onset of pain.  The employer and insurer admitted the employee sustained a personal injury to his right knee in the nature of a temporary aggravation of a pre-existing condition.  The employee=s wage on that date was $1,077.68.

 

On November 30, 2001, the employee saw Dr. Paul A. Dale, an orthopedic surgeon with Alexandria Orthopedic Associates, P.A.[2]  The employee stated he had given up many of his athletic endeavors over the past ten to fifteen years because of knee problems and had now reached the point where walking or getting in and out of his truck caused considerable discomfort.  The employee told the doctor he utilized Vioxx on a continuous basis for pain control but stated his overall quality of life was markedly diminished because of his bilateral knee pain.  The employee also reported a substantial increase in right knee pain on November 13, 2001, with a gradual increase in symptoms since then.  Dr. Dale diagnosed advanced tricompartmental degenerative joint disease in both knees.  The doctor felt the disease was quite advanced and recommended total knee arthroplasties.  The employee underwent bilateral knee replacement surgery on April 24, 2002.  The employee had a good result from the surgeries and returned to his regular job with the employer on September 9, 2002.

 

The employee filed a claim petition, seeking workers= compensation benefits as a result of a Gillette-type personal injury culminating in disability on November 13, 2001 or, in the alternative, as a result of the admitted work injuries of November 26, 1984, May 6, 1985, and November 13, 2001.  In preparation for the hearing, the deposition of Dr. Dale was obtained.  Dr. Dale opined the employee=s work activities with the employer were a substantial contributing cause of the progression of the employee=s bilateral degenerative joint disease and need for surgery.  Dr. Dale further testified the 1984 and 1985 injuries resulted in only a slight acceleration of the degenerative process that was already underway by the time of those injuries, and opined the November 1984, May 1985 and November 2001 personal injuries were not substantial contributing causes of the employee=s need for the total knee replacement surgeries.  The doctor acknowledged the employee sustained a significant injury to his left knee in 1971 and his right knee in 1974, which injuries could have caused the need for the total knee replacement surgeries. 

 


Dr. Jack Bert, an orthopedic surgeon, examined the employee on January 9, 2002 and August 7, 2002.  The doctor prepared two medical reports detailing his examinations, and his deposition was obtained on September 17, 2002.  In addition to his physical examinations of the employee, Dr. Bert reviewed the employee=s relevant medical records and was provided a hypothetical question detailing the employee=s job duties with the employer.  The doctor diagnosed significant traumatic arthritis of both knees which he opined resulted from the employee=s sports injuries in 1971 and 1974.  Dr. Bert opined the November 26, 1984, May 6, 1985 and November 13, 2001 personal injuries were not substantial contributing causes of the employee=s need for total knee replacements or any resultant disability.  The doctor further opined the employee=s work activities with the employer were also not a substantial contributing cause of the need for total knee replacements.  Rather, Dr. Bert opined the employee=s degenerative knee condition was a natural progression of the post-traumatic arthritis which resulted from the 1971 and 1974 injuries.  Dr. Bert testified the pes anserine procedure performed on the employee in 1971 and 1974 is now outdated and was never a successful procedure.  The doctor testified that by 1984, the employee had already developed severe arthritis which, in his opinion, would have caused the need for total knee replacements even if the employee had worked in a sedentary occupation.

 

The employee=s claim was heard by a compensation judge on September 27, 2002.  In a Findings and Order filed November 14, 2002, the compensation judge found the November 1984 and May 1985 injuries were not substantial contributing factors to the employee=s need for surgery and ensuing disability.  The compensation judge found the November 13, 2001 work injury was a temporary aggravation of the employee=s underlying knee problems which resolved by January 9, 2002.  Finally, the judge found the employee=s work activities with the employer between 1978 and November 13, 2001 were not a substantial contributing factor to the employee=s disability and need for surgery.  Accordingly, the compensation judge denied the employee=s claims for benefits and the claims of the intervenors.  The employee appeals.

 

DECISION

 

Dr. Bert concluded that once the employee had undergone knee surgery in 1971 and 1974, his subsequent work activities with the employer had no impact on the progressive deterioration of his knee condition.  This opinion, the employee contends, constitutes an abandonment of case law as set forth in the Gillette case and its progeny because the doctor=s opinion precludes the possibility of a Gillette aggravation.  Further, the employee argues his twenty years of hard manual labor coupled with his three specific knee injuries can lead to only one conclusion:  the work activities aggravated and/or accelerated the deterioration of his knees.  Accordingly, the employee contends the compensation judge=s decision must be reversed because the judge erroneously relied on Dr. Bert=s opinions.  We are not persuaded.

 

A Gillette injury is an injury resulting from repeated trauma or aggravation of a preexisting medical condition.  Such a condition becomes compensable when the cumulative effect is sufficiently serious to disable an employee from further work.  Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W.2d 200, 205-06, 21 W.C.D. 105, 111-13 (1960); Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981).  A finding as to a Gillette injury is primarily dependent on the medical evidence.  See Marose v. Maislin Transp., 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987).  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).  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).


The employee=s non-work knee injuries in 1971 and 1974 were significant and the surgical repair techniques then used were far less effective than those used today.  Dr. Dale and Dr. Bert agreed that, given the severity of these knee injuries, the employee would likely have required total knee replacement regardless of his work or recreational activities.  Dr. Dale and Dr. Bert also agreed that neither of the employee=s work injuries played a substantial role in accelerating the need for bilateral total knee replacements.  Thus, the only issue was whether the employee=s work activities with the employer from 1978 through November 13, 2001 were a substantial contributing cause of the employee=s need for knee replacement surgery and his resultant disability.

 

Dr. Bert testified that in 1971 and 1974 the employee sustained the most severe ligamentous knee injuries possible, which were repaired with an unsatisfactory procedure.  The doctor stated the medical literature documents that persons with such injuries go on to develop severe arthritis within twenty years.  By 1985, Dr. Bert stated the medical records already showed the employee=s post-traumatic arthrosis was severe in both knees.  By this time, Dr. Bert stated the employee=s knees had deteriorated to the point where it was bone on bone and total knee replacements were inevitable regardless of the employee=s work activities.

 

We do not regard Dr. Bert=s opinions as a Atotal abandonment of the law as set forth in the Gillette case and its progeny@ as argued by the employee.  Rather, based on the facts of this case, Dr. Bert concluded the employee did not sustain a Gillette injury.  Dr. Bert had ample foundation for his opinions and the compensation judge could reasonably rely upon them.  The court was presented with two opposing medical opinions as to whether the employee sustained a Gillette injury.  It is the responsibility of the compensation judge, as the trier of fact, to resolve such conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The compensation judge accepted the opinions of Dr. Bert.  Since Dr. Bert had ample foundation for his opinions, the decision of the compensation judge must be affirmed.

 

 

 

 



[1] See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).

[2] The employee had treated with Dr. Terence J. Kennedy at the Alexandria Clinic from May 8, 1985, through February 8, 1996.