DONALD L. WESTAD, Employee/Appellant, v. Y R SHARP CONCRETE CONSTR., and SELF-INSURED/BERKLEY RISK ADMIN., Employer-Insurer, and MINNESOTA DEP=T OF ECONOMIC SECURITY, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 10, 2003
CAUSATION - GILLETTE INJURY. The compensation judge could reasonably conclude that the employee=s expert=s opinion was based upon an erroneous understanding of the employee=s job activities and therefore was not persuasive to support the employee=s claim that his left knee condition was work-related. The compensation judge reasonably found, based on substantial evidence, that the employee failed to prove that he sustained a Gillette left knee injury on June 27, 2001, as a result of his work activities.
Determined by Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Kathleen Behounek
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge=s finding that the employee failed to prove that he sustained a Gillette injury to his left knee arising out of and in the course of his employment with the employer as of June 27, 2001. We affirm.
Donald Westad, the employee, worked as a concrete foreman for Y.R. Sharp Concrete Construction, the employer, for approximately 29 years, until June 27, 2001. On that date the employee earned a weekly wage of $1,100.00. The employer was self-insured for workers= compensation liability at that time. As of the date of the hearing, the employee was 54 years old and was a high school graduate with no post-secondary degrees. The employee=s job required the employee to perform concrete work and to supervise a crew of three to eight people. The concrete work involved building concrete forms, leveling and finishing the concrete. Edging was part of the finishing work, which required the employee to squat and kneel. In the off season, the employee operated snow plows, performed maintenance and did inside shop work.
The employee developed problems with his left knee in 1985, and underwent an arthroscopic meniscectomy and debridement with Dr. Philip Haley in February 1986. The employee alleged no specific injury for this condition and made no claim that the condition was work-related. The employee was not treated for his left knee again until 1996 when he reported left knee pain with no specific injury alleged. Dr. Haley diagnosed osteoarthritis and prescribed anti-inflammatory medications.
In October 1998, during a physical examination and DOT exam with his family physician, Dr. Gregory Eigner, the employee reported regular left knee pain and exhibited limited flexion and swelling. Dr. Eigner diagnosed osteoarthritis of the left knee and recommended Advil or anti-inflammatory medication to treat his osteoarthritis. Dr. Eigner also referred the employee for an orthopedic consult, if he experienced a lack of benefit from the medication, Ato discuss possible operative options.@ Dr. James Green, orthopedic specialist, examined the employee in February 1999, prescribed medication, and later provided three Synvisc injections. In 2000, medical records indicate that the employee would be a candidate for knee replacement surgery in the future, at the point when he was no longer able to function with anti-inflammatory medication.
The employer offered the employee a supervisory job in 2001, based partly upon the employee=s knee problems. The employee rejected the offer because it was an indoor job. The employee continued to work his regular job, but testified that the pain became more severe and more frequent over the last two years. He also testified that the pain was worse at the end of the week, and that if he did additional squatting or kneeling, his pain and swelling would worsen. At that time, the employee=s treating physician had imposed no work restrictions on the employee.
On June 27, 2001, the employee left for a two-day vacation. When he returned the following Monday, he was terminated for work performance issues and lack of communication. There is no written documentation of these issues. The employee continued to treat for his knee condition, and was referred to an occupational medicine physician, Dr. Olaniyi Kuku, in October 2001. Dr. Kuku recommended that the employee not do any kneeling or squatting in work activities, and opined that the employee=s knee condition was work-related. In a later deposition, Dr. Kuku opined that he would have placed work restrictions of no kneeling or squatting on the employee in 1999. Dr. Kuku explained that the employee=s work activities substantially aggravated and accelerated the employee=s underlying osteoarthritis condition in the left knee. A supplemental report from Dr. Kuku indicated that the employee=s work activities as a concrete finisher from March 31, 1998, through June 27, 2001, were a substantial contributing cause of the employee=s need for permanent restrictions and medical treatment.
On April 16, 2002, the employee was examined by Dr. Mark Friedland at the employer=s request. Dr. Friedland opined that the employee was a candidate for total knee replacement surgery but that he would not need work restrictions until after the replacement. Dr. Friedland opined that the employee=s work activities were not a substantial contributing cause of the employee=s knee condition, noting that the employee had chosen to continue these activities on a self-employed basis and that the employee=s treating physicians had not told him to stop those activities at work.
The employee filed a claim petition on November 15, 2001, for temporary total disability benefits, temporary partial disability benefits, rehabilitation and retraining benefits based upon a Gillette injury culminating on June 27, 2001. The employer denied the claim, and a hearing was held on August 13, 2002. The compensation judge found that the employee=s left knee condition was not causally related to the employee=s work activities. 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 (2002). 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 appeals the compensation judge=s finding that the employee failed to prove that he sustained a Gillette injury to his left knee arising out of and in the course of his employment with the employer as of June 27, 2001. A 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 an employee from further work. In order to establish a Gillette injury, an employee must Aprove a causal connection between [his] ordinary work and ensuing disability.@ Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). While evidence of specific work activity causing specific symptoms leading to a disability Amay be helpful as a practical matter,@ determination of a Gillette injury Aprimarily depends on medical evidence.@ Id.
The employee relied upon Dr. Kuku=s opinion that the employee=s work activities as a concrete finisher from March 31, 1998, through June 27, 2001, were a substantial contributing cause of the employee=s need for permanent restrictions and medical treatment for his left knee. The compensation judge found that Dr. Kuku=s opinion was not persuasive to support the employee=s claim of a work-related Gillette injury. The compensation judge noted that Dr. Kuku=s reports indicated that the employee=s job involved Afrequent kneeling and crawling@ and Aconstant kneeling.@ The compensation judge stated that the employee testified that he kneeled and squatted while finishing cement, but not necessarily on a daily basis, and there was no evidence in the record that the employee=s concrete finishing work required the employee to constantly kneel or squat. The employee argues that the compensation judge erred by finding that Dr. Kuku thought that the employee did Afrequent@ or Aconstant@ kneeling or squatting since a hypothetical given to the doctor did not use those terms and the doctor=s deposition did not use those terms. We disagree. The deposition did not specify any degree of repetition for the employee=s kneeling or squatting activities. Dr. Kuku=s October 17, 2001, report indicates that the employee=s job Arequires constant kneeling, substantial amount of crawling and ladder/stairs climbing.@ The chart note from Dr. Kuku=s October 2, 2001, examination of the employee reports that the employee stated that Ahis job description involves frequent kneeling and crawling on cement floors.@ It is not the role of this court to evaluate the credibility and probative value of the witness=s testimony and to chose different inferences from the evidence than the compensation judge. Krotzer v. Browning-Ferris/Woodlake Sanitary Serv., 459 N.W. 509, 517, 43 W.C.D. 254, 260-61 (Minn. 1990). The compensation judge could reasonably conclude that Dr. Kuku=s opinion was based upon an erroneous understanding of the employee=s job activities and therefore was not persuasive to support the employee=s claim that his left knee condition was work-related.
Further, the compensation judge noted that during the winter the employee did not perform concrete finishing work. In addition, none of the employee=s treating physicians recommended work restrictions before his termination from the employer. The compensation judge noted that the employee did not have work restrictions until after he was terminated from the employer, and that despite the restrictions, the employee continued to work in the concrete construction field. The compensation judge reasonably found, based on substantial evidence, that the employee failed to prove that he sustained a Gillette left knee injury on June 27, 2001, as a result of his work activities. Accordingly, we affirm.