JOHN A. AHLES, Employee/Appellant, v. JOHN A. DALSIN & SONS, SELF-INSURED adm=d by BERKLEY RISK ADM=RS CO., Employer-Insurer, and McGRATH SHEET METAL /MINEAPOLIS CONVENTION CTR., and ZURICH AMERICAN INS. GROUP, Employer-Insurer, and SHEET METAL #10 BENEFIT FUND, TWIN CITIES ANESTHESIA ASSOC., and MN DEP=T OF LABOR AND INDUS./VRU, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 9, 2004
CAUSATION - SUBSTANTIAL EVIDENCE. The compensation judge reasonably relied upon the opinions of Dr. McPherson and Dworak in determining no causal relationship between the employee=s ulnar neuropathy and his work-related activities.
CAUSATION; EVIDENCE. Where the compensation judge misinterpreted the opinion of one of the employee=s treating doctors regarding a causal relationship between the employee=s carpal tunnel syndrome, or median neuropathy, and his work activities, the case is remanded to the compensation judge for reconsideration.
Affirmed. in part and remanded in part.
Determined by Johnson, C.J., Rykken, J., and Wilson, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: William H. Getts, Attorney at Law, Minneapolis, MN, for the Appellant. Edward Q. Cassidy and Karen M. Charlson, Felhaber, Larson, Fenlon & Vogt, St. Paul, MN, for the Respondents. James S. Pikala and Aaron P. Frederickson, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s determination that he failed to establish that he sustained an ulnar neuropathy or carpal tunnel injury related to his work activities while working for John A. Dalsin & Sons or McGrath Sheet Metal, the employers. We affirm in part and remand in part.
John A. Ahles, the employee, worked for John A. Dalsin & Sons for 397.5 hours from May 7 through September 4, 2001. During this period, Dalsin was self-insured for workers= compensation liability. While with Dalsin, the employee worked on the removal and reinstallation of a copper dome on the roof of the St. Paul Cathedral. Initially, the employee=s job was to cut and pry the old copper off the Cathedral dome using flat bars, tin snips, chisels and pry bars. After two weeks, the old roof had been removed and the application of the new roof began. The employee=s job then was to cut and install individual sheets of copper to form the new roof. The copper sheets to be installed on the roof were cut to a rough dimension in Dalsin=s shop, transported to the job site, lifted to the roof by a crane and then placed in a staging area from where the employee would retrieve them. The employee, using a tin snips, then cut each sheet to the precise size needed, bent the sheet with a hand bender, fit the sheet into the adjoining sheet using a hammer and chisel and pounded down the overlapping part of the sheet with a hammer. Frequently, the employee used electric drills and electric snips in his work. All of these operations were repetitive in nature and required the employee to use a tool held in his right hand with his right elbow flexed. The employee testified that, on average, he fabricated and fitted an individual sheet in 15 minutes and installed approximately 14 sheets a day.
After starting work at Dalsin, the employee noted the fourth finger on his right hand progressively became more numb and Asensitive@ and noticed cramping and numbness in his right hand that increased as the week went on. He testified the cramping radiated into his wrist and affected his ability to work and he stated it was difficult to use the electric snips. The employee testified the cramping was worse in the morning but was better after a weekend when he was not working.
On June 18, 2001, the employee sustained a work related injury when he lacerated the back of three fingers on his left hand. He was treated at Regions Hospital emergency room and given a splint. Although the employee returned to work, he was unable to perform his job due to the splint and was off work for two to three weeks. The employee returned to work on July 7, 2001 and continued to perform installation work until September 8, 2001, during which time the employee testified to a further progression of cramping and numbness in his right hand. The employee testified he left his job with Dalsin because he was tired of the job and not because of any problems with his right hand or arm.
On September 10, 2001, the employee went to work for McGrath Sheet Metal, where he worked for 155.5 hours until October 6, 2001. During this period, McGrath was insured by Zurich American Insurance Group through the Minneapolis Convention Center. When he started at McGrath, the employee testified he had a little numbness in his right hand and some cramping. The employee=s job at McGrath was applying a new copper roof on the Minneapolis Convention Center. This job required the employee to cut and install sheets of copper on the dome of the Convention Center using the same tools and doing the same type of repetitive work with his right hand as he did at Dalsin. At McGrath, however, the employee did all of the installation work suspended from the peak of the dome by a safety line. The employee worked primarily in a kneeling position with his elbows in a flexed position while cutting and installing the individual pieces of copper. The employee was also required to pull individual sheets and bundles from the ground to his work area using a rope rather than having the sheets delivered to the roof by a crane.
While working for McGrath, the employee again noticed his right hand would cramp and he began to notice an Aelectric shock@ type feeling in his right hand. After about two weeks, the employee testified the numbness and cramping in his hand increased, and, on occasion, his hand would tighten into a fist and lock. At some point near the end of September 2001, the employee testified:
When I finally realized something was majorily wrong with my hand, I had been cutting some metal and I felt a pronounced B to me felt like a cramp up through my forearm, and then my hands cramped very hard, and that=s it was very quick, very pronounced, and that=s when I knew. (T. at 67.)
He stated his right hand was cramping so severely he could no longer perform his job. The employee reported the problem to his foreman and then decided to seek medical attention.
On October 3, 2001, the employee saw Dr. Dean E. Mann at Regions Hospital complaining of numbness and pain in his right arm. The employee gave a history of a numbness in the tip of his right small finger over the past year which, over the past several months, had spread to include the entire small finger, the hypothenar eminence of the right hand and the ring finger. The employee also noted the muscle structure in his right hand had become distorted and seemed to be atrophying with a reduction in adduction/abduction of the fingers, grip loss and tenderness in the tip of the right elbow. On examination, Dr. Mann noted an obvious visible atrophy of all of the intrinsic muscles of the small finger, absence of pin prick sensation in the ring and small fingers and a positive Tinel=s sign at the right elbow. Dr. Mann diagnosed right ulnar tardy nerve palsy. The doctor recommended an ulnar nerve decompression and medial epicondylectomy which he performed on October 18, 2001. Initially, Dr. Mann stated this condition was nonwork-related. On November 28, 2001, the employee told Dr. Mann he felt his hand was getting worse. On examination, the doctor noted signs of extreme ulnar nerve dysfunction with atrophy of the hypothenar eminence, adductor muscle and some atrophy of the ulnar musculature. An EMG on December 20, 2001, suggested severe right ulnar neuropathy and mild to moderate right carpal tunnel syndrome. On January 9, 2002, the employee complained of a lack of feeling in his right thumb, poor feeling in his right index finger and weakness in his right hand. On examination, Dr. Mann noted marked weakness of the right hand with motor weakness and recommended a neurologic consultation.
Dr. Mario R. Quinones examined the employee on January 18, 2002, on referral from Dr. Mann. The employee told the doctor he began to notice a tingling feeling in his right hand six months prior and when he removed his glove, noted atrophy of the muscles of the right hand and decided to see a doctor. On examination, Dr. Quinones found obvious atrophy in the ulnar muscles, a claw deformity of the fingers and muscle weakness. The doctor opined the employee had a predisposition to compression palsy secondary to chronic alcohol abuse. The doctor ordered a second EMG of the right arm which showed severe ulnar neuropathy and enervation and median neuropathy at the wrist. Dr. Mann recommended a submuscular transposition of the ulnar nerve and a carpal tunnel release. Without surgery, the doctor was concerned there was a risk of further progression of the employee=s symptoms.
Dr. Mann referred the employee to Dr. Fozia Abrar in the occupational health department at Regions Hospital. On February 11, 2002, Dr. Abrar diagnosed ulnar and median neuropathy and history of ethanol abuse. The doctor opined the ulnar and median neuropathy were likely secondary to repetitive use and cumulative trauma secondary to a long history of heavy use of the right hand with repetitive strong squeezing, lifting and pulling activities. Dr. Abrar noted the employee also had a secondary complication of ethanol use but felt this condition, if contributing, would also involve the employee=s left hand, at least in some part. Accordingly, the doctor concluded, it was likely that the employee=s symptoms were work related, and advised the employee of his opinion that his condition was work-related.
Dr. Mann performed a submuscular transposition of the employee=s right ulnar nerve at the elbow, a right carpal tunnel release and a Guyon=s canal release of the right wrist on April 5, 2002. Thereafter, Dr. Mann referred the employee to occupational therapy and prepared a report concluding the employee=s nerve entrapment was work related. On April 30, 2002, Dr. Mann noted the employee was doing fairly well with excellent range of motion of the elbow and the wrist although he continued to have slight clawing of the fingers with no obvious improvement in the neurologic function of the right hand. By report dated June 11, 2002, Dr. Mann stated the employee had grip weakness, easy fatigability of the right hand with no protective sensation to the ulnar half of the right hand and poor sensation to the median half of the right hand. Dr. Mann stated the employee was unable to safely climb ladders or use any type of tool requiring a power grip in the right hand. The doctor concluded the employee sustained some permanent partial disability which would make it difficult for him to return to his prior employment.
The employee admits, and the medical records establish, a significant history of alcohol abuse over an extended period of time. In October 1997, the employee went to Hazelden following an admission at Washington County Detox. The employee admitted to a significant progression of alcohol consumption over the last four years resulting in daily use of a half a quart to a quart of whiskey. The admitting diagnosis at Hazelden was alcohol dependence with psychological dependence. In April 2001, the employee was seen at Regions Hospital Emergency Center. He admitted to heavy drinking for 25 years with a history of DT=s, seizures, depression and a suicide attempt approximately one year previously. The diagnosis was alcoholism. In July 2001, the employee=s mother took him to Regions Hospital. The doctor concluded the employee was acutely suicidal and intoxicated with an ethanol level of 0.34. The diagnosis was substance-induced mood disorder and alcohol dependency. In June 2002, the employee was admitted to St. Joseph=s Hospital for a court ordered chemical dependency treatment. The employee then stated he had been drinking on a daily basis after work for 12 years, until he blacked out and admitted to three withdrawal seizures in the past. The employee testified he stopped drinking in early 2002 and had abstained from alcohol usage through the date of the hearing.
Dr. Scott A. McPherson examined the employee on June 6, 2002 at the request of McGrath/Zurich and his deposition was taken in November 2003. The doctor diagnosed severe right upper extremity ulnar neuropathy. Dr. McPherson opined the most probable etiology of the employee=s condition was an Aalcohol-related incident, where he would have put undue pressure on the ulnar nerve, thus leading to the marked ulnar nerve palsy.@ When asked upon what he based that opinion, the doctor testified:
For someone to get that advanced amount of atrophy and involvement, its not something that just comes on gradually and then all of a sudden shows up as being, you know, this very advanced type situation. So, it tends not to be something that you get on a long-term repetitive basis, it tends to be something that you would get from an involvement where the nerve had a severe amount of pressure on it for a short period of time causing the nerve not to function, and causing the nerve fibers to essentially drop out or die, so to speak.
(McGrath Exh. 1, pp. 16-17.)
Dr. McPherson further explained that if the condition were work-related, the doctor would have expected to see at least mild symptoms in the left arm also. Since the employee=s left arm was unaffected, Dr. McPherson opined the more likely cause of the employee=s neuropathy was some type of traumatic event. When asked the significance of the doctor=s finding that the employee demonstrated severe neuropathy Dr. McPherson stated,
In order for one to get atrophy, that has to be a very profound nerve involvement. If the nerve is just getting like a little mild pressure that oftentimes happens with repetitive type use, it doesn=t cause enough pressure on the nerve where that nerve stops working and you get the muscles to atrophy. If the muscles loose their innervation, then they atrophy, they just shrink away. In his case, he had fairly marked atrophy of his ulnar supplied muscles, meaning very profound nerve involvement, and again that=s nothing that tends to occur overnight, as far as the muscle wasting.
(McGrath Exh. 1, p. 19.)
Dr. McPherson opined the employee=s neuropathy and need for medical treatment was unrelated to his work activities with either Dalsin or McGrath. Although the employee=s work activities may have caused increased pain, the doctor opined they did not further contribute to or aggravate the underlying problem. Dr. McPherson acknowledged he had no history of any specific alcohol-related episode which might have caused the employee=s neuropathy, but felt it was the most likely explanation for the cause of the employee=s condition.
Dr. Paul G. Dworak examined the employee on June 14, 2002, and his deposition was taken in November 2003. The doctor diagnosed severe ulnar neuropathy with marked atrophy of the musculature innervated by the ulnar nerve, mild to moderate right carpal tunnel syndrome and a significant history of severe alcoholism. Dr. Dworak opined the employee had a predisposition to compression nerve palsy due to his chronic alcohol abuse. The doctor agreed with Dr McPherson that the employee=s ulnar neuropathy was most likely secondary to his ethanol abuse and a compression phenomenon at the elbow. The doctor concluded the employee did not sustain a Gillette-type injury while employed either at Dalsin or McGrath. Dr. Dworak acknowledged that persons who perform a lot of repetitive elbow flection/pronation may sustain a Gillette-type injury. In such cases, however, the doctor stated, a person would present with a gradual symptomatology with gradual innervation and atrophy rather than the marked loss and wasting of the ulnar nerve which the doctor found with the employee. Accordingly, Dr. Dworak agreed with Dr. McPherson that the most likely cause for the employee=s condition was some alcohol-related traumatic event. The doctor stated the employee=s carpal tunnel syndrome became symptomatic after the first elbow surgery and he demonstrated no symptoms while working for Dalsin. When asked whether the employee=s carpal tunnel syndrome was related to his work activities, the doctor testified,
[T]he carpal tunnel is multi-factorial in that, you know, I don=t think that it was work related, but even if it was and you wanted to say it is, that it=s not a high disability.
Dr. Dvorak rated a .5 percent permanent partial disability for the carpal tunnel syndrome.
The deposition of Dr. Abrar was also taken in November 2003. The doctor diagnosed ulnar and median neuropathy of the right hand, likely secondary to repetitive use, cumulative trauma, secondary to a long history of heavy use of the right hand with repetitive strong squeezing, lifting and pulling activities. The doctor acknowledged the employee=s alcohol abuse would predispose him to a neuropathy problem, but opined that were alcoholism the predominant cause, it would also have affected the employee=s left hand, which it did not. Alcoholic peripheral neuropathy, the doctor stated, typically effects the lower extremities, but in extreme cases would involve both, not one, upper extremity. Because the employee used his right hand extensively in his work, Dr. Abrar opined the employee=s work activities were a substantial contributing cause of his ulnar neuropathy.
The employee filed a claim petition alleging Gillette-type injuries at Dalsin and McGrath seeking entitlement to temporary total, temporary partial and permanent partial disability benefits. In a Findings and Order, filed January 13, 2004, the compensation judge concluded the employee did not sustain Gillette-type injuries caused by his work activities with either employer. The employee appeals.
1. Ulnar Neuropathy
The compensation judge adopted the opinions of Dr. McPherson and Dr. Dworak that the employee=s work activities were not a substantial or contributing cause of the employee=s ulnar neuropathy. Both Dr. McPherson and Dr. Dworak opined the employee=s ulnar neuropathy likely resulted from a specific traumatic event such as lying on his right arm in a compromised position for a long period while under the influence of alcohol. There is, the employee contends, no evidence whatever that such an incident ever occurred. The employee denied any such incident and no record of any such incident is contained in the employee=s medical records. Accordingly, the employee contends, the opinions of Dr. McPherson and Dr. Dworak lack substantial evidentiary support, are based on speculation, and should not have been relied upon by the compensation judge. Since, the employee argues, the opinions of Dr. McPherson and Dr. Dworak are speculative and lack foundation, the compensation judge should have accepted the opinion of Dr. Abrar who related the employee=s ulnar neuropathy to his work activities. We are not persuaded.
Both Dr. McPherson and Dr. Dworak conceded they were unaware, either from the history they obtained or the medical records, of any specific non-work related postural incident, whether alcohol related or not, which may have caused the employee=s condition. While their assumption that such an incident may have occurred is unsupported by the evidence, such an assumption does not render their opinions without foundation. Both doctors unequivocally opined the employee=s work activities with both Dalsin and McGrath were not substantial contributing causes of his ulnar neuropathy. Both doctors based this conclusion on their opinions that the onset of the employee=s neuropathy was not progressive and did not involve both extremities as might be expected if the condition were work related. Dr. McPherson opined the mild pressure on the ulnar nerve caused by repetitive work activities was insufficient to cause the employee=s marked atrophy. The actual cause of the employee=s condition is, for the purposes of these proceedings, not relevant. The ultimate issue before the compensation judge was whether the employee=s work activities with Dalsin or McGrath, or both, caused, contributed to or aggravated his ulnar neuropathy. Both Dr. McPherson and Dr. Dworak unequivocally opined the employee=s work activities with Dalsin and McGrath did not. To establish a Gillette injury, the employee must prove a causal connection between his work duties and the ensuing disability. Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 467 (Minn. 1984). Doctors McPherson and Dworak opined no causal connection existed and the compensation judge could reasonably rely upon those opinions. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge=s decision must, therefore, be affirmed.
2. Carpal Tunnel Syndrome
The compensation judge found, ADr. Abrar did not state in her report or in her deposition that the finding of carpal tunnel syndrome is causally related to his [the employee=s] work, although she related his restrictions to both carpal tunnel and to ulnar neuropathy.@ (Finding No. 13.) The compensation judge then concluded the preponderance of the medical evidence established the employee=s carpal tunnel syndrome was not causally related to his work activities at Dalsin and/or McGrath. The employee contends the compensation judge=s conclusion is legally erroneous because Dr. Abrar did opine the employee=s carpal tunnel syndrome was due to his work activities. Accordingly, the employee asks this court to reverse the compensation judge=s decision.
By report dated February 11, 2002, Dr. Abrar provided the following diagnosis,
[U]lnar and median neuropathy, likely secondary to repetitive use, cumulative trauma, secondary to a long history of work involving heavy use of this right-hand dominant individual with repetitive strong squeezing and lifting, pulling activities. (Pet. Ex. A, p. 9.)
In a deposition taken on November 12, 2003, Dr. Abrar again opined the employee=s ulnar and median neuropathy was due, in part, to his work activities. Later during the deposition, Dr. Abrar was again asked whether the employee=s carpal tunnel syndrome, diagnosed and operated upon by Dr. Mann, was due in substantial part to the employee=s work activities. Dr. Abrar responded,
Based on reasonable medical probability, again, more likely than not that this median neuropathy is caused by his activity, work activity.
(Pet. Ex. A, p. 27.)
Carpal tunnel syndrome is Aa complex of symptoms resulting from compression of the median nerve in the carpal tunnel.@ Dorland=s Illustrated Medical Dictionary 1751 (29th ed. 2000). Dr. Abrar, in her testimony, used the term Amedian neuropathy@ rather than carpal tunnel syndrome. It is clear, however, from the context of her deposition that she used the two phrases interchangeably. Although the compensation judge did conclude the employee=s carpal tunnel syndrome was not caused by his work activities, the compensation judge found Dr. Abrar did not state in her report or in her deposition that the employee=s carpal tunnel syndrome was causally related to his work. Clearly, Dr. Abrar did render this opinion.
The case is remanded to the compensation judge to reconsider the issue of whether the employee=s work activities with Dalsin and/or McGrath were a substantial contributing cause of his carpal tunnel syndrome. If so, the compensation judge should then reconsider the employee=s claims for wage loss and permanent partial disability benefits and the claims of the intervenors.
 Minn. R. 5223.0130, subp. 3.E.