KAREN JOHNSON, Employee, v. RED WING SHOE CO., SELF-INSURED, adm=d by CONSTITUTION STATE SERV. CO., Employer/Appellant, and RED WING SHOE CO., and ST. PAUL FIRE & MARINE INS., Employer-Insurer, and MINNEAPOLIS RADIOLOGY ASSOCS. and FAIRVIEW HEALTH SERVS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 1, 2005
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the testimony of the employee regarding her work activities for the employer and the opinions of medical experts, supports the compensation judge=s determination that the employee=s work activities for the employer involved repetitive hand and upper extremity movements, and her findings that the employee did not sustain a personal injury to the shoulder on November 14, 1990, but did sustain a Gillette injury to the right shoulder on May 29, 1997, to the left shoulder on March 19, 1998, to the right thumb on October 27, 1999, and to the left thumb on April 30, 2001.
Determined by: Johnson, C.J., Pederson, J. and Rykken, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Mark J. Fellman, Attorney at Law, St. Paul, MN, for the Respondent Employee. Krista L. Twesme, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellant. Steven A. Muenzer, John G. Ness & Associates, St. Paul, MN, for the Respondent Employer/St. Paul Fire & Marine Insurance.
THOMAS L. JOHNSON, Judge
The self-insured employer/Constitution State Service Company appeals from the compensation judge=s determination that the employee sustained multiple Gillette injuries, to the right shoulder on May 29, 1997, to the left shoulder on March 19, 1998, to the right thumb on October 27, 1999, and to the left thumb on April 30, 2001, as a result of her work activities for the employer. We affirm.
Karen Johnson, the employee, began working for the Red Wing Shoe Company, the employer, on August 11, 1981. The employer was insured for workers= compensation purposes by St. Paul Fire & Marine Insurance in 1990 and was self-insured, with claims administered by Constitution State Services Company, from 1993 through 2002.
From 1981 through 1990, the employee worked full time on the fitting production line assembling upper (non-sole) pieces of leather boots. Her job duties included manual gusset stitching, vamping and lacing. On June 1, 1990, the employee sustained a Gillette injury to her left elbow. She eventually underwent ulnar nerve transposition surgery on February 5, 1991. The employee also sustained a Gillette injury to the right elbow on about November 14, 1990. The employer and St. Paul Fire & Marine admitted liability for these injuries.
Following the 1991 surgery, the employee returned to light-duty work gradually increasing the amount of production sewing she was doing. By early 1993, the employee had returned to full-time production line work doing primarily computerized gusset stitching and some manual gusset stitching. The employee occasionally performed other jobs (depending on work flow), including hooking, eyeleting, labeling, stamping and manual and computerized edge stitching.
On August 22, 1996, the employee was seen by Dr. Matthew Eich, an orthopedist who had previously treated the employee, complaining of persistent right shoulder pain. The doctor diagnosed acromioclavicular (AC) joint arthritis and degeneration, and referred the employee to Dr. Mark W. Rodosky at the University of Minnesota orthopedic clinic. An arthrogram performed on March 14, 1997, showed a Type II or III acromion with spurring and degenerative changes in the AC joint. Dr. Rodosky diagnosed right shoulder impingement and acromioclavicular arthrosis. The employee continued to work doing mostly computer gusset stitching and some computer edge stitching and eyeleting, until she underwent arthroscopic surgery with subacromial decompression and an AC resection on May 30, 1997.
The employee was released to return to work on June 16, 1997, doing left arm work only. She returned to see Dr. Rodosky on July 28, 1997, noting improvement of her right shoulder symptoms, but reporting she was beginning to have pain in the left shoulder. Dr. Rodosky provided new restrictions and the employee continued to perform light-duty work through December 1997. She returned to gusset stitching around January 1998, then, at the employer=s suggestion, transferred to the pre-fit department around March 1998. The employee performed a number of assembly production jobs in the pre-fit department, including stamping, skiving, labeling, branding, and closing.
On March 16, 1998, the employee was seen in follow-up by Dr. Rodosky. She complained of increasing left shoulder pain, similar to that on the right. The doctor referred the employee for an MRI scan of the left shoulder. The MRI scan on April 17, 1998, showed a Type III acromion with AC joint arthrosis and rotator cuff tendinosis, consistent with a left shoulder impingement syndrome. On September 2, 1998, Dr. Daniel Buss recommended a left shoulder subacromial decompression and AC joint resection. The employee then experienced a significant aggravation of her right elbow condition, and surgery on the left shoulder was postponed.
On October 27, 1999, the employee complained of right thumb pain to Dr. Buss. The employee was referred to Dr. Ann Van Heest, a hand and upper extremity specialist at the University of Minnesota, for further evaluation. The employee returned to Dr. Buss on November 1, 2000. He noted the employee had not been seen for a year due to pneumonia and cardiomyopathy. The doctor further observed the employee had continued to work at Red Wing Shoes and her left shoulder condition had remained stable. The employee was then seen on December 4, 2000, by Dr. Ann Van Heest who diagnosed right carpometacarpal (CMC) joint arthritis, and treated the right thumb with splinting and periodic cortisone injections. The employee completed a description of injury on August 3, 2001, reporting similar left thumb pain by April 30, 2001. On October 29, 2001, Dr. Van Heest noted x-rays had been taken of both thumbs confirming bilateral CMC degenerative joint disease. A CMC inter-positional arthroplasty was discussed, but the employee elected to wait before proceeding with surgery. On about May 5, 2002, the employee began working as a shoe inspector in the fitting department where she remained through March 18, 2004. The employee continued to receive treatment for chronic left shoulder impingement and bilateral CMC joint arthritis.
On May 12, 2003, the employee filed a claim petition alleging Gillette injuries to her right and left shoulders and bilateral thumbs, and asserting underpayment of workers= compensation benefits paid from and after May 30, 1997. Both insurers denied liability for benefits after that date, alleging the injuries were either not work-related or that the other insurer was liable. A hearing was held before Compensation Judge Cheryl LeClair-Sommer on May 5, 2004. The judge issued a Findings and Order on July 6, 2004, finding the employee=s work at Red Wing Shoes involved repetitive bilateral hand and upper extremity movements including simple and firm grasping, pushing and pulling, applying pressure, pinching, working with outstretched arms, reaching above shoulder level, and reaching at chest level. The judge concluded the employee did not suffer a personal injury to her shoulder on November 14, 1990. The judge further found the employee sustained a Gillette injury to the right shoulder on May 29, 1997, to the left shoulder on March 19, 1998, to the right thumb on October 27, 1999, and to the left thumb on April 30, 2001. The self-insured employer and Constitution State Service Company appeal.
There is no dispute the employee suffers from right and left shoulder AC joint degeneration/impingement syndrome and right and left thumb CMC joint arthritis. The parties also agree the care and treatment provided to the employee for her shoulder and thumb conditions has been reasonable and necessary. The dispute in this case revolves solely around the issue of causation for the employee=s Gillette-type shoulder and thumb conditions. Specifically, whether the employee=s work activities for the employer caused or contributed to her shoulder and thumb arthroses and symptoms.
1. November 14, 1990 shoulder injury
The self-insured employer contends that substantial evidence does not support the conclusion that the employee did not sustain a compensable Gillette injury to her right shoulder on or about November 14, 1990. We disagree.
The employee initially reported right elbow pain on July 26, 1990. Subsequent treatment notes reflect ongoing complaints of, and treatment for, right elbow and forearm pain and symptoms. On July 31, 1990, the employee complained of pain and a burning sensation in the left shoulder, and the doctor noted some complaints of pain with palpation across each AC joint. X-rays of both shoulders were grossly normal. A September 21, 1990, note documents improved range of motion and decreased complaints of pain in both shoulders following physical therapy. The employee was seen at the University of Minnesota arthritis clinic on November 9, 1990. On examination, the doctor noted no joint swelling, tenderness, effusions or erythema in the shoulders. The sole diagnosis for the right upper extremity was right elbow epicondylitis. Based on this evidence, the compensation judge reasonably concluded the evidence did not support a finding of a right shoulder Gillette injury culminating on November 14, 1990. We affirm.
2. Right and left shoulder AC joint arthritis/impingement syndrome
The self-insured employer argues that substantial evidence does not support the compensation judge=s findings that the employee sustained compensable Gillette-type injuries to her right shoulder on May 29, 1997, and to her left shoulder on March 19, 1998, as a result of her work activities at Red Wing Shoe Company. The appellant relies on the opinion of Dr. Paul Wicklund who conducted independent medical examinations of the employee, at the request of the self-insured employer, on November 15, 2002, and June 23, 2003. Dr. Wicklund observed the employee has a Type III acromion in both the right and left shoulders. The doctor explained this is a congenital condition reflecting a highly curved acromion above the humeral head, compromising the space in which the rotator cuff tendons move. It was his opinion that the employee would have developed degenerative AC joint arthrosis and impingement syndromes regardless of her activities, work or otherwise. He further opined the employee=s work activities at Red Wing Shoe did not involve sufficient overhead activities with arms extended above 90 degrees, or involve enough weight, to cause, accelerate or aggravate the employee=s shoulder impingement syndromes.
The compensation judge, however, rejected the opinion of Dr. Wicklund, relying instead on the causation opinions of Dr. Mark Holm and Dr. Buss. Where there is a conflict in the opinions of medical experts, resolution of that conflict is the province of the compensation judge, and the judge=s choice between conflicting medical experts will not be reversed by this court so long as there is sufficient foundation for the expert=s opinion. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C. D. 364 (Minn. 1985).
Dr. Holm examined the employee on March 12, 2003, at the request of the employer and St. Paul Fire & Marine Insurance. In his deposition on January 7, 2004, Dr. Holm explained that impingement syndrome can be contributed to by repetitive outward or overhead reaching, and opined that if the employee=s work did involve repetitive reaching outward or upward, it would be a contributing or accelerating factor in the development of her left and right shoulder impingement syndromes.
Dr. Buss is an orthopedic surgeon and was the employee=s primary treating physician for her shoulder conditions. By reports dated February 4, 2004 and April 26, 2004, Dr. Buss opined the employee=s work activities throughout the 1990s contributed to the aggravation and acceleration of her AC joint arthritis, shoulder pain and impingement syndromes. He acknowledged the employee had a pre-existing, congenital Type III acromion, but opined the repetitive use of her upper extremities required by her work activities, particularly repetitive outstretched reaching, aggravated and accelerated her shoulder arthrosis and impingement. (Pet. Ex. A.)
The appellants assert, however, the opinions of Dr. Holm and Dr. Buss lack foundation and were improperly relied upon by the compensation judge. They argue that there is no credible evidence the employee=s work activities involved the kind of repetitive outstretched or overhead reaching described and assumed by Dr. Buss and Dr. Holm, pointing as well to the contrary testimony of Diane Kosnopfel, the employer=s disability manager. We are not persuaded.
The compensation judge accepted the testimony of the employee regarding her work activities finding it credible and persuasive. The assessment of a witness=s testimony is the unique province of the trier of fact. This court will not disturb a finding based on credibility unless clearly contrary to the evidence. Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989). Dr. Holm was provided a hypothetical question consistent with the employee=s testimony prior to providing his causation opinion at his deposition. Dr. Buss was provided with a fairly extensive written description of the employee=s work activities, again consistent with the employee=s testimony, prior to preparing his report. Dr. Buss specifically noted that he took into consideration the description provided to him and considered as well various descriptions of the employee=s work activities contained in her medical records. At the hearing, the employee testified at length and in some detail regarding the specific activities required by the various jobs she performed for the employer and the effect on her shoulder symptoms. We have carefully reviewed the employee=s testimony. While the testimony could be interpreted differently, we can only conclude that the compensation judge=s finding that the employee=s work required repetitive bilateral upper extremity movement, including pushing and pulling, working with outstretched arms, reaching above shoulder level and reaching at chest level, and that these work activities contributed to her shoulder AC joint arthritis and impingement syndromes, is substantially supported by, and is not manifestly contrary to, the evidence as a whole. We, therefore, affirm.
3. Right and left thumb arthritis
The self-insured employer further contends that substantial evidence does not support the conclusion that the employee sustained compensable Gillette injuries to her thumbs. The appellant relies again on the opinion of Dr. Wicklund who opined there was no correlation between the employee=s bilateral CMC joint arthritis and her work activities from and after 1990. It was Dr. Wicklund=s opinion that the pinch or grip force required and the weights involved in the employee=s work activities were not sufficient to cause or accelerate CMC joint arthritis. The compensation judge again rejected the opinion of Dr. Wicklund, accepting instead the opinions of Dr. Holm and Dr. Van Heest, the employee=s treating physician for her thumb problems.
Dr. Holm disagreed with Dr. Wicklund, maintaining that either the degree of grip or force or the degree of repetitiveness of pinching or grasping with the thumb could be a factor in the development of CMC joint arthritis, and opined the employee=s work activities since the early 1990s were a contributing factor to the aggravation or acceleration of the employee=s and left thumb conditions.
Dr. Van Heest was provided with the same written description of the employee=s work activities provided to Dr. Buss. By letter report dated December 22, 2003, Dr. Van Heest explained that thumb CMC joint arthritis is known to be a result of multiple repetitive pinch activities resulting in a slow wearing out of the joint. The doctor concluded the employee=s work activities involved multiple repetitive pinch activities and opined that these activities were a significant contributing factor to the employee=s bilateral thumb CMC arthritis. The employee=s testimony provides ample support for the compensation judge=s determination that the employee=s work activities over the years included repetitive simple and firm grasping and pinching. There is substantial evidence to support the compensation judge=s findings of Gillette injuries to the right and left thumbs, and we affirm.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 With the exception of a layoff from about December 1982 to March 1984.
 Gusset stitching involved sewing the front part of a boot, the vamp, to the tongue. Vamping involved sewing the vamp to the quarters, or sides, of a boot. Lacing connected the eyelets of the upper boot pieces with plastic laces.
 The employee claimed, and the compensation judge accepted, a culmination date of March 19, 1998, premised on the diagnosis of the left shoulder condition on that date. (T. 14.) The medical records reflect an examination by Dr. Rodosky on March 16, 1998. (Self-Ins. Resp. Ex. 3.)
 Dr. Buss took over the care of Dr. Rodosky=s patients in April 1998, as Dr. Rodosky had moved out of state.
 At the hearing, the employee alleged an injury to the right shoulder on November 14, 1990 (T. 6, 10, 12; see also 19-21). The compensation judge=s statement of the issues and her findings address solely a right shoulder injury (see Issue A, Finding 2).
On appeal, the self-insured employer argues the employee sustained an injury to both shoulders in the fall of 1990. The medical treatment records from June 1990 through November 14, 1990, do reflect complaints of left shoulder pain, diagnosed as insertional tendonitis of the deltoid muscle. Dr. Holm opined this diagnosis was different from, and unrelated to, her later diagnosis of left shoulder impingement syndrome. (Jt. Ex. F. at 21; Dep. Ex. 1.) On August 16, 1990, Dr. Arendt at the University of Minnesota noted complaints involving the left upper deltoid region and left shoulder. The doctor noted that x-rays showed very early spurring in the AC joint of the left shoulder, and assessed presumed impingement syndrome, left shoulder, resolved. (Resp. Self-Ins. Ex. 3.) On November 9, 1990, the arthritis clinic assessed left subdeltoid bursitis, noting the symptoms were improved. The employee reported the left deltoid area was better on November 28, 1990. Treatment thereafter focused entirely on the employee=s left and right elbow conditions.
 In her memorandum, the compensation judge states she relied, as well, on the opinion of Dr. Tountas. We agree with the appellant that Dr. Tountas did not provide a clear causation opinion with respect to the employee=s shoulder conditions.