RANDALL E. MANTHEI, Employee/Appellant, v. LAYNE MINN. CO., and CNA COMMERCIAL INS., Employer-Insurer, and TWIN CITIES ORTHOPEDICS, CORCORAN-HAMEL CHIROPRACTIC, CENTER FOR DIAGNOSTIC IMAGING, OPERATING ENG=RS LOCAL H&W FUND, and DOWNTOWN ORTHOPEDICS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 20, 2005
GILLETTE INJURY - ULTIMATE BREAKDOWN. The parties stipulated at the hearing that they agreed to a certain date of injury if it were to be determined that the employee had sustained a Gillette injury as a result of his work activities, but the compensation judge found there was no Aultimate breakdown@ on that particular date and denied the occurrence of a Gillette injury on that date. Because of the parties= stipulation, the exact date of the alleged injury was not at issue and was not dispositive of the overall issue of causal relationship between the employee=s work activities and his claimed Gillette injury. Where the judge may have misapprehended the stipulation of the parties and also the level of significance to place on the stipulated date of the alleged injury, and because that misapprehension may have affected the compensation judge=s decision on all issues, the matter is vacated and remanded for further consideration of that issue.
CAUSATION - GILLETTE INJURY; EVIDENCE - EXPERT MEDICAL OPINION. Where the compensation judge erred by failing to consider one of the employee=s doctor=s opinions regarding causation on the basis that his opinion lacked foundation, remand is necessary for full consideration of that opinion in determining whether the employee=s work activities represented a substantial contributing cause of the employee=s condition and claimed injury.
EVIDENCE - ADMISSION; PRACTICE AND PROCEDURE - RECORD. Where the hearing record had remained open to allow time for parties to submit supplemental medical reports into evidence, where two of the reports were not timely filed with the Office of Administrative Hearings within the period the record remained open, where those reports were intended to address one of the primary issues addressed at hearing, where both parties assumed that one of the reports had already been included in the record and raised no objection to the inclusion of the other report, the matter is remanded for inclusion of those reports into the record and for the compensation judge=s reconsideration in view of the expanded record.
Vacated and remanded.
Determined by: Rykken, J., Stofferahn, J., and Pederson, J.
Compensation Judge: Jennifer Patterson
Attorneys: Todd J. Thun, Bassford Remele, P.A., Minneapolis, MN, for the Appellant. Kenneth D. Nelson, Law Offices of Joseph M. Stocco, Edina, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge=s denial of his claim that he sustained a Gillette injury as a result of his work activities, from the denial of his claim for permanent partial disability benefits and payment of medical and chiropractic expenses, from the compensation judge=s award of only a portion of the employee=s chiropractic expenses, and from the denial of the employee=s claim for approval of surgery to his cervical spine. The employee also petitions to supplement the hearing record to include a post-hearing medical report from the employee=s treating orthopedic surgeon. We vacate the compensation judge=s findings and order, grant the employee=s petition to supplement the hearing record, and remand the findings and order to the compensation judge for further consideration.
Mr. Randall E. Manthei, the employee, began working for Layne Construction, the employer, in October 1975, at age 19, and has been employed there since 1975 except for approximately two years between 1979 and 1981, when he farmed with his brother. Since 1975, the employer has been insured for workers= compensation liability in the state of Minnesota by CNA Commercial Insurance, the insurer. The disputes on appeal arise from admitted injuries the employee sustained between 1996 and 2002, as well as an alleged Gillette injury that the employee claims to have sustained in 2003 while working for the employer.
During his years of working for the employer, the employee has worked as a crane operator, a groundsman, and a foreman crane operator, working at job sites in a five-state area. The employee has continuously worked for the employer since 1981 but for one month in 1999 following a work injury when his medical condition disabled him from work; he is one of the top two persons on the employer=s seniority list. The employer is in the business of drilling large holes for footings at construction sites and installing both the footing components and forms for pouring concrete. While working as a crane operator, the employee drove a semitractor to and from job sites, set up the cranes and operated the cranes and drilling augers, which involved significant physical activity. At a new construction site, the employee=s first job was to help assemble the crane which could require an entire day=s work. After the setting up the crane, the employee spent about two hours per day on the ground welding, fixing drilling tools, and hand shoveling fill around casings. At some point between March 2000 and August 2002, the employee began working as a foreman, which included more supervisory and management work and less crane operation.
In addition to his work for the employer, the employee has also performed farming work on his family farm where he and his family reside. In the past, he typically worked approximately 20 hours per weekend on his farm. His farming duties included field work, including driving a tractor to cultivate, plant and harvest, maintaining equipment and helping out with care for animals. By August 2002, he eased upon on his farming activities and some of the heavy work on his job due to his ongoing symptoms which made it difficult for him to perform his regular duties.
Between 1995 and 1999, the employee sustained multiple injuries to his low back and neck. The employer admits that the employee sustained the following injuries, and contends that they were temporary in nature:
1. October 2, 1995: Neck injury
2. April 5, 1996: Neck and low back
3. December 29, 1997: Low back
4. October 27, 1998: Neck and low back
5. January 13, 1999: Neck and low back
6. December 27, 1999: Neck and low back.
The medical records show that the employee also sustained a low back injury at work on July 1, 1988, and that at some point before 1995 he sustained an injury in the nature of a pelvic crush injury. In addition, the employee claims that he later sustained a Gillette injury to his neck and low back as a result of his work activities.
The employee has received periodic chiropractic and medical treatment for his neck and low back since his first work injury in 1988 and following each of his work injuries. Although most of his work injuries resulted in no time loss from work, the employee remained off work for one month following his January 1999 injury. Due to his ongoing symptoms, the employee=s initial treating chiropractor, Dr. Patrick Corrick, ultimately referred the employee for an MRI scan of the lumbar spine, and to Dr. Jeffrey Dick, orthopedic surgeon, who examined the employee on March 24, 2000. Dr. Dick diagnosed degenerative facet disease at the L4-5 and L5-S1 levels and foraminal stenosis on the left disc at the L5 level causing left L5 radiculitis. He referred the employee for physical therapy, and also recommended a nerve root injection as a diagnostic and therapeutic procedure if the employee=s symptoms did not improve within a month.
At Dr. Corrick=s referral, the employee underwent a cervical MRI scan on April 16, 2001, which showed disc herniations at two vertebral levels. On December 11, 2001, Dr. Robert Wengler examined the employee who was, at that time, reporting chronic, activity-generated neck and low back pain. Dr. Wengler diagnosed degenerative disc disease and small contained disc herniations at the C4-5 and C5-6 levels of the cervical spine, and grade 1 spondylolisthesis at the L5-S1 level with a central left-sided disc herniation. Dr. Wengler determined that the employee had sustained 10% permanent partial disability to the whole body as a result of his neck injuries and 12% permanent partial disability as a result of his low back condition. Dr. Wengler provided the following causation opinion: AThe cervical and lumbar disc deteriorations and herniations are undoubtedly the products of multiple episodes of subacute trauma sustained during the course of his activities as a heavy equipment operator. They are characterized as Gillette injuries.@ Dr. Wengler recommended no orthopedic intervention at that time. On the issue of work restrictions, Dr. Wengler stated that AMr. Manthei is aware of his spine difficulties. He is working without encumbrance at the present time although he states he knows instinctively what to avoid and what his limitations are. I would not place any arbitrary restrictions on his physical activities.@
On June 6, 2002, the employee filed a claim petition, listing six injury dates between 1995 and 1999, and claiming entitlement to permanent partial disability benefit relative to his neck and low back, in addition to payment of medical and chiropractic expenses. On September 4, 2002, the employee was examined by Dr. Stephen Barron at the employer and insurer=s request. Dr. Barron diagnosed degenerative disc disease of the cervical and lumbar spine and concluded that the various dates of injuries resulted in temporary aggravations of an underlying condition, that the employee had no objective findings and no permanent partial disability, and that, but for some exceptions, the medical and chiropractic treatment the employee had received had not been reasonable and necessary.
The employee continued operating a crane until he sustained an additional injury on November 5, 2002, when he fell off the track of a crane, landed on his low back, and either hit or jarred his neck. He ceased operating the crane after that injury, but continued to work for the employer, on a lighter-duty basis. The employee testified that his symptoms in his neck and low back were permanently worsened by this injury, and that he has experienced headaches, pain in his left arm and pain in his legs. The employee also testified that he continued to work because of his financial obligations and because he enjoys his work, but that he will need to quit or perform other work due to his medical condition. He testified that his pain has persisted for over a year, and that he does not know how he can continue to work for the employer if his symptoms do not improve.
The employee received additional chiropractic treatment following his November 2002 injury, and on January 24, 2003, he again consulted Dr. Wengler, reporting increased neck and low back problems. Based on additional testing, including a cervical spine discogram conducted on February 28, 2003, Dr. Wengler advised that the employee was a candidate for anterior discectomy and interbody fusion at two levels of the cervical spine. The employee obtained a second opinion from Dr. Dick, who recommended that the employee quit smoking and undertake a six-month walking exercise program, and that if his symptoms did not significantly improve after six months, then the employee would be a candidate for surgical treatment. The employee followed that advice, but his neck and low back symptoms persisted. At Dr. Dick=s referral, the employee later underwent additional examinations as well as an additional discogram.
On July 14, 2003, Dr. Barron reexamined the employee, and again concluded that the employee=s injuries were all temporary in nature. On September 24, 2003, Dr. Wengler was deposed for purposes of presenting his testimony at the hearing. Dr. Wengler testified that the employee=s day-to-day activities as a heavy crane operator over the years, such as Abouncing around, the manipulating of the friction devices in the crane, looking up and looking down,@ contributed to the aggravation of his underlying disc disease. Dr. Wengler opined that the employee sustained an ongoing Gillette injury due to his work as a heavy equipment operator. Dr. Wengler recognized that the employee continued to work and therefore, as described by Dr. Wengler, was Acontinually subjected to Gillette phenomenon.@
Following that deposition, on September 26, 2003, the employee amended his claim petition, listing an injury date of November 5, 2002, and also alleging that he had sustained a Gillette injury in 2003. He amended his claim to seek approval for payment of expenses related to a cervical fusion surgery proposed by both Drs. Wengler and Dick.
On December 3, 2003, Dr. Barron reexamined the employee and reached the same conclusions as outlined in his earlier reports. He concluded that the employee was not a candidate for cervical spine surgery, based on the results of his discogram and lack of objective findings on examination. Dr. Barron made no reference to nor gave any opinion concerning the employee=s claimed Gillette injury.
The employee=s claim petition was addressed at hearing on December 30, 2003. Although the employee had sustained multiple work injuries, the primary focus at the hearing was on his specific injuries of April 5, 1996, January 13, 1999, and November 5, 2002, and his claimed Gillette injury in 2003. Although the employee claimed to have sustained a Gillette injury to his neck and low back, the date of the Gillette injury was difficult to identify in view of the employee=s continued work for the employer. During the hearing, therefore, the parties stipulated to the date of September 24, 2003, as the date of the claimed Gillette injury, as that was the date of Dr. Wengler=s deposition during which the doctor presented his opinion that the employee had sustained a Gillette injury. As reflected in the findings and order, the parties entered into a stipulation, that AIf the employee sustained a minute trauma injury to his neck and low back, September 24, 2003, is the date of disablement.@
The employee=s claim for authorization for cervical spine surgery was addressed at the hearing. The employee requested that the hearing record be allowed to remain open to allow him to submit additional medical reports from Drs. Wengler and Dick in which they would address the issues of the nature and need for the proposed surgery. The compensation judge granted the employee=s request, and also allowed additional time for the employer and insurer to request that Dr. Barron issue a supplemental report after his review of the additional reports from Drs. Wengler and Dick. The judge received Dr. Dick=s report but never received the post-hearing reports issued by Dr. Wengler and Dr. Barron due to the parties= errors in filing those reports.
By January 16, 2004, after review of examination and testing results, Dr. Wengler recommended surgery. Dr. Dick also recommended surgery, based upon the employee=s incapacitating pain for longer than three months and his positive discogram at two levels.
The hearing record closed on February 10, 2004. In her findings and order, issued on March 15, 2004, the compensation judge denied the employee=s claims in their entirety, except for a portion of his claimed chiropractic expenses. She found that the employee=s work injuries of April 5, 1996, January 13, 1999, and November 5, 2002, were temporary in nature. The compensation rejected Dr. Wengler=s opinion on causation, concluding that he lacked adequate factual foundation, and found that the employee had not sustained a minute trauma injury to his neck or back on September 24, 2003. The employee appeals.
In addition, the employee petitions this court to allow an amendment of the hearing record, to allow this court to consider Dr. Wengler=s January 16, 2004, chart note and report in its review upon appeal. Alternatively, the employee petitions for a remand to the compensation judge for consideration of the additional reports.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2004). Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
Effect of Parties= Stipulation at Hearing
The employee has sustained several admitted injuries at work, and also alleges that he sustained a Gillette injury in 2003. At issue at the hearing was the nature and extent of the admitted injuries and the issue of whether the employee sustained a Gillette injury as a result of his work activities and, if so, the nature and extent of that injury. At the hearing, the parties stipulated that if the employee was found to have sustained a Gillette injury, the date of injury was September 24, 2003. The compensation judge found that Athe employee has not carried the burden of proving he sustained a minute trauma injury to either his neck or his low back culminating in disablement on September 24, 2003.@ (Finding No. 27.)
A Gillette injury occurs as a result of repetitive minute trauma brought about by the performance of ordinary job duties. Gillette, 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105. This type of injury can occur gradually over several years or with a sudden onset or intensification of symptoms. Jepsen v. Bayliner Marine, slip op. (W.C.C.A. Aug. 1, 1996); Lavalle v. University of Minn., slip op. (W.C.C.A. Jan. 27, 1997). The date of disability resulting from a Gillette injury may be arrived at by considering various Aascertainable events,@ such as a date on which an employee=s job duties are changed to accommodate his work restrictions, a date when surgery is recommended, or a date when an employee becomes unable to continue working, Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 36 W.C.D. 504 (Minn. 1984), or a date on which an employee seeks medical attention. Shaffer v. The Minnesota Orchestra, 53 W.C.D. 341 (W.C.C.A. 1995).
Although the employee claimed to have sustained a Gillette injury to his neck and low back, the date of that injury or Aascertainable event@ was difficult to identify in view of the employee=s continued employment through the date of the December 30, 2003, hearing and up until the date of his surgery. The parties stipulated that if the employee sustained a minute trauma injury to his neck and low back, September 24, 2003, was the date of disablement. The derivation of the alleged Gillette injury date arises from the date that Dr. Wengler testified that the employee sustained an ongoing Gillette injury during the course of his activities as a heavy equipment operator.
The compensation judge found that the employee did not prove a Gillette injury culminating in disablement on that date because, in part, the employee=s job duties both for the employer and on the farm had been lighter for more than a year before September 2003 than they had been for many years before then. (Memo., p. 13.) However, because the employee remained employed at the time of the hearing, and had not experienced Aan ultimate breakdown,@ such as disablement from employment, see Jensen v. Kronick=s Floor Covering Service, 29 W.C.D. 61 (W.C.C.A. 1975), this factor may have influenced the compensation judge=s analysis.
It appears from our review of the findings and order that the compensation judge denied the occurrence of a Gillette injury on September 24, 2003, expressly because there was no Aultimate breakdown@ on that particular date. Because of the parties= stipulation, the exact date of the alleged Gillette injury was not at issue and there was no requirement that the employee prove a culmination date on September 24, 2003. The particular date of occurrence was not dispositive of the overall issue of causal relationship between the employee=s work activities and his claimed Gillette injury. The judge may have misapprehended the stipulation of the parties and also the level of significance to place on the stipulated date of the alleged injury. Because that misapprehension may have affected the compensation judge=s decision on all issues, we believe that the judge needs to reconsider the effect of the stipulation of the date of alleged Gillette injury. The question for determination is whether the employee sustained a Gillette injury as a result of his work activities, and not the date of that claimed injury. We therefore vacate the compensation judge=s findings and order and remand this matter to her for further consideration.
Foundation for Medical Opinion
The compensation judge found that Dr. Wengler=s medical opinion lacked foundation since he was not provided with detailed information about the employee=s construction and farming activities. The employee appeals from that finding.
The judge concluded that Dr. Wengler=s opinions on causal relationship lacked adequate factual foundation because neither the employee=s testimony nor the hypothetical question posed to Dr. Wengler at his deposition provided detailed information about the exact nature of the employee=s farm duties and his specific construction activities. At Finding No. 25, the compensation judge found that
In neither his office notes nor his deposition did Dr. Wengler set out the foundation for his opinion about the occurrence of a Gillette injury in detail but rather assumed the employee=s crane operation was heavy work and his farm activities played no significant role.
In her memorandum, the compensation judge concluded that
Dr. Wengler, who opined that the employee had the Aclassic industrial back,@ did not state what he meant by that term and was not provided detailed information about either the employee=s job duties or his farming activities. Dr. Wengler=s causal relationship opinions that the employee sustained a Gillette injury as of the first time he examined the employee in 2001 and as of the date of his deposition in September 2003 both lack an adequate factual foundation.
(Memo., p. 12.)
To establish an adequate foundation, the facts upon which an expert relies for his or her opinions must be supported by the evidence. McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff=d (Minn. July 13, 1990). Our review of the record indicates that Dr. Wengler refers to both the employee=s construction and farming work in his reports, and that the hypothetical information presented to the doctor at his deposition was consistent with the employee=s testimony concerning his work and farming activities. Moreover, Dr. Wengler reviewed and described pertinent medical records, findings and test results, and he personally performed examinations on the employee. As this court stated in Olson v. Menasha Corp., 59 W.C.D. 14 (W.C.C.A. 1998),
. . . this is not a case in which the basis for the doctor=s opinion is unknown or where the doctor made unsupported material assumptions in rendering his opinion. Compare Steffen, 517 N.W.2d at 581, 50 W.C.D. at 467 (noting that the expert causation report in that case did not Ainclude the facts and/or data upon which the expert relied in forming his opinion@). Under the circumstances, there clearly wasAfoundation@ for [the doctor=s] opinion, and the judge erred in concluding otherwise. See e.g., Goss v. Ford Motor Co., 55 W.C.D. 316 (W.C.C.A. 1996) (a doctor=s opinion does not lack foundation merely because he may not have had a complete description of all of the employee=s job duties) (cites omitted).
It appears that the primary basis for the judge=s finding that Dr. Wengler=s opinion lacked foundation rests in her emphasis on the role of the employee=s farm activities. The employer and insurer do not allege that the employee sustained a Gillette injury as a result of his farming activities and, indeed, the compensation judge found that the employee sustained no specific injuries to his neck and low back while working on his farm. By focusing on his farming work, however, and by stating that A[c]onstruction and farming are both occupations strenuous enough to cause occasional aches and pains@ (Memo., p. 12), the compensation judge inferred that the employee=s farming activities contributed to his current medical condition even though there is no evidence to support such a conclusion. Further, even if the nature of the employee=s farm activities had been raised as an issue and had been determined to be a causative factor, that should have no bearing on the assessment of the role of the employee=s construction work. For an injury to be compensable, it is not necessary that the employment be the only cause of the condition for which benefits are sought; it is sufficient that the employment is a substantial contributing factor. Swanson v. Medtronics, 42 W.C.D. 901, 443 N.W.2d 534 (1989) (cites omitted).
For the reasons indicated above, we conclude that Dr. Wengler had foundation for his opinion. On remand, the judge should reconsider the employee=s claims in view of all the medical evidence, including the adequately-founded opinions of Dr. Wengler.
At the hearing, the employee=s attorney requested that the record remain open to allow him to submit medical records from Drs. Wengler and Dick, to address the issue of the surgery they proposed for the employee. The compensation judge granted this request. The hearing record originally remained open until January 29, 2004, but that deadline was extended until February 10, 2004, to accommodate submission of additional medical reports. The record shows that the employee submitted a report by Dr. Jeffrey Dick dated February 4, 2004.
The employee, through his counsel, also intended to submit a medical report and letter from Dr. Wengler, dated January 16, 2004, for the judge=s consideration, and, on January 22, 2004, attempted to file those documents by facsimile transmission to the Office of Administrative Hearings. The employee=s counsel served the employer=s counsel by mail. Although the employer=s counsel timely received the medical documents and forwarded them to Dr. Barron for his review and comment, the Office of Administrative Hearings and the compensation judge did not receive the facsimile transmittal of the documents because the facsimile transmission failed.
The employee=s counsel apparently did not discover this error in time to re-file the report while the record remained open, although he referred to Dr. Wengler=s report in a follow-up letter to the compensation judge advising that the employee had decided to go forward with the surgery recommended by Dr. Wengler. It appears from the record, therefore, that the compensation judge never received Dr. Wengler=s report of January 16, 2004. The employee now requests that the record be amended to allow for inclusion of that report. On appeal, the employer has not objected to the inclusion of Dr. Wengler=s report into the record.
An additional evidentiary matter arose at the time of the oral argument in this matter. In the parties= briefs, and also in the employee=s petition to amend the hearing record, both counsel referred to a supplemental report issued by Dr. Barron on January 23, 2004. Although our review of the record shows that Dr. Barron=s January 23, 2004, report is not included in the hearing record, counsel for the employer advised at oral argument that this report had been filed with the Office of Administrative Hearings post-hearing, with the expectation that such report would be included in the hearing record. On review of the record, we note that copies of the report by Dr. Barron were filed on January 28 and 29, 2004, but that they were filed with the Department of Labor and Industry in St. Paul, Minnesota, as opposed to with the compensation judge at the Office of Administrative Hearings in Minneapolis, Minnesota. It appears, therefore, that the compensation judge never received a copy of Dr. Barron=s report of January 23, 2004, while the record remained open.
Upon review of the transcript from the hearing, it is clear that both parties and the compensation judge intended for the hearing record to remain open to allow for receipt of supplemental reports from Drs. Wengler, Dick and Barron. Those reports were intended to address the issue of whether the employee required surgery to his cervical spine, one of the primary issues addressed at the hearing. It is obvious that both parties assumed that Dr. Barron=s supplemental report of January 23, 2004, was included in the hearing record, and the employer has not objected to the inclusion of Dr. Wengler=s supplemental report and chart note. As it is crucial for the compensation judge to receive the agreed-upon medical reports to allow full consideration of this matter, we conclude that it is necessary to amend the record to include those additional reports. See Neumann v. AT&T, slip op. (W.C.C.A. June 15, 2001). We therefore order that the hearing record be amended to include the office note and report issued by Dr. Wengler on January 16, 2004, and the report issued by Dr. Barron on January 23, 2004.
For all these reasons outlined above, we have vacated the compensation judge=s findings and order and remand this matter to her for further consideration.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).