STANLEY C. NELSON, Employee, v. PARKER HANNIFIN CORP., and SEDGWICK CLAIMS MGMT. SERVS., Employer-Insurer, and MONTGOMERY WARDS (Bankr.), UNINSURED, Employer, and SUMMIT ORTHOPEDICS, ST. PAUL SURGEONS, ST. PAUL RADIOLOGY, MN DEP=T OF LABOR & INDUS./VRU, MEDICAL HEALTH PLANS, MEDICA CHOICE/HRI, DEP=T OF EMPLOYMENT & ECON. DEV., WOODBURY AMBULATORY SURGERY CTR., UNITED HOSP., and BLUE CROSS/BLUE SHIELD, Intervenors, and SPECIAL COMP. FUND, Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 15, 2005
GILLETTE INJURY - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supported the compensation judge=s decision that the employee did not sustain Gillette injuries to his neck and low back as claimed.
Determined by: Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Jennifer Patterson
Attorneys: Thomas A. Klint and William J. Marshall, Babcock, Neilson, Mannella, Klint, Anoka, MN, for the Respondent Employee. David L. Christianson, Cronan, Pearson, Quinlivan, Minneapolis, MN, for the Respondents Parker Hannifin/Sedgwick, and Sara J. Stoltman, St. Paul, Minnesota, for the Appellant.
DEBRA A. WILSON, Judge
The Special Compensation Fund appeals from the compensation judge=s decision that the employee did not sustain Gillette injuries to his neck or low back as a result of his work activities with Parker Hannifin Corporation. We affirm.
The employee was employed briefly by Montgomery Wards in 1968 or 1969, left to serve three years in the military, and then returned to work for Wards in about 1972. He was assigned to the receiving department, where he unloaded merchandise from trucks.
The employee sustained at least three work-related injuries during the course of his employment by Montgomery Wards. The first injury relevant to these proceedings occurred in November of 1972, when a fiberglass laundry tub fell from a trailer, striking the employee on the side of the head. He subsequently received treatment, including extensive physical therapy, for neck and shoulder pain, which ultimately extended into his left hand. However, despite continuing symptoms, the employee stayed at his usual job.
The employee=s second work injury occurred in May of 1974, when he experienced severe low back pain while lifting and twisting at work. The following year, in September of 1975, the employee sustained another work-related low back injury, resulting in increased low back pain as well as pain into his right leg and foot.
The employee was ultimately diagnosed as having lumbar stenosis and a herniated disc at L5-S1, and he underwent surgery, a laminectomy with bilateral decompression at L5-S1, in October of 1975. At some point, Montgomery Wards or its workers= compensation insurer paid the employee benefits for a 15% permanent partial disability of the spine as a result of the employee=s work-related low back injury or injuries. The employee testified that he had a Apretty good@ result from this surgery and ultimately returned to his usual job. His low back was Aalways stiff@ thereafter but his leg pain resolved.
The employee received little or no further treatment for either low back or neck symptoms from 1976 to 1985. Then, in 1985, the employee=s neck and left shoulder symptoms increased, and, after diagnostic tests, the employee underwent another surgery, this time a laminectomy and foraminotomy at C6-7 on the left. The employee was subsequently paid for a 15% permanent partial disability of the spine, for his cervical condition, presumably as a consequence of the 1972 work injury.
Montgomery Wards went bankrupt and closed in 1985. Following the closure, the employee received training in photo finishing and was self-employed in that field from 1987 to 1993. Between 1993 and 1995, the employee worked at a Acity desk@ job and as a paraprofessional for a school.
The employee began working for Parker Hannifin Corporation [Parker Hannifin] in 1985, employed initially as a packer before moving to a warehouse position stocking and Apicking@ parts for shipping. The employee testified that the job involved lifting 10 to 50 pounds Aall day long@ and that he occasionally had to lift 80 pounds or more, despite a work policy limiting weights to 50 pounds. The job also required repetitive bending, twisting, and stooping.
In 1999, the employee underwent a stomach stapling procedure to treat a weight problem, and he subsequently developed several incisional hernias, ultimately undergoing a number of hernia repair surgeries. At least one of the hernias and subsequent repair procedures was work related, and Parker Hannifin later agreed to pay certain benefits related to that condition.
In March of 2000, the employee sought treatment for headaches and increased neck pain. A cervical MRI performed in late March of 2000 revealed severe stenosis at C6-7 and stenosis and foraminal narrowing at C4-5. By this time, the employee had begun to experience more frequent numbness and pain into his arms and hands. The employee also testified that his Aback started getting worse and kept going out, the muscles would spasm and [he would] miss a couple days work periodically.@
In early October of 2002, the employee was taken off work to undergo a hernia repair. By the time of his scheduled return to work, the plant at Parker Hannifin had closed, and the employee was laid off from his job.
After the layoff, the employee continued to received treatment for neck and arm symptoms, and his low back symptoms increased. In March of 2003, the employee underwent lumbar fusion surgery from L4 to S1, with instrumentation, as well as a decompression at L3-4. About two years later, in February of 2005, the employee underwent a cervical fusion procedure, with plating, at C4-5 and C6-7.
The matter came on for hearing before a compensation judge on April 15, 2005. Numerous issues were disputed, including whether the employee had sustained Gillette-type neck and low back injuries as a result of his work at Parker Hannifin, the extent of the employee=s permanent partial disability, and whether the employee was permanently and totally disabled. The Special Compensation Fund defended claims related to the employee=s work injuries at Montgomery Wards. Evidence submitted at hearing included the employee=s medical records and testimony and reports and deposition testimony of independent medical examiners Dr. Mark Engasser and Dr. Robert Wengler.
In a decision issued on June 10, 2005, the compensation judge determined, in relevant part, that the employee had not sustained Gillette injuries to his neck or low back as a result of his work activities at Parker Hannifin. Accordingly, the judge ordered the Special Compensation Fund to pay the employee permanent total disability benefits, permanent partial disability benefits, and various medical expenses, with no contribution from Parker Hannifin. The Special Compensation Fund appeals.
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).
Both Dr. Wengler and Dr. Engasser agreed that the employee=s work-related neck and low back injuries, during his employment at Montgomery Wards, substantially contributed to his disability and need for cervical and lumbar fusion surgery; this is undisputed on appeal. The Special Compensation Fund argues, however, that the judge erred in concluding that the employee did not sustain work-related Gillette injuries to his neck and low back as a result of his work activities with Parker Hannifin. More specifically, the Fund maintains that a Gillette injury finding is supported by the employee=s testimony about his symptoms at Parker Hannifin, by the fact that the employee=s diagnosis and treatment involved spinal levels other than those diagnosed and treated following the employee=s injuries at Wards, and by the fact that Dr. Wengler concluded that the employee had sustained neck and back injuries due to his employment activities at Parker Hannifin. For these reasons, the Fund asks this court to reverse the judge=s denial of the Gillette injury claim and to remand the matter for further findings, presumably concerning apportionment. The Fund=s arguments are not persuasive.
As we see it, the case hinges almost entirely on the judge=s choice between conflicting expert opinions. Dr. Wengler testified that the employee had sustained Gillette injuries to his neck and low back as a result of his work activities at Parker Hannifin and that the employee=s disability was related in part to those Gillette injuries and in part to the employee=s earlier injuries, and resulting surgeries, during the employee=s employment by Montgomery Wards. However, Dr. Engasser testified that the employee had not sustained neck or back injuries due to his work at Parker Hannifin and that the employee=s disability was instead the result of a natural progression of the degeneration related to the employee=s original laminectomy surgeries, together with the ordinary wear-and-tear of life and age. The compensation judge expressly accepted the opinion of Dr. Engasser, and the Fund makes no argument whatsoever concerning the adequacy of Dr. Engasser=s opinion. In fact, the Fund did not address Dr. Engasser=s opinion in any way.
This case could have gone either way at the hearing level, but it is not our function to substitute our judgment for that of the compensation judge on purely factual issues. We have no basis to conclude that the judge erred in accepting Dr. Engasser=s opinion as to causation. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). As such, we affirm the judge=s decision in its entirety.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 The Fund also appealed from various findings on other issues, including findings indicating that the employee is permanently totally disabled and that the employee=s work-related hernia does not substantially contribute to his wage loss. However, because the Fund did not address them in its brief, we deem these issues waived. See Minn. R. 9800.0900, subp. 1.
 Actually, the Fund contends that A[s]ubstantial evidence in the record supports a finding that [the employee=s] employment at Parker Hannifin contributed to his ongoing disability and permanent partial disability.@ However, the issue on appeal to this court is not whether the record might also have supported alternative findings, but whether the findings made by the judge are supported by substantial evidence. See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).