LESLIE BEACK, Employee, v. DEZURIK and CONSTITUTION STATE SERVS. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 10, 2006
CAUSATION - GILLETTE INJURY. Substantial evidence, including medical records, the employee=s testimony, and expert medical opinion, supports the compensation judge=s finding that the employee sustained a Gillette injury in the form of bilateral carpal tunnel syndrome.
NOTICE OF INJURY - GILLETTE INJURY. Substantial evidence, including medical records and the employee=s testimony, supports the compensation judge=s finding that the employer had adequate notice of the employee=s Gillette injury in the form of bilateral carpal tunnel syndrome.
Determined by Stofferahn, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Gary M. Hall
Attorneys: Luke M. Seifert, Quinlivan & Hughes, St. Cloud, MN, for Respondent. Richard L. Plagens, Lommen, Abdo, Cole, King & Stageberg, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge=s findings that the employee sustained a work-related Gillette injury in the nature of bilateral carpal tunnel syndrome, and that the employer had statutory notice of this injury. We affirm.
The employee, Leslie Beack, began working for the employer, DeZurik, as a foundry worker in 1971. His job involved removing castings from molds by hand and with sledgehammers; moving and stacking castings and molds; cleaning castings with grinders, chisels and vibrating tools; and general cleanup of work areas and sand pits. Beginning in the mid 1970s, the employee worked as a chain puller and pourer, manipulating a large ladle of molten iron to pour it into the molds. About 1980 the employee became a cupola tender and melter. This job involved controlling a thirty-foot high cupola furnace to melt and refine iron, and required the employee to maintain, prepare and operate the furnace, tap molten metal, monitor, skim off and release slag, and clean slag out of air vents or Atweeters@ by pounding them out with large metal bars. He also cleaned out the pouring ladles daily using a jackhammer.
The employee sustained an admitted low back injury on March 20, 1984, which was aggravated by work activities in 1987 and 1989. An MRI showed multiple levels of degenerative disc disease and the employer and insurer paid 10.5% permanent partial disability in 1991. The employee returned to full work duties after the aggravation.
By late 1999, the employee began to experience problems with his hands, which would go numb when he worked with air powered vibrating tools, requiring production lines to stop so that he could shake his hands to get them to wake up. He testified that he told the company nurse, Zelda, who gave him some braces to wear on his hands. He testified that he thought he also told a supervisor, but could not recall whether an injury report was prepared.
The employee did not seek medical care for his hand symptoms until January 19, 2000, when he saw Dr. Philip J. Bachman at the Midwest Occupational Medicine Clinic. He told the doctor that he had been having constant hand numbness, worse on the right, which had lasted two to three months. The numbness and tingling were primarily in the index, long and ring fingers. The employee reported that his work activities involved heavy use of vibrating tools which worsened the symptoms. He referenced the previous weekend when he put in a new furnace at work, but in general he noticed discomfort with increased grasping and use of his hands. The employee denied any previous history of numbness or tingling to Dr. Bachman. On examination, the employee exhibited positive Tinel=s and Phalen=s signs at both wrists. There was no sign of atrophy and range of motion was good in the elbow and wrists, but there was point tenderness by the right lateral epicondyle associated with resisted extension at the wrist. Dr. Bachman diagnosed bilateral carpal tunnel syndrome symptoms with right lateral epicondylitis. He recommended splinting and evaluation in occupational therapy and suggested the employee return in three weeks.
The employee returned to Dr. Bachman on February 9 and February 23, 2000, for scheduled follow up care of his carpal tunnel syndrome and right lateral epicondylitis. He reported that the splinting and occupational therapy were helpful and that he was having some improvement. He was noticing less numbness and tingling.
On March 8, 2000, the employee was again seen by Dr. Bachman. He noted that most of his hand numbness was now confined to the area between the long and ring fingers. Dr. Bachman concluded that most of the employee=s current numbness and tingling was probably coming from the digital nerves themselves, and likely vibration related. He recommended that the employee be restricted from using vibratory tools, and that therapy be discontinued and no followup appointment be scheduled. He noted that if the employee did not return in the next six weeks, he would assume maximum medical improvement had been reached, with a zero percent permanent partial disability from this injury.
The records in evidence from the Midwest Occupational Medicine Clinic reveal that on each of the dates of these four visits for hand symptoms, Dr. Bachman completed a form entitled AInjury Report to Employer@ giving the employee=s name, the employer=s name, date, times of employee=s arrival and departure from the appointment, diagnoses, treatment, treatment referrals, when scheduled to return, chart number, and a description of any restrictions. These forms all indicate an arbitrary date of injury of January 15, 2000, and diagnose bilateral carpal tunnel syndrome. The last of the four reports restricted the employee from using vibratory tools.
In July 2001 the employee reinjured his low back. He last worked for the employer on August 8, 2001, after which he was medically off work. The employee filed a claim petition on November 13, 2001, asserting entitlement to benefits as a result of lumbar spine injuries on March 20, 1984, and April 6, 1989. Liability was eventually accepted by the employer and insurer. The employer went out of business in the summer of 2002.
The employee underwent a lumbar fusion on July 5, 2002, at the Mayo Clinic performed by Dr. Paul M. Huddleston of the department of orthopedic surgery. During recovery from the surgery, he was forced to use a walker. The employee testified that his hand condition, which had not been particularly troublesome since 2000, was aggravated by using the walker, which required him to bend his hands back and put a lot of weight on them. On September 13, 2002, Mayo Clinic records noted that the employee had pre-existing right carpal tunnel syndrome which was exacerbated following the fusion, and that the employee now exhibited a positive Tinel=s sign on the right with some numbness and tingling in the first and second fingers. The employee was not given further treatment for this condition at that time. However, in a work status report dated January 30, 2003, Dr. Huddleston imposed restrictions on the employee=s use of his hands for repetitive gripping and pinching and fine manipulation, in addition to the restrictions imposed relating to his back condition.
The employee continued to complain of hand symptoms during post-surgical care for his back at the Mayo Clinic. On January 30, 2003, he reported a tingling sensation in the index and middle finger of his right hand and the thumb and index finger of his left hand. He stated that his carpal tunnel symptoms were worse than those he had before his back surgery, and he attributed this to having to use a walker postoperatively. Dr. Huddleston recorded a diagnosis of possible bilateral carpal tunnel syndrome.
The employee started a retraining program for a certificate in sales and marketing at St. Cloud Vocational School in January 2004.
The employee was evaluated by Dr. D.M. Van Nostrand on February 3, 2004 at the request of his attorney. Dr. Van Nostrand offered the opinion that the employee had, among other conditions, carpal tunnel syndrome which was the result of a Gillette injury process from the employee=s work activities throughout his employment for DeZurik.
On March 16, 2004, the employee filed a claim petition to assert various specific and Gillette injuries to the lumbar spine, cervical spine, right knee, right rotator cuff and left elbow, as well as the carpal tunnel syndrome which is the subject of the current appeal. The employer and insurer denied liability for any injury other than to the lumbar spine.
In a return visit to Mayo on October 12, 2004, the employee again noted concern over his carpal tunnel symptoms, including a tingling sensation in the index and middle finger of the right hand and the thumb and index finger of the left hand. Tinel=s sign was positive on the right, though negative on the left. The doctor who examined him on that date, Dr. Michael W. Hartman, recommended that the employee undergo an EMG and a consultation with a hand specialist.
The employee apparently declined to pursue further treatment relating to his hand symptoms. He testified that, as of the date of hearing, his hand symptoms had largely abated except when typing, when his wrists still get stiff, sore and painful.
A hearing was held before a compensation judge of the Office of Administrative Hearings on February 24, 2006. Issues before the judge included the nature and extent of any Gillette injuries culminating on or about July 29, 2001, as well as other matters not here in dispute. The employer and insurer denied the claim of a carpal tunnel injury and further alleged that notice of a carpal tunnel condition or injury was insufficient pursuant to the statute. The compensation judge found that the employee had sustained a Gillette injury in the nature of bilateral carpal tunnel syndrome and that adequate notice was given. The employer and insurer appeal.
The employer argues the compensation judge's finding that the employee had sustained a Gillette injury in the nature of bilateral carpal tunnel syndrome is not supported by substantial evidence.
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. Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960). In order to establish a Gillette injury, an employee must prove a causal connection between the employee's 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 activities causing specific symptoms leading to disability "may be helpful as a practical matter, Adetermination of a Gillette injury "primarily depends on medical evidence.@ Id.
The compensation judge found that the employee had sustained a Gillette injury in the nature of bilateral carpal tunnel syndrome. Supporting this finding were the employee=s testimony, the medical records of Dr. Bachman, the medical records at the Mayo Clinic, and the expert opinion of Dr. Van Nostrand. The employer and insurer did not offer medical opinion denying the injury.
The employer and insurer argue, however, that the evidence was insufficient to support the judge=s finding. They point out that the Mayo Clinic diagnoses were of Apossible@ carpal tunnel syndrome, and that the employee never underwent further EMG testing or consultation with a hand specialist as recommended by Dr. Hartman. They further argue that Dr. Van Nostrand=s opinion should have been disregarded because his report did not indicate that he had made any examination findings demonstrating carpal tunnel syndrome when he saw the employee. Finally, they argue that, in light of the employee=s testimony that most of his hand symptoms had abated as of the date of hearing, there was no evidence Athat the employee has carpal tunnel syndrome at the present time.@ Thus, they suggest that the finding was based on merely speculative and inconclusive medical evidence.
The judge found that the employee had sustained a Gillette injury in the nature of carpal tunnel syndrome as a result of his work activities. A lack of current symptoms could be significant where there is no medical history of symptoms or findings indicative of the injury but that is not the case here. The medical records of Dr. Bachman in 2000 show findings of positive Tinel=s and Phalen=s tests, as do some of the Mayo Clinic records. These records, reviewed by Dr. Van Nostrand, also provided a sufficient basis for his opinion. Both Dr. Bachman and Dr. Van Nostrand diagnosed carpal tunnel syndrome, not merely Apossible@ carpal tunnel syndrome. The issue here was purely one of causation, and was not dependent upon the extent to which the employee=s condition has or has not resolved or become asymptomatic subsequent to the injury. On the evidence in the case, we cannot say that the compensation judge=s determination was clearly erroneous. We accordingly affirm the finding that the employee sustained a Gillette injury in the form of carpal tunnel syndrome.
The employer and insurer next argue that the employee did not give adequate notice of the Gillette injury. A determination of whether an employer had timely notice of an employee's claimed work injury is a question of fact. Minn. Stat. ' 176.141 provides that Au]nless knowledge is obtained or written notice given within 180 days after the occurrence of the injury no compensation shall be allowed.@ Written notice of injury is unnecessary where the employer has actual knowledge. Ogren v. City of Duluth, 219 Minn. 555, 557, 18 N.W.2d 535, 537, 13 W.C.D. 352, 355 (1945). A>Actual knowledge= is knowledge of such information as would put a reasonable [person] on inquiry.@ Pojanowski v. Michael E. Hart, Jr., 288 Minn. 77, 81, 178 N.W.2d 913, 916, 25 W.C.D. 206, 209 (1970).
The employee testified that he had reported his hand problems to the company nurse, who provided him with wrist splints. He also thought that he had reported the injury to a supervisor, but could not recall if an injury report was prepared. His testimony also suggested that his superiors would have been aware of his hand problems when working in the clean room with vibrating tools, as his fingers would turn white and go numb, and he would have to periodically stop working and shake out his hands. We note, in addition, that the records of the Midwest Occupational Medicine Clinic in early 2000 reasonably support an inference that the employer received direct notice of the employee=s carpal tunnel condition, and that it was associated with the duties of his employment, in the form of AInjury Report[s] to Employer@ prepared by the Dr. Bachman on four separate occasions. The employer and insurer contested whether adequate notice had been given of the employee=s carpal tunnel injury, but offered no testimony denying receipt of such notice, of failure to observe the employee exhibit hand problems working with vibrating tools, or denying that the employee was seen by the company nurse for this problem. The compensation judge specifically accepted as credible the employee=s testimony that he had reported his hand problems to the company nurse, who provided him with wrist braces.
On appeal, the employer and insurer do not contest the judge=s acceptance of the employee=s testimony. Instead, citing Mankowski v. St. Paul Companies, slip op. (W.C.C.A. December 22, 2005), they argue that the testimony was insufficient to sustain a finding of timely notice in that the employee did not specifically indicate the date on which he saw the nurse or gave other notice to the employer. In Mankowski, we remanded the issue of notice of injury where the compensation judge found adequate notice had been given but failed to explain how or when such notice was accomplished under circumstances that rendered it impossible for us to review the determination. Here, however, the judge=s findings specify at least part of the evidence relied upon, and the record is sufficient to permit this court to determine whether the finding had substantial support in the record. The evidence, together with reasonable inferences therefrom, supports a finding that the employer had actual or inquiry notice of the employee=s carpal tunnel symptoms and their probable work-related nature by no later than early in the year 2000, when the employee first sought medical treatment for the symptoms and was first diagnosed with bilateral carpal tunnel syndrome. Finding substantial support for the judge=s finding that the employer had adequate notice, we affirm.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).