BRYAN JENSEN, Employee, v. AQUA DYNAMICS and ACUITY GROUP, Employer-Insurer/Appellants, and SLUMBERLAND a/k/a KORDEL, INC., and COMMERCE & INDUS. INS. CO., Employer-Insurer, and RS MEDICAL, SMDC HEALTH SYS., MN DEP=T of LABOR & INDUS./VRU, and MN DEP=T of HUMAN SERVS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 12, 2006
File No. WC06-138
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s findings that the employee sustained Gillette injuries in the nature of a lumbar pain syndrome and bilateral carpal tunnel syndrome on or about October 8, 2002.
CAUSATION - GILLETTE INJURY. Substantial evidence supports the compensation judge=s determination that the employee=s work activities for the employer Aqua Dynamics during the period of Acuity Group=s coverage, including the last several weeks on the Owatonna project, permanently aggravated and were a substantial contributing cause of his lumbar pain syndrome and bilateral carpal tunnel syndrome.
PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s award of a 3.5 percent permanency for the employee=s lumbar pain syndrome and the judge=s finding that the employee had not yet reached maximum medical improvement for his low back and hand and wrist conditions.
Determined by: Johnson, C.J., Wilson, J. and Stofferahn, J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: Gustav Layman, Petersen, Sage & Graves, Duluth, MN, for the Respondent Employee. Elizabeth Holden Hill, Law Offices of Elizabeth Holden Hill, Minnetonka, MN, for the Appellants. Christopher E. Celichowski and Michael M. Skram, Johnson & Condon, for the Respondents Slumberland/Commerce & Indus. Ins. Co. STATE OF MINNESOTA
THOMAS L. JOHNSON, Judge
The employer and insurer, Aqua Dynamics and Acuity Group, appeal from the compensation judge=s determination that the employee sustained Gillette injuries to the lumbar spine and to the hands and wrists culminating in disability on October 8, 2002; that the employee=s work activities at Aqua Dynamics during the period of coverage of Acuity Group was a substantial contributing cause of the employee=s Gillette injuries; and that the employee sustained a 3.5 percent permanent partial disability to the body as a whole as a result of his lumbar spine injury. We affirm.
Bryan Jensen, the employee, began working for Aqua Dynamics, the employer, upon graduation from high school in 1987. Since about 1990, the company has specialized in cleaning mining and industrial equipment and facilities using high pressure water jets. The employee=s work duties required holding firmly with both hands the nozzle of a high pressure hose or a water gun with 2,000 to 8,000 pounds per square inch of pressure, bending forward to control the hose. The employee frequently worked in confined and cramped spaces, often unable to stand to full height. The employee described the physical effort as similar to Ashooting a shotgun all day without stopping.@ (T. 67.)
The employee testified he began having low back problems in about 1995. He stated he complained about his back to Mr. Garman, his boss and the owner of the company, and was told to go to the chiropractor and that Mr. Garman would pay for the treatment. The employee testified he continued to experience low back pain at work, and complained to both the boss and his co-workers on numerous occasions. On at least one other occasion, the employee testified, Mr. Garman took the employee to a chiropractor for his low back and paid the bill.
The employee began experiencing numbness and tingling in his hands and wrists in 2001. He was seen at the Duluth Clinic by a physician=s assistant in October 2001, reporting intermittent numbness in both hands for approximately two months that he attributed to his work. He was advised the clinic was for urgent care rather than chronic problems, and was referred to Dr. Douglass in occupational medicine. The employee stated he didn=t have medical insurance while working for Aqua Dynamics and was unable to afford further treatment. He testified however, that his hand and wrist symptoms got progressively worse and he told the boss about it many times.
In the fall of 2002, the employee worked on a job in Owatonna, Minnesota, at an ethanol plant. The job required him to sit bent over on a five-gallon bucket holding a high pressure water hose or jet. The employee testified that following the job, his Aback went out@ and he was Adown for four days.@ He stated he could not take the work any more and decided he needed to change jobs. (T. at 79, 81-82, 139.) The employee last worked for Aqua Dynamics on about October 8, 2002. Acuity Group provided workers= compensation coverage to Aqua Dynamics from March 16, 2002, through the employee=s last day of work.
The employee sought medical care from Dr. Charles Decker on October 15, 2002, reporting he had a heavy physical job working with pressure hose cleaning, and that his low back was Akilling him.@ He stated it had been getting worse over the past several months and he wondered what could be done. Dr. Decker noted limited range of motion in the back and diagnosed a lumbar back strain. He referred the employee to physical therapy, recommended anti-inflammatory medications and advised the employee to stay off work. (Pet. Ex. D.) The physical therapy intake notes indicate the employee=s lower back region had been bothering him for a long time, and that he had constant pain and aching. The employee also noted tingling in his arms. On examination, the therapist noted increased lumbar lordosis with decreased range of motion in all planes. In November 2002, Dr. Decker opined the employee had a probable Gillette-type back strain as a result of his many years working with high pressure water hoses at Aqua Dynamics.
The employee cancelled physical therapy after three sessions, upon obtaining a job as a warehouse supervisor for Slumberland starting in November 2002. He stated he continued to have back problems while working for Slumberland, but testified his back condition did not significantly change and the work at Slumberland simply aggravated what was already there.
The employee returned to Dr. Decker in January 2003, complaining of intermittent numbness in both hands, dropping things, and discomfort in his right elbow. The doctor referred the employee for nerve conduction studies, and opined the employee=s hand and arm problems were likely a Gillette-type injury related to the use of his hands and arms while operating high pressure water hoses. An EMG was performed on March 10, 2003, and was interpreted as consistent with bilateral carpal tunnel syndrome (CTS). In June 2003, Dr. Decker recommended carpal tunnel release surgery.
In September 2003, the employee reported to Dr. Decker he did not feel he could continue working at Slumberland. He gave a history of working for many years at Aqua Dynamics operating a pressure hose system, and stated it was hard work requiring bending and twisting. On examination, the doctor noted lumbar muscle spasm and a mildly limited range of motion. Dr. Decker diagnosed a chronic lumbar back strain with muscle spasm caused by a Gillette-type injury while working for Aqua Dynamics. He recommended the employee get a different job that required less back work.
The employee was seen by Dr. Nolan Segal in January 2004, at the request of Aqua Dynamics and Acuity Group. Dr. Segal stated the employee had a normal back examination, and opined the employee sustained a temporary low back strain in October 2002 that resolved by November 1, 2002. He further opined the employee likely sustained a low back strain as a result of his lifting activities at Slumberland, and in September 2003 while playing basketball at home. He further stated the employee had no clinical findings consistent with CTS at the time of his examination, and opined that the employee may have had a temporary injury in October 2001 as a result of his work at Aqua Dynamics, but that it was not a cause of any current CTS complaints. Dr. Segal further opined the employee had reached maximum medical improvement (MMI) for all alleged work injuries as of January 27, 2004, and had no permanent partial disability as a result of his low back condition.
The employee was treated by Dr. Lorelee Stock, for both low back pain and bilateral CTS, from January through October 2004. She noted positive CTS signs in both hands and normal to mildly limited lumbar range of motion in the low back. Dr. Stock prescribed anti-inflammatory and pain medications, provided wrist braces, referred the employee to physical therapy for his back, and gave several cortisone injections in the wrists. By report dated October 18, 2004, Dr. Stock diagnosed bilateral CTS with progressive weakness and chronic Gillette-type low back pain with sporadic improvement with treatment. Dr. Stock noted the employee=s CTS and chronic low back pain had existed since the employee worked for Aqua Dynamics.
The employee was examined by Dr. William Call at the request of Aqua Dynamics and Acuity Group in November 2004. Dr. Call recorded an essentially normal hand and wrist examination, and opined the employee=s job activities at Aqua Dynamics would not be irritative, causal or exacerbatory to a CTS, nor would his work activities at Slumberland. The doctor concluded any CTS the employee might have would be developmental, and that if there was any work-related CTS it would be as a result of his work at Slumberland as the first EMG reportedly showing CTS was done in 2003.
In January 2005, the employee was examined by Dr. Stephen Barron at the request of Slumberland and its insurer. The employee stated while working for Aqua Dynamics he lifted hoses weighing 25 to 50 pounds on a repetitive basis, had to bend, twist and crawl using the hoses on a daily basis, and that the hoses vibrated. Dr. Barron recorded a normal back examination and diagnosed subjective complaints of low back pain with no objective findings. He concluded the employee sustained a temporary lumbar sprain while employed by Slumberland on July 28, 2003, that resolved by September 1, 2003. The doctor further opined the employee had reached MMI following the fall 2002 work-related injury on or about June 11, 2003.
The employee was next seen by Dr. Robert Brown at the request of Slumberland and its insurer on April 7, 2005. The employee stated he had done water hose work for Aqua Dynamics since 1990. He reported the job involved holding hoses which had a nozzle pressure of 6,000 to 8,000 pounds per square inch, and that it took a great deal of gripping to control the hose. The employee stated that because of the high pressure coming out of the hose, he had to brace himself, leaning forward, to control the hose. In 2002, the employee stated, he worked a job in Owatonna that required him to sit on a five-gallon bucket all day. After two and one-half weeks, he had marked back discomfort. The employee stated he was off work three to four weeks and then began working for Slumberland as a warehouse supervisor where his job duties included unloading trucks of furniture. Although it involved fairly heavy labor, the employee stated his back felt better in general. The employee stated he stopped working at Slumberland at the end of February 2004 because it was too hard on his back. He reported he continued to have soreness in his low back area and numbness and tingling in his hands. On examination, the employee had positive Tinel=s, Phalen=s and median nerve compression tests bilaterally. The doctor noted no evidence of spasm in the low back and an essentially normal range of motion. Dr. Brown concluded the employee did have clinical symptoms of bilateral CTS, and that the onset of symptoms occurred while employed at Aqua Dynamics. The doctor observed the employee=s work at Aqua Dynamics required repetitive gripping to control a high pressure water hose, and opined the employee=s work at Aqua Dynamics caused his CTS and that the injury culminated in October 2002. Dr. Brown agreed with the recommendation of carpal tunnel release surgery and stated the employee had not reached MMI for his bilateral CTS.
By report dated February 4, 2005, Dr. Decker noted the employee had worked in a heavy physical job for Aqua Dynamics for approximately 15 years working with high pressure water hoses, often in cramped, uncomfortable positions. The employee reported to the doctor that about five years into the job, his low back began to bother him considerably. The employee also noticed pain in his arms and numbness and weakness in his hands in his last two years with Aqua Dynamics. Dr. Decker noted that Dr. Timothy Morton, a physical medicine specialist who evaluated the employee, recorded lumbar paravertebral muscle stiffness and limited range of motion in the lumbar spine, and stated he had observed that as well. Dr. Decker diagnosed lumbar pain syndrome substantiated by objective clinical findings of muscle spasm and decreased range of motion, as well as bilateral median nerve entrapment syndrome in both wrists. He opined the employee had Gillette-type injuries substantially caused by his work at Aqua Dynamics. Dr. Decker further indicated the employee would eventually need carpal tunnel release surgery on both wrists, and assigned a 3.5 percent permanent partial disability for the employee=s lumbar pain syndrome.
The employee filed a claim petition seeking wage loss benefits, medical benefits and permanent partial disability benefits. In a Findings and Order served and filed February 14, 2006, a compensation judge found the employee sustained Gillette injuries in the nature of a chronic lumbar pain syndrome and carpal tunnel syndrome, culminating in disability on or about October 8, 2002. The judge also found the employee=s work at Aqua Dynamics in the weeks preceeding his last day of work substantially and permanently aggravated the employee=s chronic lumbar pain syndrome and that his carpal tunnel syndrome was also a result of his assigned work duties at Aqua Dynamics. The judge further found the employee had not yet reached MMI, and that the employee sustained a 3.5 percent permanent partial disability to the body as a whole for his lumbar spine. The employer and insurer, Aqua Dynamics and Acuity Group, appeal.
The appellants, Aqua Dynamics and Acuity Group, contend that substantial evidence does not support the finding that the employee=s work activities at Aqua Dynamics permanently aggravated his chronic lumbar pain syndrome resulting in disability on or about October 8, 2002, or that the employee suffered a Gillette injury in the nature of bilateral carpal tunnel syndrome in October 2002. The appellants further contend that, if a Gillette injury did occur in October 2002, the compensation judge committed an error of law in finding the employee=s work activities during Acuity Group=s period of coverage were a substantial contributing cause of the employee=s lumbar pain syndrome or carpal tunnel syndrome. The appellants additionally assert that substantial evidence does not support the finding of a 3.5 percent permanent partial disability for the employee=s low back condition, and the finding that the employee has not yet reached MMI. We affirm.
1. Gillette Injuries
A Gillette injury is a gradual breakdown of a body part or an aggravation of a pre-existing condition as the result of repetitive, minute trauma in the performance of an employee=s ordinary work activities. Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960). To establish a Gillette injury, the employee must Aprove a causal connection between [his] ordinary work and [the] ensuing disability.@ Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). The determination of a Gillette injury Aprimarily depends on medical evidence.@ Steffen, id. (citing Marose v. Maislin Transp., 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987)).
The compensation judge accepted the employee=s testimony and the histories provided to his treating physicians as well as the history provided to Dr. Brown, in describing the employee=s work activities and the symptoms he experienced in both his low back and his hands and wrists. Dr. Decker opined the employee sustained Gillette-type injuries in the nature of a chronic lumbar pain syndrome and bilateral CTS substantially caused by his work at Aqua Dynamics. Dr. Stock diagnosed bilateral CTS and chronic Gillette-type low back pain, noting the employee=s CTS and chronic low back pain had existed since the employee worked for Aqua Dynamics. Dr. Brown concluded the employee did have clinical symptoms of bilateral CTS, and, noting the employee=s work at Aqua Dynamics required repetitive gripping to control a high pressure water hose, opined the employee=s work at Aqua Dynamics caused his CTS and that the injury culminated in October 2002.
Whether the employee has proved a Gillette injury is a question of fact for the compensation judge. See, e.g., Johnson v. Diamond Tool and Horseshoe, 55 W.C.D. 104, 109 (W.C.C.A. 1996). As the trier of fact, it is the province of the compensation judge to resolve conflicts in medical expert testimony. Where there is adequate foundation for the opinions adopted by the judge, this court must uphold the compensation judge=s choice among medical experts. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The appellants do not argue the opinions of the employee=s treating or consulting physicians, or that of Dr. Brown, lack foundation. While a contrary result could have been reached in this case, the compensation judge=s findings that the employee sustained Gillette injuries in the nature of a chronic lumbar pain syndrome and CTS as a result of his work activities at Aqua Dynamics, are supported by adequate evidence in the record as a whole, and we must, accordingly, affirm.
2. Liability for Gillette Injuries
The appellants contend the compensation judge committed an error of law in finding the employee=s work activities at Aqua Dynamics during the coverage of Acuity Group substantially and permanently aggravated his chronic lumbar pain syndrome and were a contributing cause of his bilateral carpal tunnel syndrome. We are not persuaded.
Acuity Group provided workers= compensation insurance coverage to the employer, Aqua Dynamics, from March 16, 2002, through October 2002. As a general rule, Ainjuries from repeated trauma or aggravation of a pre-existing condition result in a compensable personal injury when their cumulative effect is sufficiently serious to disable the employee from further work.@ Carlson v. Flour City Brush Co., 305 N.W. 2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981). In this case, the employee last worked for Aqua Dynamics on October 8, 2002. Generally, the last employer and insurer on the risk are deemed liable for disability resulting from a Gillette injury. However, this rule is subject to a finding that during the last period of employment, the work duties performed by the employee were a substantial contributing cause of the employee=s disability. See, e.g., Carlson v. Flour City Brush Co., 305 N.W.2d 347, 33 W.C.D. 594 (Minn. 1981); Tannahill v. Mid-American Lines, Inc., 40 W.C.D. 726 (W.C.C.A. 1987). A[I]mposition of liability on the last insurer is not automatic but must rest on proof connecting the employee=s disability to the employee=s job duties during that insurer=s period of coverage.@ Giesbrecht v. Interplastic Corp., 64 W.C.D. 30, 36 (W.C.C.A. 2003); Crimmins v. NACM No. Central Corp., 45 W.C.D. 435, 439 (W.C.C.A. 1991).
The appellants assert that during the period within which Acuity Group provided coverage, the employee received no treatment for his low back or carpal tunnel syndrome, lost no time from work due to these conditions, and had no work restrictions for either condition. They further contend the employee was working fewer hours in 2002 than in prior years for reasons unrelated to the work injuries, and was regularly using a water gun that made the job physically easier than previously. Moreover, they assert, the employee=s testimony does not reference any job duties that aggravated either condition during Acuity Group=s period of coverage specifically. These facts, they argue, require reversal of the compensation judge=s findings. We disagree.
The employee described fifteen years of heavy physical labor in confined and cramped conditions using high pressure water hoses and jets. The employee=s testimony and the medical records portray a gradual progression of his low back and hand and wrist conditions while employed by Aqua Dynamics. The employee specifically described in his testimony and in the medical histories a project in Owatonna during his last several weeks of employment with Aqua Dynamics which required sitting on a five-gallon bucket in a bent over position, handling a high pressure water jet to clean equipment at an ethanol plant. The employee testified that when he got home after this project his back went out and he was in bed for four days. He then decided he could not take the work any more and needed to change jobs. He left his job with Aqua Dynamics on or about October 8, 2002. The judge accepted the employee=s testimony. Dr. Brown observed the employee=s work at Aqua Dynamics required repetitive gripping to control a high pressure water hose, and opined the employee=s work at Aqua Dynamics caused his CTS and that the injury culminated in October 2002.
The question of whether the employee=s work activities from March through October 2002, while Acuity Group was on the risk, is one of fact. While the evidence could support a contrary result, it is not the role of this court to reconsider and reweigh the evidence. Rather, the issue for this court is 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. On this evidence, the compensation judge could reasonably conclude the employee=s work activities at Aqua Dynamics during the period of Acuity Group=s coverage, including the last several weeks on the Owatonna project, permanently aggravated and were a substantial contributing cause of his lumbar pain syndrome and bilateral carpal tunnel syndrome, culminating in disability on October 8, 2002. We must, therefore, affirm. Hegemuhle v. Long Prairie Jaycess, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
3. Permanent Partial Disability
The appellants also argue that substantial evidence does not support the judge=s finding that the employee sustained a 3.5 percent permanent partial disability to the body as a whole for his low back condition. They rely on the opinions of Dr. Barron and Dr. Segal, and assert the medical records contain no objective evidence of any abnormalities in the low back.
The compensation judge accepted the opinion of the employee=s treating physician, Dr. Decker, who assigned a 3.5 percent rating for A[s]ymptoms of pain or stiffness in the region of the lumbar spine, substantiated by persistent objective clinical findings, that is, involuntary muscle tightness . . . or decreased range of motion in the lumbar spine,@ pursuant to Minn. R. 5223.0390, subp. 3.B. Dr. Decker stated he made such findings, and the records, while somewhat minimal, are not inconsistent with his statement. As there is evidence in the record as a whole to support the compensation judge=s award of permanency benefits, we must affirm.
4. Maximum Medical Improvement
Finally, the appellants contend substantial evidence does not support the finding that the employee has not yet reached maximum medical improvement (MMI), again relying on the opinions of Drs. Barron and Segal.
MMI means Athe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated.@ Minn. Stat. ' 176.011, subd. 25. The compensation judge found the employee had not pursued recommended medical care due to the lack of a paying insurer. The employee testified he could not personally afford to pay for treatment on a consistent basis, nor could he afford to take the time off work without compensation. The employee=s treating physicians have referred the employee for physical therapy for his low back and have recommended carpal tunnel release surgery. Dr. Brown concurred with the recommendation for carpal tunnel surgery. On these facts, the compensation judge did not unreasonably conclude the employee has not yet reached MMI. We affirm.
 Gillette v. Harold Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D.105 (1960).