KENT T. MAEHLING, Employee/Appellant, v. KLATT ELEC., INC., and STATE FUND MUT. COS., Employer-Insurer, and AMERICAN MIDWEST POWER, and STATE FUND MUT. COS., Employer-Insurer, and MEDICA HEALTH PLANS-INGENIX, CENTRACARE CLINIC, ANESTHESIA ASSOCS. OF ST. CLOUD, ST. CLOUD HOSP., and MN DEP=T OF LABOR & INDUS./VRU, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 29, 2006
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s decision that the employee failed to establish by preponderance of the evidence that he sustained a work injury.
Determined by Stofferahn, J., Rykken, J., and Pederson, J.
Compensation Judge: Gary P. Mesna
Attorneys: Peter A. MacMillan, MacMillan, Wallace & Athanases, Minneapolis, MN, for the Appellant. Andrew J. Morrison and Sarah D. Squillace, Koll, Morrison, Charpentier & Hagstrom, St. Paul, MN, for the Respondent, Klatt Electric. Cheryl Howland Bowsfield, Lynn, Scharfenberg & Associates, Minneapolis, MN, for the Respondent, American Midwest.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s determination that he did not sustain a work injury on November 22, 2004. We affirm.
The employee, Kent Maehling, sustained an injury to his left shoulder and cervical spine on January 18, 1989, while working for American Midwest Power, Inc. This appeal arises out of the employee=s claim that the cervical surgery performed on January 4, 2005, and his current disability was the result of a work injury which occurred at Klatt Electric, Inc., on November 22, 2004.
The employee=s injury in 1989 happened when he used his left arm to catch a heavy object which was falling. The initial treatment focused on left arm and shoulder symptoms but an MRI done in April 1989, showed mild C5-6 lateral stenosis and disc bulging with degeneration. The employee was treated conservatively, primarily with physical therapy, and he reported improvement in his symptoms. The employee eventually returned to his regular employment but had permanent restrictions which prohibited lifting over 25 to 30 pounds. The employee testified that after 1989 he continued to have symptoms in his left shoulder and cervical spine for which he received chiropractic care from time to time.
In 1999, the employee began working for Klatt Electric, Inc. The employer does electrical work but also operates a hardware store. The employee worked as a clerk in the hardware store. He waited on customers, stocked shelves, ordered inventory, and, on occasion, helped to unload trucks or carry heavy items for customers. The employee testified that generally the job was within his restrictions.
At the time of his claimed injury, the employee and his wife owned a horse farm where they stabled 16 horses and gave riding lessons. The employee testified that the farm was his wife=s operation but that he helped with chores, primarily in feeding the horses. The extent of the employee=s physical activities in doing these chores was a subject of extensive cross-examination at the hearing.
November 22, 2004, was a Monday and the employee began work at his usual time, 5:30 a.m. The employee testified that on this date, as he usually did on Mondays, he began by cleaning up from the weekend crew. This meant picking up and putting away material, such as wire, that had been taken off shelves over the weekend. The employee then reviewed the shelves to make sure there was adequate inventory. The shelves would then be replenished from the storage room or, if there was no product in the storage room, the employee would place an order on the store=s computer.
The employee testified that after he had been at work a few hours his neck and shoulder started to Atighten up.@ He advised his employer of his symptoms at about 9:30 or 10:00 a.m. The employee did not identify, in his hearing testimony, any specific activity or incident which might have lead to the onset of symptoms. The employee continued to do his regular job and worked his full shift.
Before this date, the employee had treated with a chiropractor, Dr. S. Gary Verbovanec. The records indicate the employee had seen Dr. Verbovanec on October 22, 28, and November 5 and 15, with complaints of cervical, thoracic, and lumbar pain. The employee saw Dr. Verbovanec on November 22, 2004, with cervical and thoracic symptoms. In his chart notes for that date, Dr. Verbovanec recorded Ainsidious onset@ of right cervical thoracic pain with upper extremity radiation.
The employee testified that he continued to have symptoms and on November 24, he went to the Buffalo Clinic, his family physicians, where he saw Dr. Glen Deutsch. The employee advised Dr. Deutsch that he had pain in his right neck radiating to his fingers. Dr. Deutsch assessed a cervical disc, prescribed pain medication, and, after there was no improvement on followup, recommended an MRI. The MRI was done on November 30, 2004, and was read as showing:
1. Vertebral body alignment is anatomic, but there is decreased cervical lordosis with multiple level cervical disc degeneration some with disc space narrowing with broad-based posterior marginal osteophytic spurring causing multilevel neural foraminal stenosis without cord impingement.
2. C6-7 shows broad-based central and posterolateral right-sided disc protrusion with extends into the root entrance zone which may explain the patient=s symptomatology.
On December 8, 2004, Dr. Deutsch created an Aaddendum@ to his November 24 chart note. In the addendum he stated:
When Mr. Maehling saw me on 11/24/04 it was to report neck and arm pain which started when he was stocking shelves at his place of employment. In stocking the shelves, he was lifting and reaching overhead and began to notice the pain and discomfort in his arm. Having had personal experience with this type of injury, I distinctly remember him including this in his history.
Dr. Verbovanec prepared a report on or about December 16, 2004, at the request of the employee=s attorney. In the report, Dr. Verbovanec restated that the employee=s right neck and upper back pain was Ainsidious in nature and occurred during his regular duties.@ Dr. Verbovanec=s opinion was that the employee had sustained a work injury to his cervical spine on November 22, 2004, and that the January 1989 injury was a significant contributing factor.
The employee was referred to a neurosurgeon and he saw Dr. Anthony Bottini on December 20, 2004. The history provided by the employee to Dr. Bottini was that
he spent several hours unloading and shelving merchandise and suddenly felt the abrupt onset of pain in his right paraspinal cervical region and into his right shoulder and arm.
Based on the MRI and his examination, Dr. Bottini diagnosed right C7 radiculopathy and recommended surgery. Surgery was done on January 4, 2005. Dr. Bottini performed an anterior cervical microdiscectomy at C6-7 and fusion at that level as well.
The 1989 employer, American Midwest Power, and its insurer denied liability for the employee=s condition and surgery. The 2004 employer, Klatt Electric, Inc. and its insurer denied liability for the employee=s condition and surgery as well.
The employee was evaluated on behalf of the 1989 employer by Dr. Mark Larkins on April 2, 2005. He prepared a report and his deposition was taken on June 21, 2005. It was Dr. Larkins= opinion that the employee=s cervical condition was the result of a specific incident which occurred at work on November 22, 2004, and that the 1989 injury was not a factor in the employee=s condition. Dr. Larkins= opinion was based in substantial part on a history provided to him which stated,
he recalled a specific reaching incident that morning while reaching up over his head with a spool of wire to place it back on the shelf which led to his increased pain which then went to the surgery.
The employee was also evaluated on behalf of the 2004 employer and was seen by Dr. Paul Hartleben on April 1, 2005. Dr. Hartleben issued a report and gave his deposition on June 13, 2005. Dr. Hartleben was of the opinion that the employee had not sustained a work injury on November 22, 2004, and that the employee=s cervical condition was a degenerative condition relating back to the 1989 injury. Central to Dr. Hartleben=s opinion was the history he obtained that there was no specific incident that the employee could identify as initiating his pain. Dr. Hartleben also noted the relatively benign nature of the employee=s work activities at Klatt, especially when compared to the physical activity the employee did on his horse farm.
Dr. Bottini also testified by deposition. He stated that it was his opinion that the employee=s condition was the result of a work injury at Klatt on November 22, 2004. Dr. Bottini testified that his opinion was based on the history he had obtained from the employee at his first visit. Dr. Bottini did not have information regarding the 1989 injury, the employee=s usual work activity at Klatt, or his farm work, and was not given a hypothetical question.
This matter was heard by Compensation Judge Gary Mesna on June 16 and August 8, 2005. In his Findings and Order, the compensation judge determined that the 1989 work injury was not a substantial contributing factor in the employee=s condition. The compensation judge also found that the employee had failed to establish that he sustained a work injury on November 22, 2004. The employee=s claims were denied. The employee appeals.
On appeal, the employee argues that the compensation judge erred in concluding that he did not sustain an injury on November 22, 2004. The employee contends that the compensation judge improperly determined that an injury did not occur because there was no specific incident which the employee could identify as causing his symptoms. While the language used by the compensation judge on this point could create some confusion, we conclude that the employee misconstrues the compensation=s judge decision.
In establishing compensability, the statute refers to a Apersonal injury@ arising out of and in the course of employment. Minn. Stat. ' 176.021, subd. 1. Many personal injuries are the result of specific incidents, such as the classic example of an employee bending over to pick up a heavy object and experiencing immediate pain. The law also recognizes Gillette injuries as the result of subclinical trauma which leads to an eventual breakdown. It is incorrect however to conclude that a personal injury must be either the result of a specific incident or of a Gillette injury. Work activity over the course of a day or over the course of a week which leads to disability also results in a compensable personal injury. The appropriate inquiry is whether the employee has established by a preponderance of the evidence that a causal relationship existed between the work activity and the disability.
In the present case, we conclude the compensation judge denied the employee=s claim not because there was no specific incident on November 22, 2004, but because the employee failed to establish a causal relationship between his work activity on that date and his cervical disc herniation. We find substantial evidence in the record which supports that conclusion.
There were two doctors, Dr. Larkins and Dr. Bottini, who expressed opinions that the employee had sustained an injury on November 22, 2004. Dr. Larkins based his opinion on a history that the employee had a specific incident of increased pain while reaching overhead to place a spool of wire on a shelf. Dr. Bottini based his opinion on a history that the employee had an abrupt onset of pain. Neither history is consistent with the evidence provided by the employee. In his testimony at the hearing, the employee did not identify a specific incident which caused pain and did not state there had been an abrupt onset of pain.
Dr. Verbovanec did conclude that there had been a work injury on November 22, 2004, despite the Ainsidious@ onset of cervical pain. However, both Dr. Bottini and Dr. Hartleben indicated in their deposition testimony that a disc herniation is a significant event which would have resulted in significant symptoms at the time of herniation. For this reason, neither doctor accepted that the gradual increase of pain on November 22, 2004, indicated an injury on that date.
In his brief, the employee cites a number of cases in which seemingly inconsequential physical activity on the job resulted in an injury and the disability was held to Aarise out of@ employment. However, evidence was submitted in those cases which provided a causal relationship between the work activity and the disability. There is no evidence in the present case which connects the work activity of the employee on November 22, 2004, and the symptoms he experienced on that date with a cervical disc herniation at C6-7 requiring surgery.
The decision of the compensation judge is affirmed.