GARY D. MARTINSON, Employee/Appellant, v. POTLATCH CORP., SELF-INSURED/COMPCOST, Employer, and SMDC HEALTH SYS., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 11, 2006
CAUSATION - GILLETTE INJURY. Substantial evidence in the form of a well-founded medical opinion supports the compensation judge=s determination that the employee did not sustain an injury to his lumbar spine.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Nancy Olson
Attorneys: Thomas R. Longfellow, Longfellow Law Office, St. Paul, MN, for the Appellant. James R. Waldhauser and Jennifer M. Gibson, Cousineau McGuire, Minneapolis, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employee appeals the compensation judge=s determination that he did not sustain a Gillette injury on or about January 22, 2003, and from her denial of his claim for workers= compensation benefits. We affirm.
At the hearing, the employee, Gary Martinson, alleged that he sustained a Gillette injury as the result of his employment as a heavy equipment operator for Potlatch Corporation, the employer.
The employee began working at Potlatch in March 1983, and was employed as a heavy equipment operator until he stopped working in January 2003. The parties agree the employee=s job was very physical. A significant part of his job involved driving equipment over deeply rutted logging roads. The employee was bounced around in the equipment, even striking his head at times on the inside of the cab. The employee worked eight to twelve hours a day. The employee testified that because he was unloading trucks and because the truck drivers were anxious to get unloaded, he often worked without a break. At times the employee also worked as a debarker operator, handling eight foot logs with a pipe pole. The employee also sharpened knives used in the debarking process and these knives were described as very large and heavy.
The employee testified that he began receiving chiropractic care in 1988 for low back and leg symptoms. Records in evidence begin with those of Dr. Michael Quirk in April 1992. Dr. Quirk=s history refers to a A1988 pulled low back at work.@ The employee in 1992 complained of daily low back and leg pain, stiffness and pain in his neck, vertigo and headaches. Dr. Quirk=s records show two visits.
When the employee saw a urologist for prostate problems in 1993, the urologist apparently generated a report discussing the employee=s low back pain in connection with his operation of heavy equipment. The urologist=s report is not in evidence, although it was apparently reviewed by the employer=s IME. The employee also saw Dr. Joanne Intveld on February 24, 1994, with cervical pain after moving a fish house by himself. X-rays taken at that time showed discs spurring at the C3-4, C4-5, and C5-6 levels. Dr. Intveld=s assessment of the employee=s situation at that time was of Acervical sprain in someone who already has osteoarthritis at the cervical spine.@
The employee began receiving chiropractic care from Dr. Bradley Horoshak in 1996 for low back, mid back, and neck pain. The records indicate that the employee treated on an intermittent basis from that time through 2002. In February 1998, his chiropractor recommended work restrictions. The employee=s testimony was that he continued to perform his regular job until he left the employer in January 2003, although there are records which suggest the employee missed some time from work in 2002 because of back pain.
In November 2002, the employee was cutting a hole for ventilation in the roof of his hunting cabin when he fell off the roof. The employee fell about 13 feet, landing on his left shoulder. The employee did not seek immediate medical attention.
The employee apparently treated with Dr. Intveld in December 2002. While there are no doctor records from that time in evidence, there are x-rays of the cervical and thoracic spine done on December 17, 2002, done at Dr. Intveld=s direction. The x-rays were essentially negative. The employee was referred to Dr. Ann Sudoh, an orthopedist at Duluth Clinic. The employee=s primary complaint when he saw her on January 29, 2003, was of left shoulder pain. He was not on any medication associated with this condition. Dr. Sudoh assessed left rotator cuff tendinitis and provided the employee with a cortisone injection. The employee apparently also saw Dr. Stefan Korasiewicz for a review of his low back problems. There is no record from that consultation in evidence but there is reference in other records to the employee receiving a steroid injection at the L3-4 level on February 3, 2003.
Dr. Intveld then referred the employee to Dr. James Callahan, a neurosurgeon at Duluth Clinic. The employee saw Dr. Callahan on April 21, 2003. In his history, Dr. Callahan stated,
He works for Potlatch driving heavy equipment. The patient runs a loader. He has been off work the past two months due to quite severe back and left leg pain. The patient reports that he has had a long standing history of intermittent back and left leg pain but now it has progressively gotten severe. It was aggravated in November when he took a fall off a hunting shack he was building. He fell approximately 13 feet landing on his back, left shoulder and head resulting in left shoulder injury. . .This fall seemingly exacerbated his back pain.
Dr. Callahan determined that he would consider a left L5- S1 micro lumbar discectomy to relieve the left radiculopathy the employee was experiencing. The employee had this procedure done by Dr. Callahan on May 2, 2003.
The employee had been taken off work by his doctors in January 2003, and was not released to return to work by Dr. Callahan until July. The employee returned to work with the employer but stopped working after a couple of months because he could not handle the physical activity.
On May 21, 2003, Dr. Horoshak prepared a report on the question of causation for the employee=s condition and stated Athe main cause for spinal changes and discomfort would be from the years of running heavy machinery.@ The employer however denied liability for the employee=s back condition.
Dr. Callahan also generated a report on causation in which he said,
Mr. Martinson has inquired whether or not I thought this was a work-related injury. I am unable to give you an exact date as to when he might have been hurt. Clearly repetitive motion and compression caused by running heavy equipment over the course of many years can lead to low back pain with lumbar spondylosis and progressive degenerative disease of the lumbar spine. Mr. Martinson clearly fits this criteria.
The employee was evaluated on behalf of the employer by Dr. Thomas Litman on March 4, 2004. Dr. Litman prepared a report and was deposed for the hearing. In his report, Dr. Litman stated that if the employee=s testimony was accepted as accurate, the condition would be considered work related. However, Dr. Litman found the history provided by the employee to be inconsistent with the medical records. Dr. Litman, on cross-examination, did state that he was aware the employee=s work activity was very physical, but stated that the medical records indicated the symptoms which lead to the surgery came on after the fall. He also noted that the records in January 2003 did not refer to the employee=s work activity as being a factor for the onset of those symptoms. It was his opinion that the employee had not sustained a Gillette injury from his employment at Potlatch and that the employee=s need for lumbar surgery and the restrictions which followed the surgery were the result of his fall in November 2002.
Dr. Callahan testified by deposition as well. He stated that he was of the opinion that Mr. Martinson=s work activity was a substantial contributing factor in aggravating or creating the employee=s back condition. Dr. Callahan based his conclusion on the very physical nature of the employee=s work and on the employee=s history of long-standing back pain.
The employee=s claim petition was heard by Compensation Judge Nancy Olson on August 15, 2005. In her Findings and Order, issued August 13, 2005, the compensation judge specifically adopted the opinion of Dr. Litman. She concluded the employee had not sustained a work injury and denied the employee=s claim. The employee appeals.
The primary issue before the compensation judge was whether the employee established that his work activity resulted in the lumbar condition which required surgery and which resulted in disability. Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994).
The parties agreed the employee=s work activities were very physical, and Dr. Callahan provided an opinion connecting the work activity with the disability. However, Dr. Litman testified that there was no causal relationship between the employment and the disability. His opinion was based on his examination of the employee and on his review of the medical records and therefore had adequate foundation. We have consistently held that it is the province of the compensation judge to choose between competing medical opinions and where, as here, the compensation judge=s decision is based upon a well-founded medical opinion, it will not be reversed by this court. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Voshage v. State, Minn.-MNSCU, 65 W.C.D. 167 (W.C.C.A. 2004).
The employee argues on appeal that the November 2002 fall could not be the sole cause of his disability given his history of ongoing back pain dating back to 1988, and the physical nature of his work for the employer since 1983. Surely, the employee contends, even if the 2002 fall was a factor in his disability, his employment must be considered a substantial contributing factor as well.
There was however, no medical opinion which attributed responsibility to both the November 2002 fall and to the employee=s work. Dr. Litman was cross-examined extensively on the question of the employee=s medical history and work activity, and while he recognized the factors argued by the employee, Dr. Litman continued to maintain that the employee had not sustained a Gillette injury. We note that Dr. Callahan=s opinion was directly opposite and that he found no causal relationship from the employee=s fall from the cabin roof. Given the evidence and opinions as submitted to the compensation judge, we cannot conclude that she erred in her determination. The decision of the compensation judge is supported by substantial evidence and is affirmed.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).