SCOTT D. MISKA, Employee/Appellant, v. PECK CONSTR. and ACUITY GROUP, Employer-Insurer, and MILLENIUM SURGERY, METROPOLITAN HAND SURGERY, UNITED HOSP., MN DEP=T OF EMPLOYMENT & ECONOMIC DEV., MN DEP=T OF HUMAN SERVS., MN DEP=T OF LABOR & INDUS., FAMILY CHIROPRACTIC CTR., and BLUE CROSS/BLUE SHIELD, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 19, 2006
CAUSATION - GILLETTE INJURY. Where the compensation judge could reasonably conclude that the employee's work activities for the employer and insurer did not substantially contribute to the employee's disability, the judge did not err in denying the employee=s claim of a Gillette injury arising out of the employment with this employer.
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Kathleen Behounek
Attorneys: Scott D. Miska, pro se, Appellant. Christine L. Tufts, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s finding that the employee failed to show that he sustained a work-related Gillette injury to his neck as a result of his work activities with the employer, Peck Construction. We affirm.
The employee, Scott Miska, has worked for a variety of employers, principally as a construction laborer, since graduation from high school in 1983. He first began to notice ongoing neck symptoms, consisting of occasional periods of ongoing neck soreness, while working in a job pounding fence posts, which he held from 1994 to mid 1996.
In 1996, he began working for Jesco, Incorporated, as a concrete laborer. His primary duties were pouring floors and block tending. During this employment he sustained a specific injury when he slipped on ice and fell, after which he began to experience stiffness and soreness in his neck and the onset of a feeling of Ashocks@ in his arms and legs, which he described as like Agetting electrocuted.@. Thereafter he would have recurrences of these arm and leg shocks about twice a year. His neck stiffness continued, but at a level he described as Anothing really major.@ During this employment, the employee also began to have incidents in which, because of his height, he sometimes forgot to duck down and would strike the top of his hard hat on scaffolding. This occurred principally while performing block tending duties. He testified that this frequently happened with sufficient force to push his head backwards and knock the hard hat off his head. The employee worked for Jesco until the summer of 1997.
In May 1997 the employee began working for Stellar Concrete, performing similar work to that which he performed for Jesco. He continued to have incidents where he struck his head on scaffolds during this employment, but this only occurred during the winters, as the employer only did block work during those months. During summers, the employee worked pouring floors, which did not involve working around scaffolding. The employee did testify that he experienced some electrical Ajolting@ symptoms in his arms during summers when raking concrete. He indicated that the symptoms in his arms and legs progressively worsened during this employment, such that his neck was sore all the time, although the feeling of electric shocks in his arms was only Areally bad@ a couple of times a year. He also had some tingling in his arms, and sometimes his fingers and feet would go numb.
The employee next worked for Kelleher Construction, from May 1997 to January 1998. While his work at Kelleher was mainly pouring floors, he also performed block tending. Whenever he switched from pouring to block tending, he would hit his head hard on the scaffolding several times before he got used to having to duck. In an eight-hour shift, this might happen 8-10 times. He then would only hit his head on the scaffolding when he was overly tired so as to become inattentive. On August 18, 1997, the employee began seeing a chiropractor for various problems including neck pain. The employee missed at least one day of work at Kelleher due to his neck problems. While working at Kelleher, he had neck pains, sometimes had Ashocks@ down to his elbows, and frequently took four Motrin tablets per day for pain.
Following the employment with Kelleher, the employee worked for Balsimo Concrete during the summer of 1998, and at Kellington Construction from September 1999 to June 2000. He sustained a low back injury at Kellington, for which he treated with his chiropractor, Dr. Bracht. Dr. Bracht=s notes indicate that the employee was also treated chiropractically for neck pain during this period, and that she had diagnosed a segmental dysfunction of the cervical spine.
In the spring of 2002, the employee worked pouring floors for Gresser. He testified that he still had problems with his neck while working there but that he was not working around scaffolding, so that he did not strike his head there as before.
The employee started working for Peck Construction in July 2002. When he started there, he had numbness and tingling in his hands, and shortly after beginning to work for Peck he began to notice numbness and shakiness in his legs when climbing ladders and scaffolding. Sometimes he lost control of his legs. By December, he was having stabbing pain and numbness down his arms and legs all the time. He coped with his pain by taking 12-15 Motrin daily. The majority of the employee=s work at Peck was exterior slab work and interior concrete work. Neither involved scaffolding. The employee=s time cards showed block tending work, involving scaffolding, on only three to four occasions, but the employee testified that he had also performed block tending work on some of the days when his time cards showed him working on footings. However, there were only nine days during which he worked doing footings. The employee testified that on one specific occasion in late November or in December, toward the end of his work for Peck, he hit his head on a scaffold and heard a Apop@ and a grinding sound in his neck. He testified that this was one of the first times he worked around scaffolds with this employer.
The employee never reported an injury during the time he worked for Peck, and sought no medical or chiropractic treatment while working there. At the end of December 2002, he was laid off in a seasonal layoff. He then collected unemployment until August 2003.
In January 2003, the employee saw a physician for problems with his thumb. He did not mention neck pain, leg shakiness, or other problems potentially related to his cervical spine. The employee later testified that he had hoped that his symptoms would resolve without medical treatment.
On Memorial Day, May 26, 2003, the employee was arrested for driving while intoxicated. He was eventually given a jail sentence and was incarcerated from mid summer until a few days before Thanksgiving, 2003. In July 2003, while his incarceration was pending, the employee saw a physician about various problems unrelated to those at issue in this case. He did not mention leg shakiness or other symptoms potentially related to his cervical spine. While in jail, the employee sought no medical treatment. He testified, however, that he did not experience leg shaking or other significant symptoms during this period due to inactivity.
On Thanksgiving day, 2003, the employee was involved in an altercation with his in-laws, who kicked and punched him about the face and tail bone. He was seen at the Allina Clinic urgent care department on November 28, 2003 and reported pain in his tail bone, face, and nose and around his eyes. He did not mention any leg shakiness.
The employee=s leg shakiness symptoms are first noted in medical records on December 20, 2003, when he saw Dr. David A.Olson at Allina for multiple complaints including that his legs quaked when going up and down stairs. The employee testified at the hearing that he had mentioned these symptoms to Dr. Olson earlier that month, but that the doctor had not taken much note of it. The employee told Dr. Olson that this problem had started about a year before. He was referred to a neurologist for evaluation and recommendations regarding the leg weakness.
The employee was seen by at Capitol Neurology on January 14, 2004 by Dr. Craig L. Hyser, M.D.. The employee told the doctor that he worked in concrete construction and had noted over the past year that his legs would become shaky, particularly if carrying something. Dr. Hyser ordered MRI scans of the employee=s cervical and thoracic spine.
The cervical MRI revealed multi-level degenerative changes at C3-4, C4-5, and C5-6. There was severe central canal stenosis at C5-6 due to a broad posterior hypertrophic spur, and compression of the spinal cord with edema and/or gliosis at the C4-5 interspace. Moderate stenosis was also present at C5-6, but without cord compression. The thoracic MRI showed prominent Schmorl=s nodes with endplate irregularities consistent with juvenile discogenic disease, but no thoracic disc protrusion.
The employee returned to Dr. Hyser on January 19, 2004. The doctor recommended that the employee avoid climbing or heavy lifting and referred him to see a neurosurgeon.
On January 20, 2004, the employee saw Dr. Miriam Kim, M.D., at Millenium Neurosurgery. The employee told her that his symptoms of bilateral leg clumsiness, weakness and spasticity had been progressive over the past year or two. Dr. Kim attributed the employee=s leg clonus to myelopathy from severe spinal cord compression at C4-5 and C5-6. She recommended surgery consisting of an anterior C4-5 and C5-6 decompression and fusion with a bone graft. She explained that the goal of the surgery would be to make physical space for the spinal cord to prevent further deterioration, which could otherwise ultimately lead to quadriplegia. She told the employee not to expect improvement in his neck pain as his baseline level of function might not ever improve. She further advised him to avoid any trauma to the cervical spine, as this could result in sudden quadriplegia.
On January 27, 2004, the employee notified Peck Construction of an alleged work injury to his neck, which he initially attributed to a specific incident of striking his head on scaffolding on an unspecified date during his employment for that employer. A first report of injury was filed on January 28, 2004.
The employee underwent the recommended surgery on February 2, 2004.
In a letter report dated February 20, 2004, Dr. Olson offered the opinion that the employee=s neck condition was aggravated or accelerated by his 20 years of work as a heavy construction worker. The employee filed a claim petition on April 12, 2004, seeking temporary total disability compensation and rehabilitation benefits from employer Peck and its insurer, Acuity. The claim petition alleged that the employee had sustained a Gillette injury to the neck culminating on December 28, 2002, the last date worked for Peck. The employer and insurer answered denying primary liability.
On August 24, 2004, the employee was examined on behalf of the employer and insurer by Dr. Edward W. Szalapski, Jr., an orthopedic physician. Dr. Szalapski concluded that the employee=s cervical spine condition was due to the progression of a chronic severe degenerative disc disease which was essentially genetic in origin and not related to the employee=s work as a construction laborer.
A hearing on the employee=s claim petition was held before a compensation judge on June 17, 2005. Following the hearing, the judge found that the employee had failed to establish that he sustained a work-related injury to his neck as a result of his work activities for the employer, Peck Construction. The employee appeals.
The compensation judge found that the employee did not sustain a Gillette injury to his neck as a result of his work activities for Peck Construction. The employee has appealed this finding. When this court reviews a compensation judge=s factual findings, our review is limited by law to determining 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 (1992). 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, this court must affirm. Id. at 60, 37 W.C.D. at 240. Similarly, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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." Id.
In order to establish a Gillette injury, the important question Ais whether the employment is a proximate cause of the disability.@ Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 466 (Minn. 1994). "A Gillette injury occurs when the cumulative effect of trauma due to work activities is sufficiently serious to disable the employee from further work." Giem v. Robert Giem Trucking, 46 W.C.D. 409, 415 (W.C.C.A. 1992).
The employee argues that the compensation judge should not have given much weight to the opinion of Dr. Szalapski, who spent little time in examining him, and who is not a neurologist.
He contends that the record clearly shows that his 20-year history of work as a construction laborer was a substantial contributing cause of his neck problems. The employee has specifically attributed his neck problems to repeatedly striking his head on scaffolding, which he had done frequently over many years of employment. He disputes Dr. Szalapski=s opinion that his condition was the result of the employee=s own particular genetic heritage.
We note, first, that the compensation judge did not rely on Dr. Szalapski=s opinion. Thus we need not consider whether that opinion had an adequate foundation or whether the compensation judge would have erred had she relied on it. Nor did the compensation judge find that the employee=s neck problems were unrelated to his prior work as a construction laborer. Instead, the judge focused solely on the employee=s period of work for Peck Construction, and found that the work activities during this period did not substantially cause or aggravate the employee=s neck problems.
The employee correctly points out in his brief that where an employee sustains a Gillette injury resulting from work performed for a series of employers, the last employer and insurer are generally liable for an employee's disability. See, e.g., Tannahill v. Mid-American Lines, Inc., 40 W.C.D. 726 (W.C.C.A. 1987). However, this rule is subject to the requirement that the work duties performed by the employee during that last period of employment must also have been a substantial contributing factor to the employee's disability. Id.. In other words, A. . .imposition 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." Crimmins v. NACM North Central Corp., 45 W.C.D. 435, 439 (W.C.C.A.1991).
In the present case, the employee brought his claim solely against employer Peck, as the last employer prior to his alleged ultimate breakdown. None of his prior employers were named as defendants in his claim petition. As such, it was proper for the compensation judge to focus solely on the question of whether the work duties at Peck were a substantial contributing factor to the employee=s disability.
The evidence bearing on that issue was mixed and could have permitted a contrary result. However, on appeal, this court must determine whether the findings the judge reached had substantial evidentiary support in the record.
Having closely considered the evidence, we must affirm the compensation judge=s findings. The judge noted a number of factors which reasonably supported her findings. For example, the employee=s symptoms began long prior to his employment with Peck. The employee did testify that certain symptoms, primarily the Ashakiness@ and instability in his legs, first started at Peck. However, he noticed these symptoms shortly after beginning work at Peck, prior to performing any block tending or striking his head on scaffolding there, which did not occur until several months later, near the end of his work for Peck. The compensation judge could conclude that the worsening of the employee=s condition represented by this change in symptoms was not due to his specific work activities at Peck Construction, but was instead the natural progression of a process which had started much earlier.
In addition, the compensation judge noted the short time the employee worked for Peck, the minimal number of days on which he performed work there under conditions where he might have struck his head on scaffolding, and the fact that the employee did not miss work or seek medical or chiropractic treatment while working at Peck. He did not seek medical treatment for his neck problems, including the leg symptoms, for almost a year after he left this employment. Overall, we cannot say that the compensation judge clearly erred in failing to find that the employee=s work duties while at Peck substantially caused his neck problems or related disability.
Because substantial evidence supports the compensation judge's determination, we must affirm.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).