ROXY A. WACEK, Employee/Appellant, v. HY-VEE FOOD STORES, INC., and HAWKEYE SEC./ONE BEACON INS. CO., Employer-Insurer, and WELLMARK BLUE CROSS BLUE SHIELD OF IOWA, NEUROLOGICAL ASSOCS., and J.C. CHRISTENSEN & ASSOCS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 5, 2006
EVIDENCE - EXPERT MEDICAL OPINION. The medical experts for both parties had adequate foundation to provide an expert opinion. While it can be argued that there are inaccuracies and inconsistencies with respect to the facts relied upon by the medical experts on both sides, and that the experts for both sides lacked complete knowledge about every aspect of the employee=s medical history, treatment and work activities, such concerns go to the persuasiveness or weight to be afforded the opinions offered, but are insufficient to establish lack of foundation.
CAUSATION - GILLETTE INJURY. The compensation judge did not err in applying the standard of proof for a Gillette injury under Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994) by considering the employee=s treating physicians= failure to identify the specific work activities they believed caused the employee=s claimed cervical injury in weighing the medical expert opinions before her.
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s findings that the employee failed to prove a work-related neck and upper extremity injury as a result of her admitted carpal tunnel injury or her work activities, and that the employee failed to prove causally-related reflex sympathetic dystrophy (RSD).
Determined by: Johnson, C.J., Wilson, J. and Rykken, J.
Compensation Judge: Kathleen Behounek
Attorneys: Ross L. Leuning, Walbran, Furness & Leuning, Owatonna, MN, for the Appellant. Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s findings that (1) the employee=s work-related carpal tunnel syndrome was not a substantial contributing factor in her disability from and after February 16, 2003; (2) the employee failed to prove she sustained a Gillette injury to her cervical spine resulting in her current neck and right upper extremity symptoms; and (3) the employee does not suffer from causally-related reflex sympathetic dystrophy. We affirm.
The employee, Roxy A. Wacek, began working for the employer, Hy-Vee Food Stores, Inc., in Albert Lea, Minnesota, in September 1989. For the first three years she worked on the night shift, part-time, doing cleanup in the bakery. Later, her duties included donut frying, early morning icing on rolls, and preparation of other bakery items. At some point, she began working full-time. From approximately 1996 until September 2001, she worked full-time as a cake decorator.
The employee=s primary duties as a cake decorator included making icing, making brownies, and decorating cakes. To make icing, the employee lifted and carried a 50 pound block of premixed icing from the back room to the bakery area. She cut the block into quarters with a large knife and put one quarter at a time into a floor stand mixer, adding water. During the mixing process, she periodically stopped the mixer and scraped down the icing from the side of the mixing bowl, bending over to reach deep down into the bowl. When done, the icing was put into five gallon buckets, weighing about 25 pounds when full. The employee stated they could fill about five buckets from a mixing bowl and went through about two buckets of icing in a day. The employee also lifted and carried a 100 pound bag for making brownies every other day, usually a double batch. Mixing brownies required a similar process of scraping down the side of the mixing bowl.
The employee testified the majority of her time was spent decorating cakes, about 80 percent of each day. This involved spreading icing on the cake with a spatula, then using decorating bags to make designs on the cake. The employee testified she would fill the decorating bags with colored icing then squeeze the bags with both hands to apply the icing, using a lot of wrist motion to make the designs. (T. 30-48.) The employee stated that about a year prior to seeking treatment, the employer changed to pre-mixed decorating icing that was extremely hard, and she had to strain to squeeze it out. She began to get sharp pains in her hand and wrist, began dropping things, and her work slowed down. (T. 48.)
On August 29, 2001, the employee was seen by Dr. Michael Eckstrom, an orthopedic surgeon. She gave a history of problems with her right arm since February 2001. The employee described the pain as radiating down into the wrist and up into the shoulder area, with paresthesias, numbness and tingling in both hands. A September 27, 2001, EMG confirmed moderate to severe carpal tunnel syndrome on the right and mild to moderate carpal tunnel syndrome on the left.
Carpal tunnel surgery was performed on the right on November 1, 2001. On November 14, Dr. Eckstrom reported the employee was neurovascularly intact with good resolution of her symptoms. In December, the employee called the clinic stating the right hand was giving her trouble and requesting surgery be postponed on the left hand. The employee returned on January 4, 2002, reporting her right hand was now her good one. Dr. Eckstrom noted her neurologic symptoms distally were all resolved. A left carpal tunnel release was performed on January 7. On January 29, 2002, Dr. Eckstrom reported the employee had no difficulties and things were going well with no signs of carpal tunnel syndrome. He released the employee to return to work with no use of her left hand.
In February, the employee complained of problems using her right hand. Dr. Eckstrom noted no objective findings, referred the employee to a work hardening program, and continued his previous restrictions. In March 2002, the employee reported continuing problems with the right hand with paresthesias in the thumb and index finger and forearm pain. Dr. Eckstrom diagnosed pronator syndrome and provided new restrictions of no use of the right arm and hand.
In April 2002, the employee was seen by Dr. Daniel Lachance, a neurologist, for a second opinion. Dr. Lachance reported the employee had excellent relief of her carpal tunnel symptoms with the surgeries. The doctor noted the employee complained of varying locations of right arm discomfort, but her neurological examination was normal and she had no symptoms referable to the median nerve distribution at that time. The doctor further noted there was nothing to Aconnect these locations by way of any specific radicular symptoms.@ Dr. Lachance concluded the employee did not have pronator syndrome and diagnosed overuse syndrome. He indicated there might be a cervical disc component to the employee=s Avariable, longstanding, nonprogressive@ neck and right upper extremity symptoms, stating further he did not believe these were associated with her right arm problem. Dr. Lachance opined no further intervention or work up was necessary, although permanent work restrictions might be appropriate. (Ee Ex. 1.)
The employee returned to work with the employer following the carpal tunnel surgeries, and was initially assigned to work as a checkout cashier, a job that was approved by her doctor. The employee testified she had problems with the job and worked as a cashier only a couple of days. She stated that when she told the manager about her problems she was reassigned to work as a greeter. (T. 82-84.)
In June 2002, the employee began treating with Dr. James Schwartz, an orthopedist. The employee complained of swelling in the arm around the elbow and radial side of the wrist, pain in the right scapula with numbing and tingling sensations, pain in the right trapezius, and headaches coming up the right side of the neck, as well as tingling and numbness in the index finger and two right fingers. She stated she was working in the grocery straightening shelves. On examination, she had good range of motion in both shoulders, and upper extremity motor strength and reflexes were normal bilaterally. She did have a positive Tinel=s sign over the right median nerve with paresthesias to the index finger and at the cubital tunnel in the right hand. Dr. Schwartz ordered a repeat EMG for evaluation of carpal tunnel syndrome and possible cervical radiculopathy and an MRI scan of the cervical spine.
The June 17, 2002, MRI scan showed a mild central disc bulge at C6-7 with mild left paracentral spurring. The neuroforamen appeared normal throughout and there was no evidence of central or lateral stenosis. The EMG study on June 18, 2002, was negative for any radicular findings, but did evidence mild right median neuropathy at the wrist with significant improvement from the previous study. In a chart note dated July 12, 2002, Dr. Schwartz stated the employee described positions and activity as a cake decorator, Asuch that the right arm injury could be construed as a disc injury secondary to work activity.@ He opined that A[i]nasmuch as she has the same symptoms that she had prior to the carpal tunnel surgery, logically if the symptoms were accepted as workmen=s comp injury, were only partially carpal tunnel, I feel that the cervical disc is a work related injury as well.@ (Ee Ex. 1.)
In August 2002, the employee was seen by Dr. Mary Jurisson, a hand specialist at the Mayo Clinic. The employee complained of right arm pain from her neck to her mid-palm and the first to third digits of the right hand, neck pain, shoulder pain, ulnar elbow pain, and pain in her wrist to the mid-dorsal forearm. On examination, the employee was exquisitely tender generally in the right upper extremity, but provocative maneuvers for medial epicondylitis were negative, Tinel=s signs were negative, and provocative maneuvers for radial tunnel, pronator syndrome, lateral epicondyle and carpal tunnel syndrome were negative. The employee had full, pain-free range of motion in her shoulders, elbows and wrists with full fists, and normal motor and reflex testing. Dr. Jurisson diagnosed chronic pain syndrome but felt it was possible the employee had sympathetically-maintained pain syndrome and ordered a bone scan. The September 9, 2002, scan showed mild changes in the right thumb, second finger and wrist suggestive of degenerative arthritis, but did not support a diagnosis of reflex sympathetic dystrophy. Dr. Jurisson diagnosed right arm pain and imposed restrictions of no use of the right hand and 20 pounds occasional lifting with the left arm.
The employee continued to see Dr. Schwartz who performed a discography and referred the employee for physical therapy and a series of epidural steroid blocks. Dr. Schwartz variously identified and/or treated the employee for cervical instability, degenerative disc disease, neck pain with radiculopathy, elbow pain, right wrist pain with numbness into the fingers and thumb, right shoulder, right upper back, right elbow and right forearm pain, overuse syndrome, and thoracic outlet syndrome.
The employee was taken off work by Dr. Schwartz on December 27, 2002, and remained off until she was released to return to work, four hours per day, on April 1, 2003. She was given light-duty restrictions which included no repetitive use of the right upper extremity, no overhead work, no lifting over 3 to 5 pounds with the right arm, and a maximum lifting restriction of 10 pounds. The employee returned to work, part-time, with the employer.
The employee began to treat with Dr. Jeffrey Kotulski at the same clinic in July 2003. She described aching and burning pain, numbness and paresthesia-type symptoms in the right upper extremity with associated pain in the right upper neck, and occasional coldness in the right arm. On exam, the doctor noted non-focal neurological findings and diagnosed cervical disc disease with radiculopathy in the right arm and regional complex pain syndrome. Dr. Kotulski provided osteopathic manipulation that gave some relief.
The employee was seen by Dr. John Sherman for an orthopedic consultation, in December 2003, at the request of Dr. Schwartz. She described neck pain radiating into both arms, greater on the right, with numbness and tingling in the right arm. Stating, A[i]t is unclear as to where [the employee=s] symptoms are arising,@ Dr. Sherman ordered a repeat MRI scan of the cervical spine. The December 15, 2003, scan showed mild central disc endplate complex at C5-6, and moderate central and left central disc osteophyte complex with moderate narrowing at the nerve root entry zone of the left foramen. The right neuroforamen was normal.
In January 2004, Dr. George Adam, a neurologist, performed a repeat EMG. The doctor noted the right median sensory nerve response was delayed in latency, but the motor distal latency was normal as was the conduction velocity on the wrist to elbow segment. The doctor also requested a second reading of the December 2003 MRI scan which was interpreted as showing minimal posterior bulging at C6-7, with no evidence of disc herniation or stenosis of the spinal canal or neural foramina at any level. Dr. Adam=s impression was a mild focal median neuropathy at the wrist affecting predominantly the sensory modality. He recommended physical therapy to relieve muscle tension in the thoracic outlet region.
The employee was again taken off work on February 26, 2004, due to a diagnosis of right trigger thumb for which she underwent a surgical decompression in March 2004. The employee has not returned to work since that time.
The employee was next seen by Dr. Mahmoud Nagib, a neurosurgeon, who recommended an anterior discectomy and fusion at C6-7 based on a diagnosis of cervical radiculopathy on the left side. The surgery was performed on May 11, 2004. The surgery did not result in any appreciable change in the employee=s right-sided neck and upper extremity complaints.
The employee was examined by Dr. Bruce Mack, a neurologist, at the request of the employer and insurer on January 14, 2005. The employee reported no improvement in her right upper extremity symptoms following the surgeries, and stated she continued to have burning and numbness with pain in her wrist traveling up to her shoulder and neck. The employee attributed her associated neck and arm pain to her work activities, particularly her head and neck positioning during work. Dr. Mack noted an essentially normal objective examination of the neck and right arm, with subjective limitation of cervical range of motion at least partially attributable to the fusion and occasional coolness in the right hand. In his opinion, the employee did have bilateral hand numbness and tingling consistent with carpal tunnel syndrome, successfully treated with surgery, with no residual dysfunction. Dr. Mack found no evidence of any disc herniation, cervical radiculopathy or reflex sympathetic dystrophy, and opined the employee=s neck and upper extremity complaints and symptoms were not related to her work activities or her work-related carpal tunnel syndrome.
The employee continued to treat with Dr. Kotulski through the date of hearing. In letter reports dated March 22, 2005, and June 27, 2005, the doctor diagnosed chronic pain syndrome and reflex sympathetic dystrophy in the neck and right upper extremity. Dr. Kotulski opined the employee=s work for the employer was a substantial contributing cause of the degenerative changes in her cervical spine and her need for cervical fusion surgery, as well as her right arm symptoms, explaining,
Work involved repetitive type activity in which she was required to consistently lift 50 pound bags of mix throughout the day and constantly reaching with her arms and squeezing with her hands while decorating. She was standing and did have to bend forward with the cervical and upper thoracic spine throughout her work shift.
In reviewing [the employee=s] medical history, from when she initially presented with arm and wrist pain and then had carpal tunnel surgery, she already had a combination of cervical findings as well as carpal tunnel symptomology. Therefore, it was difficult to ascertain which symptoms were the cause for her original presentation. Nonetheless, both of the problems she ended up with, the carpal tunnel syndrome and the cervical disc disease, stem from her repetitive actions and postural position at work. In my opinion, the diagnosis of reflex sympathetic dystrophy stems from her work activities and is consistent with those activities from her employment.
(Ee Ex. 1.)
The case was heard by a compensation judge on July 1, 2005. In a Findings and Order served and filed on October 3, 2005, the compensation judge found the employee failed to prove she sustained a work-related Gillette injury to her cervical spine, that the employee=s bilateral carpal tunnel syndrome was not a substantial contributing factor in her disability from and after February 16, 2003, and that the employee did not suffer from reflex sympathetic dystrophy as a result of her admitted bilateral carpal tunnel injuries or her work activities with the employer. The employee appeals.
This case turns largely upon the compensation judge=s resolution of conflicting medical expert opinion. The employee asserts the judge erred in relying on Dr. Mack, the employer and insurer=s medical expert, and misapplied the standard enunciated by the Supreme Court in Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994), in finding the employee failed to prove a work-related injury to the neck and right upper extremity. The employee further contends substantial evidence does not support the judge=s conclusion that the employee=s neck and right upper extremity symptoms are not causally related to her admitted carpal tunnel work injury or her work activities. We affirm.
Both parties assert the other=s medical expert(s) lack foundation. We disagree. Foundation goes to the competency of a witness to provide an expert opinion. The competency of a medical expert depends both on the witness=s scientific knowledge and the witness=s practical experience with the subject matter of the offered testimony. Drews v. Kohl=s, 55 W.C.D. 33 (W.C.C.A.1996) (citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983). There is no dispute as to the scientific expertise of these witnesses. Rather, the parties= arguments focus on the witness=s knowledge about the employee=s medical treatment and work activities. Sufficient knowledge of the subject matter may be obtained by personal knowledge and experience, review of medical records, a hypothetical question or testimony at the hearing. Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978). Dr. Kotulski and Dr. Schwartz treated the employee over an extended period of time, took multiple histories from the employee, and discussed her work activities with her. Dr. Mack examined the employee, obtained a history and description of her work activities, reviewed extensive medical records, and was provided with a lengthy hypothetical question at his deposition. We have repeatedly stated that this level of knowledge and experience is sufficient to provide adequate foundation for the opinion of a medical expert.
It can be argued that there are inconsistencies and inaccuracies with respect to the facts relied upon by the medical experts on both sides, and that the experts for both sides lacked complete knowledge about every aspect of the employee=s medical history, treatment and work activities. These concerns go to the persuasiveness or weight to be afforded the medical opinions offered, but are insufficient to establish lack of foundation. We, accordingly, find no grounds for reversal on this basis.
2. Gillette Injury - Steffen Standard
In her memorandum, the compensation judge observed that ADrs. Schwartz and Kotulski=s reports fail to identify the specific work activities performed by the employee that they believed were substantial contributing causes of her cervical disc injury@ (emphasis added). The employee argues this language demonstrates the judge improperly imposed the standard of proof set forth in Reese v. North Star Concrete, 38 W.C.D. 64, 66 (W.C.C.A. 1985), rejected by the Supreme Court in Steffen. We are not persuaded.
In Steffen, the Supreme Court stated the question of a Gillette injury primarily depends on medical evidence, noting, however, that, while not required, evidence such as the employee=s specific work activities Amay be helpful as a practical matter.@ Id. at 581, 50 W.C.D. at 467. The employee has the burden of proving a causal connection between her work activities and ensuing disability, which includes Athe facts and/or data upon which the expert relied in forming his opinion.@ Id. In this case, the compensation judge adopted Dr. Mack=s opinion that the employee=s work activities were not a substantial contributing cause of her neck and upper extremity pain, finding his opinion more persuasive. The judge explained that while Dr. Schwartz and Dr. Kotulski opined that the employee=s cervical disc condition was work-related, she did not find their opinions persuasive given their lack of comment on the employee=s longstanding neck and upper extremity complaints prior to beginning work as a full-time cake decorator, and their failure to identify the specific work activities performed by the employee they believed caused the claimed cervical injury. (Mem. at 7.)
Whether the employee proved a Gillette injury is a question of fact for the compensation judge. See, e.g., Carlson v. Minneapolis Pub. Hous. Auth., slip op (W.C.C.A. June 19, 1997). As the trier of fact, it is the compensation judge=s responsibility to resolve conflicts in medical expert testimony. Where there is adequate foundation for the opinion 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). On the facts of this case, we cannot say the compensation judge erred in accepting the opinion of Dr. Mack, or in applying the Steffen standard of proof for a Gillette injury.
3. Carpal Tunnel Syndrome
The employee argues substantial evidence does not support a finding that the employee=s work-related carpal tunnel syndrome was not a substantial contributing cause of her neck and right upper extremity problems from and after February 16, 2003. We are not persuaded.
Following the carpal tunnel surgeries, on January 29, 2002, the employee=s treating surgeon, Dr. Eckstrom, reported there were Ano signs of carpal tunnel.@ On February 13, 2002, the doctor stated that although the employee complained of trouble using her right hand, she did not describe any paresthesias, felt strong and was able to make a fist, and had normal sensation, Aso it is just not quite making sense at this point.@ (Ee Ex. 1.) When the employee=s right upper extremity complaints persisted, Dr. Eckstrom referred the employee to Dr. Lachance, a neurosurgeon, for a second opinion. The doctor reported the employee Ahas excellent relief of her sensory symptoms in both hands with the surgeries.@ He further observed that although the employee complained of varying locations of right arm discomfort, her neurological examination was normal and she Ahas no symptoms specifically referable to the median nerve distribution at any level at this time.@ (Ee Ex. 1.)
The employee was seen by Dr. Jurisson, a hand specialist at the Mayo Clinic, on August 14, 2002. On examination, the doctor found negative Tinel=s signs and no provocation of symptoms with maneuvers for radial tunnel, pronator syndrome, lateral epicondyle or carpal tunnel syndrome. The employee had full, pain-free range of motion in her shoulders, elbows and wrists with full fists, manual motor testing was normal and sensation was normal. Dr. Jurisson=s final diagnosis was right upper extremity pain.
Dr. Mack stated that, on examination, the employee had no weakness of median innervated hand musculature and no atrophy of the median innervated hand muscles. Her EMG studies, according to the doctor, showed no evidence of continuing denervation and the employee showed no objective signs of continuing dysfunction related to her carpal tunnel syndrome. Dr. Mack explained that although the EMG studies show minimal prolongation of the distal sensory latency, such residua are commonly seen after successful carpal tunnel surgery, and are not associated with the kind of neck and upper extremity symptoms described by the employee. Dr. Mack opined the employee has no residual disability as a result of her carpal tunnel syndrome and the employee=s current right extremity and neck pain symptoms were not a result of, or related to, her carpal tunnel syndrome. The compensation judge accepted the opinion of Dr. Mack. This evidence is sufficient to support the finding of the compensation judge, and we must affirm. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984).
4. Gillette Injury to the Cervical Spine
The employee argues the evidence does not support the compensation judge=s finding that the employee failed to establish a Gillette injury to the cervical spine. She contends the nature of her work, including repeatedly and continuously squeezing with her hands while decorating cakes, lifting 50 to 100 pound bags and working with the neck and upper back bent forward correlate with her neck and upper extremity symptoms and the diagnoses of her treating physicians. While there is evidence that would support this conclusion, on appeal, A[t]he findings of the compensation judge are to be affirmed >if, in the context of the record as a whole, they are supported by evidence that a reasonable mind might accept as adequate.=@ Whether this court might have viewed the evidence differently is not the point. Where the evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge must be upheld. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (citing Hengemuhle at 59, 60).
Dr. Mack maintained there was no evidence of a cervical radiculopathy on examination, no right arm symptoms consistent with a cervical dermatomal distribution, and no evidence of a disc herniation or spinal stenosis on the employee=s cervical MRI scans. These findings are consistent with the findings of Dr. Lachance, who concluded the employee=s neurological examination was normal, further stating A[t]here is nothing that seems to connect these locations by way of any specific radicular symptoms.@ (Ee Ex. 1.)
Dr. Mack additionally noted the employee had a history of chronic neck, shoulder, upper back and right arm complaints dating back to about 1990, more than five years before the employee began working as a full-time cake decorator. He indicated that the kind of degenerative changes at C5-6 and C6-7 seen on the employee=s MRI scans are common as people grow older, and opined there was no relationship between the employee=s current neck and right arm complaints and her activities at work. Dr. Lachance similarly noted the employee=s Avariable, longstanding, nonprogressive@ neck and upper extremity symptoms, stating he did not believe these were associated with her right arm problem. (Ee Ex. 1.)
While the question of whether the employee=s present neck and upper extremity complaints were substantially caused by or aggravated by her work activities could have been resolved differently, there is substantial evidence, including the opinion of Dr. Mack, to support the compensation judge=s opinion, and we must, therefore, affirm.
5. Reflex Sympathetic Dystrophy
Finally, the employee, relying on the diagnosis and opinion of Dr. Kotulski, argues the compensation judge erred in finding the employee failed to establish that she suffers from work-related reflex sympathetic dystrophy (RSD). On this issue, as with others, Dr. Mack opined to the contrary. In his deposition he explained that the characteristic arm pain of RSD should be associated with objective findings to meet the criteria for this diagnosis. This includes a loss of hair on the back of the hand or forearm, puffiness or swelling of the part that is painful, the skin can be shiny over the hands and fingers, there may be a color change, initially redness and later blueness associated with coldness, there may be blanching or poor vascular filling when the skin is pressed, and there may be underlying bony changes. He observed that the only finding made on examination was occasional coldness in the right hand, and opined that, based on his physical examination and review of the employee=s treatment records, the employee did not have RSD. As there is substantial evidence to support the conclusion that the employee does not have RSD, we must affirm.
 Gillette v. Harold Inc., 257 Minn. 3l3, 101 N.W.2d 200, 21 W.C.D. l05 (1960).
 All restrictions on the left arm and hand were lifted on April 4, 2002. The employee testified the left hand surgery Awent fine@ and she did not have any problems on the left side. (T. 55.)
 The employee=s doctors variously used the terms reflex sympathetic dystrophy, sympathetically-maintained pain syndrome, and regional complex pain syndrome to refer to the same condition.
A[T]o prove the work causation of a Gillette injury, an employee must >prove that the specific work activities caused specific [symptoms] which led cumulatively and ultimately to disability constituting personal injury due to work.=@ Steffen at 581, 50 W.C.D. at 466.