STEVEN W. BENNETT, Employee, v. NORTHWEST AIRLINES CORP., and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants, and ST. MARY=S DULUTH CLINIC HEALTH SYS., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 16, 2007
APPLICABLE LAW - CONTROLLING EVENT; CAUSATION - CONSEQUENTIAL INJURY. The date of the underlying compensable personal injury, a left shoulder injury on March 17, 2005, is the controlling event for the employee=s consequent elbow condition Aculminating@ on June 23, 2005.
Determined by: Stofferahn, J., Pederson, J., and Rykken, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Gustav Layman, Petersen, Sage, Graves, Layman & Moe, Duluth, MN, for the Respondent. Kathy A. Endres and Naomi A. Liebo, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge=s determination that the employee sustained a consequential elbow injury which culminated on June 23, 2005, as the result of a work injury on March 17, 2005. We affirm.
Steven W. Bennett, the employee, began working for Northwest Airlines in 1994. In November 2002, he was employed there as a mechanic when he injured his right shoulder on the job. The injury subsequently required rotator cuff surgery.
The employee told his internist in November 2004 that he was experiencing pain in his left elbow. He was referred to an orthopedist and saw Dr. Steven Harrington on January 17, 2005. Dr. Harrington diagnosed left elbow tendinopathy with possible radial tunnel syndrome. Dr. Harrington provided the employee with a steroid injection in the left elbow. The employee testified that his symptoms resolved and there are no records of any treatment for his left elbow until June 2005.
The employee slipped and fell off a ladder while at work on March 17, 2005. He injured his left shoulder but initially did not miss any time from work. He testified that he continued to work at his usual duties but tried to work in such a way so as not to aggravate his shoulder. The employee consulted with Dr. Michael Gibbons for his shoulder condition on May 26, 2005. Dr. Gibbons diagnosed a SLAP-type lesion in the left shoulder.
The employee saw a physician=s assistant at Duluth Clinic for left elbow pain on June 23, 2005. The employee reported at that time that he had experienced left elbow pain for the past month or so which he attributed to his work activities. The employee was given a steroid injection in the extensor tendon of the left elbow and was advised against overuse of his left arm.
Dr. Gibbons performed surgery on the employee=s left shoulder on July 14, 2005. The employee has not returned to work since that time. The employee testified at the hearing that his left elbow symptoms improved after surgery since he was not working but that he had persistent pain nevertheless. The employee has continued to treat for both his shoulder and his elbow conditions.
The employee filed a claim petition in January 2006 which was heard by Compensation Judge Jerome Arnold on March 26, 2007. The employee claimed that he had sustained a work injury to his left elbow, either as a result of his work activity or as a consequence of one or both of his work injuries involving the shoulders. In his Findings and Order of April 6, 2007, the compensation judge denied the employee=s claim that his elbow condition was the result of a Gillette injury. He concluded, however, that the employee had suffered a consequential injury to his left elbow as a result of the 2002 right shoulder injury but that this consequential injury had resolved by March 17, 2005. The compensation judge also determined that the employee had sustained a consequential injury to his left elbow as a result of his 2005 left shoulder injury and that this consequential injury had culminated on June 23, 2005, and was the cause of the employee=s current elbow condition. The employer and insurer appeal.
The employer and insurer do not dispute that the employee=s left elbow condition is a consequence of his left shoulder injury on March 17, 2005. The question raised on appeal is whether the compensation judge=s finding that the left elbow injury Aculminated on June 23, 2005,@ places any legal significance on that date. In other words, the issue is whether the June 23, 2005, culmination becomes a controlling event when determining the rights of the parties.
The court in Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 307, 40 W.C.D. 209, 213 (Minn. 1987), held that Athe substantive rights of the employer and employee are fixed . . . by the law in effect on the date of the controlling event.@ The court further noted that, while the controlling event is most often the occurrence of a compensable personal injury, the controlling event in the case of a dependent=s claim is the date of death, and the controlling event in the case of occupational disease is the date of disablement. The question for this court is what should be considered the controlling event in the instance of a consequential injury.
This court discussed the concept of a consequential injury in Heinemann v. ISD 279, 63 W.C.D. 312 (W.C.C.A. 2003). The court referred to the decision of the supreme court in Eide v. Whirlpool Seeger Co., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961), in which the court held that when a weakened physical condition caused by a work-related injury is aggravated by the employee=s subsequent normal activities, the subsequent care for the aggravation is compensable as Aa natural consequence flowing from the primary injury.@ Subsequent decisions from this court have emphasized the necessity of a causal connection between the work injury and the aggravation. See, Nelson v. Austin Med. Ctr., No. WC05-126 (W.C.C.A. Aug. 12, 2005); Irvin v. Red Wing Shoe Co., No.WC06-218 (W.C.C.A. May 1, 2007).
We conclude that the controlling event for a consequential injury is the original work-related personal injury. It is the causal connection between the initial personal injury and the consequential injury which establishes compensability for the consequential injury. In the present case, then, the controlling event for the employee=s consequential injury is March 17, 2005. Having so determined, however, we finding nothing in the compensation judge=s decision which is contrary to this opinion. We conclude that the compensation judge did not find the controlling event for the consequential injury was the culmination date. His use of that phrase was only a way to distinguish the consequential injury related to the 2005 injury from the consequential injury related to the 2002 injury. Accordingly, the decision of the compensation judge is affirmed.
 The evidence would seem to indicate that the activities which led to the consequential injury were related to the employee=s work. Where work activity leads to an injury, the result is not a consequential injury but a new personal injury with a new date for the controlling event. Heinemann v. I.S.D. 279, 63 W.C.D. 312 (W.C.C.A. 2003). We do not address this issue further since it was not raised by any party on appeal.