RENAN J. RIQUELME, Employee/Appellant, v. CARLSON CRAFT n/k/a BUSINESS SOLUTIONS GROUP STATIONARY DIV. and CHUBB GROUP INS. COS./ESIS, INC., Employer-Insurer, and UNITED HOSP., ALLINA MED. CLINIC, INJURED WORKERS PHARM. and BLUE CROSS/BLUE SHIELD/BLUE PLUS OF MINN., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 14, 2007
CAUSATION - GILLETTE INJURY; EVIDENCE - EXPERT MEDICAL OPINION. Where certain of the compensation judge=s findings were inaccurate and/or incomplete with respect to the opinions rendered by medical experts in this case, the findings were inadequate to support the judge=s determination that the employee did not suffer a Gillette injury to his upper extremities, and the findings were vacated and the matter remanded for reconsideration.
Vacated and remanded.
Determined by: Johnson, C.J., Pederson, J., and Stofferahn, J.
Compensation Judge: Gary M. Hall
Attorneys: Thomas D. Mottaz, Law Office of Thomas D. Mottaz, Anoka, MN, for the Appellant. Gina Uhrbom, Brown & Carlson, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s finding that he did not sustain a Gillette-type injury to his arms arising out of his employment. We vacate the compensation judge=s findings and remand the case to the compensation judge for reconsideration.
Renan J. Riquelme, the employee, began working as a press operator for Carlson Craft, the employer, in 1986. In an unappealed finding, the compensation judge found the employee=s job as a press operator did not cause any upper extremity problems. In 1990 or 1991, the employee transferred to the shipping department because of problems with occupational asthma. The employee worked in the shipping department for approximately two years. This job required the employee to lift, carry and push boxes weighing from 30 to 70 pounds. The boxes came down a conveyor belt and the employee entered information from the boxes into a computer, put the boxes into a taping machine, and loaded the boxes onto a truck. At some point, the employee began to complain of low back pain.
In June 1992, the employee saw Dr. Scott Sanders at the Mankato Clinic complaining of occasional arm and back pain. Dr. Sanders referred the employee to Dr. M. W. Dobson who recorded complaints of mid and upper back pain. Dr. Dobson spoke with a representative of the employer in July 1992, and was advised the employee worked on a line where he lifted three pound packages frequently for four hours and up to 70 pound packages infrequently for the next four hours. The doctor diagnosed a mid and low back strain and recommended modified work duties. In March 1993, Dr. Jo Anderson and Dr. Sanders reviewed a video tape of the employee=s work activities. Dr. Anderson reported the employee was required to Astoop, bend, and lift boxes of 25 pounds of mail. These appear to be over-sized boxes and somewhat awkward. At his packaging station, his activities are carried out without excessive strain, however, he is standing throughout the entire operation and at his filing activities, he is carrying forms in one hand while bending, stooping, reaching to file in pigeon holes the order forms.@ (Pet. Ex. I.) Dr. Anderson continued the employee=s restricted work activities.
The employee was transferred to a different job in the shipping department where he filled small boxes with business cards. The employee performed this job for approximately a year and was then assigned to an insert machine. The employee=s job was to keep the machine stocked with envelopes and paper. While performing this job, the employee began to experience pain and numbness into his fingers and hands.
Dr. Elmer Lippmann at the Orthopedic & Fracture Clinic examined the employee on June 4, 1993, at the request of the employer=s human resources manager. On examination, the doctor noted tenderness in the lower lumbar spine with increased lumber lordosis and limitation of extension. Dr. Lippmann reviewed the video tape of the employee=s work duties with the employer and concluded they showed no duties the employee could not perform.
On September 16, 1993, the employee saw Dr. Craig Belcourt at the NorthRidge Family Medicine Clinic complaining of pain and numbness into his hands and fingers extending into the wrists and forearms, primarily on the right side. The employee stated his job required performing a repetitive screwing motion with his hands. The doctor diagnosed carpal tunnel syndrome, probably bilateral, and prescribed a splint for the employee=s right hand. Dr. Belcourt restricted repetitive rotation, flexion and extension motions at the wrist. The employee returned on September 23 with continuing complaints of hand and wrist pain. The employee stated he had been performing repetitive motions with his hands and wrists at work which caused his pain to increase. Dr. Belcourt diagnosed persistent bilateral wrist pain secondary to repetitive actions with probable medial epicondylitis. The doctor ordered physical therapy and limited the employee to working four hours with no repetitive motion of the hands. An EMG on October 13, 1993, showed some borderline slowing of the right median nerve at the wrist but was otherwise normal.
On October 18, 1993, the employee told Dr. Belcourt he had been placed in a different job by the employer, performing mainly office work in the quality control department which resulted in marked improvement of his pain. The diagnosis remained bilateral wrist pain secondary to overuse syndrome, improving with the job change. By November 1993, the employee reported he was able to perform his current job without significant pain. The doctor felt he had exhausted all treatment options and stated the employee needed to limit his activity at work. The diagnosis remained overuse syndrome currently controlled with current job.
In the quality control position, the employee checked orders of stationary and envelopes against samples. He worked at a desk and compared a product sample with an order form. This task involved comparing the fronts and backs of two sheets of paper which took from two to five minutes, writing orders and stuffing forms into envelopes. Although the employee had to use his hands in this job, he stated it was less repetitious than the insert machine work. In addition to this job, the employee was given an additional assignment as a Spanish customer representative. In this position, the employee answered phones, performed computer work, and wrote down orders from Spanish speaking customers. The employee estimated he received between 10 and 40 calls a day. The employee performed both of these jobs at the same desk from February 1994 until 2002.
In March 1994, the employee returned to see Dr. Belcourt complaining of increased wrist pain over the past several weeks. The doctor diagnosed bilateral tendinitis secondary to overuse and referred the employee to Dr. Lippmann who examined the employee in April 1994. The employee complained of progressive, bilateral wrist pain with numbness into his hands. On examination, Dr. Lippmann noted numbness into the ring fingers and a positive Tinel=s sign over the median nerve at the wrist and the ulnar nerve at the wrist and elbow. The doctor recommended the employee use his splint at night as well as during the day. On May 2, 1994, Dr. Lippmann noted some improvement in the employee=s wrist pain. A repeat EMG in June 1994 was normal. By report dated November 1, 1994, Dr. Lippmann opined the employee had reached maximum medical improvement for his wrist condition on October 21, 1994, and rated no permanent partial disability.
In November 1994, Dr. Lippmann reexamined the employee at which time the employee complained of low back pain radiating to his knees. On November 29, 1994, Dr. Lippmann reported the employee had plateaued as far as his back was concerned, but advised the employee that he could have flare-ups.
The medical records do not reflect any treatment for upper extremity symptoms from 1995 to 1999, although the employee testified he continued to have symptoms in his arms. In July 2000, the employee was seen by Dr. Oxnard at the NorthRidge Clinic complaining of arm pain, worse on the right than the left. The doctor diagnosed carpal tunnel syndrome and told the employee to use his wrist splints daily. On July 24, the employee saw Dr. Joseph Gee who reported the employee was then essentially pain free although he complained of numbness and tingling into the fingers of his right hand. Dr. Gee reported an EMG was normal and diagnosed cervical radiculopathy. A cervical MRI scan showed a broad-based posterior disc protrusion at C5-6 and C6-7 with spurring and extension of disc material bilaterally into the neural foramina which the doctor suspected was causing the employee=s symptoms.
Dr. Gee referred the employee to Dr. Gene Swanson at the Orthopaedic & Fracture Clinic who examined the employee in September 2000. The doctor stated the employee did not have any significant cervical radiculopathy and opined the employee=s symptoms were not due to any cervical disc disease. Rather, the doctor concluded the employee=s symptoms were due to intermittent swelling in the carpal tunnel channel manifested by intermittent tingling and numbness in the hands which could not be demonstrated by EMG. Dr. Swanson opined the employee might have mild carpal tunnel syndrome which was aggravated by repetitive work activities. In June 2001, Dr. Gee referred the employee to Dr.Scott Stevens at the Orthopedic & Fracture Clinic who recorded a history of right arm discomfort over ten years, worsening of late. The employee complained of pain in the right side of his neck radiating into his shoulder, arm, forearm and ring and small fingers accompanied by numbness and tingling. Dr.Stevens= impression was right upper extremity discomfort of uncertain origin. Dr.Edwin Harrington examined the employee in July 2001 and stated that clinically the employee had a C‑7 or C‑8 radiculopathy by pain symptoms, but opined he was neurologically intact. The doctor recommended another EMG which was normal. An MRI scan of the right elbow showed mild tendinitis of the bicipital tendon at the elbow but was otherwise normal. An MRI scan of the right shoulder demonstrated no rotator cuff pathology. Dr. Harrington diagnosed persistent right upper extremity pain with no obvious orthopedic cause. The doctor stated the employee demonstrated no signs of reflex sympathetic dystrophy and did not have carpal tunnel syndrome.
The employee returned to see Dr. Gee in September 2001 with complaints of right arm and hand pain and weakness. The doctor found a positive Tinel=s sign at the elbow, but his examination was otherwise negative. Dr. Gee referred the employee to the Mayo Clinic.
Dr. Ralph Gay at the Mayo Clinic Spine Center examined the employee in November 2001 on referral from Dr. Gee. The doctor recorded a history of progressive right arm pain, worsening over the last year, aggravated by elbow motion with intermittent numbness and tingling into the ring and small fingers of the right hand. Dr. Gay diagnosed chronic right upper extremity pain most likely due to distal biceps tendinosis/partial tear, mechanical neck pain without neurologic evidence of radiculopathy and possible mild right carpal tunnel syndrome. The doctor prescribed a long-arm splint and Celebrex. The employee returned to see Dr.Gay in December 2001 and his diagnoses remained unchanged. In January 2002, the employee was examined by Dr. Shawn O=Driscoll on referral from Dr. Gay. The doctor=s impression was chronic right upper extremity pain and noted the findings were not highly consistent with a partial biceps tendon tear or bursitis. The employee then returned to see Dr. Gay whose diagnosis was complex right forearm pain of indeterminate etiology. Dr. Gay stated he could not determine with a reasonable degree of certainty the cause of the employee=s problems. The doctor prescribed physical therapy and restricted the employee to no forceful grasping or lifting with his right arm.
Dr. Gay reexamined the employee in February 2002 and noted he was improved after a month of therapy. The doctor continued the employee=s work restrictions. In March 2002, Dr. Gay noted an intention-type tremor that inhibited the employee=s writing and referred the employee to Dr. Allan Dale for a neurology consultation. On examination, Dr. Dale noted a mild static and terminal tremor in both hands and noted the employee held his right hand in a mildly dystonic posture. The doctor concluded the employee had developed a focal dystonia in the right arm and referred the employee to Dr. J.E. Ahlskog, a specialist in movement disorders. Following an examination and an MRI scan of the head and cervical spine, the doctor diagnosed right upper extremity dystonia. Dr. Ahlskog recommended restrictions of no lifting over 15 pounds and no frequent or repetitive tasks involving the use of his right hand in the workplace.
In a clinic note dated May 20, 2002, Dr. Gay stated, AI informed Mr. Schneider [a claims adjuster] that in my opinion his condition was aggravated by his current work activities regardless of when it started, and it was also my opinion that he definitely had a work-related problem of the upper extremity in the form of dystonia with secondary chronic myofascial/tendinous pain.@ (Pet. Ex. D.)
John Worley, D.O., examined the employee in June 2002 at the request of the insurer. The employee reported that in 1992 he began to develop stiffness involving the third, fourth, and fifth fingers of his right hand. The employee=s current complaints included neck pain and numbness into his right hand radiating into the forearm. The employee stated his symptoms made it difficult to write and type on a computer keyboard. On examination, the employee was only able to flex his right arm to 90 degrees and the doctor noted the employee held it in a dystonic posture. Fine finger movements were decreased on the right as well as rapid alternating movements involving the thumb touching the second, third, fourth, and fifth digits. Dr. Worley diagnosed dystonia of the right upper extremity and stated this was not a simple task-related dystonia such as writer=s-cramp, but was related to a group of tasks that involved the use of the employee=s right arm. Dr. Worley opined the employee sustained a Gillette-type personal injury to his right arm, and stated there was a cause and effect relationship between the employee=s symptoms and his work activities. Finally, Dr. Worley opined the employee had reached maximum medical improvement but stated that the focal dystonia was a chronic problem for which medical therapies were not generally very helpful.
The employee returned to see Dr. Gay in October 2002 to review the results of a functional capacity evaluation performed at Wenger Physical Therapy. Dr. Gay stated he agreed with most of the recommendations, but opined the employee should avoid repetitive grasping with his right hand because it would aggravate his symptoms. By report dated November 21, 2002, Dr. Gay stated his final diagnosis was chronic bicipital tendinitis and right upper extremity pain and dysfunction secondary to dystonia. Dr. Gay opined the employee had reached maximum medical improvement.
The employee returned to see Dr. Gee in March 2003 for a follow up of an EMG that showed no evidence of any ulnar neuropathy or cervical radiculopathy. The doctor=s diagnosis remained right upper extremity dystonia, and he referred the employee to Dr. Xinhong Zahng who examined the employee in April 2003. Dr. Zahng=s diagnosis was right upper extremity pain with repetitive use and dystonic tremor consistent with right upper extremity dystonia. Dr. Zahng recommended a Botox injection and prescribed Neurontin. In October 2004, the employee told Dr. Gee his right hand was improved as long as he was careful with his movements.
Dr. Todd Hess at United Pain Center examined the employee on April 2004 on referral from Dr. Gee. The employee complained of pain and shaking in both hands which worsened with supination and pronation. Dr. Hess diagnosed right upper extremity dystonia with musculotendinous pain secondary to a work-related repetitive stress injury and commenced treatment of the employee. During the course of his treatment, Dr. Hess observed the employee=s dystonia became bilateral which he opined was probably due to the employee over using his left hand to compensate for the dystonia in his right arm.
The employee returned to see Dr. Ahlskog in October 2005. The doctor noted that since he last saw the employee, he had developed more problems with his right hand as well as tremors in both hands. Dr. Ahlskog concluded the employee had dystonia that primarily affected his right arm with slight findings in the left arm. The doctor ordered an assessment in the movement lab which led the doctor to conclude the employee=s symptoms had the appearance of an organic disorder.
Dr. Joel Gedan examined the employee on May 18, 2005, at the request of the employer and insurer. The doctor obtained a history from the employee, reviewed medical records, and examined the employee. In a report dated May 18, 2005, the doctor noted the employee had a 12-year history of upper extremity pain and numbness which began while he was working in the shipping department of the employer. Dr. Gedan stated the employee had since developed increased tone, tremor, and some dystonic posturing in the right arm. Dr. Gedan diagnosed dystonia of the right arm manifested by some decreased involuntary movement, particularly flexion and elevation of the right arm, generalized increased tone described as rigidity, occasional distal tremor, and occasional dystonics posturing. In addition, the doctor found the employee had generalized complaints of right arm pain unrelated to the underlying dystonia. The doctor concluded the employee sustained a Gillette-type injury in 1993, when he complained of bilateral hand numbness and upper extremity pain that the doctor related to repetitive lifting of boxes. Dr. Gedan concluded, however, the employee=s right upper extremity focal dystonia was not the result of a specific or Gillette-type personal injury and was not work-related. The doctor stated that Ain the overwhelming majority of cases, focal dystonia, which in itself is not a common occurrence, is not related to any specific activity or injury.@ (Resp. Ex. 8.) Dr. Gedan stated there was no medical basis to explain the employee=s chronic generalized right arm pain complaints that persisted and worsened even though the employee had not been performing any repetitive or strenuous activity at work for years. Dr. Gedan stated the employee should avoid lifting more than ten pounds with the right arm and avoid repetitive frequent lifting, flexion, overhead work, or firm grasping. Within these restrictions, Dr. Gedan opined the employee was capable of working on a full-time basis.
Dr. Gedan later reviewed additional medical records and a job description for a Customer Service Representative II following which he prepared a supplemental medical report dated January 29, 2007. The doctor stated the records from Dr. Ahlskog at the Mayo Clinic reflected evidence of not just a right arm movement disorder but also a subtle involvement of the left arm. Dr. Gedan concluded the fact that both arms demonstrated dystonia was evidence the condition was not work-related because the doctor stated there was no Gillette-type injury to the left arm occurring on or about January 21, 2002. Accordingly, the doctor again opined the employee=s work duties for the employer were not a substantial contributing cause of the employee=s dystonia or generalized musculoskeletal right arm complaints.
The deposition of Dr. Todd Hess was taken on February 13, 2007. Dr. Hess stated he reviewed all of the relevant medical records and the reports of Dr. Worley and Dr. Gedan. The doctor was also provided with a extremely detailed summary of the employee=s treatment and complaints as part of counsel=s hypothetical question. Dr. Hess diagnosed dystonia which he described as an abnormal motor movement of the muscles resulting in an uncoordinated movement of the arm such as seen in Parkinson=s disease. During his course of treatment of the employee, the doctor noted that the dystonia became bilateral and involved more muscles in the arms. The doctor testified the employee and he talked at length on each visit and Dr. Hess stated he was very well acquainted with the employee=s work activities. Dr. Hess opined the employee=s work activities through January 21, 2002, were a substantial contributing cause of the employee=s dystonia. The doctor concluded that within a medical degree of certainty the employee sustained a Gillette-type personal injury caused by his repetitive work activities.
The employee filed a claim petition alleging a Gillette-type personal injury to both arms culminating on or about January 21, 2002. Following a hearing, the compensation judge found the employee did not sustain a personal injury to his arms arising out of his employment. The employee appeals.
The greater weight of the evidence, the appellant asserts, establishes the employee sustained an injury arising out of his employment. Numerous physicians, including the employer=s own physician, reviewed the employee=s work history, a description of his work activities, and rendered causal relationship opinions. These opinions, the employee asserts, cannot be disregarded and constitute the greater weight of the evidence. The appellant asserts the compensation judge, for inexplicable reasons, was misdirected by the errant and self-serving omission of facts by Dr. Gedan, to arrive at a decision unsupported by substantial evidence. Accordingly, the employee asks this court to reverse the decision of the compensation judge and remand the case for further fact-finding.
More specifically, the employee points to finding 8, in which the compensation judge found Dr. Ralph Gay saw the employee on November 13, 2001, with a diagnosis of Aupper right extremity pain without a definitive cause but mild carpal tunnel syndrome a possibility.@ The employee argues the compensation judge apparently concluded Dr. Gay found no causal relationship between the employee=s work activities and his right arm symptoms. In finding 9, the compensation judge found the employee was seen by Dr. Gee on January 22, 2002, and the doctor was Anot able to give a causation opinion at that time.@ In finding 12, the compensation judge found the opinion of Dr. Worley was not as persuasive as that of Dr. Gedan because Dr. Worley lacked the later information available to Dr. Gedan. In finding 13, the compensation judge found the opinions of Dr. Hess were Asomewhat speculative regarding causation.@ All these findings, the employee argues, are unsupported by substantial evidence.
There is merit to the employee=s arguments. In finding 8, the compensation judge stated Dr. Gay at the Mayo Clinic found no definitive cause for the employee=s right arm pain in November 2001. Other than this finding, the compensation judge made no further reference to Dr. Gay. A compensation judge is not required to refer to or discuss every piece of evidence introduced at the hearing. Regan v. VOA Nat=l Housing, 61 W.C.D. 142 (W.C.C.A. 2000). It is, however, factually inaccurate and incomplete to make no finding regarding Dr. Gay=s subsequent unequivocal opinion linking the employee=s dystonia to his work activities. In finding 9, the compensation judge found the employee saw Dr. Gee on January 22, 2002, and found Dr. Gee was not able to give a causation opinion at that time. In fact, the employee did not see Dr. Gee on January 22, 2002. In finding 11, the compensation judge referred to an Aassociated myofascial pain syndrome aggravated by writing@ and found Dr. Gee felt this condition was work-related. There seems to be no dispute the employee suffers from dystonia as diagnosed by Dr. Gee, Dr. Gay, Dr. Worley, Dr. Ahlskog, Dr. Hess and Dr. Gedan. The significance of finding 11 is, therefore, unclear. Further, the medical records establish that Dr. Gee concluded the employee=s work activities were a cause of the dystonia. It is troubling that the compensation judge made findings regarding selective dates of treatment by Dr. Gay and Dr. Gee, but did not make findings reflecting their opinions with respect to the ultimate issue in the case.
The compensation judge apparently rejected the opinions of Dr. Worley because the judge found Dr. Worley did not have all of the medical information available to Dr. Gedan. Dr. Worley examined the employee in June 2002 at the request of the employer and insurer. The doctor obtained a history from the employee, reviewed the medical records provided to him by the insurer=s claims representative, and performed a physical examination. This level of experience afforded Dr. Worley adequate foundation to render an expert medical opinion. Since Dr. Worley examined the employee three years prior to Dr. Gedan, he could not have had access to the medical records generated after his examination. We note further, the employee claimed a Gillette injury culminating on January 21, 2002, a date nearly contemporaneous with the date of Dr. Worley=s examination. The compensation judge did not identify the medical records unavailable to Dr. Worley which rendered his opinions less persuasive than those of Dr. Gedan. The ultimate issue in this case is whether the employee=s work activities caused his dystonia. The compensation judge did not explain why later medical records were crucial to a causation opinion.
Finally, the compensation judge concluded Dr. Hess=s deposition testimony was Asomewhat speculative regarding causation.@ We disagree. In his deposition, Dr. Hess was provided with a very lengthy and complete hypothetical question following which the doctor was asked whether the employee=s work activities through January 21, 2002, played a substantial contributing role in causing, aggravating, or accelerating the employee=s dystonia. Dr. Hess testified:
It is my opinion that it has. And as you probably remember from the letter that I=m sure you read, that I wrote to you, was that I grilled him on the fact, were there any hobbies, musical instruments, or other things that could have caused this. Because certainly I - - this is also quite well-known in people who have hobbies, crafts and are professional musicians of all types, including string and keyboard instruments, and to the best of my knowledge and to his response to my grilling was no, he was not. I can see no other obvious reason for this, and certainly by the way he has described it to me, within a medical degree of certainty, I=m sure this is the cause.
(Pet. Ex. R at 71-72.) Dr. Hess went on to testify that he was well acquainted with the employee=s work activities and it was Athe handling of the multiple calls per day, the continuous shuffling around his work space, and really the ongoing use of the extremities, which was quite significant.@ (Pet. Ex. R at 77-78.) Finally, the doctor stated, AIt remains my opinion and is my opinion within a medical degree of certainty, that, indeed, he has a Gillette injury, and it was causative agent for his problem.@ (Pet. Ex. R at 78.) In short, the opinions of Dr. Hess were not speculative.
It is the compensation judge=s responsibility as the trier of fact to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). In multiple cases, this court has affirmed a compensation judge=s decision based upon the judge=s selection of an expert medical witness. See, e.g., Ward v. City of St. Louis Park, 66 W.C.D. 116 (W.C.C.A. 2005). In this case, however, we are unable to do so. For the reasons stated, this court concludes the compensation judge=s findings are inadequate to support a denial of benefits. We, therefore, vacate the findings and remand the case to the compensation judge for reconsideration.
 Gillette v. Harold Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).