TRUDY L. ADAMS, Employee/Appellant, v. HORMEL FOODS CORP., SELF-INSURED, Employer, and BLUE CROSS/BLUE SHIELD OF MINN., MAYO FOUND., and HORMEL FOODS CORP., Intervenors.
WORKERS’COMPENSATION COURT OF APPEALS
NOVEMBER 6, 2008
CAUSATION - GILLETTE INJURY. Substantial evidence supported the compensation judge’s conclusion that the employee’s work activities did not require the amount of neck rotation and reaching claimed by the employee, and, as such, the record as a whole, including expert opinion, supported the judge’s decision that the employee did not sustain a Gillette injury to her neck or shoulder as a result of her work activities.
Determined by: Wilson, J., Rykken, J. and Pederson, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Donaldson V. Lawhead, Lawhead Law Offices, Austin, MN, for the Appellant. Mary E. Kohl and Stacey A. Molde, Johnson & Condon, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s decision that the employee did not sustain a work-related Gillette-type injury to her shoulder or cervical spine culminating in disability on or about April 14, 2004. We affirm.
The employee began working for Hormel Foods Corporation [the employer] in October of 2000. In December of 2003, she was assigned to work on the employer’s Canadian bacon line, packaging Canadian bacon products for retail sale. Workers on a part of this line rotated, every half hour, between positions. The record contains extensive, detailed testimony about the size and nature of the Canadian bacon line equipment, the physical requirements of the various line jobs, and the speed of the line.
According to Rebecca Erickson, a coworker on the Canadian bacon line, Dan Bartel, the chief union steward for the plant, and the employee herself, the Canadian bacon line jobs required repetitive neck rotation and arm use at or above shoulder level. The testimony of Ray Gutierrez, the industrial engineer who oversaw the Canadian bacon line, conflicted with these witnesses on this and other issues, including the speed of the line. Much of the testimony centered on the particulars of the slicer employed during the employee’s work on the line, known as a Tobey slicer. The operator of the slicer was not, however, called to testify at hearing.
The employee contends that, on or about April 13, 2004, the line speed increased dramatically - - by 50%, she estimated - - resulting in severe pain in her neck and right shoulder. The following day, on April 14, 2004, she reported to the employer’s medical department, complaining that the line speed increase the previous day had caused her symptoms. Not long thereafter, the Tobey slicer was replaced by a Weber slicer.
The employee underwent an immense amount of medical treatment for neck and shoulder symptoms, eventually undergoing right shoulder surgery on September 20, 2004, in the nature of a subacromial decompression and open distal clavicle excision, and neck surgery on March 10, 2005, in the nature of a C7-T1 foraminotomy on the right.
The employee claimed entitlement to various benefits as a result of a Gillette-type shoulder and neck injury culminating in disability on or about April 14, 2004, and the matter came on for hearing before a compensation judge on May 17, 2006. Witnesses included the employee; Ms. Erickson; Brian Schotanus, a supervisor; Mr. Gutierrez; and, by deposition, Mr. Bartel. Other evidence included the employee’s medical records; deposition testimony by Dr. David Beck, the employee’s neck surgeon, and Dr. Shawn Nakamura, the employee’s shoulder surgeon; a report from Dr. Richard Hadley, the employer’s independent examiner; and a DVD purporting to show the Canadian bacon line as it existed at the time of hearing.
In a decision issued on October 6, 2006, the compensation judge concluded that the employee had not sustained a Gillette-type injury to her neck and shoulder, and she denied the claimed benefits. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers’ Compensation Court of Appeals must determine 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 (2008). 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, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, 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 evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
1. Evidentiary Rulings
In her brief on appeal, the employee contends that the compensation judge erred in admitting into evidence the DVD, prepared by the employer, purporting to depict the Canadian bacon line, contending that the DVD did not show the equipment used by the employee and that the line speed depicted on the DVD was “only a little more than half the production speed.” The employee also asserts that the compensation judge erred by ruling that Ms. Erickson, the employee’s coworker, could not testify about grievances filed by workers on the Canadian bacon line concerning the physical stressfulness of the work. With regard to both alleged errors, the employee cites to what she refers to as the “governing evidentiary rules” and commentators’related explanations as to the meaning of those rules. We are not persuaded.
Pursuant to Minn. Stat. § 176.411, subd. 1, a “compensation judge is bound by neither the common law or statutory rules of evidence nor by technical or formal rules of pleading or procedure.” Furthermore, this court’s jurisdiction is “limited to the issues raised by the parties in the notice of appeal,” Minn. Stat. § 176.421, subd. 6, and the employee’s notice of appeal contains no reference to any allegedly erroneous evidentiary rulings. We therefore decline to address the evidentiary issues further.
2. Gillette Injury
The employee, Ms. Erickson, and Mr. Bartel offered lengthy testimony describing the equipment used and the activities performed by workers on the Canadian bacon line. According to these witnesses, employees assigned to the line were required to repetitively turn their heads and reach with arms outstretched, at or above shoulder level, in order to perform tasks on the various rotations on this line. The employee and Ms. Erickson also testified that the line speed increased substantially on April 13, 2004, resulting, according to the employee, in her neck and shoulder symptoms and subsequent need for treatment. In support of her claim, the employee also offered the deposition testimony of Dr. Nakamura, her shoulder surgeon, and Dr. Beck, her neck surgeon.
Dr. Nakamura testified that the employee had a partial rotator cuff tear, which he ultimately repaired during arthroscopic surgery. He also testified as follows with regard to the cause of the employee’s shoulder and neck conditions:
A. Repetitive shoulder activities that include reaching, reaching, you know, above shoulder level. Reaching the arm out in abduction away from the body will contribute to impingement syndrome and partial rotator cuff tearing.
Q. And based on the history that I’ve provided, do you have an opinion whether or not that occurred in this particular case?
A. If she had been on the job for quite a long time where she was reaching out away from her body, reaching up at shoulder level and doing this in a repetitive fashion for many hours a day, it would contribute to the findings that I found at surgery and in the MRI.
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A. Repetitive motion of the shoulder, having - - moving the arm in abduction, repetitive lifting, reaching with the arm away from the body would contribute to impingement syndrome and partial rotator cuff tears. Repetitive looking, movement of the shoulder - - of the neck would contribute to a preexisting condition in her shoulder - - in her cervical spine.
Dr. Beck testified that the employee’s neck and some arm symptoms had been caused by calcification, an osteophyte, pinching a nerve at C7-T1. While acknowledging that this calcification had occurred over a period of years, Dr. Beck indicated that “one of the triggers” causing the osteophyte to become symptomatic “could be repetitive motion,” and he testified that the employee’s need for surgery “very well could have been” caused by the employee’s work activities as had been described to him in a letter from the employee’s attorney.
The self-insured employer also offered both lay testimony and expert medical opinion to contradict the employee’s claims as to the nature of the work and the cause of her neck and shoulder conditions. Mr. Gutierrez, the industrial engineer overseeing the Canadian bacon line, testified that all work stations were designed so that workers would not be required to reach more than 12 inches, that, for ergonomic purposes, the ideal height of a work station is 34 to 38 inches, from the floor, and that the entire Canadian bacon line was designed so that all work stations, including conveyors, were at a height of 38 inches. Also according to Mr. Gutierrez, the general process shown on the DVD is the same as the process the employee had been involved in while working in the Canadian bacon line, despite the change in equipment. Furthermore, Mr. Gutierrez testified that any change in line speed would have been documented, that the Tobey slicer would have been set at 300 rpm, and the speed of that device could not have been increased beyond that rate.
On the issue of the employee’s diagnosis, Dr. Hadley reported that the employee had hypertrophic arthritis of the acromioclavicular joint and a partial rotator cuff tear of the right shoulder, as well as degenerative disc disease of the cervical spine. Because the employee had a known history of degenerative disc disease, as evidenced by one-level cervical fusion surgery performed in 1993, Dr. Hadley was not surprised that Dr. Beck had found an osteophyte during the employee’s most recent cervical procedure. However, Dr. Hadley also noted that the employee’s EMG results had been normal, and he concluded that there were no clinical findings to suggest that the employee had a C8 radiculopathy, contrary to the opinion of Dr. Beck. Furthermore, on the issue of causation, Dr. Hadley wrote as follows:
On the basis of Ms. Adams’description of work activities, on the basis of the videotape analysis of her job, and given the circumstances of imaging studies of the right shoulder which were apparently performed by mistake, there is insufficient documentation in the available records to attribute any injury to the right shoulder as a result of employment activities at Hormel. It is noted that she was operated on after a very brief course of nonsurgical treatment. It is also noted that Ms. Adams’symptoms promptly returned following this surgical procedure. There is insufficient documentation in available records to attribute any work-related injury to the right shoulder between November 2003 and April 2004 or to state that her work aggravated or accelerated any right shoulder condition.
[For similar reasons], there is insufficient documentation in the available records to attribute any injury to the cervical spine as a result of employment on the Canadian bacon line between November 2003 and April 2004. There is insufficient evidence with which to state that Ms. Adams’work activities aggravated or accelerated any pre-existing condition. Imaging studies of the cervical spine, including the MRI and CT myelogram, fail to demonstrate any acute changes that could be attributed to work-related activities at Hormel between November 2003 and April 2004. This examiner is in agreement with Dr. Lachance that the MRI findings cannot be attributed to her work-related injury.
Dr. Daniel Lachance, referenced in Dr. Hadley’s report, quoted above, had been one of the employee’s treating physicians in late 2004 and early 2005. In a November 2004 treatment note, Dr. Lechance indicated that it was “difficult to specifically ascribe any of the findings noted on [the employee’s cervical] MRI to a work-related injury . . . . [F]or the present, any testing going forward looking at the cervical region, whether it be disc disease or mass, is likely to be unrelated to a worker’s compensation issue.” Subsequently, in a January 12, 2005, record, Dr. Lachance reiterated that the employee’s neurologic exam was entirely normal, and he was at that time somewhat inclined to believe that the employee’s symptoms and complaints were “entirely defined by psychological factors affecting physical symptoms or amplifying physical symptoms.”
In her decision, the compensation judge rejected the causation opinions of Drs. Nakamura and Beck and accepted the opinion of Dr. Hadley, concluding that Dr. Hadley’s opinion “represents the greater probability of the truth and is more consistent with the factual evidence.” In her memorandum, the judge explained her decision on this issue as follows:
But the employee’s testimony that the line speed increased by 50% is not supported by production records and [is] contradicted by the testimony from some witnesses. Although it is reasonable that the speed had been increased over the previous year, both Dr. Beck and Dr. Nakamura relied upon the employee’s rendition of the line speed increasing by 50% on April 13 or April 14, 2004. In addition, the employee’s testimony that the job required repetitive arm movements above shoulder level and above mouth level appeared amplified considering the overall testimony of all of the relevant witnesses.
With the overstated description of the extent of reaching above shoulder level and the exaggerated pace of the line speed on April 14, 2004 provided to the medical providers, their opinions and testimony become less convincing.
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The employee has the burden of proof on all issues. With the reliance of the treating physicians upon a history of job duties which require repetitive overhead work, repetitive turning of the head, and over the shoulder activities with the arms outstretched, a history which has not been credibly established, their opinions are weak. Although Dr. Hadley relied upon the DVD which also provided unreliable information, the MRI of the cervical spine did not reveal evidence of acute changes and the medical experts agree the osteophyte that impinged upon the cervical nerve root developed over more time. Dr. La[c]hance concluded the cervical spine was unrelated to any workers’compensation injury. The opinions of the physicians relating to the right shoulder were also based upon job activities that required extensive and repetitive use of the arms outstretched overhead or above the shoulder. While it is possible these activities occurred, the extent and repetition of these job duties has not been credibly established.
On appeal, the employee argues that substantial evidence does not support the judge’s decision as to the nature of the employee’s work activities, contending that the testimony of Mr. Gutierrez concerned only the height of the lower conveyor, not the upper conveyor described by the employee, Mr. Erickson, and Mr. Bartel; that the DVD submitted by the employer “misrepresented the actual production speed”; that Mr. Gutierrez testified only about engineering standards, not the actual pace of work or speed of the line; and that the inconsistencies in Mr. Gutierrez’s testimony regarding the slicer speed render his testimony as a whole suspect and unreliable. We are not persuaded.
Testimony concerning the nature of the employee’s job activities, and the equipment involved, was extensive and complex. Conflicting evidence was offered about virtually every facet of the job, from how many workers rotated on the Canadian bacon line, to the height of the equipment, to whether the Tobey slicer was prone to jam, to whether the slicer operator could alter the speed of the slicer, and so on. The compensation judge concluded that the line speed had increased over time and noted that the DVD did not necessarily depict the job as the employee had performed it prior to the date of her alleged injury. The judge also concluded, however, that the employee and other witnesses had exaggerated both the speed of the line on April 13, 2004, and the amount of reaching and over-the-shoulder work required of the employee and other workers on the line. Given the conflicting testimony on all of these issues, we are simply in no position to second-guess the judge’s evaluation of the evidence. See also Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). Furthermore, because a compensation judge is generally entitled to accept all or any part of a witness’s testimony, any arguable inconsistencies in the testimony of Mr. Gutierrez provide insufficient basis to reverse the judge’s decision.
Because the judge’s decision as to the nature of the employee’s work is reasonably supported by evidence that a reasonable person might accept as adequate, and because it was not unreasonable, based on her conclusions as to the nature of the work, for the compensation judge to reject the causation opinions of Drs. Nakamura and Beck, we affirm the compensation judge’s decision denying the employee’s claim that she sustained a work-related Gillette injury to her neck and shoulder culminating on or about April 14, 2004.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960)
 The employee also appealed from the compensation judge’s decision as to the extent of the employee’s permanent impairment. However, given our disposition of the judge’s decision on primary liability, we need not address the employee’s arguments on permanency.
 Other background information may be found in this court’s previous decision concerning the employee’s petition to vacate. Adams v. Hormel Foods Corp., No. WC06-272 (W.C.C.A. Jan. 8, 2008). At the employee’s request, the petition to vacate and the appeal were bifurcated for consideration by this court, and consideration of the appeal remained stayed pending decision by the supreme court on this court’s denial of the petition to vacate. The supreme court issued its decision in that matter on July 16, 2008.
 The employee also testified that she had been experiencing symptoms prior to this date but that, until April 13, 2004, those symptoms would abate when she was away from the job.
 Subsequent to the employee’s appeal from the judge’s decision, it was discovered that one of the audiotapes from the first day of the hearing was inaudible, and, at the direction of this court, the compensation judge prepared and filed a statement of proceedings, reconstructing the testimony from the faulty audiotape.
 The DVD was prepared after the Tobey slicer was replaced by a Weber slicer, which occurred shortly after the date of the employee’s alleged injury.
 MINN. R. EVID. 901(a) (2008) and MINN. R. EVID. 401 (2008).