DAVID A. BOYER, Employee, v. CSA, INC., d/b/a CTB, and SECURA INS. COS., Employer-Insurer/Appellants, and ARTIFEX MILLWORK, INC., and MILWAUKEE INS. GROUP, Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 8, 2008
GILLETTE INJURY - MULTIPLE EMPLOYER-INSURERS; GILLETTE INJURY - ULTIMATE BREAKDOWN. Where by August 26, 2004, the employee’s long-time carpal tunnel-like symptoms had increased to where he could not hold a cigarette, where on that date he had sought medical attention for his condition for the first time since 1989, where an EMG on that date had confirmed a diagnosis of carpal tunnel syndrome, and where the employee’s doctor on that date had referred him for hand therapy and carpal tunnel splints, the compensation judge’s finding that the employee sustained a Gillette-type injury on August 26, 2004, was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the doctor did not restrict the employee from working as of that date.
PRACTICE & PROCEDURE - ADEQUACY OF FINDINGS. Where the parties had raised the issue at hearing, where the judge did not address that issue directly in his findings and order, but where a finding on the issue was clearly implied in other, more comprehensive findings of the judge, the compensation judge did not err as a matter of law in failing to address specifically the issue of whether or not any Gillette-type injury, if one should be found as alleged, was only a temporary aggravation.
Determined by: Pederson, J., Stofferahn, J., and Rykken, J.
Compensation Judge: Gary M. Hall
Attorneys: Frederick E. Kaiser, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondent Employee. Richard A. Riemer, Erstad & Riemer, Minneapolis, MN, for the Appellants. Daniel A. Lively, Lively Law, Bloomington, MN, for the Respondents Artifex/Milwaukee Ins.
WILLIAM R. PEDERSON, Judge
CSA, Inc., d/b/a CTB, and Secura Insurance Companies appeal from the compensation judge’s finding as to the culmination date of the employee’s Gillette injury and from the judge’s determination regarding the nature and extent of the injury. We affirm.
David Boyer [the employee] began working in the cabinet making and millwork field in 1988. He worked for CSA, Inc., d/b/a CTB [CTB], from September 1988 through June 22, 1995, and again from September 23, 1999, through July 21, 2005. During the interim period (1995 to 1999) he worked for various other construction millwork companies. The employee worked for Artifex Millwork, Inc. [Artifex], from August 2005 through July 2006. The employee’s work duties at CTB involved primarily assembly with the use of power tools such as cordless drills, sanders, grinders, routers, and spray guns. These tools all vibrated and were used frequently by the employee. The employee’s work duties at Artifex were somewhat different. At Artifex the employee used primarily large machines, such as planers and shapers, to perform his work activities. Although the employee did not use the smaller vibrating hand tools as often at Artifex, using the larger machines did require a good deal of gripping and grasping.
On February 7, 1989, about five months after beginning employment with CTB, the employee was seen by Dr. Carlton Erickson at the North Branch Medical Clinic, complaining of numbness and lack of strength in both hands that had developed over the last month. He complained also of sharp pains in his wrists that radiated into his elbows. He reported that he would awaken at night with symptoms of his hands feeling dead. Dr. Erickson assessed carpal tunnel syndrome and prescribed a nonsteroidal anti-inflammatory drug, to be followed by an EMG if the symptoms did not improve. The employee later testified that he went to a drugstore and purchased wrist bands to wear at work.
On August 23, 2004, while employed by CTB, the employee was seen at Fairview Lakes Regional Health Care by Dr. Joseph Micallef, complaining of bilateral wrist pain, right greater than left. The employee reported to Dr. Micallef that he had had the problem “since the early 70's,” but that it had grown worse over the course of his work as a cabinet assembler. He reported that he had been using an electric drill to bolt cabinets together over the past week and had experienced a lot of pain and swelling in his right wrist. He reported numbness in all fingers of the right hand, claiming that his pain had gotten so bad that it actually affected his strength to the point where he could not even hold a cigarette. The employee also advised the doctor that he had used a wrist splint in the past with some success. On examination, the employee had a positive Phalen’s test on the right, a negative Tinel’s test, and decreased grip strength in his right hand. X-rays of the right wrist showed some osteoarthritic changes, and Dr. Micallef’s assessment was “probable arthritis and tendonitis including probable carpal tunnel syndrome of his right hand.” The doctor offered to prescribe Neurontin and a Cox II inhibitor, but the employee wanted to avoid these and instead elected over-the-counter Tylenol. Dr. Micallef referred him for an EMG of the right upper extremity.
The employee returned to see Dr. Micallef on September 10, 2004. The doctor noted that the employee’s EMG, performed on August 26, 2004, had revealed a mild carpal tunnel syndrome on the right side. The employee reported that, since the EMG had been performed, his symptoms had improved. He indicated that he occasionally experienced some weakness and numbness but had returned to work full-time. The employee reported that this had occasionally happened also in the past but that rest and Tylenol had always made it better. “[T]o get . . . better,” Dr. Micallef reported, “he actually has to miss some work to rest it.” Dr. Micallef diagnosed “arthritic changes, possible bilateral deQuervain tendonitis and mild right carpal tunnel syndrome per EMG and also symptoms for carpal tunnel on his left,” recommended continued use of Tylenol, and referred the employee to Fairview Lakes Hand Therapy for carpal tunnel splints bilaterally and some therapy on both hands for deQuervain/arthritis. He informed the employee that this would be a long-term problem for him, “especially in the line of work he is in,” adding that “[h]e needs to get some tools and methods he can use to kind of help with this.”
The employee was evaluated for hand therapy on September 14, 2004. The therapist noted that the employee reported having had on and off symptoms for the past twenty years and that “[h]is boss wanted him to come in.” The employee reported occasional numbness and tingling in the median nerve distribution. He reported also that he had pain in his wrist that was exacerbated by use and alleviated by rest. The therapist felt that the employee could benefit from therapy, but the employee declined, indicating that his symptoms on that day were mild and that his hands had “not been too bad lately.” He was, however, given plastic splints.
For the next several months, the employee was seen and treated by medical providers for low back pain, heel problems, and right knee problems. On July 21, 2005, he was informed by CTB that he was being discharged for missing too much work, his primary physical complaint at the time being a knee condition. By August of 2005, the employee had found new employment at Artifex. The employee’s work at Artifex was evidently easier on his wrists than had been the work at CTB, in that it required the employee to use fewer vibrating hand tools, but it was still stressful in that he performed more gripping and grasping of boards. There were apparently occasions at Artifex where the employee needed to wear his wrist bands, but the pain evidently never reached a level where he had to leave work.
The employee was examined at the request of CTB and its insurer by Dr. Richard Strand on December 14, 2005. The evaluation was primarily focused on a right knee injury, but Dr. Strand also asked the employee about other medical problems, and he noted that the employee had no complaints of numbness in his hands or pain into his wrist or elbow. In the absence of any hand or wrist complaints, Dr. Strand did not completely examine those areas, and he concluded that there had been no significant wrist injury while the employee worked for CTB.
On March 3, 2006, the employee sustained an injury to his left hand while operating a table saw at Artifex. He was seen at Fairview Lakes Emergency Department, where he was treated for a partial amputation of the left middle finger and laceration of his left ring finger with partial disruption of the nail plate and bed. A revision was performed with partial amputation of the distal phalanx of his left middle finger. Medication was prescribed, and the employee was taken off work.
The employee was seen in follow-up by Dr. Micallef and was released on March 22, 2006, to return to work with no use of his left hand. On March 30, 2006, the employee reported to Dr. Micallef that he had been back at work all week but had found it impossible not to use his left hand to hold things. He reported that his pain was worse while working. Dr. Micallef issued a report of workability instructing the employee to avoid grasping or gripping and to avoid repetitive motion. The employee was allowed to use his left hand for simple pinching and gripping and to steady or hold light-weight objects. By April 27, 2006, however, the employee reported difficulty bending his left middle finger and difficulty gripping with his left hand. As a result of the employee’s left hand restrictions, his job was limited to sanding, which required the use of a dual action orbital sander, a vibrating tool. He used the sander with his right hand and held the item that he was sanding with his left hand.
On June 14, 2006, upon referral from Dr. Micallef, the employee saw hand specialist Dr. Laurie Koch at Minnesota Orthopaedic Specialists for evaluation of his left hand. On examination of the left upper extremity, Dr. Koch found swelling and tenderness at the left wrist, positive Phalen’s and Tinel’s signs, and swelling in both the long and the ring finger. Examination of the right upper extremity was normal. Dr. Koch diagnosed left carpal tunnel syndrome and recommended night splinting and a short-term trial of anti-inflammatories. If symptoms persisted, consideration was to be given to injection or EMG, to confirm the doctor’s diagnosis and to assist in evaluating the prospect of surgery.
The employee continued to work for Artifex for another four to six weeks. During that time he was relegated to sanding, and when there was no sanding to do he would “push a broom.” The employee later testified that, in addition to having difficulty gripping the broom with his left hand and pushing it with his right hand, he experienced increased pain in both of his hands as a result of the activity. On July 26, 2006, the employee was terminated from his employment at Artifex, apparently being informed that the employer didn’t have any work he could do.
The employee returned to see Dr. Koch on October 11, 2006, reporting that the numbness in his hands had resolved shortly after he stopped working. On examination of the employee’s upper extremities, Dr. Koch found normal appearing wrists with positive Phalen’s and Tinel’s signs bilaterally. The employee continued to exhibit swelling in the long finger of his left hand. Dr. Koch noted also that the employee had decreased discrimination of the right and left median nerve distribution. The doctor did not believe that the employee’s long finger range of motion would improve much with or without surgery, but she did think that the employee would benefit from carpal tunnel surgery. Dr. Koch noted that the condition on the right side was long standing and typically aggravated by activities. She felt that this condition would limit the employee’s options as he looked for a new job. She related the employee’s left carpal tunnel syndrome to his recent saw injury and the lack of full motion of the long finger impacting his overall hand function.
In a letter to the employee’s attorney on November 22, 2006, Dr. Koch indicated that the employee had both carpal tunnel syndrome and osteoarthritis of the right hand, together with carpal tunnel syndrome post long finger distal amputation of the left hand. It was Dr. Koch’s opinion that the employee’s work as a cabinet maker from 1989 to the time of his amputation on March 3, 2006, caused the employee’s right-hand difficulties. She also found the employee’s work activities in the summer of 2004, while employed at CTB, to be a contributing factor in the wrist symptoms that had prompted the EMG that confirmed his carpal tunnel syndrome diagnosis. Dr. Koch advised the employee to consider carpal tunnel surgery on his hands bilaterally, noting that it would be difficult for him to return to work as a cabinet maker with his level of symptoms.
On December 14, 2006, the employee filed a claim petition, alleging that he had sustained a right carpal tunnel syndrome work injury on or about August 26, 2004, while employed at CTB and a left long finger distal amputation and a further Gillette injury of bilateral carpal tunnel syndrome on March 3, 2006, while employed at Artifex. Artifex accepted the employee’s claims for temporary total disability as to the long finger distal amputation and began making payments on March 3, 2006. CTB denied liability for the alleged 2004 right carpal tunnel injury, and Artifex denied liability for the alleged Gillette-type injury of bilateral carpal tunnel syndrome.
On March 9, 2007, the employee was examined at the request of CTB by Dr. David Falconer. Dr. Falconer obtained a history from the employee, reviewed pertinent medical records, and performed a physical examination. In a report issued on that same date, Dr. Falconer indicated that the employee had radiographic and objective physical examination findings of scaphotrapezial trapezoid joint degenerative osteoarthritis, together with clinical findings of carpal tunnel syndrome, right greater than left. In addition, Dr. Falconer found residual stiffness, fingertip soft tissue loss, and mild nail deformity of the third and fourth fingers due to the employee’s table saw injury of March 3, 2006. Dr. Falconer was of the opinion that the employee’s work activities at CTB were a substantial contributing aggravation of the symptoms that caused him to seek treatment between August 23, 2004, and September 14, 2004. To the extent that the employee had a positive EMG, the doctor found the employee’s symptoms during that time to represent “a permanent exacerbation of previous carpal tunnel symptoms and not a temporary aggravation.” He concluded that the employee had sustained a Gillette-type injury on August 23, 2004, when he sought treatment ultimately resulting in confirmation of the diagnosis by EMG. He noted that the employee has had ongoing and consistent symptoms since August 23, 2004, stating that “[t]hese have waxed and waned, but never fully resolved, and were, to some extent, sidelined by his acute trauma injury to the fingertips, but were not eliminated, just simply relegated to a lesser degree of significance.” The doctor was also of the opinion that the employee’s work activities at Artifex were additional contributing factors in the employee’s ongoing carpal tunnel syndrome. Dr. Falconer apportioned, on a comparative-length-of-employment, or “chronological,” basis, 80% of the employee’s right carpal tunnel syndrome to CTB and 20% to Artifex. He similarly apportioned 50% of the left carpal tunnel syndrome to CTB and 50% to Artifex.
The employee was examined at the request of Artifex on March 26, 2007, by Dr. Mark Fischer. In a report dated April 16, 2007, Dr. Fischer diagnosed bilateral carpal tunnel syndrome, left middle finger terminal amputation, and left wrist arthritis. He was of the opinion that the employee had sustained a Gillette-type carpal tunnel injury to the right hand and wrist culminating on August 26, 2004, and, in addition to a left middle finger amputation, a Gillette-type carpal tunnel injury to the left hand and wrist culminating on March 3, 2006. He felt that the employee’s fingertip injury had resolved and that the employee was able to work subject to avoiding repetitive grasping with both hands. Dr. Fischer attributed the employee’s right hand restrictions solely to his 2004 injury, and he apportioned the employee’s left hand restrictions 75% to the employee’s 2006 carpal tunnel syndrome and 25% to the March 3, 2006, finger injury.
On September 21,2007, the employee underwent a left carpal tunnel release. By October 1, 2007, the employee was reporting complete resolution of his numbness but some residual pain and swelling.
Dr. Falconer testified by deposition on November 6, 2007, in part that the employee clearly had episodic flare-ups of carpal tunnel syndrome associated with his occupation. The employee’s only EMG showed some very mild nerve damage on the right hand. “He [also] had clinical findings on provocative testing and Tinel testing and Phalen’s testing.” Dr. Falconer testified that the employee’s work activities at CTB and Artifex were a substantial contributing cause of the employee’s symptoms that had waxed and waned over the years. It was Dr. Falconer’s opinion that, without the benefit of serial EMGs, apportionment on a comparative-length-of-employment basis was the usual method for assessing liability. In terms of future treatment, he recommended an updated EMG to reflect the employee’s current findings.
The employee’s claims came on for hearing before a compensation judge on November 9, 2007. Following receipt of independent medical examination reports and prior to the hearing, Artifex accepted liability for the employee’s left carpal tunnel syndrome claim. Issues presented to the judge at hearing included the following: 1) whether the employee sustained a personal injury culminating on or about August 26, 2004, at CTB and, if so, the nature and extent of the injury; 2) whether the employee sustained either a personal injury in the nature of right carpal tunnel syndrome culminating on or about March 3, 2006, or a “consequential” right carpal tunnel syndrome as a result of the admitted March 3, 2006, injury; and 3) apportionment of liability between the insurers, if appropriate. Evidence submitted at hearing included the testimony of the employee, in part that, beginning about September of 2004, he had been unable to wear his splints at work because he couldn’t hold a tool with them on, although he did wear the splints at night and continued to wear his wrist bands at work as needed. The employee testified also that his hand condition had grown progressively worse over the years and that by the time of his termination from CTB in July of 2005 his wrist pain was constant. These aspects of the employee’s testimony were challenged on cross-examination, based in part on the fact that the employee had made no mention of hand symptoms to Dr. Strand in December of 2005 and had testified earlier at hearing that he was not having much of a problem with his hands at the time of his termination from CTB, his history having been one of periodic flare-ups ever since 1989.
In a findings and order issued November 27, 2007, the compensation judge found that the employee had sustained a personal injury in the nature of a right carpal tunnel syndrome culminating on or about August 26, 2004, which had arisen out of and in the course of his employment with CTB. The judge determined that the employee’s right carpal tunnel syndrome had reached a point of “disablement/ultimate breakdown” on or about August 26, 2004, “when the employee sought medical treatment, an EMG was performed, and treatment had been recommended.” The judge also found that the employee sustained a second Gillette-type injury in the nature of right carpal tunnel syndrome as a result of his work activities at Artifex, culminating in disability on July 26, 2006. The judge found CTB 100% liable for the employee’s right carpal tunnel syndrome from about August 26, 2004, to July 26, 2006, and he apportioned liability for the employee’s right carpal tunnel condition after July 26, 2006, 80% to CTB and 20% to Artifex. The judge found that the employee’s left carpal tunnel condition did not reach a point of ultimate breakdown until July 26, 2006, and he assessed liability for that condition solely to Artifex.
The judge’s findings regarding the employee’s left carpal tunnel syndrome injury have not been appealed. CTB and its insurer appeal from the judge’s findings of a right carpal tunnel syndrome injury culminating on or about August 26, 2004, and from the judge’s alleged failure to address whether the August 26, 2004 injury was temporary in nature.
STANDARD OF REVIEW
In reviewing cases 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. 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, “[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 Carlson v. Flour City Brush Co., the Minnesota Supreme Court held that “injuries resulting from repeated trauma or aggravations of a pre-existing condition [i.e., Gillette injuries] result in a compensable personal injury when their cumulative effect is sufficiently serious to disable the employee from further work.” Carlson v. Flour City Brush Co., 305 N.W. 2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981). Three years later, in Schnurrer v. Hoerner-Waldorf, the court clarified that “Carlson does not require an automatic determination that the employee sustained Gillette-type injuries on the day he quit work” and that “[t]he time by which he had sustained those injuries should be determined on all evidence bearing on the issue.” Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 233, 36 W.C.D. 504, 509 (Minn. 1984).
In the present case, neither CTB nor Artifex challenges the compensation judge’s finding that the employee sustained a Gillette-type injury in the nature of carpal tunnel syndrome to his right hand and wrist on July 26, 2006. CTB contends, however, that there were insufficient “ascertainable events” to establish that the employee had sustained a Gillette-type right carpal tunnel injury on or about August 26, 2004, and that, should the judge’s determination of a 2004 Gillette injury be upheld, the judge committed an error of law when he failed to address the issue of whether the employee sustained only a temporary aggravation. We find a substantial evidentiary basis to support the judge’s finding of a Gillette-type injury culminating on August 26, 2004, and we conclude also that the judge appropriately addressed the issue of the nature and extent of the 2004 injury.
In his memorandum, after setting forth the underlying principles expressed in Carlson and Schnurrer, the judge stated as follows:
In this case the employee reached a significant point in the development of his right-sided carpal tunnel syndrome by the time he was seen at Fairview Lakes Regional Health Care on August 23, 2004, and his condition confirmed by EMG on August 26, 2004. Although the employee’s symptoms continued to “wax and wane,” the employee had reached a point where the right-sided symptoms had become significantly worse, where the condition was confirmed on EMG, where medication was prescribed, and where his symptomatic episodes were becoming more frequent. On September 10, 2004, the employee acknowledged to his healthcare provider that he needed to be off work in order for some symptomatic episodes to resolve. The healthcare provider suggested he should get some tools and methods to help with his work activities. Even though the employee continued to work his regular job after this point, he was apparently losing time from work for other reasons to provide some respite from the daily aggravations.
CTB argues that the focus of the Carlson and Schnurrer decisions was the effect of the employee’s condition on employment, an employee’s ability to continue in the employee’s usual and customary job. Here, CTB contends, after analyzing all the evidence, as required under Schnurrer, the conclusion must be that the judge erred in finding that the employee sustained an ultimate breakdown on or about August 26, 2004. In 2004, CTB asserts, the employee was not relieved of his regular work duties, he was not advised that surgery was necessary, and no restrictions had been placed on his work activities due to his claimed right carpal tunnel injury. Because the ascertainable events relied upon by the judge are insufficient under the law, CTB contends, the judge’s finding of a Gillette injury on or about August 26, 2004, must be reversed. We are not persuaded.
We acknowledge that the record in this matter might well have supported the determination argued for by CTB. The issue before us on appeal, however, is whether the record reasonably supports the decision made by the compensation judge. The judge concluded that the employee’s right carpal tunnel syndrome had reached a significant point in its development by August 2004. This conclusion is amply supported by the record. The employee testified that he had experienced carpel tunnel-like symptoms exacerbated by his employment duties for many years. By August 2004, however, his symptoms of pain and loss of strength had gotten so bad that he could not even hold a cigarette, and he sought medical attention for this condition for the first time since 1989. On examination, Dr. Micallef reported clinical findings consistent with carpal tunnel syndrome, offered prescription medications, and referred the employee for his first and only EMG study. The employee’s EMG confirmed the diagnosis of carpal tunnel syndrome, and Dr. Micallef referred the employee for hand therapy and to obtain carpal tunnel splints. On September 10, 2004, the employee advised the doctor that it was sometimes necessary for him to miss work to rest. Although the doctor did not remove the employee from work, he explained that he believed that this was going to be a long-term issue for the employee, especially given the line of work that he was in. Dr. Micallef commented that “[the employee] needs to get some tools and methods he can use to kind of help with this.” It was reasonable for the judge to conclude from this evidence and from the employee’s hearing testimony that an “ascertainable event” occurred at this time. Therefore, we affirm the judge’s finding of a Gillette-type injury culminating on or about August 26, 2004.
CTB argues also that the judge committed an error of law when he failed to specifically address the issue, raised at trial, of whether any injury sustained by the employee on August 26, 2004, was temporary. We disagree.
The judge clearly addressed CTB’s issue by finding that the 2004 injury was a substantial contributing cause of the employee’s disability from and after July 26, 2006. While there may have been some evidence presented at trial that the employee’s carpal tunnel symptoms returned to baseline after a brief flare-up in 2004, there was clearly substantial evidence in the record, including Dr. Falconer’s report and testimony, that the employee’s ongoing symptoms after August 2004 were consistent with the dynamic nature of the employee’s carpal tunnel condition. Contrary to CTB’s argument, Dr. Falconer did not testify that the employee’s 2004 EMG showed no permanent nerve damage. He did testify that “[t]his type of nerve damage is not absolutely permanent, in that it can, in theory, go back to normal after surgery.” We find no basis for CTB’s argument that the judge needed to issue a finding on a matter that was clearly subsumed in his remaining comprehensive findings.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 In Schnurrer the court found several “ascertainable events,” not present in Carlson, that indicated that the employee in Schnurrer had in fact been “disabled” from work prior to his termination from employment. Id.