RICARDO CALLENDER, Employee/Appellant, v. MARKET STAFF and LEGION INS. CO. by MIGA/GAB ROBINS N. AM., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 6, 2008
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s determination that the employee failed to prove he hurt his left shoulder in the October 12, 1999, work-related fall.
CAUSATION - CONSEQUENTIAL INJURY. Where the employee’s claim for benefits rested on the assertion that his left shoulder condition was caused or substantially contributed to by overuse while performing his ordinary work activities, at least in part, the compensation judge properly analyzed the case as a Gillette injury rather than applying the direct and natural consequences rule to find a consequential injury.
CAUSATION - GILLETTE INJURY. Substantial evidence supports the compensation judge’s determination that the employee failed to prove a compensable injury to the left shoulder after returning to work for the employer, where the employee’s physician - - the only doctor to give an overuse causation opinion - - did not begin to treat the employee until two years after the employee left the employer, and there was no indication in the records that the doctor was aware of or familiar with the employee’s work activities while working for the employer in this case.
Affirmed as modified.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Bradley J. Behr
Attorneys: Peter A. MacMillan and Michael J. Patera, MacMillan, Wallace, Athanases & Patera, Minneapolis, MN, for the Appellant. John T. Thul, Cousineau McGuire, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge’s determination the employee failed to prove he sustained a personal injury to his left shoulder as a result of a work-related fall on October 12, 1999, or as a consequence of right arm injuries sustained in that fall. We affirm as modified.
On October 12, 1999, Ricardo Callender, the employee, sustained serious physical injuries when he fell 12 to 20 feet into the cargo hold of a barge landing on a steel floor. Mr. Callender was employed by Market Staff, then insured by Legion Insurance Company, now insolvent, with claims administered by MIGA/GAB Robins North America. The employer and insurer admitted the employee sustained a compensable personal injury in the nature of multiple facial fractures, a right wrist fracture, a left patellar fracture, a right tibial fracture, a left elbow condition, and a right shoulder condition.
Following the fall, the employee received treatment at Regions Hospital. He was discharged to a rehabilitation facility on October 22, 1999. A case manager, Gerry Dielentheis, was assigned to assist the employee with medical management and a return to work. The employee returned to part-time, light-duty work with the employer in February 2000.
Despite ongoing therapy, the employee had significant residual right wrist symptoms. He was seen by a hand specialist, Dr. Falconer, in July 2000. The doctor concluded the employee sustained a permanent, serious injury to the distal radius with irreversible disruption of the articular surface and early signs of traumatic arthritis. Dr. Falconer prescribed a leather wrist orthosis with a steel shank for work and recommended dynamic pronation splinting. The doctor stated the employee might eventually require surgery and would need permanent functional restrictions.
In August 2000, Dr. Zinberg, a hand surgeon at Regions Orthopedics, reviewed Dr. Falconer’s report, prescribed additional hand therapy, and suggested consideration of a scaphoid trapezium trapezoid (STT) joint fusion of the right wrist. Dr. Zinberg restricted the employee to a 20 pound limit for lifting/carrying and pushing/pulling and no repetitive use of the right arm.
On August 21, 2000, the employee began a new position as a sales assistant for the employer, working 20 to 30 hours a week. His duties included answering phones, making phone calls, setting up appointments for sales staff, faxing and mailing letters, using the computer to update the sales database, and miscellaneous office work.
In October 2000, the employee returned to Regions Hospital complaining of right shoulder pain for the past several months. The doctor diagnosed right shoulder impingement and referred the employee to Dr. Bovard at Regions Occupational Health for further evaluation. Dr. Bovard saw the employee in January 2001, noting right shoulder impingement symptoms and neck symptoms, primarily in the left neck and trapezius region. The left shoulder was normal. Dr. Bovard’s impression was bursitis/tendinitis of the right shoulder and a right wrist injury, secondary to the employee’s October 1999 work-related fall. The doctor prescribed physical therapy, and provided work restrictions for the right shoulder of no lifting, pushing or pulling over 10 pounds, change position as needed, no use of the right arm away from the body, and no above chest or overhead lifting with the right arm. Dr. Bovard recommended ergonomic adjustments to the work site and the use of a telephone headset.
In the spring of 2001, Dr. Zinberg recommended right wrist fusion surgery which was performed on May 16, 2001. The employee’s right arm was immobilized in a sling and he was taken off work. Dr. Zinberg released the employee to return to work with the arm in a sling and no use of the right hand on June 18, and on August 18, released the employee to light-duty work with restrictions for the right arm of occasional lifting, carrying, pushing and pulling up to 5 pounds. Dr. Zinberg stated the employee was at maximum medical improvement for the right wrist on October 22, 2001, at which time he made the 5 pound lifting restriction permanent.
The employee returned to work in his sales assistant position with the employer on June 20, 2001, but was laid off in November 2001. He started a new job as pastoral assistant at St. Paul City Church on April 1, 2002. The employee continued to have intermittent problems, including right hand pain and neck and shoulder pain, for which he was followed by Dr. Johnson, his primary care physician at HealthPartners.
In December 2002, he was seen at HealthPartners Urgent Care for left elbow pain. The employee stated he used his left extremity a lot since he had surgery on the right wrist and was told not to use the right hand for lifting more than 5 pounds. The employee returned to Dr. Johnson in January 2003 with recurrent neck and shoulder problems. The doctor noted paracervical tightness bilaterally and left shoulder discomfort in the supraspinatus region while moving the arm up and down. Dr. Johnson diagnosed a chronic cervical strain and supraspinatus tendinitis in the left shoulder, and prescribed continuing physical therapy. By March 2003, the employee’s symptoms were localized to the left cervical region and he was discharged from care.
The employee returned to Dr. Johnson in the fall of 2003 with persistent left elbow symptoms and chronic neck pain. The doctor noted the employee had been able to keep working, relating the employee felt he had been doing things preferentially with the left arm for a long time because of his personal injury to the right wrist. The doctor referred the employee to Dr. Timming, in Physical Medicine and Rehabilitation, for long-term rehabilitation evaluation and care.
The employee was first seen by Dr. Timming on November 25, 2003. The doctor’s impression was chronic left neck and upper trapezius/shoulder girdle area pain, noting further the employee’s left arm symptoms were minimal, his left shoulder did not seem to be bothering him, and there was no definite evidence of rotator cuff injury. Dr. Timming referred the employee for physical therapy. In May 2004, Dr. Timming noted the employee had made good progress with his neck conditioning program, and discharged the employee from active care.
The employee underwent left elbow tendon repair surgery on September 1, 2004. His arm was placed in a sling through September 10, 2004, at which time the employee was released to work without restrictions as tolerated. In December 2004, the employee returned to Dr. Bovard for recurrent right shoulder symptoms which he stated had been bothering him for several months. Dr. Bovard’s impression was a type 2 acromion with right shoulder impingement symptoms and biceps tendinitis. Examination of the left shoulder was essentially normal. The employee was referred for additional physical therapy.
Beginning in January 2005, the employee was followed by both Dr. Bovard and Dr. Timming for his right shoulder problem and chronic neck pain. MRI scans of the right shoulder and cervical spine showed multilevel degenerative changes in the neck and a rotator cuff tear, impingement, and a SLAP lesion of the labrum in the right shoulder. The employee was referred to an orthopedic surgeon, Dr. Levy, who recommended right shoulder decompression and rotator cuff surgery. The surgery was performed on April 29, 2005. The employee’s shoulder was placed in a brace, and he remained off work through the end of June. The employee returned to work on July 1, 2005, with right arm work restrictions of no more than 20 pounds lifting, no repetitive use, and no use above the shoulder or away from the body. In October 2005, Dr. Levy provided permanent restrictions of no lifting over 30 pounds and avoiding use of the right arm above the shoulder and away from the body.
On November 17, 2005, the employee was seen by a nurse practitioner at HealthPartners reporting increasing soreness in his right shoulder. He reported that several days previously while doing volunteer work for his church he had several times lifted large bag-like containers of liquid ice cream into a machine, and was concerned he had done something to his shoulder. He was referred back to Dr. Levy for follow-up. Dr. Levy reassured the employee, indicating that rotator cuff repairs can take a year or more to completely settle down, and that the employee was making progress over time and improving slowly.
The employee returned to Dr. Levy on March 6, 2006, for his one year post-surgery follow-up. The right shoulder was doing well, but the employee was now complaining of left shoulder pain. He stated this had been ongoing for about six months or so, and he had difficulty with overhead and reaching activities with the left arm. Dr. Levy suspected an impingement syndrome in the left shoulder and referred the employee for x-rays and physical therapy. The problem persisted, and an April 18, 2006, MRI scan confirmed significant left shoulder impingement. A cortisone injection on April 20 provided good relief, and on July 3, 2006, Dr. Levy reported the employee was doing well in both shoulders. During the fall, however, the employee’s pain slowly returned in both shoulders, along with an increase in his chronic left-sided neck pain.
The employee was re-evaluated by Dr. Timming on January 29, 2007. Dr. Timming noted he had been treating the employee for a flare-up of his neck pain, left shoulder pain and elbow pain since December 2006. He diagnosed chronic neck pain with disc degeneration and myofascial components, chronic right shoulder pain post-surgery, chronic left elbow epicondylitis, and chronic left shoulder pain with a positive impingement sign. Dr. Timming observed the employee,
is not sure why his pain occurred but in talking with him, two factors might be related. One is his job at the church where he is an assistant pastor. He has to do a lot more physical manual labor-type things, emptying trash cans, picking up litter around the church area. The second factor is that he has been too busy to attend the YMCA Fitness Program that he was doing up until about two months ago.
(Pet. Ex. C.) The doctor provided work restrictions of a 5 pound maximum lift/carry, push/pull, no mopping and no sweeping, stating he thought the employee’s work at the church was aggravating the employee’s neck and left shoulder pain. He opined the employee’s conditions were a result of his October 12, 1999, work injury, and stated that his left shoulder problem was probably due to overuse from compensating for chronic pain in, and protecting, his injured right shoulder.
In April 2007, Dr. Timming noted the employee had not progressed with physical therapy for the left shoulder, and referred the employee for an orthopedic consultation. Dr. Levy was no longer with Regions, and the employee was seen by Dr. Twito on April 26, 2007. Dr. Twito recorded a history of a left shoulder condition dating back to an injury on October 12, 1999, that had been symptomatic for the past seven years. Dr. Twito assessed a type 2-3 acromion with impingement and a partial rotator cuff tear, and recommended surgery. The employer and insurer questioned liability for the left shoulder, and did not approve the surgery.
The employee returned to Dr. Timming on June 7, 2007. He opined the employee’s left shoulder condition was work-related, explaining the employee had surgery on his right shoulder, which was an admitted work-related condition, and had overused his left shoulder and left elbow since that time. He noted, additionally, the employee had been on restrictions for his right wrist since surgery a number of years ago. Dr. Timming again addressed causation in a chart note dated September 4, 2007. The doctor noted he had been following the employee since the flare-up of his neck, left shoulder and left upper extremity in December 2006, and had seen the employee several years previously for the same problems. Dr. Timming noted the employee had been on a permanent 5 pound lifting restriction with no repetitive movement of the right wrist since Dr. Zinberg performed surgery on the right wrist in 2001, and that the employee felt he was having left shoulder and elbow programs because he had been protecting the right upper extremity all these years.
The employee was evaluated by Dr. Yellin, an orthopedist, on September 14, 2007, at the request of the employer and insurer. Dr. Yellin recorded a history of left shoulder pain starting about four-and-a-half to five years ago. The doctor agreed the employee had left shoulder findings consistent with rotator cuff tendinopathy, partial tearing, and an impingement syndrome, and stated the surgery recommended by Dr. Twito was appropriate. Dr. Yellin opined, however, that the employee’s left shoulder problems did not occur as a result of his injury at work on October 12, 1999, noting there was no mention in the medical records of left shoulder pathology anywhere around the time of the accident. Instead, the doctor concluded, normal wear-and-tear due to continuing use of the arm in activities of daily living and normal aging brought about the impingement syndrome, and it was not in any way related to his 1999 work injury.
The employee filed a claim petition in November 2007 seeking approval for the recommended surgery. The employer and insurer denied primary liability for a left shoulder injury. In a Findings and Order, served and filed on March 14, 2008, a compensation judge at the Office of Administrative Hearings found the employee failed to prove he sustained a specific injury to his left shoulder as a result of the work-related fall on October 12, 1999, and that the employee failed to prove he developed left shoulder degenerative changes as a substantial consequence of admitted injuries to his right wrist and right shoulder. The employee appeals.
1. Direct or Specific Injury
The employee argues the compensation judge applied an inappropriate burden of proof by requiring corroboration in contemporaneous medical records of the employee’s unrebutted testimony that he injured his left shoulder in the October 12, 1999, fall. We disagree.
The employee has the burden of proving, by a preponderance of the evidence, that the alleged work-related condition arose out of and in the course of his employment. Minn. Stat. § 176.021. Such evidence includes witness testimony and documentary evidence, including medical records and reports. It is the responsibility of the factfinder to weigh the evidence and assess the probative value of witness testimony. Where the evidence submitted reasonably permits different inferences, the choice of inference to be drawn rests with the factfinder. Thake v. Backhauls, Inc., 345 N.W.2d 745, 36 W.C.D. 565 (Minn. 1984); see also Weme v. L.A. Indus., 458 N.W.2d 404, 43 W.C.D. 157 (Minn. 1990); Dille v. Knox Lumber Co., 452 N.W.2d 679, 42 W.C.D. 819 (Minn.1990). On appeal, this court must affirm the findings of the compensation judge if, in the context of the record as a whole, the findings are supported by evidence that a reasonable mind might accept as adequate. Where more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge must be upheld. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
In this case, although the employee testified he had left shoulder pain between the time of the 1999 fall and his return to work with the employer, and that he continued to have intermittent left shoulder problems thereafter, there is no mention of any left shoulder problems in the employee’s medical records until January 28, 2003, when Dr. Johnson noted some left shoulder discomfort and diagnosed supraspinatus tendinitis. The employee was noted to have returned to his baseline chronic left cervical pain by March 2003, with no indication of any ongoing left shoulder symptoms. On January 10, 2001, Dr. Bovard stated the employee’s left shoulder was normal. On November 25, 2003, Dr. Timming stated the employee’s left shoulder did not seem to be bothering him. On December 14, 2004, Dr. Bovard again noted that examination of the left shoulder was essentially normal.
It was not until March 6, 2006, that the employee complained to Dr. Levy of persistent left shoulder pain with difficulty with overhead and reaching activities. According to Dr. Levy’s notes, the left shoulder symptoms had been ongoing for about 6 months or so. Dr. Yellin, in September 2007, reported the employee believed his left shoulder pain had started about 4 ½ to 5 years ago. The only medical record that might be construed as supporting the employee’s claim is Dr. Twito’s chart note of April 26, 2007, stating the employee’s left shoulder condition dated back to an injury on October 12, 1999, when he fell 20 feet sustaining multiple injuries, and reporting the employee stated the left shoulder had been symptomatic for the last seven years. Dr. Timming, the only one of the employee’s doctors who gave a causation opinion, attributed the employee’s problems to overuse and made no reference to any left shoulder trauma caused by the fall.
Based on this evidence, we cannot say the compensation judge’s finding that the employee failed to prove he injured his left shoulder on October 12, 1999, is clearly erroneous or unsupported by substantial evidence in view of the entire record as submitted. Minn. Stat. § 176.421, subd. 1. We must, therefore, affirm.
2. Consequential Injury
The employee contends his left shoulder condition is due to overuse of his left arm as a result of the permanently weakened condition of his right wrist and right shoulder and is, therefore, a compensable consequence of his October 12, 1999, personal injury. The compensation judge in analyzing the employee’s claim, compared the mechanism of the claimed injury to a Gillette-type injury, stating that, as such, the employee had the burden of offering a well-founded medical opinion demonstrating a causal link between his left arm activities and the development of degenerative changes in the left shoulder. The employee asserts the compensation judge applied an incorrect standard of proof. The proper test of causation, the employee asserts, is whether his left shoulder degenerative condition is a direct and natural consequence of his admitted October 12, 1999, personal injury to the right wrist and shoulder.
When determining the compensability of an injury in a case such as this, a clear distinction must be made between the law applicable to establishing liability for a personal injury, that is, primary liability, and the medical causation rules applicable to a claimed consequence of an admitted personal injury. Jackson v. Red Owl Stores, Inc., 375 N.W.2d 13, 38 W.C.D. 170 (Minn. 1985)(citing Wallace v. Judd Brown Constr. Co., 269 Minn. 455, 131 N.W.2d 540, 23 W.C.D. 362 (1964)). The concept of a “consequential injury” derives from a line of cases, commencing with Eide v. Whirlpool Seeger Co., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961), in which the supreme court held that where a personal injury creates a permanently weakened physical condition which an employee’s subsequent normal physical activities aggravates to the extent of requiring additional medical treatment, such treatment is compensable, so long as the additional care is a natural consequence that flows from the primary injury and not the result of an independent intervening cause attributable to the claimant’s own intentional conduct. See, e.g., Nelson v. American Lutheran Church, 420 N.W.2d 588, 40 W.C.D. 849 (Minn. 1988); Gerhardt v. Welch, 267 Minn. 206, 125 N.W.2d 721, 23 W.C.D. 108 (1964). Where, however, the employee aggravates the original injury or sustains a new injury as a result of an occurrence that has no causal relation to the original injury, it cannot be said that the later injury is a consequence of the first. Wallace at 544, 23 W.C.D. at 368-69. The supreme court observed that “[i]t is in determining whether the subsequent injury is causally related to the original injury that trouble arises,” and concluded that in determining causal relationship, the trier of fact must look to “the occurrence that made the injury possible rather than to the result that followed.” Id. at 544-545, 23 W.C.D. at 368, 370.
In this case, the employee’s claim is that he injured his left shoulder as the result of overuse of his left arm in his daily activities, including work. In Gillette v. Harold Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960), the supreme court recognized that in the course of an employee’s ordinary work activities, injury may occur daily causing minimal damage, the cumulative effect of which, over time, results in disability and the need for medical treatment, and held that a gradual breakdown due to continued use of a body part while performing ordinary work duties may be a compensable personal injury. In Heineman v. Independent Sch. Dist. #279, 63 W.C.D. 312 (W.C.C.A. 2003), this court recognized that where, as here, the claim is that the disability was caused, at least in part, by the employee’s work activities, the issue is one of primary liability, explicitly holding that the direct and natural consequences rule is applicable only in cases in which the consequences for which benefits are sought did not result from a second work injury. See also Irvin v. Red Wing Shoe Co., 67 W.C.D. 528 (W.C.C.A. 2007). Accordingly, although the finding is couched in the rhetoric of a consequential injury, we conclude the compensation judge properly analyzed the employee’s claim in this case as a Gillette injury.
Proof of a Gillette injury primarily depends on medical evidence. Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994)(citing Marose v. Maislin Transp., 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987)). In determining the employee failed to prove his claim, he compensation judge rejected Dr. Timming’s causation opinion, concluding it was not well-founded. In his memorandum, the judge noted Dr. Timming did not prepare a narrative report or provide a reasoned explanation of his overuse opinion, and found Dr. Yellin’s opinion to be more persuasive than that of Dr. Timming with regard to the claim of overuse.
The employee’s overuse claim rests upon the causation opinion of Dr. Timming. In this case, the facts and data upon which the doctor relied must be gleaned from the doctor’s chart notes. While Dr. Timming’s treatment records include references to the employee’s work activities from the time he began to treat the employee in November 2003 to the present, there is nothing that indicates any knowledge about or awareness of the employee’s work activities during the time the employee worked for the employer, that is, through November 2001. The employee has worked for St. Paul City Church since April 2002. The church is not a party to this case, and there was no claim the employee’s disability and need for surgery was attributable to his work at the church.
Dr. Yellin examined the employee on September 14, 2007, and his deposition was obtained on February 7, 2008. The doctor diagnosed an impingement syndrome of the employee’s left shoulder with a tendonopathy of the rotator cuff tendon which the doctor explained was a partial tearing or fraying of the tendon that caused inflammation due to associated bone spurring that rubbed against the tendon. Dr. Yellin testified the most common cause for an impingement syndrome would be the use of the arm in an elevated position above shoulder level on repetitive basis. Dr. Yellin opined the cause of the employee’s left shoulder impingement syndrome was the normal wear and tear process due to the continued use of the employee’s left arm through the activities of a lifetime. the compensation judge found the employee failed to prove that he performed extensive reaching at or above shoulder level activities with his left arm from October 12, 1999 to the date of hearing. Based upon this finding and the opinions of Dr. Yellin, the compensation judge concluded the employee failed to prove his need for left shoulder treatment was causally related to the personal injury. Substantial evidence supports this conclusion and the judge’s decision is affirmed.
 We express no opinion, by this decision, regarding any potential claim for workers’ compensation benefits the employee may or may not have against St. Paul City Church.