LANCE A. PERRY, Employee/Appellant, v. ADB CONSTR. CO., INC., and WEST BEND MUT. INS. CO., Employer-Insurer, and LAKEVIEW HOSP., MIDWEST SPINE INST., MINNESOTA CEMENT MASONS FRINGE BENEFIT FUND, and MINNESOTA DEP=T OF LABOR & INDUS./VRU, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 21, 2008
CAUSATION - GILLETTE INJURY. Substantial evidence, including expert medical opinion, supported the compensation judge=s decision that the employee did not sustain a Gillette injury while working for the employer as claimed.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Jennifer Patterson
Attorneys: Lee J. Keller and Steven B. Levine, Milavetz, Gallop & Milavetz, Coon Rapids, MN, for the Appellant. Raymond J. Benning and Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents. Stephen C. Kelly, St. Paul, MN, for the Intervenor, Cement Masons Fringe Benefit Fund, Intervenor.
DEBRA A. WILSON, Judge
The employee appeals from the judge=s finding that the employee did not prove that he sustained an injury to his low back arising out of his work for the employer. We affirm.
The employee was employed as a cement finisher and a cement finisher foreman for 32 years. As a cement finisher, he worked on both residential and commercial construction, often on uneven ground. His work involved setting up forms and pounding stakes into the ground and also lifting forms onto and off of trucks, requiring bending, twisting, and reaching. When pouring concrete, he had to bend and reach. He also crawled on his knees to perform the final finishing work. The job typically required lifting 20 to 30 pounds, but the employee occasionally lifted 60 to 70 pounds. When he was a foreman, he also supervised the work of other cement finishers.
The employee had backaches over the years that usually improved without treatment but occasionally required short courses of chiropractic care. Medical records establish that the employee had occasional thoracic and lumbar spine symptoms, as well as intermittent leg symptoms, from at least 1998 forward. Chiropractor Dr. Roger Perrault treated the employee three times in September of 2000 for low back pain, three times in December 2001 for thoracic and lumbar pain, and once in April 2002 for thoracic and lumbar symptoms.
The employee began working as a finisher foreman for ADB Construction Company [the employer] on July 13, 2005. A few months later, in the fall of 2005, the employee became a site supervisor for the employer at a Menard=s store. At that job, he had to move wall forms that were 3 to 4 feet wide and 10 feet long and weighed between 100 and 150 pounds. This was not a usual part of the employee=s job, but he continued in this work until he was laid off from his employment on February 9, 2006.
The employee was examined by Ronald Kranz, D.C., on July 10, 2006, complaining of low back pain that had been present for about two months. Dr. Kranz treated the employee seven times between July 10 and 31, 2006, and then ordered a lumbar MRI. That MRI, performed on July 31, 2006, was interpreted to show degenerative disc disease at the L2-3, L3-4, L4-5, and L5-S1 levels; edema at the left L4 and L5 vertebral levels; a small central contained protrusion at L5-S1; and a small intraforminal protrusion at L4-5 on the left.
The employee was seen by Dr. Stefano Sinicropi on August 25, 2006, reporting a long history of intermittent back pain with a gradual increase in symptoms in the fall of 2005, which had required three or four chiropractic treatments, and then a severe exacerbation of pain in June of 2006. Dr. Sinicropi diagnosed low back pain and left leg radiculitis with degenerative disc disease throughout the lumbar spine. He prescribed anti-inflammatory medication and told the employee that he might benefit from epidural or intradiscal injections. Dr. Sinicropi noted that the employee had been working on his own for the past two to three months.
On December 6, 2006, Dr. Sinicropi wrote a letter recommending that the employee not work in a job involving physical labor, specifically, no more than 20 pounds push/pull and no twisting, bending, lifting, or repetitive motions.
The employee filed a claim petition on February 12, 2007, claiming an injury date of June 30, 2006, and seeking temporary total disability benefits continuing from June 30, 2006, along with medical and rehabilitation benefits. The employer and insurer answered contending, in part, that the employee was not in their employ on the claimed date of injury.
The employee was examined by Dr. Nolan M. Segal on June 6, 2007, at the request of the employer and insurer. In his report dated July 6, 2007, Dr. Segal diagnosed multilevel degenerative disc disease that was idiopathic in nature. It was his opinion that the employee had not sustained any injury to his low back culminating in November 2005 or on or about June 30, 2006.
On July 20, 2007, Dr. Sinicropi wrote a letter wherein he stated that the employee had worked as a cement finisher for 32 years and that Athe repetitive nature of this job and lifting, bending, and twisting stresses the low back, and there is no question that this type of occupation leads to disc degeneration.@ He further stated, Ait is my opinion that the repetitive trauma over time culminating and exacerbated by any events occurring on or about June 30, 2006 was a significant contributing cause of his current condition.@
On December 31, 2007, Dr. Sinicropi wrote to the employee=s attorney, indicating as follows:
I understand from your recent letter that Mr. Perry=s date of injury was listed as June 30, 2006 as that was the time that he sought medical attention. He noticed symptoms in February 2006, and therefore the date of injury is changed to February 9, 2006. . . . The change in date of injury from June 30, 2006, to February 9, 2006, does not change my prior opinions.
The matter proceeded to hearing on January 25, 2008. At that time, the employee was alleging an injury date of February 9, 2006. Because Dr. Sinicropi=s December 2007 letter was provided to the attorney for the employer and insurer for the first time that day, the judge left the record open for the employer and insurer to obtain a follow-up report from Dr. Segal. In a report dated February 12, 2008, Dr. Segal stated that there was no evidence in the medical records that the employee had experienced any symptoms on or about February 9, 2006, and that the symptoms the employee was treated for in July of 2006 were due to his longstanding degenerative condition, which Awould have had nothing to do with his short-term employment at ADB Construction in spite of the nature of his employment.@
The employee testified at hearing that, a couple of days before Thanksgiving of 2005, he had experienced low back pain at home but that he did not seek treatment because he thought he had only Atweaked it.@ He also testified that he had continued to work for the employer without medical care or restrictions until he was laid off in February of 2006.
In a findings and order filed on April 18, 2008, the compensation judge found that the employee had not proved a minute trauma injury to his low back arising out of his work for the employer between July 2005 and February 9, 2006. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, Athey 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, Aunless 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).
The employee first contends that Athe compensation judge should have made a determination on whether Mr. Perry=s work over the course of his career was a significant contributing factor to the development of his degenerative disc disease.@ The employee goes on to ask this court to make that finding or to remand the case to the compensation judge. We are not persuaded.
The issue before the compensation judge was exactly the issue that she addressed, that is, whether the employee=s work activities with the employer from July 13, 2005, to February 9, 2006, substantially contributed to the development of a Gillette injury culminating on February 9, 2006. The issue was not whether the employee had developed a Gillette injury arising out of the employee=s work activities over a 32-year period. Prior employers and insurers were not parties to this action and did not have the opportunity to defend against potential claims.
It is undisputed that the employee worked for 32 years in a physically challenging occupation. It is also true that, in Gillette injury cases, the last employer and insurer on risk are often found liable for the injury. However, liability may not be imposed unless the last period of employment was a substantial contributing cause of the employee=s disability. Tannahill v. Mid-American Lines, 40 W.C.D. 726 (W.C.C.A. 1987). Whether the employment is a substantial contributing factor is a fact issue for the compensation judge and primarily depends on the medical evidence. Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994).
There were two medical opinions on the causation issue. Dr. Sinicropi stated, Athis type of occupation [cement finisher] leads to disc degeneration.@ However, nowhere in Dr. Sinicropi=s report does he address the specific period at issue, from July 13, 2005, to February 9, 2006. While he notes that the employee had worked as a cement finisher for 32 years, there is also nothing in his reports or records to establish that he knew that the employee had worked for this employer for only seven months. We also note that Dr. Sinicropi used an injury date of July 20, 2006, a date five months after the employee ceased working for the employer, until his December 2007, report, when he shifted to an injury date of February 9, 2006, stating, A[the employee] noticed symptoms in February 2006 and therefore the date of injury is changed.@ There is, however, no evidence that the employee Anoticed symptoms in February of 2006.@ Also, while the history given to Dr. Sinicropi indicated that the employee=s symptoms in November of 2005 had been severe enough to require three or four chiropractic treatments, the employee testified that he did not seek treatment in November of 2005.
The compensation judge instead adopted the opinions of Dr. Segal. Dr. Segal=s reports indicate that he had reviewed the records of the chiropractors and medical doctors that had treated the employee over the years and that he was aware that the employee had worked for the employer from July of 2005 until February 9, 2006. It was his opinion that the employee had a lengthy preexisting history of low back problems and that the findings on MRI represented a longstanding condition. He relied on the records of Drs. Kranz and Sinicropi as establishing that the onset of the employee=s pain occurred in May of 2006, three months after he last worked for the employer, and it was his opinion that a delayed onset of symptoms was not consistent with any injury culminating on February 9, 2006, and that the employee=s symptoms had nothing to do with Ahis short-term employment at ADB Construction in spite of the nature of his employment there.@
A compensation judge=s choice between conflicting expert opinions is generally upheld unless the facts assumed by the expert are unsupported by the record. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employee has pointed to no facts assumed by Dr. Segal that are not supported by the record, and, therefore, there is no basis to conclude that the judge erred in accepting Dr. Segal=s opinion.
In a finding and in her memorandum, the judge detailed the evidence that she relied on in finding the employee did not establish that he had sustained a Gillette injury while employed by the employer. In addition to Dr. Segal=s opinions, that evidence included the employee=s testimony that the alleged onset of symptoms in November of 2005 had occurred at home and did not necessitate medical or chiropractic treatment, that those symptoms did not disable or restrict the employee in his ongoing heavy work activities, and that the employee did not seek treatment until five months after his lay off. The judge also relied on the histories contained in the medical records of the first providers that the employee saw in 2006, which set the onset of symptoms in May of 2006, three months after his layoff, rather than November of 2005. Clearly this represents substantial evidence that supports the judge=s decision.
The bulk of the employee=s argument on appeal is that the compensation judge erred in finding that Athere was no legally sufficient disablement from work for the occurrence of a minute trauma injury arising out of the employee=s work for the employer between July 2005 and February 2006.@ The employee contends that this court has not always required Athat ascertainable events occur during the course of the employee=s work activities,@ citing to Yates v. Muller Logging, Inc., No. WC06-201 (W.C.C.A. Jan. 3, 2007). We find Yates, however, to be distinguishable, as Mr. Yates had worked for his last employer for 12 to 13 years, and there was at least one doctor who had specifically opined that the work performed during that period was a substantial contributing cause of the employee=s disability. In addition, because Yates was an affirmance of a compensation judge=s findings based on specific facts, that case has little value as precedent.
As substantial evidence supports the findings and order of the compensation judge, we affirm the judge=s decision in its entirety.