JO R. FAHJE, Employee/Appellant, v. DYCAST SPECIALTIES CORP., SELF-INSURED/TRIFAC FUND/MEADOWBROOK CLAIMS SERVS., Employer, and PREFERRED ONE ADMIN. SERVS., and MINNESOTA DEP’T OF EMPLOYMENT & ECON. DEV., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 17, 2009
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge’s conclusion that the employee’s cervical condition was not causally related to her work activities.
PENALTIES. The compensation judge did not err in denying penalties for the self-insured employer’s failure to serve and file an NOID when the employee returned to work, where no benefits were awarded or due after that date.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Gary M. Hall
Attorneys: Deanna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant. T. Michael Kilbury and Arlen R. Logren, Peterson, Logren & Kilbury, St. Paul, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s denial of her claim for benefits related to her cervical condition and from the judge’s denial of penalties. We affirm.
In April of 1997, the employee began working for Dycast Specialties [the employer], a company that produces zinc and aluminum diecast parts used in a wide variety of industries. For the first year and a half of her employment, the employee worked as a trimmer, trimming parts that had been casted. This job required the employee to lift tubs of parts weighing 30 pounds or more on a regular basis.
The employee next worked for the employer as a machine center operator, using an air wrench to secure the casted parts in a vice, pushing a button to send the parts into a device for machining, and checking and packing the parts after completion of the machining process. The employee testified that the air wrench operated using 30 pounds of pressure and that the wrench would kick and was capable of pulling her across the machine. The employee’s machining job also involved lifting tubs of parts.
On May 18, 2007, the employee was assigned to machine one-pound aluminum parts known as stellars, connecting rods used in air conditioning systems. Because the casting was not entirely accurate, the employee had to use a three-pound grinder to enlarge a hole to make the stellars fit the machine. After enlarging the hole, the employee would put the stellars into the vice, but, because she had trouble getting the vice to open, she had to use a rubber mallet to pound on the air wrench she used to open the vice. Once she secured the stellars in the vice, she would send them into the machine, where the machining process took three minutes per part. While waiting for completion of the machining, the employee would use the grinder to ream the next part, and so on.
The employee testified that she began experiencing pain in her right arm, into her shoulder, while using the grinder, and shortly before the end of her shift, she reported her symptoms to the employer. According to the First Report of Injury, the employee had injured her right “hand, arm, shoulder and back” while running the “air wrench” and “air grinder.”
The employee left work that day, a Friday, and rested over the weekend. She testified, however, that her pain that weekend was severe and interfered with her sleep. The employee then worked the following Monday and Tuesday, but her symptoms continued, and the employer sent her for treatment at the emergency room at Glacial Ridge Hospital.
In the emergency room note of May 23, 2007, Dr. Roderick Brown indicated as follows concerning the employee’s history, symptoms, and diagnosis:
S: This patient is a 62 year old, married, white female who comes in with pain and numbness in her right hand and right shoulder. She works as a C&C operator at Dye Cast Specialties in Starbuck. She has been awakening at night with pain and numbness in her hand and achiness in her shoulder. She did take Advil without relief. She takes no other medications, has no allergies. No history of any trauma to her hand or arm or shoulder. Her job does require a lot of repetitive activities. She started having symptoms on 05-18-07. She thought over the weekend things would get better, but when she returned to work the symptoms were worse. She was instructed to be seen this morning by her employer.
O: Well developed, well nourished, white female in no acute distress, temp 98.8, BP 142/89, pulse 96, respirations 18, O2 sats 94% on room air. Exam of the right upper extremity reveals satisfactory radial and ulnar pulses. She has some clubbing of the thumb and fingers, she is a half a pack a day smoker. She has a positive Phalen’s at about 10 seconds and negative Tinel’s. She has pain with abduction of the right shoulder past 60 degrees and a positive two finger test against resistance with abduction. She has pain with any resistance against internal rotation and tenderness to palpation over the bicipital tendon. She has pain in the posterior aspect of the right shoulder with resistance against elbow elevation with the right hand and the left shoulder.
A: Right carpal tunnel syndrome, right subacromial bursitis and bicipital tendonitis.
The employee was fitted with a wrist splint, was prescribed a Medrol Dose Pak, and was advised to restrict her right upper extremity activities for the next week. The employer provided the employee with light-duty work consistent with Dr. Brown’s restrictions.
The employee returned to see Dr. Brown on May 29, 2007, indicating that she had not experienced much improvement. On exam, the employee complained of pain with “abduction and internal rotation about the right shoulder.” Dr. Brown’s assessment was “persistent symptoms related to right subacromial bursitis and bicipital tendonitis [as well as] right carpal tunnel syndrome.” The doctor administered two cortisone injections to the employee’s right shoulder, restricted the employee to left-handed work, and advised her to follow up on June 4, 2007, if her symptoms did not improve. The employee elected instead to consult her usual health care provider, Jennifer Jahnke, a nurse practitioner at the Alexandria Clinic.
In an office note from the employee’s June 4, 2007, appointment, Ms. Jahnke indicated that the employee was complaining of arm pain that had not improved with treatment. On review of systems, it was specifically noted that the employee had no neck pain or neck stiffness, and, on exam, the employee had full range of motion of the neck with no abnormal movement or masses. Ms. Jahnke noted localized swelling and decreased range of motion, with pain, in the employee’s right shoulder, and she prescribed Relafen, advised the employee to stay off work for one week, and referred her to physical therapy. On June 11, 2007, Ms. Jahnke released the employee to light-duty work, specifying that she perform absolutely no work with her right hand.
A few days later, on June 14, 2007, the employee had her initial physical therapy evaluation, performed by John Helgeson. During this evaluation, the employee complained of pain into the arm when rotating her head to the right, and neck, arm, and shoulder pain with extension of her neck. After performing various tests, Mr. Helgeson indicated that the employee had “signs and symptoms and testing confirming with 99% specificity that [she] has a cervical herniated disc.”
Shortly thereafter, in a note dated July 2, 2007, Ms. Jahnke, the nurse practitioner, indicated, too, that the employee had symptoms consistent with a herniated disc. Subsequently, on July 16, 2007, Ms. Jahnke noted, for the first time, that the employee had been experiencing neck pain as well as shoulder pain that had started two months ago. However, unlike the physical therapist, Ms. Jahnke indicated that the employee had full range of neck motion.
The employee attended physical therapy sessions directed at cervical complaints, and she also began using home cervical traction. When she went off work in July 2007 at the recommendation of her treatment providers, the self-insured employer commenced payment of temporary total disability benefits.
On July 31, 2007, the employee underwent an MRI scan of her cervical spine. The radiologist listed his conclusions as follows:
1. Multilevel cervical disc disease, more evident at C4, C5, and C6 interspaces.
2. Multiple levels of spondylosis with neural foraminal narrowing, details given above.
3. Spondylosis does produce narrowing of the spinal canal at several levels, but the cord does not appear compressed at any level.
In mid-August of 2007, the employee was seen by Dr. Maria Zorawska, on referral from Ms. Jahnke. In the history portion of her initial report, Dr. Zorawska wrote that the employee “performs a factory job [that] involves standing with a bent neck for hours.” The employee apparently indicated to Dr. Zorawska that her “main pain [was] confined to the base of the neck and radiates to both arms,” with “numbness in the entire right upper extremity with numbness in the fingers involving 2nd, 3rd, and 4th fingers” and “some weakness at times.” On examination, Dr. Zorawska found markedly decreased range of cervical motion, tenderness, and limited range of right shoulder abduction and forward flexion, due to pain. She recommended facet injections at C4-5 bilaterally, continued use of home cervical traction, and an EMG.
The employee underwent the facet injections, and the EMG was performed on September 25, 2007. According to Dr. Zorawska, the test was “[s]uggestive but not fully diagnostic of Pronator Teres Syndrome on the right side.” The report contains no findings or references to cervical radiculopathy.
On October 25, 2007, the employee returned to full-time, light-duty work for the employer, sorting parts. Upon the employee’s return to work, the employer discontinued payment of temporary total disability benefits, but no Notice of Intention to Discontinue Benefits [NOID] was served or filed at that time.
On October 30, 2007, the employee underwent bilateral C4-5 medial bundle branch blocks of the facet nerves supplying the C4-5 facets. When the procedure relieved the employee’s symptoms, she was considered a candidate for a rhizotomy. A few weeks later, in mid-November 2007, the employee underwent a rehabilitation consultation and began receiving rehabilitation assistance.
The employee underwent an independent medical examination on December 6, 2007, performed by Dr. Richard Strand. In his report of that date, Dr. Strand concluded that the employee was suffering from degenerative disc disease and degenerative spondylosis resulting in cervical stenosis, which he related to her age, heavy smoking, and genetics. He found no connection between the employee’s cervical condition and her work activities and no evidence of any acute or Gillette injury to her cervical spine. Finally, he indicated that the employee had reached maximum medical improvement from “her alleged aggravation of May 18, 2007,” with “ongoing symptoms related to her preexisting disease.” By letter dated December 19, 2007, the employer served the employee with a copy of Dr. Strand’s report. In that letter, the employer notified the employee that they had accepted her claim by mistake and would no longer pay benefits because her condition was not related to her employment. About two weeks later, the employee obtained legal counsel.
The employee underwent the recommended rhizotomy on December 21, 2007. She continued to work for the employer until April 8, 2008, when she was laid off due to the unavailability of light-duty work. In May of 2008, the employer served and filed the NOID relating to their discontinuance of temporary total disability benefits in October of 2007.
The employee claimed entitlement to various benefits as a result of her alleged May 18, 2007, work injury, and the matter came on for hearing before a compensation judge on January 7, 2009. The primary issue was the nature and extent of the claimed injury, more particularly, whether the employee’s cervical condition was work-related. Other issues included the employee’s entitlement to wage loss benefits, the employee’s weekly wage, and whether the employer was liable for a penalty based on their failure to file an NOID and failure to pay the employee temporary partial disability benefits upon her return to work in October 2007. Evidence included the employee’s medical and rehabilitation records, the employee’s testimony, and the report and deposition testimony of Dr. Strand.
In a decision issued on January 27, 2009, the compensation judge found, in relevant part, that, on May 18, 2007, the employee had sustained a sprain/strain of her right upper extremity and shoulder, which had resolved by the time of Dr. Strand’s examination on December 6, 2007. The judge also concluded that the employee’s work had not aggravated or accelerated the employee’s cervical condition, and the judge expressly accepted Dr. Strand’s opinion on this issue. All benefits from and after October 25, 2007, the date of the employee’s return to work, were denied on causation grounds. The judge also denied the employee’s claim for penalties. 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. Causation - Cervical Condition
The employee claims that the compensation judge erred in concluding that the May 18, 2007, injury did not aggravate or accelerate the employee’s cervical condition, arguing first that the judge erred as a matter of law by failing to analyze the evidence using the factors contained in Wold v. Olinger Trucking, Inc., slip op. (W.C.C.A. Aug. 24, 1994). Wold, however, is primarily applicable when the issue is whether the claimed work injury was temporary or permanent. In the present case, the issue was even more fundamental: whether the employee had injured her cervical spine, at all, as a result of her work activities. This issue is one of medical causation.
As previously noted, the compensation judge expressly accepted the causation opinion of Dr. Strand, who testified that the employee’s cervical degenerative disc disease is related to age, genetics, and tobacco use. According to Dr. Strand, the employee’s work activities were not the kind that “place forces on the cervical spine,” and Dr. Strand also pointed to medical records from 1995, referencing cervical x-ray findings of “space narrowing” and “forminal narrowing,” as evidence of the longstanding and degenerative nature of the employee’s underlying cervical condition. As Dr. Strand explained it, the onset of the employee’s cervical symptoms - - a month or more after her work injury - - was mere coincidence.
On appeal, the employee complains that the compensation judge did not explain “why he rejected [the employee’s] claim that the work activities on May 18, 2007, were a substantial contributing factor to the onset of her cervical symptoms on the day of the admitted work injury.” (Emphasis added.) The obvious weakness in this argument is, of course, that the compensation judge did not accept the employee’s testimony that she experienced neck pain or other cervical symptoms that day, explaining in his memorandum as follows:
The employee had some pre-existing degenerative findings in her cervical spine before she began her employment with this employer. The employee’s job duties at Dycast, including her duties on May 18, 2007, did not appear to be of a nature that would logically cause significant stress to her cervical spine. Her duties were more likely to affect her low back or upper extremities. The contemporaneous medical records indicate that for the first month of treatment her complaints were limited to the right shoulder and arm. The records indicate she had a positive Phalen’s test and swelling in the right shoulder. Additionally, in May or June of 2007 she was noted to have no neck pain or stiffness, and full range of motion in her neck. These findings on examination are directly contrary to the employee’s testimony at hearing. The first indication of a cervical problem does not appear in the records until almost one month after the injury.
Although she apparently does now have a symptomatic cervical condition, the symptoms seem to have overlapped somewhat with her initial upper extremity/shoulder problem. It is not clear from the medical records exactly what type of upper extremity problem she had initially. It seems likely that she had some tendonitis and/or bursitis, and perhaps some irritation of her Pronator Teres. But those issues were resolved by the time she saw Dr. Strand on December 6, 2007. Doctor Strand has persuasively opined that the employee’s work activities were not a substantial contributing factor in any aggravation or acceleration of her pre-existing cervical condition. This court has accepted Dr. Strand’s opinion regarding causation of the cervical condition, and the resolution of the right shoulder and arm condition.
The employee also argues that the compensation judge’s award of benefits through October 24, 2007, is inconsistent with his conclusion on causation, in that it was obvious that all medical treatment rendered after June 14, 2007, was directed toward the employee’s neck, not any upper extremity condition. We are not persuaded. As noted by the judge, above, the employee at least for a time exhibited symptoms consistent with an upper extremity injury, including shoulder swelling, and Dr. Strand testified that that the employee’s use of the torque wrench could have irritated her pronator or median nerve. The judge’s award of benefits into October of 2007 was likely related to the judge’s decision to give the employee the benefit of the doubt as to the duration of that upper extremity injury. We would also note that the employer had already paid the employee temporary total disability benefits up to the date of her return to work, and her entitlement to those benefits was not the primary issue here.
The employee further contends that she has experienced neck pain and symptoms from and after May 18, 2007, and that she is not responsible for the failure of health care providers to accurately record these complaints, and she also alleges that Dr. Strand’s causation opinion is simply not plausible. These arguments, however, were for the compensation judge to weigh. It is also worth noting that the employee did not offer any expert testimony or even a narrative physician’s report explaining the alleged connection between the employee’s ongoing cervical complaints and her work activities.
The compensation judge was entitled to accept Dr. Strand’s opinion on causation. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). We therefore affirm the judge’s decision that the employee’s cervical condition is not work-related.
The employer discontinued payment of temporary total disability benefits when the employee returned to full-time, light-duty work on October 25, 2007. The employer did not file an NOID, however, until May of 2008. The employee contends that the compensation judge erred in denying penalties, arguing as follows regarding the harm the employee allegedly suffered due to the late filing:
Ms. Fahje in all likelihood would have retained an attorney had she received a Notice of Intent to Discontinue benefits. At that time, her treating doctor, Dr. Maria Zorawska, could have issued a report regarding causation and the relationship of the May 18, 2007 work injuries and the ongoing symptoms and need for restrictions including the wage loss. Because the self-insured employer did not timely file the NOID, Ms. Fahje has been prejudiced. As a result of this failure and the filing of that NOID did not happen until May 2008, long after benefits were discontinued, Ms. Fahje was unable to depose or use the medical expertise of Dr. Zorawska who was treating her for her cervical disk disease. Dr. Zorawska has retired and moved back to her home in Austria and is not available for her medical opinion. Had a NOID been filed at the correct time, Dr. Zorawska would have been available for her written opinion or her testimony.
This argument has no merit whatsoever. The employee signed the retainer agreement with her attorney on January 3, 2008, and Dr. Zorawska apparently continued to treat the employee into at least July of 2008. In other words, Dr. Zorawska was evidently available for more than seven months after the dispute arose. Furthermore, by the time the employee’s attorney began her representation in January of 2008, the employer had already provided the employee with Dr. Strand’s report and had notified her that they would pay no additional benefits. Under these circumstances, the employee hardly required an NOID to know that the employer was disputing causation.
Just as importantly, the compensation judge denied the employee’s claim for benefits beginning October 25, 2008, on causation grounds, and we have affirmed the judge’s decision on that issue. As the supreme court noted in Cassem v. Crenlo, Inc., 470 N.W.2d 102, 108, 44 W.C.D. 484, 495 (Minn. 1991), “it makes no sense to penalize the insurer for stopping payments it did not owe.” Id. The judge’s denial of penalties is affirmed.
 Pronator teres syndrome is a condition of the forearm. The employer’s independent medical examiner testified that pronator teres syndrome is extremely rare.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 In Wold, this court held as follows:
Factors to consider in determining whether a work-related incident is a temporary or permanent aggravation of a pre-existing condition may include, but are not limited to: the nature and severity of the pre-existing condition and the extent of restrictions and disability resulting therefrom; the nature of the symptoms and extent of medical treatment prior to the aggravating incident; the nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom; the nature of the symptoms and extent of medical treatment following the aggravating incident; and the nature and extent of the employee’s work duties and non-work activities during the relevant period; and medical opinions on the issue. Which of these factors are significant in a particular case and the weight to be given to any factor is generally a question of fact for the compensation judge.
We would also note that, read together, the judge’s findings and memorandum do in fact indicate that he considered many of the factors listed in Wold in reaching his ultimate conclusion on causation.
 The employee also made arguments on her brief concerning MMI and the judge’s denial of wage loss benefits after October 25, 2007. However, as all of these arguments hinge on the issue of causation for the employee’s ongoing cervical complaints, they need not be addressed.
 The last record from treatment rendered by Dr. Zorawska is dated July 14, 2008.