CYNTHIA J. PALMER, Employee/Appellant, v. IRI INSTORE SOLUTIONS GROUP, and COMMERCE & INDUS. INS. CO./AIG CLAIM SERVS., INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 22, 2009
CAUSATION - GILLETTE INJURY. Where the employee’s medical expert indicated that he could not opine that the employee’s left shoulder condition was work-related since he did not know how often the employee had to reach or lift overhead in the course of her work, substantial evidence supports the compensation judge’s decision that the employee had not shown that she sustained a left shoulder Gillette injury on September 1, 2006. Since the record does not include the information deemed necessary by the employee’s expert witness, there is no basis to remand the case to the compensation judge.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Danny P. Kelly
Attorneys: Donald W. Kohler, Kohler Law Office, White Bear Lake, MN, for the Appellant. Steven E. Sullivan and Sarah E. Groskreutz, Johnson & Condon, Minneapolis, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge’s finding that the employee’s proposed left shoulder surgery is not causally related to a compensable work injury. We affirm.
Cynthia Palmer, the employee, worked as a field service representative for IRI Instore Solutions Group, the employer, from February 2004 through April 2007. The employee’s job involved taking store inventory using a notebook computer with an attached scanner. While conducting an inventory, the employee held the computer using a neck strap and held the scanner with her right hand. She lifted and turned the products with her left hand and scanned the barcode on the products using the scanner in her right hand. Sometimes she could scan one item and count the remaining number of products, other times she would need to scan each item. The employee estimated that about 25% of the time she would need to remove each item from its display for scanning. About 25% of the time the employee had to reach over her head or shoulder to reach the products.
But for certain periods each year, the employee worked on a part-time basis. She regularly worked at about four stores a week in north central Minnesota. She testified that her scanning work at the Sandstone store required about an hour and a half to complete, her work at the St. Cloud store required an hour and forty-five minutes, and her bi-weekly work at a store in Forest Lake required an average of 45 minutes. The employee also worked on various special projects during the year. Two times per year these projects involved scanning Pepsi products displayed at 40 to 100 stores; that twice-yearly project required 40 hours per week for six weeks and included scanning displays of 24-can packs.
In September 2005, the employee began noticing left wrist symptoms. In December 2005, the employee began dropping objects because her left hand would go numb. She noticed left shoulder pain about six months later. By September 1, 2006, the employee’s supervisor completed a first report of injury indicating left arm, shoulder, elbow, and wrist pain.
The employee began treating with Dr. W. Kent Brunell in January 2007, reporting bilateral wrist pain, left worse than right, and pain in her left forearm, elbow, and shoulder from repetitive motion at her work. The employee indicated that lifting, twisting and reaching increased her pain symptoms. Dr. Brunell diagnosed the employee with overuse syndrome of the left arm and shoulder. The employee was treated with physical therapy. In February 2007, Dr. Brunell gave the employee work restrictions which included no lifting or carrying more than 10 pounds. The employee reduced her work hours, and, by April 2007, the employee resigned since she could not work within her assigned work restrictions. She testified that she resigned because her symptoms did not decrease even with her reduced work hours.
An April 2007 MRI scan of the employee’s left shoulder indicated mild supraspinatus and subscapularis tendonitis and mild degenerative arthritis of the acromioclavicular joint region. An MRI of the left wrist indicated moderate effusion within the distal radial ulnar joint. Dr. Brunell referred the employee to Dr. Mark Holm, for an orthopedic consultation. On August 22, 2007, Dr. Holm examined the employee’s left shoulder and left wrist, and diagnosed left shoulder biceps tendinitis and rotator cuff tendinitis, left wrist DeQuervain’s tenosynovitis and flexor carpi radialis tendinitis. He treated the employee with cortisone injections in her left wrist and shoulder, and recommended continued physical therapy. The left shoulder injection relieved the employee’s pain for 2 to 3 weeks. In September 2007, based on positive findings on examination and on her MRI scan, Dr. Holm recommended an arthroscopic examination of the left wrist, and therefore suggested that the employee hold off on her formal physical therapy.
On October 25, 2007, the employee underwent surgery on her left wrist, a repair of her triangular fibrocartilage and release of the first extensor compartment, performed by Dr. Holm. The employee had a good result from this surgery, but continued to report pain and tenderness in her left shoulder. She also noted pain in her left forearm.
Dr. Holm treated the employee with additional injections in her left shoulder in December 2007 and April 2008. In June 2008, Dr. Holm recommended that the employee undergo a left shoulder arthroscopic subacromial decompression surgery and a radial nerve decompression of the left proximal forearm.
On July 11, 2008, the employee was examined by Dr. William Call, at the employer and insurer’s request, regarding her left wrist condition. Dr. Call did not assess the employee’s shoulder condition. He opined that the employee’s work activities as she demonstrated them could aggravate, accelerate or cause a minimal triangular fibrocartilage tear and DeQuervain’s disease on the left side, and that her medical treatment for this condition was reasonable, necessary, and causally related to the employee’s work injury. He also opined that any aggravation was temporary and had resolved by the date of his evaluation.
On August 18, 2008, the employee was examined by Dr. Wayne Thompson, at the employer and insurer’s request, regarding her left shoulder condition. He could not make a specific diagnosis of the employee’s left shoulder condition, but opined that it was idiopathic and that her work activities did not substantially aggravate, accelerate, or cause her left shoulder condition. Dr. Thompson noted that the employee’s medical treatment had been reasonable and necessary, but was not causally related to the employee’s September 1, 2006, work injury. He recommended that the employee participate in a three-month exercise program to strengthen her shoulder, and that if she noted no improvement after three months, he would suggest a left shoulder arthroscopic examination. He noted that the recommended treatment would be unrelated to her work activities.
On October 28, 2008, the employee filed a medical request for the proposed left shoulder decompression surgery and left forearm decompression surgery; the employer and insurer objected, disputing the reasonableness, necessity and causal relationship of the proposed surgeries.
The employee requested a causation opinion from Dr. Holm, and informed him of her job duties, but did not indicate the amount of overhead reaching or reaching over shoulder level. In a report dated December 16, 2008, Dr. Holm indicated that, in his opinion, the repetitive twisting of merchandise that the employee performed at work was a significant contributing factor to the development of her left wrist condition and her related wrist surgery. With respect to her left shoulder condition, however, Dr. Holm indicated that in order for the employee’s condition to be considered work related, “her work activities would have to include repetitive overhead reaching and lifting, not just lifting a product and turning or twisting it at waist level.” Since Dr. Holm did not have information available regarding the frequency of the employee’s overhead reaching and lifting at work, he could not say that the condition was work-related. He also stated that if the employee had to reach overhead dozens of time per hour, he would then opine that her work activities were a significant contributing factor to her left shoulder condition, but would not consider the condition to be work-related “[i]f the frequency with which she had to reach overhead or left overhead was only several times per hour.”
A hearing was held on January 29, 2009, to address the employee’s medical request. On that date, the employee withdrew her request for left forearm surgery, and so the hearing was limited to the employee’s claim for left shoulder surgery. The compensation judge found that the employee had not shown that she had sustained a Gillette injury culminating on September 1, 2006, and denied her request for the proposed surgery as not causally related to a compensable work injury. 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. 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 the 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).
Claimed Gillette Injury
A Gillette injury is an injury resulting from repeated trauma or aggravation of a preexisting medical condition. It is not mandatory that an employee be totally disabled from all work activity or suffer a wage loss in order to determine that a Gillette injury has occurred. Johnson v. Lakeland Bean Co., 39 W.C.D. 884 (W.C.C.A. 1987). The date of injury should “be determined on all the evidence bearing on the issue,” including other “ascertainable events” evidencing disability. Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 233, 36 W.C.D. 504, 509 (Minn. 1984). Ascertainable events may include the initiation of medical treatment, the imposition of work restrictions and modification of work duties, or the last date of employment. See Dillon v. Pennco Constr., No. WC08-127 (W.C.C.A. Sept. 5, 2008). Questions of causation fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). A finding as to a Gillette injury is primarily dependent on the medical evidence. See Marose v. Maislin Transp., 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987).
The compensation judge found that the employee failed to establish a Gillette injury to her left shoulder culminating on September 1, 2006, and, therefore, failed to establish that the left shoulder surgery, as recommended by Dr. Holm, was causally related to a compensable personal injury. The compensation judge concluded that Dr. Holm did not have foundation for a causation opinion, as Dr. Holm was unaware of the extent of the employee’s overhead activity that the employee performed for the employer. The employee argues that her testimony, along with Dr. Holm’s opinion and her contemporaneous medical records, provided sufficient evidence for her to meet her burden of proof.
The employee specifically claims that the compensation judge erred by failing to consider Dr. Holm’s opinion. The employee contends that Dr. Holm’s causation opinion, in light of her hearing testimony, was sufficient for her to establish a Gillette injury. The compensation judge found that Dr. Holm’s opinion lacked foundation since he did not know how much overhead reaching and lifting the employee performed at work. The employee argues that a doctor’s opinion does not lack foundation if the doctor lacks a complete description of the employee’s job duties or because the opinion does not set out a factual basis, citing Goss v. Ford Motor Co., 55 W.C.D. 316 (W.C.C.A. 1996) and Henchal v. Federal Express Corp., No. WC07-212 (W.C.C.A. Jan. 30, 2008), and requests that the case be remanded to obtain a supplemental report from Dr. Holm. In Goss, the doctor did not know everything about the employee’s job duties, but he did have specific information that the employee was working on 48 to 55 trucks per hour using his arms overhead during 10-hour days. In this case, Dr. Holm does provide a factual basis for his opinion, that he could not opine that the employee’s work injury was causally related to her work activities because he did not know how often she performed overhead reaching or lifting. Dr. Holm specifically noted what information he required about the employee’s job duties in order to render an opinion. The compensation judge clearly considered Dr. Holm’s report and accepted Dr. Holm’s comment that he could not give a causation opinion without that information. The compensation judge did not err by failing to consider Dr. Holm’s opinion.
The employee also argues that the compensation judge erred by finding that she had not proven that she had sustained a Gillette injury to her left shoulder culminating on September 1, 2006. Dr. Holm indicated that he could not determine that the employee’s condition was work-related since he did not know how often the employee had to reach overhead, but that if the employee had to reach overhead dozens of time per hour, he then would conclude that her work activities were a significant contributing factor to her left shoulder condition. The employee testified that 25% of her work was at shoulder height and above, and argues that her testimony, together with Dr. Holm’s opinion, support her claim of a Gillette injury. The compensation judge was able to review the employee’s testimony, along with Dr. Holm’s opinion and other medical records, and did not find it to be sufficient. There is no evidence in the record regarding the number of times the employee had to lift or reach overhead. Further, the employee did not differentiate between shoulder height and overhead height when discussing her work activities. There is no basis in the record to remand this case to the compensation judge. The compensation judge did not err by finding that the employee had not established a Gillette injury to her left shoulder, and we affirm.
a. Notice of Appeal
The compensation judge based her conclusions, in part, on Dr. Holm’s statement that he did not have information on how frequently the employee reached or lifted overhead with her left arm. The employer and insurer argue that the history provided by the employee to Dr. Holm, and the history on which Dr. Holm based his opinion, is outlined in certain unappealed findings. The employer and insurer apparently contend that because those particular factual findings were not appealed by the employee, she “does not contest the sufficiency of the evidence in support of the finding” (emphasis in the original), nor does she “disagree with the legal standard applied by the compensation judge,” nor does she “claim any error of law.” To the extent that the employer and insurer’s arguments contend that the employee’s appeal was insufficient or improper, we disagree. In her notice of appeal, the employee properly listed the findings she was appealing and the grounds for her appeal, and the basis of her appeal was made clear to the court. See Minn. Stat. § 176.421, subd. 3.
b. Motion to Strike
In her reply brief, the employee included a motion to strike the employer and insurer’s responsive brief, on the grounds that it was not filed within 25 days after the appellant’s brief, as required by Minn. R. 9800.0900, subd. 3. Upon review, we note that the appellant’s brief was mailed on May 21, 2009, but was received by this court, and therefore filed, on May 26, 2009. The 25-day period expired on Saturday, June 20, 2009. Due to the weekend, the employer and insurer’s brief was due on the following Monday, June 22, 2009, which was the day it was filed. The employer and insurer’s brief was filed with the court in a timely manner.
 As noted in Finding No. 5, the September 1, 2006, injury date “was randomly chosen by the employer. A point of reference used was that the employee could not perform the Pepsi special project.”
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).