ROBERT E. ANFINSON Employee, v. ANAMAX CORP. and CNA/TRANSP. INS. CO., Employer-Insurer/Appellants, and ROOT RIVER VALLEY TRANSFER and ACUITY MUT. INS. CO., Employer-Insurer, and SPORTS & ORTHOPAEDIC SPECIALISTS and SUMMIT ORTHOPEDICS, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 8, 2010
CAUSATION - GILLETTE INJURY; GILLETTE INJURY - DATE OF INJURY. Substantial evidence supports the compensation judge’s finding that the employee’s work throughout his employment with Anamax was causally related to his bilateral shoulder condition, and that his later work for another employer for a limited time was not a substantial contributing factor. We modify the compensation judge’s finding regarding the date of injury to be the last day the employee worked for Anamax.
Affirmed as modified.
Determined by: Rykken, J., Stofferahn, J., and Pederson, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: Mark J. Fellman, St. Paul, MN, for Respondent Employee. Kenneth Nelson, Law Office of Jeffrey A. Magnus, Edina, MN, for the Appellants. Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for Respondents Root River/Acuity Mutual.
MIRIAM P. RYKKEN, Judge
The employer, Anamax Corporation [Anamax], and its workers’ compensation insurer, CNA/Transportation Insurance Company [CNA], appeal from the compensation judge’s determination that the employee sustained a Gillette injury on March 26, 2007, and that his injury was causally related to his work activities at Anamax. Under the particular circumstances of this case, we affirm the compensation judge’s determination as to the causation of the employee’s injury, but modify the date of the Gillette injury.
The employee, Robert Anfinson, was employed by Anamax from 2000 to June 2006. He worked as a grease truck driver; his job included unloading restaurant grease, stored in barrels and dumpster-like containers, into a grease truck. To accomplish the unloading, he maneuvered the grease containers from a storage area to his truck, a task which at times involved pushing, pulling, and lifting the containers over uneven ground, and at times involved using winches, pry bars or chains to move and lift the containers. He used a hydraulic lift on his truck to lift the containers on and off the truck, and then returned the containers to a storage area. As part of this process, he also lifted the container lids, which each weighed an estimated 100 to 150 pounds. In addition, the employee used a high-powered pressure sprayer to clean the grease containers, and at times climbed up the side of his grease truck to check the level of the grease contained inside.
On January 27, 2004, the employee sustained an admitted Gillette injury to both elbows as a result of his work for Anamax. He initially noted right elbow symptoms, and sought treatment from Dr. Walid Mikhail, who diagnosed extensor tendinitis with possible torn extensor tendon. Dr. Mikhail referred the employee for an orthopedic consultation with Dr. Peter Daly, who recommended conservative treatment, including the use of an elbow brace. Dr. Daly also recommended that the employee work on a restricted basis with the assistance of a helper.
Although co-workers were assigned to assist the employee with his heavy work, the employee testified that the co-workers were unable to perform the heavier tasks and therefore he needed to perform “the lion’s share of the work” and continued to note pain in both elbows.
The employee continued to work for Anamax, and received ongoing care for his elbows. According to his testimony, his elbow condition caused him to modify how he performed his job, and that after making these modifications, he began to note pain in his shoulders. Although his medical records in early 2004 contain no reference to shoulder symptoms, the employee testified that he had noted shoulder symptoms then but was focusing his attention on the treatment and repair of his elbows.
The initial reference to the employee’s shoulder problems is found in a November 16, 2004, medical chart note, when the employee consulted Dr. Mikhail, reporting that he moved a heavy drum of grease and had difficulties with his left shoulder. Dr. Mikhail diagnosed a left deltoid strain and advised the employee to limit the use of his left arm and to obtain the help of an assistant. At a reexamination on November 23, 2004, the employee reported right arm symptoms. There is no record of ongoing treatment for his shoulders after November 2004; the employee continued to treat with Dr. Mikhail for his elbow condition.
By early 2005 Dr. Mikhail diagnosed chronic bilateral lateral epicondylitis; both he and Dr. Daly advised the employee of his eventual need for elbow surgery, and provided the employee with steroid injections before proceeding with plans for surgery. They also restricted the employee from work for approximately two months, from February 22 to April 20, 2005. The employee returned to work, and worked for about three months, but again was restricted from work from July 25, 2005, to June 4, 2006. While off work, the employee underwent two surgeries, performed by Dr. Daly - - to his left elbow in August 2005 and to his right elbow in February 2006.
By June 5, 2006, the employee returned to work for Anamax and continued working through July 14, 2006, at which time he stopped working because of his elbow symptoms and, in part, because of his shoulder symptoms. He remained off work until early March 2007, when he began a new job with Root River Valley Transfer [Root River], driving a delivery truck. On March 26, 2007, after he had worked for Root River for approximately three weeks, the employee consulted Dr. Mikhail for bilateral shoulder pain. In his chart note, Dr. Mikhail stated that the employee has
bilateral shoulder pain, but employee has a non manual job at this point but even some of the simple turning of handles is giving him moderate shoulder pain that he reports had been there on and off during his whole ordeal with bilat[eral] tennis elbow resulting in surgery. . . . [H]e was pushing heavy grease containers for years and does not want to blame the new easy non manual job on now increasing shoulder pain.
Dr. Mikhail referred the employee to Dr. Michael Freehill for an orthopedic consultation. At an examination with Dr. Freehill on May 17, 2007, the employee reported bilateral shoulder and bilateral elbow pain. The employee evidently reported to Dr. Freehill that he originally injured his elbows on January 17, 2004, when he first experienced pain in both elbows, and later experienced pain in both shoulders, after repetitively pushing heavy grease containers. Dr. Freehill diagnosed bilateral shoulder pain and bilateral AC joint arthrosis, with right shoulder small rotator cuff tear and left shoulder impingement syndrome. He recommended that the employee avoid repetitive overhead and outstretched reaching. Dr. Freehill also advised the employee that he was a probable candidate for a right shoulder rotator cuff repair, and recommended conservative therapy for his left shoulder.
On June 7, 2007, at Dr. Mikhail’s referral, the employee consulted Dr. Daly to obtain a second opinion concerning surgery. Dr. Daly concurred with the surgical recommendations set forth by Dr. Freehill, and recommended a right shoulder arthroscopy, arthroscopic distal clavical excision, decompression and rotator cuff repair. Dr. Daly recommended conservative medical treatment for the employee’s left shoulder.
The employee continued to treat with Dr. Mikhail, who concluded that the employee’s shoulder symptoms were related to his previous work for Anamax. In a chart note dated August 20, 2007, Dr. Mikhail provided his opinion concerning the cause of the employee’s symptoms, stating that the employee had “started a new job at Root River that was ideal as he did not have to do heavy work with his arms at all” and that the employee’s shoulder condition “has to have occurred at his old job [where] he was doing daily very heavy work moving grease containers. There is no way that this would have occurred at his new job.”
The employee continued to work for Root River Valley Transport through December 2007. He sought but was denied authorization for shoulder surgery.
On February 12, 2008, Dr. Daly issued a report in which he recounted that the employee had noted bilateral shoulder pain that gradually worsened with his work activities while working for Anamax as a grease driver, “and that he had developed his shoulder symptoms in 2005.” Dr. Daly found the employee’s work for Anamax to be “particularly shoulder intensive” and that the types of work he performed for Anamax contributed to stress on his rotator cuff tendons and shoulder complex. Dr. Daly also commented that the employee’s work for Root River Valley Transfer did not significantly contribute to his shoulder condition. Dr. Daly reiterated his recommendations for right shoulder surgery.
In approximately March 2008, the employee began working for U.S. Special Delivery driving a freight truck.
On June 26, 2008, at the request of Anamax and CNA, Dr. Gary Wyard examined the employee, and concluded that the employee’s shoulder condition resulted from “the natural progression of shoulder deterioration over time with current findings which are found on the MRIs of both shoulders.” In his opinion, the employee did not sustain a specific injury as a result of his employment at Anamax. Dr. Wyard also commented that if it was determined that the employee had sustained a Gillette injury, “however illogic that may be,” such an injury would have been caused by all of his work activities over the years, and that the date of such an injury would be June 2007 when the employee sought medical care for his shoulders from Dr. Daly.
In September 2008, the employee filed a claim petition against Anamax and CNA, and against Root River and its insurer, Acuity Mutual Insurance Company [Acuity Mutual], seeking approval for surgery. In his petition, he listed two claimed dates of injury, January 27, 2004, and June 17, 2007. In support of his claim, the employee relied on the opinion of Dr. Daly, who had concluded that the employee’s previous work for Anamax had substantially contributed to his shoulder condition and need for surgery. Both Anamax and Root River, and their insurers, denied liability for the claimed shoulder injuries.
On March 20, 2009, at the request of Root River and Acuity Mutual, Dr. Michael J. D’Amato examined the employee. He concluded that the employee’s bilateral shoulder condition resulted primarily from his work at Anamax, and did not result from his work for Root River. Dr. D’Amato concluded that the employee’s Gillette injury culminated on March 26, 2007, when he consulted Dr. Mikhail for shoulder symptoms. He also concluded that, by the time of his examination, the employee had worked for Root River for only three weeks and his activities for that employer did not contribute to his bilateral shoulder condition. Dr. D’Amato recommended a right shoulder rotator cuff repair. He also recommended an injection and physical therapy for the employee’s left shoulder, before considering any left shoulder surgery.
The employee’s claim petition was addressed at a hearing on May 1, 2009. His petition, as amended, listed four claimed injury dates: January 24, 2004, the date on which Anamax admitted that the employee sustained injuries to both elbows; November 16, 2004, when the employee sought treatment from Dr. Mikhail for his left shoulder; March 26, 2007, when the employee consulted Dr. Mikhail for his bilateral shoulder symptoms; and June 7, 2007, when the employee consulted Dr. Daly for his bilateral shoulder symptoms.
Following the hearing, the compensation judge determined that the employee had sustained a left shoulder injury on November 16, 2004, while employed at Anamax, but that this injury did not result in disability from work nor did it result in permanent injury. In addition, in reliance on Dr. D’Amato’s opinion, the compensation judge determined that the employee’s shoulder injuries culminated on March 26, 2007, concluding that it was by that date the employee’s bilateral shoulder symptoms had worsened to the point that he required medical treatment. The compensation judge attributed the employee’s Gillette injuries entirely to his work for Anamax. She concluded that the three weeks prior to March 26, 2007, during which he had worked for Root River, did not substantially contribute to his Gillette injuries.
Anamax and CNA appeal.
Anamax and CNA [Anamax/CNA] appeal from the compensation judge’s determination that the employee sustained a Gillette injury on March 26, 2007, to both shoulders, solely as a result of his work for Anamax. Their appeal is two-fold, and relates to the date of injury found by the compensation judge. Anamax/CNA argue that either January 27, 2004, or March 26, 2007, could represent the injury date for the employee’s shoulder injuries, and that the choice of injury date would necessarily dictate assignment of liability for the injury. If January 27, 2004, is determined as the injury date, Anamax/CNA admits liability. If March 26, 2007, is determined as the injury date, they contend that liability should either be entirely assigned to Root River and its insurer, or should be apportioned between Anamax and Root River.
Anamax/CNA first argue that January 27, 2004, is the most appropriate date of injury, and rely on the employee’s testimony and medical evidence in support of that argument. They contend that the same work activities that caused the employee’s elbow injuries caused his shoulder injuries. Dr. Daly’s and Dr. Freehill’s reports reflect the employee’s attribution of his shoulder condition to his 2004 injury. The employee also testified that after he modified his lifting techniques following his 2004 injury, his shoulder symptoms developed, and therefore his shoulder condition developed as a consequence of his elbow injuries.
Anamax/CNA argue alternatively that if March 26, 2007, is affirmed as the appropriate injury date, then liability should either be attributed entirely to Root River, as the employer on March 26, 2007, or should be apportioned between both Anamax and Root River. They rely on Dr. Wyard’s opinion that all of the employee’s work, including his three weeks of work for Root River, contributed to his shoulder condition. The compensation judge considered but rejected that argument, concluding that the shoulder symptoms that the employee experienced during his initial weeks at Root River “would be consistent with the problems that had developed in his shoulders and not based on new or additional injury.” The compensation judge relied on the medical opinions of Drs. Mikhail, Daly and D’Amato when concluding that no liability should be attributed to Root River. She also accepted the employee’s testimony that he did not think his work at Root River was responsible for his shoulder condition.
A Gillette injury is a result of repeated trauma or aggravation of a preexisting condition which results in a compensable injury when the cumulative effect is sufficiently serious to disable an employee from further work. Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W.2d 200, 205-06, 21 W.C.D. 105, 111-13 (1960); Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981). A Gillette injury can occur gradually over several years until it becomes symptomatic, or can occur with a sudden onset or intensification of symptoms. Lavalle v. University of Minn., slip op. (W.C.C.A. January 27, 1997); Jepson v. Bayliner Marine Corp., 55 W.C.D. 370, 375 (W.C.C.A. 1996). It is not mandatory that an employee be disabled from 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, 888 (W.C.C.A. 1987). 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).
Selection of a date of injury of a Gillette injury is not a medical decision, but is a question of ultimate fact for the compensation judge to “be determined on all the evidence bearing on the issue.” Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 233, 36 W.C.D. 504, 509 (Minn. 1984); see also Ellingson v. Western Ins. Co., 42 W.C.D. 565, 574 (W.C.C.A. 1989). This court has held that it is not necessary for a Gillette culmination to occur on the last day of employment; other ascertainable events can be used to reasonably infer an earlier culmination date. In certain circumstances, the date of disability may be determined by the date an employee can no longer do his work or when his work is altered because of his medical condition and symptoms. See Johnson v. Brown and Bigelow, slip op. (W.C.C.A. July 22, 1994). In other circumstances, the date upon which an employee seeks medical treatment can be accepted by a compensation judge as the date of a Gillette injury, particularly when there are not other obviously ascertainable events, such as lost time from work or assignment of medical restrictions. See Shaffer v. The Minnesota Orchestra, 53 W.C.D. 341 (W.C.C.A. 1995).
The last employer and insurer on the risk on that injury date are typically deemed liable for disability resulting from a Gillette injury, but “this rule is subject to the finding that during the last period of employment the work duties performed by the employee must have been a substantial contributing factor to the employee’s disability.” Gray v. Sears Roebuck & Co., slip op. (W.C.C.A. Feb. 7, 2000), citing Tannahill v. Mid-American Lines, Inc., 40 W.C.D. 726, 728 (W.C.C.A. 1987) (cites omitted). “[I]mposition of liability on the last insurer is not automatic but must rest on proof connecting the employee’s disability to the employee’s job duties during that insurer’s period of coverage.” Crimmins v. NACM No. Cent. Corp., 45 W.C.D.435, 439 (W.C.C.A. 1991), summarily aff’d, (Minn. Nov. 26, 1991).
In this case, the employee noted shoulder symptoms at least as early as November 2004. In an unappealed finding, the compensation judge concluded that the employee sustained a temporary injury to his left shoulder in November 2004, but that he was not disabled from employment by that injury. By July 2006, the employee’s elbow, and to some extent his shoulder symptoms, worsened to a point where he was unable to continue working for Anamax. He remained off work until early March 2007, when he began working as a delivery driver for Root River Valley Transfer, in a position that did not require the type of heavy work that he had performed at Anamax. The employee’s treatment since 2004 had focused on his elbows, but on March 26, 2007, the employee consulted Dr. Mikhail, reporting shoulder symptoms.
The compensation judge acknowledged that it is difficult in this case to determine an injury date for the employee’s shoulder condition. She rejected the argument that the employee’s shoulder injuries occurred in January 2004, noting that the medical reports from 2004 and 2005 showed the employee's primary disability resulted from his elbow condition. It was not until March 26, 2007, that the employee’s worsened shoulder symptoms caused him to seek medical treatment, and it was that date that the compensation judge found to be determinative.
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). Based upon the progression of the employee’s shoulder symptoms, as borne out in the employee’s medical records and in his testimony, and based on the opinions of Drs. Mikhail, Daly and D’Amato, the compensation judge reasonably concluded that the employee’s shoulder symptoms developed as a substantial result of his work throughout his employment at Anamax. Nord v. City of Cook, 360 N.W. 2d 337, 37 W.C.D. 364 (Minn. 1985). Substantial medical evidence of record supports that finding on causation, and we therefore affirm that finding. We also affirm the finding that the employee’s work at Root River, which the employee described as involving less lifting and manual activity, did not represent a substantial contributing factor in the development of the employee’s shoulder condition. We cannot agree, however, that March 26, 2007, is the appropriate date of the employee’s shoulder injuries. Because the employee’s work throughout his employment at Anamax resulted in his shoulder injuries, and because the employee last worked at Anamax on July 14, 2006, assignment of a March 26, 2007, injury date - - approximately nine months after his last day of work for Anamax - - cannot accurately reflect the injury date.
This court has consistently stated that a finding as to the timing of a Gillette injury is one of fact, which we are hesitant to overturn on appeal. And, as we stated in Pettis v. Metal Matic, slip op. (W.C.C.A. Jan. 18, 2000), we are “perhaps even more hesitant to simply substitute another date, especially when there is more than one possible alternative, and under other circumstances we might have remanded the matter to the judge for reconsideration.” See also Reel v. Loftness Specialized Farm Equip., slip op. (W.C.C.A. Feb. 3, 2004). However, in this case Anamax does not dispute that the employee’s work for that employer substantially contributed to his shoulder condition, and the record amply supports that conclusion. Because we have affirmed the findings that the employee’s work throughout his employment with Anamax substantially contributed to his bilateral shoulder condition, and that his later work for Root River was not causally related to his shoulder condition, it is appropriate to use the last date of employment at Anamax, July 14, 2006, as the date of the employee’s Gillette injury to his shoulders. We accordingly modify the date of the employee’s Gillette injury to July 14, 2006.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 The findings and order list June 17, 2007, as a claimed injury date. That date is linked to an examination with Dr. Daly in June 2007 and is the Gillette injury date assigned by Dr. Wyard. The examination actually took place on June 7, 2007, but there is no dispute that both dates are related to the examination by Dr. Daly in June 2007.