ROGER J. MORIN, Employee/Appellant, v. THE STAR TRIBUNE CO. and ZURICH/GALLAGHER BASSETT SERVS., INC., Employer-Insurer, and SPORTS & ORTHOPAEDIC SPECIALISTS, P.A., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 16, 2010
CAUSATION - SUBSTANTIAL EVIDENCE. Whether or not the work incidents reported by the employee occurred, substantial evidence, including expert medical opinion, supports the compensation judge’s determination that the employee’s activities at work neither caused nor contributed to the employee’s chronic, preexisting left shoulder condition.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Catherine A. Dallner
Attorneys: Jerry D. Korba, Korba Law Office, Columbia Heights, MN, for the Appellant. William G. Laak and Jeffrey R. Homuth, McCollum, Crowley, Moschet & Miller, Bloomington, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s finding that the employee did not sustain a personal injury to his left shoulder arising out of his employment. We affirm.
Roger J. Morin, the employee, began working for The Star Tribune Company, the employer, in March 2003. In December 2007, the employee worked for the employer on a part-time basis on weekends. During his shift commencing on Friday evening, December 7, and continuing into Saturday, December 8, 2007, the employee alleged two incidents occurred causing injury to his left shoulder. The employee claimed a date of injury of December 8, 2007. The employer and Zurich/Gallagher Bassett Services, Inc., the insurer, denied liability for the claimed personal injury.
The employee’s medical records reflect a history of bilateral shoulder problems prior to the alleged December 8, 2007 injury. On January 11, 2002, Dr. Jerome Merkel at the North Clinic treated the employee for left neck and left shoulder pain following a work injury. The doctor prescribed Aleve and exercises and removed the employee from work for several days. The employee returned to the clinic in November 2002 complaining of continuing left shoulder pain. Dr. Kraemer diagnosed left shoulder pain with questionable chronic rotator cuff damage and referred the employee to an orthopedic surgeon. The employee did not follow up with that appointment. On March 17, 2007, the employee injured his right shoulder when he fell at home. He saw Dr. Merkel on April 20, 2007, complaining of bilateral shoulder pain and stated he felt the left shoulder was worse due to using it more since the March right shoulder injury. The doctor ordered an MRI scan of the right shoulder. The employee returned to see Dr. Merkel on April 24, 2007, complaining of increased left shoulder pain that was limiting his activity and interfering with sleep. The doctor diagnosed bilateral shoulder pain with a suspected right rotator cuff tear, a left rotator cuff strain, and possible impingement syndrome.
The employee saw Dr. Andrew Arthur, an orthopedic surgeon, on April 30, 2007. Following a review of the MRI scan, the doctor diagnosed a large right shoulder rotator cuff tear and recommended surgery. In May 2007, the doctor performed a right shoulder arthroscopy, subacromial bursectomy, immobilization of the rotator cuff, and a mini-open rotator cuff repair. Following the surgery, the employee returned to work for the employer in September 2007.
At the time of the claimed December 2007 personal injury, the employee also worked 40 hours per week driving truck for McCallum Transfer. On December 6, 2007, the employee sustained a personal injury to his right shoulder while working at McCallum. The employee did not seek medical treatment for this injury until December 13, 2007.
On Friday, December 7, 2007, the employee began his weekend shift for the employer at approximately 9:00 P.M. While working that evening, the employee testified he grabbed a bundle of newspapers off a conveyor belt and felt a snap in his left arm while stacking the papers on a cart. A bundle of newspapers weighed between 30 and 40 pounds. The employee testified that the injury did not bother him much at that time and he continued working. During the same shift, after midnight on December 8, 2007, the employee was loading bundles of newspapers off a conveyor belt and into a delivery van. The employee saw a bundle of newspapers working its way off the edge of the conveyor belt and reached for it with his left arm. As he grabbed the bundle of newspapers, it fell to the ground and the employee felt an immediate pain in his left shoulder. The employee finished loading the bundles, took two Aleve, and continued working. The employee’s remaining tasks that Saturday morning were to deliver newspapers to gas stations and other delivery points and place the newspapers in a rack. The employee stated that he carried two bundles at a time, one in each arm, from the van into the store. The employee testified that he delivered and stacked approximately 90 bundles of newspapers on Saturday morning, December 8, 2007.
The employee worked his regular shift at the employer on Saturday evening, December 8, through Sunday morning. His duties included pushing newspapers on a conveyor belt and stacking pallets of newspapers with a forklift truck.
David Finneman was the fleet safety foreman for the employer in December 2007. Mr. Finneman testified the employee called him and left a message on December 12, 2007. Mr. Finneman returned the phone call on December 13 and was told by the employee that he had injured his shoulder on December 8. A First Report of Injury was prepared on December 15, 2007.
On December 13, 2007, the employee saw Dr. Pam Doorenbos at the North Clinic. The employee gave a history of an injury to his right shoulder on December 6 when opening a truck door and a second episode on December 10 while pulling on a chain for a dock plate, both incidents while working for McCallum Transfer. The doctor’s note reflects no complaints by the employee of left shoulder pain or problems. Dr. Doorenbos diagnosed a re-injury of the right rotator cuff, released the employee to return to work with no use of his right arm, and referred the employee back to Dr. Arthur. The employee saw Dr. Arthur on December 18, 2007, and gave the doctor a history of his right shoulder injury at McCallum Transfer. The diagnosis was chronic right shoulder rotator cuff tear. Dr. Arthur opined the tear could not be repaired. Dr. Arthur restricted the employee to working with no use of his right arm. The employee made no complaints to Dr. Arthur about left shoulder problems.
The employee returned to see Dr. Merkel on December 20, 2007, and gave a history of an injury to his left shoulder on December 8, 2007, while working for the employer. The doctor ordered an MRI scan. The employee returned to see Dr. Merkel on January 31, 2008, complaining of ongoing left shoulder problems. Dr. Merkel stated the MRI scan documented a left shoulder rotator cuff tear and he referred the employee to Dr. Daniel Buss. The employee saw Dr. Buss on March 5, 2008. The doctor reviewed the January 2008 MRI scan, which he stated showed superior humeral head migration, early acetabularzation, a large undersurface AC spur, Grade III atrophy of the supraspinatus and infraspinatus muscles, hypertrophy of the teres minor muscle, a significant biceps tendinitis, thinning of the subscapularis, and a narrow coracohumeral distance. Dr. Buss diagnosed left shoulder rotator cuff arthropathy and placed work restrictions on the employee regarding use of his left arm.
The employee did not return to work for the employer after December 8, 2007, and his employment was ultimately terminated on April 10, 2008. The employee worked at a light-duty job at McCallum Transfer for some period of time, but his employment was ultimately terminated by McCallum also.
The employee was examined by Dr. Paul Wicklund at the request of McCallum Transfer, Inc., and its legal counsel. By report dated August 14, 2008, the doctor diagnosed a massive tear of the right rotator cuff with incomplete repair, a ruptured long head of the right biceps, and a chronic tear of the left rotator cuff with a ruptured long head of the left biceps. Based upon the history he received, Dr. Wicklund opined the employee sustained a personal injury with the employer that was a substantial contributing cause of his ongoing left shoulder problems. The doctor stated the employee needed restrictions due to his left shoulder condition and rated a 6% whole body disability.
Dr. Michael D’Amato examined the employee on August 18, 2008, on behalf of the employer and insurer. The doctor reviewed a cover letter from counsel for the employer and insurer, obtained a history from the employee, reviewed the employee’s medical records, and conducted a physical examination. Dr. D’Amato stated the employee’s left shoulder condition was a chronic, irreparable left rotator cuff tear with early developing cuff arthropathy. Dr. D’Amato opined the employee’s left shoulder condition was
a chronic condition clearly predating the alleged December 8, 2007, work injury at the Star Tribune. This is based on the fact that the MRI taken shortly after that injury, in January 2008, clearly demonstrates a large, retracted tear with atrophy of the supraspinatus tendon consistent with a chronic, not an acute, injury. There was also clear indication in the records dating back to 2002, prior to any work at the Star Tribune or at McCallum Transfer, of left shoulder injury and symptoms both in January 2002 and November 2002. Mr. Morin was noted to have pain in the left shoulder with range of motion worsening over that intervening time period with limited range of motion in abduction of the left shoulder. In April 2007 he was also noted to have left shoulder pain with symptoms and exam findings consistent with rotator cuff pathology at that time, again, pre-dating the alleged December 8, 2007 injury at the Star Tribune. Therefore, based on the records, the left shoulder condition was a manifestation of his preexisting condition and not a new or acute injury resulting from any work activities in December 2007. (Resp. Ex. 2.)
On December 19, 2007, the employee gave a recorded statement to a representative of Acuity Insurance Company, the carrier for McCallum Transfer, regarding the claimed December 6, 2007, personal injury. In this statement, the employee was asked about prior work injuries and about his employment with the employer. The employee made no mention of his claimed injuries with the employer. The employee was also asked about his current work status and stated he was not then working and was under restrictions not to use his right arm. The employee did not state that he was then under restrictions or having any problems with his left shoulder.
The employee filed a claim petition alleging a personal injury on December 8, 2007, arising out of his employment with the employer. The employee sought temporary total and permanent partial disability benefits, together with medical expenses. Following a hearing, the compensation judge found the employee did not sustain a personal injury to his left shoulder arising out of and in the course of his employment with the employer on December 8, 2007. The employee appeals.
The employee asserts the compensation judge denied the employee’s claim based upon the following facts:
1) The employee was able to perform all of his regular job duties from Friday, December 7, through Sunday, December 9, 2007; and
2) The employee did not give notice of his December 8, 2007, left shoulder injury until December 13, 2007; and
3) When the employee saw doctors on December 13 and December 18, 2007, he gave no history of a left shoulder injury or made any left shoulder complaints; and
4) The employee first received treatment for his left shoulder with Dr. Merkel on December 20, 2007; and
5) The employee did not advise Acuity Insurance Company of a left shoulder injury during the course of his recorded statement.
The employee argues that none of these facts support the compensation judge’s denial of his claim. The employee argues that his duties from Saturday night through Sunday morning were very light duty, primarily involving sitting at a conveyor belt, pushing newspapers in the event a bundle got stuck, and stacking pallets using a forklift truck. The employee contends that he called Mr. Finneman on December 12, 2007, to report his injury, only four days after the injury occurred. The employee argues he did not report his left shoulder injury to either Dr. Merkel or Dr. Arthur because he did not then feel the injury was significant and hoped it would improve. Further, the employee states he did not want to be treated for both injuries at the same time because they occurred with two different employers. Waiting 11 days for treatment is not, the employee argues, unreasonable and is not substantial evidence that he did not sustain an injury. Finally, the employee argues the adjuster at Acuity Insurance Company never asked him about an injury at the Star Tribune and, in any event, that injury had no relevance to his injury at McCallum Transfer Company. Accordingly, the employee asks this court to reverse the factual findings of the compensation judge. We decline to do so.
The material facts in this case are essentially undisputed. What the employee does contest are the inferences drawn from the facts by the compensation judge. An inference is a logical, permissible deduction the factfinder is entitled to draw from proven or admitted facts. Wilder v. W.T. Grant Co., 270 Minn. 259, 132 N.W.2d 582 (1965). Based upon the evidence in this case, the compensation judge could have drawn different inferences and reached a different conclusion. Under this court’s standard of review, however, the issue is not whether the evidence will support alternative findings but whether substantial evidence supports the judge’s findings. Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the factual findings are to be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
Dr. D’Amato obtained a history from the employee, reviewed the employee’s medical records, and performed a physical examination. We have on many occasions stated that this level of knowledge affords an examining physician adequate foundation to render an expert opinion. Dr. D’Amato opined the employee’s left shoulder condition was chronic and predated the December 8, 2007, incident at work. Thereafter, the doctor stated the employee’s left shoulder condition was a manifestation of that preexisting condition and was not a new or acute injury resulting from any work activities with the employer. The compensation judge specifically relied on the opinions of Dr. D’Amato and found them persuasive. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
Based upon this evidence, the compensation judge could reasonably conclude that while the two work incidents on December 7 and December 8, 2007, may have occurred, neither substantially caused nor contributed to the employee’s left shoulder condition, based on the expert opinion of Dr. D’Amato. Accordingly, we conclude the findings of the compensation judge are not clearly erroneous or unsupported by substantial evidence. The compensation judge’s decision is affirmed.