JEFFREY J. CRAMER, Employee, v. UNITED PARCEL SERV., INC./UPS FREIGHT and LIBERTY MUT. INS. CO. by GALLAGHER BASSETT SERVS., INC., Employer-Insurer/Appellants, and MIDWEST SPINE INST., MIDWEST RADIOLOGY, Medical Advanced Pain Specialists, HealthEast St. John’s Hosp., ALLINA MED. CLINIC, UNTED HOSP., and Therapy Partners, Inc., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 20, 2012
CAUSATION - GILLETTE INJURY; GILLETTE INJURY - DATE OF INJURY. Substantial evidence, including the credible testimony of the employee and medical expert opinion, supported the compensation judge’s findings that the employee sustained a Gillette injury in the nature of piriformis syndrome and focal sciatic neuritis culminating on November 21, 2008, when the employee’s complaints reached a level where he sought medical treatment on a regular basis.
Determined by: Johnson, J., Stofferahn, J. and Hall, J.
Compensation Judge: Danny P. Kelly
Attorneys: David W. Blaeser, Attorney at Law, Woodbury, MN, for the Respondent. John Thul, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal the compensation judge’s finding that the employee sustained a Gillette-type personal injury culminating on November 21, 2008, in the nature of piriformis syndrome and focal sciatic neuritis. We affirm.
Jeffrey J. Cramer, the employee, obtained employment as a truck driver at UPS Freight, the employer, in August 1997. The employee drove a tractor-trailer doing pick-up and delivery services. The employee testified that over time he began to experience leg pain while driving.
The employee saw Dr. Jess Olson on April 17, 2008. The employee stated that over the past three years he had developed increasing leg cramping and pain, first in his right leg, and then in both legs, which he noticed mainly at work. He reported the pain improved when he was off work and after he was provided with a new seat in his truck. Following an examination, Dr. Olson concluded, based upon a negative straight leg raising test, that the employee’s pain was not coming from his back. The doctor opined that the seat in the employee’s truck might be causing some impingement on the thyromegaly sciatic nerve resulting in stress tendonitis in his right leg. An EMG study of the right leg was normal and showed no evidence for a right lumbosacral radiculopathy.
During the summer of 2008, the employee noted that his symptoms worsened. On November 21, 2008, he saw Dr. David Newton, complaining of low back and right leg pain which worsened when driving his truck at work. The employee reported increased numbness down his right thigh to the foot which worsened as the day went on. The doctor referred the employee for a neurological assessment.
Dr. Scott Callaghan at Neurological Associates examined the employee in December 2008. His impression was lumbar radicular symptoms with questionable spinal stenosis. An MRI scan of the lumbosacral spine was normal, as were EMG studies of both legs. In a February 13, 2009 office note, Dr. Callaghan stated the employee was having a work-related problem triggered by the failure of the seat in his truck.
Dr. Thomas Rieser examined the employee in February 2009. The employee complained of numbness and tingling in his legs when sitting in his truck at work. The doctor diagnosed transient numbness and tingling caused by vascular impairment due to mechanical compression from the truck seat. The doctor stated the employee needed a truck seat that did not cause any pressure on the vascular flow in the employee’s legs.
Marie Leisz, D.O., at Sister Kenny Rehabilitation, examined the employee in May 2009 on referral from Dr. Callaghan. Following an examination, Dr. Leisz agreed with the employee that the seat ergonomics were the cause of his symptoms. The doctor opined that the alignment of the seat which placed the employee’s ishial tuberosities below his knees, caused his hamstrings to work in a shortened position leading to muscle spasm. An EMG of the right leg in June 2009 was normal. By letter dated June 18, 2009, Dr. Leisz stated she wrote to the employer asking for a modification of the tractor seat for the employee as she felt this was a major contributing factor to his symptoms. An MRI scan of the employee’s hips and pelvis on July 6, 2009, was normal. The visualized sciatic nerves were unremarkable and the scans demonstrated no significant abnormality in the hips and pelvis to explain the employee’s symptoms. In July 2009, the employee told Dr. Leisz that his pain was progressing to the point where he could not make it through the day. The doctor stated the employee had chronic lower extremity pain and spasm due to a poorly designed seat, and again recommended a modification of the truck seat.
In September 2009, the employee commenced treatment with Dr. Lon Lutz at Midway Pain Center on referral from Dr. Callaghan. The doctor performed a series of right L5 nerve root blocks.
The employee returned to see Dr. Callaghan in October 2009 complaining of worsening symptoms in the sciatic nerve distribution. By a report dated October 12, 2009, the doctor stated his diagnosis was sciatic neuritis/piriformis syndrome due to compression at the area of the employee’s right buttock and caused by the seat in the employee’s truck at work.
By a report dated October 13, 2009, Dr. Newton stated that the employee had undergone extensive evaluation by neurology, orthopedics, spine surgery and physical medicine, and all agreed that his symptoms were probably of mechanical origin related to pressure from the seat in his truck.
Dr. Leisz ordered an MRI scan of the employee’s pelvis and thighs, which was completed on December 8, 2009. The images of the employee’s pelvis showed no definite abnormalities of the sacral plexus or sciatic nerves with no evidence for any intrinsic abnormality, compression lesion, or piriformis syndrome. The images of the thighs demonstrated the sciatic nerves were normal in appearance with no evidence of thickening of the sciatic nerve or compression lesion. The next day the employee underwent a bilateral lower extremity duplex venous ultrasound which was interpreted as normal.
Dr. Mark Engasser, an orthopedic surgeon, examined the employee in March 2010 at the request of the employer and insurer. The doctor reviewed the employee’s medical records, obtained a history from the employee, and conducted a physical examination. Dr. Engasser stated that MRI scans of the employee’s spine, hips, pelvis, and sciatic nerve showed no evidence of any neurogenic or compressive cause for his symptoms. Further, the doctor noted the EMG studies were normal as was the vascular study. Dr. Engasser concluded the employee demonstrated no objective findings to substantiate his subjective complaints and opined the employee’s lower leg pain was primarily idiopathic in nature. The doctor stated the employee’s truck seat did not cause, aggravate, or accelerate the employee’s physical complaints or any pre-existing condition. Dr. Engasser concluded the employee’s medical treatment was reasonable, but unrelated to any work injury.
Dr. Callaghan re-examined the employee in April 2010. A repeat EMG of the right leg was borderline abnormal. Dr. Callaghan stated this test supported the diagnosis of possible sciatic neuropathy and sciatic neuritis piriformis syndrome on the right.
Dr. Engasser re-examined the employee in November 2011. The doctor stated that none of the MRI scans and EMG studies performed since the date of his last examination showed any evidence of any radiculopathy. The doctor opined that the minor abnormal findings on the April 2010 EMG were nonspecific and would not account for the employee’s symptoms. Dr. Engasser testified that the employee does not have piriformis syndrome or sciatic neuritis. Rather the doctor opined that the employee suffered from functional pain which was real to him, but not based on any significant organic pathology, and was unrelated to his work activities with the employer. The doctor stated the employee was not in need of any further medical treatment, needed no restrictions on his work activities, and sustained no functional impairment.
The employee filed a claim petition seeking workers’ compensation benefits. The employer denied liability and the case was heard before a compensation judge at the Office of Administrative Hearings. In a findings and order served and filed April 11, 2012, the judge found the employee sustained a Gillette-type personal injury culminating on November 21, 2008, in the nature of piriformis syndrome and focal sciatic neuritis. The compensation judge ordered the employer and insurer to pay the employee’s medical expenses and provide a rehabilitation consultation. The employer and insurer appeal.
The employer and insurer assert the compensation judge’s finding that the employee sustained a personal injury in the nature of piriformis syndrome and focal sciatic neuritis is unsupported by substantial evidence. They contend the numerous diagnostic medical tests document no objective basis for the employee’s subjective complaints. Specifically, they assert, the EMG tests of the employee’s legs in April 2008, February 2009, and June 2009 were all interpreted as normal. The July 2009 scan of the employee’s pelvis and hips showed no significant abnormality to explain the employee’s symptoms and the visualized sciatic nerves were unremarkable. Another MRI scan of the employee’s pelvis and thighs in December 2009 showed no evidence for piriformis syndrome or thickening of the sciatic nerves. A bilateral lower extremity duplex venous ultrasound in December 2009 was normal as were cervical, thoracic and lumbar MRI scans performed in December 2008. All of these normal diagnostic tests, the appellants assert, establish that the employee does not have piriformis syndrome or sciatic neuritis.
The appellants acknowledge that the right lower extremity EMG tests performed on April 16 and November 19, 2010, were borderline abnormal. The appellants, however, rely on the testimony of Dr. Engasser that in the context of the numerous normal EMG studies, a borderline abnormal test is very non-specific and of no clinical significance. For these reasons, the employer and insurer argue the compensation judge’s findings that the employee’s work activities resulted in piriformis syndrome and focal sciatic neuritis must be reversed.
Under this court’s standard of review, a compensation judge’s findings on questions of fact must be affirmed unless they are clearly erroneous or unsupported by substantial evidence. Minn. Stat. § 176.421, subd. 1(3). That the evidence might also have supported a contrary conclusion is not a sufficient basis for reversal. The point is not whether this court might have viewed the evidence differently, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). On appeal, this court must, therefore, review the evidence supporting the compensation judge’s findings to determine whether it is evidence that a reasonable mind might accept as adequate.
The employee testified that the seat in the truck that he drove every day pressed against his lower legs from the area of his mid-thigh to his knees. In approximately 2006, the employee noted the onset of right foot and leg pain. In 2008, the seat in the employee’s truck was replaced and his symptoms went away for several months, only to return in June 2008. Thereafter, the employee testified his leg and back symptoms accelerated. The employee testified that his symptoms worsened when he was sitting in the truck and improved when he was not driving. The employee consistently provided this history to his treating physicians. In his memorandum, the compensation judge stated he found the employee’s testimony to be credible.
In her October 9, 2009, report, Dr. Leisz stated that the employee had chronic lower extremity pain and spasm which she opined was due to a poorly designed tractor seat. In her January 6, 2012, report, Dr. Leisz stated her diagnosis was chronic lower extremity pain and spasm consistent with chronic repetitive stress and strain due to sciatic nerve compression from the employee’s truck seat. Dr. Leisz stated that her diagnosis was supported by the EMG studies which showed a marked change in the latency of the sciatic nerves over time. In his October 12, 2009, report, Dr. Callaghan stated his diagnosis was sciatic neuritis/piriformis syndrome due to compression at the area of the right buttocks and directly related to the seat in the employee’s truck. While Dr. Engasser disagreed with the opinions of Drs. Leisz and Callaghan, it is the compensation judge’s responsibility, as trier of fact, to resolve conflicts in expert testimony. See Nord v. City of Cook, 360 N.W.2d 337, 37 WCD 351 (Minn. 1985).
The appellants do not argue that either Dr. Leisz or Dr. Callaghan lacked foundation for their causation opinions. They argue instead that the numerous normal diagnostic tests belie the conclusion that the employee sustained an injury caused by the seat of the truck. We cannot agree. While the normal EMG tests and MRI scans might support a different conclusion than the one reached by the compensation judge, they do not require a reversal. Rather, these tests are simply evidence to be considered, along with the other evidence, by the trier of fact. In Golob v. Buckingham Hotel, the Minnesota Supreme Court stated:
[U]ntil the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining compensable injury or disease will have to remain the province of the trier of fact. Where qualified medical witnesses differ as they do here, it ordinarily is not for us on appeal to say that one is so eminently right and the other so clearly wrong that the fact finder was obligated to accept the opinion of one and discard the opinion of the other. The determination of this question is like the determination of any other question of fact, and it must depend to a large extent upon the credibility attached by the trier of facts to the opinion and testimony of the various witnesses who are expressing their opinions.
Golob v. Buckingham Hotel, 244 Minn. 301, 301-05, 69 N.W.2d 636, 639, 18 W.C.D. 275, 278 (1955). The testimony of the employee, coupled with the opinions of Dr. Leisz and Dr. Callaghan, provide substantial evidentiary support for the compensation judge’s finding that the employee sustained a Gillette-type personal injury in the nature of piriformis syndrome and focal sciatic neuritis and that finding is affirmed.
The appellants next contend that the compensation judge erred in finding that the employee’s Gillette injury culminated on November 21, 2008. As of that date, the employee had lost no time from work, continued to perform his regular job, and had no restrictions on his work activities. Accordingly, the appellants contend there is no evidence of any disablement culminating on November 21, 2008, and assert the compensation judge’s finding of a Gillette injury on November 21, 2008, must be reversed. We are not persuaded.
The general rule is that a Gillette injury results in a compensable personal injury when its cumulative effect is sufficiently serious to disable the employee from further work. Carlson v. Flour City Brush Co., 305 N.W.2d 347, 33 W.C.D. 594 (Minn. 1981). The Carlson case, however, does not require an automatic determination that a Gillette injury culminates on the last day of employment. Rather, the date of the culmination of a Gillette injury “should be determined on all the evidence bearing on the issue.” Schnurrer v. Horner-Waldorf, 345 N.W.2d 230, 233, 36 W.C.D. 504, 509 (Minn. 1984). The court in Schnurrer went on to identify several “ascertainable events” evidencing that the employee had been disabled prior to his termination from employment.
As of November 21, 2008, the employee had not missed any significant amount of work or modified his job activities as a result of his piriformis syndrome and sciatic neuritis. In Shaffer v. The Minnesota Orchestra, 53 W.C.D. 341 (1995); however, this court held that the concept of an “ultimate breakdown” is not so limited as to preclude an employee from reimbursement for medical expenses occasioned by a Gillette injury simply because the injury did not prevent the employee from performing regular work duties. In Reel v. Loftness Specialized Farm Equip., slip op. (W.C.C.A. Feb. 3, 2004), the employee neither missed any time from work nor modified his job activities as a result of his work injury. The compensation judge determined that the employee’s Gillette injury culminated on the date the employee’s complaints reached a level where he began to seek treatment on a regular and consistent basis. On appeal, this court stated that while any of several dates might have served as the Gillette injury date, no other injury date was so obviously correct as to justify reversing the judge’s decision. That holding is equally applicable here.
On November 21, 2008, the employee saw Dr. Newton complaining of low back and right leg pain which worsened while he was driving at work. Dr. Newton referred the employee for a neurological assessment. Thereafter, the employee treated with Dr. Callaghan, Dr. Rieser, Dr. Leisz, Dr. Lutz and received physical therapy and pain treatment. As in the Reel case, by November 21, 2008, the employee’s complaints reached a level where he began to seek treatment on a regular basis.
The date of a Gillette injury is a fact question. Pettis v. Metal Matic, slip op. (W.C.C.A. Jan. 18, 2000). Based upon the evidence in this case, the judge’s selection of November 21, 2008 as the date of injury is not unreasonable. The judge’s decision is affirmed.
 The deposition of Dr. Engasser was obtained on January 3, 2012. (Resp. Ex. 1.)