CHARLES M. MAY, Employee, v. DELTA AIR LINES, INC., and ACE USA, Employer-Insurer/Appellants, and SUMMIT ORTHOPEDICS, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 27, 2012
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, in the form of well-founded medical opinions, supports the compensation judge’ determination that the employee’s humerus fracture arose out of and in the course of employment.
Determined by: Stofferahn, J., Milun, C.J., and Wilson, J.
Compensation Judge: Danny P. Kelly
Attorneys: Roger D. Poehls, Jr., Robert Wilson & Assocs., Minneapolis, MN, for the Respondent. Robin D. Simpson and Andrew M. Grimsrud, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s determination that the employee sustained a work-related injury to his left arm. We affirm.
Charles May was born May 23, 1960, and was 51 years old on the date of the hearing. He began working as a flight attendant for Northwest Airlines in 1985 and, at the time of his claimed injury, was employed as a flight attendant by Northwest’s successor, Delta Air Lines.
At the hearing, the employer and insurer introduced an exhibit showing the employee’s flight schedule for 2011. Between March 6 and June 3, the employee worked five flights for the employer; all were international flights. His last flight left Minneapolis/St. Paul on May 30, and travelled to Tokyo. From there, it went to Manila, back to Tokyo, and then returned to Minneapolis/St. Paul.
On the last flight, the employee was the purser, or lead flight attendant, and he described his duties at the hearing. The purser greets the passengers at the door and then assists in the boarding process. Primarily, this involves getting the passengers seated and helping them stow carry-on bags in overhead bins. Although there was an informal rule that passengers were expected to lift their own bags, flight attendants usually helped lift the bags, adjust the bags in the bins, and then shut the bin doors. The employee testified that if the bins were full, it took a significant amount of force to pull the door shut. After the plane took off, the employee would greet the passengers in his assigned area, take drink orders, deliver drinks with the use of a beverage cart, and then prepare for meals. The flight from Minneapolis/St. Paul to Japan took 12 hours, and two meals were served to the passengers. The employee used a service cart to deliver the meals and testified that a loaded cart weighed well in excess of 100 pounds. During such a flight, the flight attendants were allowed two rest breaks which might be from two to three hours at a time.
After the flight reached Japan, the employee was in layover status until the departure of the next leg of the trip to Manila. While the employee was paid for this layover time, no duties were assigned, and flight attendants generally spent the time in their assigned hotel. The flight arrived in Tokyo about 5:00 p.m. local time and the employee went to the hotel with the rest of the flight crew. He testified that in the morning, he went for a walk and then prepared paperwork for the next leg of the flight. The flight to Manila left in the afternoon of June 1, and arrived there just before midnight. The flight crew was taken to the layover hotel where they would stay until it was time for the return to Tokyo.
The employ ee testified that he began having pain in his shoulders, particularly the left shoulder, in early 2011. He referred to the pain as bursitis and treated the symptoms himself with icing and the use of over-the-counter pain medications. The employee attributed his pain to his work as a flight attendant, particularly his work involving carry-on baggage and overhead bins. Records from the employer showed the employee called in sick and did not take three scheduled flights that departed on March 17, March 25, and May 13. The employee testified he was unable to go on these assignments because of his shoulder pain.
The employee stated that he experienced shoulder pain on his last flight from Minnesota to Tokyo. He iced his shoulder that night in the hotel in Tokyo and on the flight from Tokyo to Manila, he asked for assistance from the other flight attendants with lifting of carry-on bags. In Manila, he joined his coworkers for a drink and hors d’oeuvres at the hotel and then spent the rest of the time in his room. He stated he woke up during the night with shoulder and arm pain, and tried to relieve the pain with an over-the-counter pain medication.
On the morning of June 2, the pain was worse, and the employee found it difficult to move his arm because of the pain. He cancelled an outing that had been planned with the flight crew and instead spent the day in his room. He later called the employer to report that he would not be able to work the flight back to Tokyo because of his arm pain. He flew as a passenger to Tokyo, discussed his situation with the base manager for the employer, and then returned to Minneapolis, again as a passenger.
When he returned to Minneapolis, the employee saw his family doctor, Dr. Charles Callaghan, on June 3, 2011. He reported that “he awoke this morning with severe pain involving his left shoulder. He has been doing a lot of repetitive work with his arms, closing overhead bins on the plane. He had similar symptoms a year ago, but this involved his other arm. He can barely move his left arm without severe pain.” Dr. Callaghan provided Vicodin and Prednisone and stated that if the symptoms persisted, an MRI or cortisone injection should be considered. When he returned on June 7, a bruising over the shoulder and extending down his left arm was noted. Dr. Callaghan suspected a rotator cuff tear and referred the employee to an orthopedist, Dr. David Kittleson, at Summit Orthopedics.
The employee’s first visit at Summit Orthopedics was on June 9, 2011. He reported left shoulder pain and stated he was not aware of a single incident responsible for that pain. He told Dr. Kittleson he “does a lot of overhead use of his arms, closing overhead bins and pushing and pulling heavy carts.” A “mild amount of swelling over the anterior aspect of the left shoulder” and some bruising that was starting to heal in the upper left arm was noted on examination. X-rays were taken which showed a comminuted proximal humerus fracture. He was given a sling to immobilize the arm.
An MRI scan was done which confirmed the diagnosis of a humerus fracture. At his follow-up appointment, Dr. Kittleson commented that it “remains quite unusual that there is not a trauma history with the severity of this fracture.” Continued used of the sling to forestall displacement of the fracture was prescribed.
In subsequent appointments, the option of a surgical internal fixation was discussed, but because of the employee’s reluctance to have surgery, nonsurgical treatment was continued. Healing was noted in subsequent x-rays, and in August, the employee was started on some mild exercises to do at home. During this time, the employee was restricted from use of his left arm and from driving and did not work.
The sling was removed in September, and physical therapy at Summit Orthopedics was commenced. On September 29, 2011, Dr. Kittleson found the employee had developed “compensatory pain into his upper back and neck,” and a consultation with Dr. John Dowdle was advised. The employee was also told to continue with his physical therapy.
The employee saw Dr. Dowdle on October 6, 2011. He reported to Dr. Dowdle that he had been involved in a motor vehicle accident in 2009 when he struck a deer. He “was seen in follow up in June 2009, for his shoulder pain.” Dr. Dowdle assessed “costovertebral joint inflammation at T7 level” that he attributed to the employee’s physical therapy after a period of inactivity due to his humerus fracture. The employee returned to Dr. Dowdle for this thoracic pain at the end of October. No specific treatment for the thoracic spine was provided, but Dr. Dowdle recommended that the employee return to Dr. Callaghan to see if bone density had been examined.
The employee was evaluated by Dr. Richard Hadley on behalf of the employer and insurer on October 10, 2011. Dr. Hadley questioned whether the employee’s injury was caused by his employment noting that “this is not an injury that would be typically caused by employment activities of a flight attendant, such as repetitive closing of overhead bins.” He added that “to a reasonable degree of medical certainty, there is missing information either on the basis of history from Mr. May or with regard to an underlying medical process that would predispose him to a fracture.”
The employer and insurer filed a notice of intention to discontinue benefits, seeking to discontinue benefits on the basis of Dr. Hadley’s opinion. The NOID was denied at conference, and the employer and insurer filed a petition to discontinue benefits, alleging payment under a mistake of fact.
Medical expenses were discontinued after Dr. Hadley’s opinion was issued. According to the records, the employee’s last physical therapy was on November 22, 2011, after 15 sessions. The referral to Dr. Callaghan for a bone density study did not take place because the employee was not able to afford the procedure.
The employee was released to work as of October 27, 2011, with restrictions allowing him to do light clerical work. The restrictions were changed in January 2012 when the employee was allowed to lift/carry up to 25 pounds and push/pull up to 25 pounds. The employee did not return to work at that time since the employer had no work for him within his restrictions.
The employer and insurer’s petition to discontinue was heard by Compensation Judge Danny Kelly on May 3, 2012. The employee testified, as did his supervisor from Delta.
The employer and insurer introduced the deposition of Dr. Hadley which had been taken on March 21, 2012. Dr. Hadley had been provided with deposition testimony from the employee concerning his job duties. Dr. Hadley restated his opinion that “these normal employment activities as he’s described them are insufficient to cause a fracture of this nature.” Dr. Hadley’s opinion was that there had been direct trauma to the arm on or about June 2, 2011.
The employee introduced a report from Dr. Kittleson dated February 1, 2012. On the issue of causation, Dr. Kittleson stated, “as there was no single traumatic event either at work or away from work, this will have to be best discussed as repetitive use injury that led to stress fracture and then gradual displacement. Although this is not a typical mechanism for this injury, I have no other explanation for his fracture and as such in my medical opinion, his left proximal humeral fracture is due to work activities commencing on June 2, 2011.”
The employee also introduced a report from Dr. Dowdle dated January 19, 2012. Dr. Dowdle also expressed the opinion that the fracture was work-related, although he noted that it was “unusual to have a fracture without a traumatic event.”
In his findings and order served and filed June 4, 2012, the compensation judge determined that “the employee has established by preponderance of the evidence that he sustained a personal injury on June 2011, in the nature of a comminuted left proximal humeral fracture arising out of and in the course of his employment with the employer. The credible testimony of the employee and the opinions of Dr. Kittleson, Dr. Callaghan, and Dr. Dowdle support this finding.” (Finding 19.)
The employer and insurer have appealed.
The parties agree the employee had a comminuted fracture of the left humerus after he returned from his overseas flight and saw Dr. Callaghan on June 3, 2011. The dispute at the hearing was the cause of that fracture.
The compensation judge was presented with two differing medical opinions on the issue of causation. The IME, Dr. Hadley, was of the opinion that the employee’s humerus fracture had to be the result of a fall or a direct blow to the upper arm and could not have been the result of the work activity described by the employee. Dr. Hadley stated in his report that “to a reasonable degree of medical certainty” there was “missing information” in the employee’s medical history. Dr. Hadley’s opinion must be viewed as being that the employee was not telling the truth about his injury.
A contrasting opinion on causation was presented by Drs. Callaghan, Dowdle and Kittleson, the employee’s treating physicians. While they all acknowledged that a humerus fracture without direct trauma was unusual, they concluded that, in the absence of any other explanation, the fracture was the result of the employee’s work activity, especially his work of lifting carry-on bags into overhead bins and closing the bin doors, an action requiring a significant amount of force when the bins were full.
The compensation judge accepted the opinions of the employee’s treating physicians and concluded the employee’s injury arose out of and in the course of employment. The employer and insurer argue on appeal that the compensation judge erred in his conclusion.
The appeal of the employer and insurer raises the question of the employee’s credibility. The question of witness credibility is uniquely within the province of the compensation judge as fact finder. Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 41 W.C.D. 79 (Minn. 1988); Baker v. T. Maxwells, Inc., No. WC09-5003 (W.C.C.A. Feb. 8, 2010). The compensation judge has the opportunity to not only hear the testimony of witnesses, but to consider reactions of the witness to cross-examination. The compensation judge here made a specific finding as to the employee’s credibility and stated: “At hearing, May 3, 2012, the employee credibly testified that he has not fallen on his left shoulder nor has he been in any fights involving the left shoulder.” (Finding 7.) We find no basis in the record to reverse the compensation judge’s conclusion as to the employee’s credibility. In the absence of any evidence to support Dr. Hadley’s opinion, it was not error for the compensation judge to fail to accept that opinion as to causation.
The other argument made by the employer and insurer on appeal is that the opinions of the employee’s doctors lack foundation. Specifically, they contend that the doctors did not understand the nature and frequency of the activity the employee described as leading to his injury. As they argued at the hearing, the employer and insurer argue on appeal that the activity identified by the employee as leading to his injury, loading and stowing carry-on bags as well as pushing beverage and food carts, was infrequent and non-repetitive. The employee’s doctors had a basic misunderstanding of the employee’s duties which render their opinions to be inadequately founded. We are not persuaded.
First, the employee’s doctors, in their records and in their reports, had a consistent history of the employee’s work, especially the lifting of bags into overhead bins. The history given by the employee to his doctors was consistent with his testimony at the hearing and consistent with the testimony of Marie Smith, a flight attendant manager for the employer. Ms. Smith stated that carry-on bags are not weighed and, although there is an informal rule of “you packed it, you lift it,” as a general rule flight attendants often assist in lifting bags. A written job description from the employer states that the employee is required to lift up to 40 pounds from ground to overhead. After reviewing the evidence, we conclude the employee’s treating physicians had an adequate understanding of the physical activity required in the employee’s job to establish foundation for their opinions.
The employer and insurer contend, further, that the compensation judge erred as a matter of law in finding the employee’s injury was work-related where there was no evidence of sufficient repetitive work activity to support a finding of a Gillette injury. The issue for determination by the compensation judge was not whether the employee sustained a Gillette injury but whether the employee’s injury arose out of and in the course of his employment. The employee’s treating doctors had sufficient information as to the nature and duration of the employee’s work activity to establish foundation for their opinions. The compensation judge was entitled to rely on well-founded medical opinion in reaching his decision as to causation. Voshage v. State (MNSCU), Winona State Univ., 65 W.C.D. 167 (W.C.C.A. 2004).
The decision of the compensation judge is affirmed.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).