RICHARD R. REINHARD, Employee/Appellant, v. FEDERAL CARTRIDGE CORP. and CHARTIS/SEDGWICK CLAIMS MGMT. SERVS., INC., Employer-Insurer, and BLUE CROSS BLUE SHIELD OF MINN. & BLUE PLUS, Intervenor.

WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 18, 2013

No. WC12-5521

HEADNOTES

CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - MEDICAL EXPERT OPINION.  Substantial evidence, including adequately founded medical opinion, supported the compensation judge’s determination that the employee did not sustain a Gillette-type injury in the nature of epididymitis.  The compensation judge did not err in finding the opinion of the independent medical examiner more persuasive than the opinions of the employee’s treating physicians where the opinions of all the medical experts were adequately founded.

Affirmed.

Determined by:  Milun, C.J., Stofferahn, J. and Hall, J.
Compensation Judge:  Catherine A. Dallner

Attorneys:  Luke M. Seifert and Garin L. Strobl, Quinleven & Hughes, St. Cloud, MN, for the Appellant.  William G. Laak and Jeffrey R. Homuth, McCollum, Crowley, Moschet, Miller & Laak, Minneapolis, MN, for the Respondents.

 

OPINION

PATRICIA J. MILUN, Chief Judge

The employee appeals the compensation judge’s finding that the employee did not sustain a work-related Gillette-type injury[1] in the nature of epididymitis.  We affirm.

BACKGROUND

Richard R. Reinhard, the employee, began working as a temporary employee with Federal Cartridge Company, the employer, in November 1994.  He was hired as a permanent employee beginning in May 1995.  He continued to work for the employer through the date of hearing.

The employee claimed that in April and/or June 2011, he sustained a Gillette-type injury in the nature of epididymitis, a condition causing testicular pain, as the result of driving a forklift with an unpadded or poorly padded seat over a rough, pot-holed surface at work.  The employer and insurer denied the employee’s epididymitis was causally related to his work activities.

The employee was first diagnosed with epididymitis in February 1984.  His family physician, Dr. Murray Friedman, prescribed an antibiotic, Tetracycline, use of an athletic supporter, and heat or cold packs.  When seen by Dr. D.M. Anderson, a urologist, on March 9, 1984, he reported virtually no discomfort and his examination was normal.  The employee testified he was working as a technical writer in a fairly sedentary job at that time.

Shortly thereafter, on April 17, 1984, the employee returned to Dr. Friedman complaining of discomfort in his right groin.  A small or incipient hernia was diagnosed and the employee was referred for a surgical consultation.  The employee was seen by Dr. R.B. Benjamin who discussed hernia repair surgery and a nonwork-related elective surgery with the employee.  The employee underwent a right inguinal herniorrhaphy and the elective surgery on May 24, 1984.

The employee was seen in urgent care on July 14, 1985, complaining of right testicle pain.  Probable recurrent epididymitis was diagnosed and Tetracycline was prescribed.  On July 30, 1985, Dr. Friedman noted the Tetracycline seemed to have been effective and the employee felt his problem had resolved.

On November 16, 1988, the employee again sought treatment from Dr. Friedman for epididymitis.  Doxycycline was prescribed along with use of an athletic supporter and warm or hot packs.  When Dr. Friedman saw the employee in follow-up on November 28, 1988, he noted marked improvement.  The employee testified he was working as a camera maintenance person at this time, which was also a fairly sedentary job.

The employee’s epididymitis returned for a fourth time in June 1992.  Dr. Friedman started the employee on a 10-day course of Doxycycline on June 11, 1992.  The employee returned on June 24, 1992, reporting little improvement.  Dr. Friedman provided a 10-day supply of Floxin which apparently did not help significantly.  The employee was referred to a urologist, Dr. W.D. Borkon, who saw the employee on July 30, 1992.  The employee reported a seven year history of episodic right scrotal pain that had been diagnosed as epididymitis on four occasions.  The doctor noted the employee had been treated with antimicrobial therapy with satisfactory results except for the most recent episode.  When seen by Dr. Borkon, the employee’s examination was essentially normal.  The doctor diagnosed chronic scrotal pain, prescribed non-steroidal anti-inflammatory medication as needed, and advised the employee to wear an athletic supporter during times of exacerbation.

In September 1994, the employee underwent a second herniorrhaphy to repair a recurrent right inguinal hernia.  The employee began working for the employer in November 1994.

The employee began treating with Dr. Douglas Brew at CentraCare Heartland in 1997.  In July 1999, the employee was diagnosed with a recurrent right inguinal hernia, and in October 1999, underwent a third herniorrhaphy.  The employee returned to Dr. Brew in August 2001, with a bulge in the right lower quadrant of his abdomen.  The employee was again diagnosed with a recurrent right inguinal hernia, and laparoscopic hernia repair surgery was performed on October 22, 2001.

On April 18, 2011, the employee was seen by Dr. Brew reporting a one week history of right testicular pain with mild swelling.  The doctor prescribed an antibiotic, Ciprofloxacin, and recommended the use of an athletic supporter, non-steroidal anti-inflammatory medication, and cool packs.  The employee returned on April 27, 2011, with persistent pain.  He gave a history of a very protracted course of epididymitis 10 years previously.  On April 28, 2011, Dr. Brew prescribed Doxycycline as the employee had shown no improvement with the Ciprofloxacin.

In follow-up on June 6, 2011, the employee reported about a 20% improvement.  He stated he drove one hour to work and by the end of the drive was having discomfort.  He also reported he did not have nearly as much discomfort on days off.  Dr. Brew diagnosed non-infectious inflammatory epididymitis and advised the employee to continue using an athletic supporter, anti-inflammatories, and ice packs.  On June 20, 2011, the employee reported he was still troubled with epididymitis, and was referred to urology.

The employee was seen by Dr. Jerome Keating at Adult & Pediatric Urology on June 28, 2011.  Dr. Keating noted the employee had suffered right testicular pain off and on going back about 30 years.  The doctor observed the employee had a number of risk factors for testicular pain, including the elective surgery and four right-sided herniorrhaphies.  Dr. Keating recorded that the employee “has never had bacterial epididymitis, he had been treated with antibiotics and it has not helped.”[2]  The doctor further noted the employee did a lot of heavy lifting at work and rode on a front loader that was not cushioned very well.  Dr. Keating diagnosed chronic epididymitis, and prescribed the use of anti-inflammatories and icing for flare-ups of symptoms.

In follow-up on July 8, 2011, the employee reported considerable improvement in his symptoms.  Dr. Keating and the employee discussed recommendations, including:

some measures to decrease the mechanical irritation that is occurring from a forklift that he is using at work.  I was not aware that he has an unpadded or at least poorly padded seat and that there is a very rough surface that he rides over and I recommended some doughnuts and other padding devices that are used in the trucking industry to try to prevent these kinds of injuries.[3]

On September 27, 2011, Dr. Keating observed the employee’s symptoms had almost completely resolved.  The doctor noted the seat padding on the forklift had been replaced and some surface defects repaired, stating he believed that this had contributed to the improvement in the employee’s symptoms.  Dr. Keating opined the repetitive jostling of the employee’s testicle on the unpadded seat over rough concrete contributed to his testicular pain, noting that conservative measures, including ice and ibuprofen, along with remediation of the conditions at the workplace had improved his symptoms.

The employee was seen by Dr. James Meyer, a urologist, on April 18, 2012, at the request of the employer and insurer.  The employee stated he had no difficulty with the left testicle, only the right.  He did not miss any work because of his epididymitis, and was no longer bothered by it at the time of the examination.  Dr. Meyer noted the employee had a significant history including multiple episodes of epididymitis dating back to 1984, four right inguinal hernia repairs, and the elective surgery.  The doctor concluded the employee had recurrent scrotal pain with evidence of right epididymitis dating back to 1984.  Dr. Meyer opined the employee’s work activities did not cause or aggravate the employee’s epididymitis condition.  He agreed with Dr. Keating that the employee had risk factors for testicular pain, including four herniorrhaphies and possible complications from the elective surgery.  He disagreed with Dr. Keating regarding causation, stating he had never seen anyone get epididymitis from riding in a vehicle, and additionally citing the fact that the employee’s symptoms were always unilateral, on the right side only.

The employee testified that in the spring of 2011, he was working 12 hour shifts loading lead into a machine producing lead shot.  The work required the employee to procure bundles of 35 pound lead ingots weighing 63 pounds each.  The bundles were moved using a forklift.   The employee would drive a forklift to the location of the bundles, pick up a bundle with the forklift, bring it back to the machine, and set the bundle on the rollers.  The employee testified he would drive the forklift back and forth no less than twelve times a shift.  He stated in the spring of 2011 there were several potholes, and estimated that he hit the potholes six to eight times a day, causing him to bounce up and down, causing scrotal pain.  The employee agreed the symptoms he had in 2011 were the same symptoms he had had in 1984, 1988 and 1992, and that he has never had symptoms in the left testicle.  He further testified that in 2011, the pain was constant, varying in degree, twenty-four hours a day until it cleared up, and that no matter what he did he experienced pain in the right testicle.

Following a hearing at the Office of Administrative Hearings, a compensation judge, accepting the opinion of Dr. Meyer, found the employee did not sustain a Gillette-type personal injury in the nature of epididymitis arising out of and in the course of his employment in April and/or June 2011.  The employee appeals.

STANDARD OF REVIEW

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.[4]  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.[5]  Fact findings are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed.[6]  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.”[7]

DECISION

The employee contends the compensation judge erred in finding the employee did not sustain a work-related Gillette-type injury in the nature of epididymitis.  He argues the judge improperly rejected the opinions of the employee’s physicians on the basis of an incomplete or inaccurate history regarding the employee’s pre-existing history of epididymitis, and erred in adopting the opinion of Dr. Meyer.

The employee asserts the opinion of a medical expert may be adequately founded even in the absence of a review of all of the employee’s medical records or awareness of every single fact relative to the employee’s condition.  The employee argues the employee’s physicians were sufficiently aware of his relevant medical history and had an adequate foundation for their opinions.  The compensation judge, however, did not conclude the opinions of Dr. Keating and Dr. Brew were inadequately founded.  The judge, instead, found the opinions of Dr. Meyer “more persuasive”[8] than their opinions.

Foundation refers to an expert’s qualifications to render an opinion.  “The competency of a witness to provide expert medical testimony depends upon both the degree of the witness’ scientific knowledge and the extent of the witness’ practical experience with the matter which is the subject of the offered testimony.”[9]  The judge explained why she found Dr. Meyer’s opinion more persuasive, including his review of relevant medical records of the employee dating back to 1984, records not seen by Dr. Brew[10] and not referenced by Dr. Keating.  She also found persuasive the fact that the employee had significant risk factors, with which Dr. Keating agreed, that the employee reported symptoms in his right testicle only, that his symptoms in 2011 were the same as his symptoms in 1984, 1985, 1988, and 1992, and his treatment in 2011 was consistent with his treatment in 1992, prior to his employment with the employer.  These concerns call into question neither the doctors’ medical qualifications nor their practical experience with the employee’s condition,[11] nor do they demonstrate an inadequate factual foundation for the doctors’ opinions.[12]  Rather, these concerns go to the persuasiveness or weight accorded the medical opinions by the compensation judge.

The employee additionally argues that Dr. Meyer did not have adequate foundation for his opinion, asserting there was no indication that Dr. Meyer actually treats epididymitis as part of his practice.  The employee did not raise any objection to the qualifications of Dr. Meyer at the hearing.  The record clearly reflects that Dr. Meyer is a urologist, and that he reviewed the relevant medical records, obtained a history from the employee, performed an examination, and was aware of the employee’s relevant work activities.  As a general rule, this level of knowledge establishes a doctor’s competence to render an expert opinion.[13]

Where there is a conflict in the opinions of competent medical experts, resolution of that conflict is the function of the compensation judge.[14]  A decision on how to weigh conflicting medical evidence is generally left to the sound discretion of the compensation judge.  A trier of fact is not required to accept the opinion of a treating doctor over the opinion of an independent medical examiner, and if the opinion relied on by the compensation judge has adequate and accurate factual support, this court will not reverse the compensation judge's decision on that issue.[15]  We find no basis to reverse the judge’s choice of medical expert opinion on this record.

The employee also contends that, despite his pre-existing condition, the greater weight of the evidence shows that the employee suffered a Gillette-type injury that was caused by repetitive trauma due to his work duties with the employer.  He argues the employment need not be the sole cause of the employee’s injury; the injury is compensable if the employment substantially contributed to an aggravation or acceleration of an existing infirmity.[16]  As proof of a Gillette injury, the employee points to his testimony that his symptoms were aggravated by driving the forklift over rough ground, and the improvement of his symptoms once padding was added to the seat and the potholes were repaired.

A Gillette-type injury is a personal injury caused not by a specific event but by the effects of minute trauma over time.  To establish a Gillette-type injury, an employee must “prove a causal connection between [his] ordinary work and ensuing disability,” and proving a Gillette-type injury “primarily depends on medical evidence.”[17]  The fact that the employee had right testicular pain while driving the forklift does not necessarily compel the compensation judge to find that the forklift driving caused the employee’s epididymitis condition.  That is ultimately a question for medical experts.

The compensation judge accepted the opinion of Dr. Meyer, which we previously concluded was adequately founded.  On appeal, it is not the role of this court to reweigh the credibility and probative value of expert witness’ testimony.  Dr. Keating and Dr. Meyer disagreed with respect to whether the employee’s episode of epididymitis in 2011 was caused, at least in part, by his employment activities.  The compensation judge chose Dr. Meyer over Dr. Keating, and the employee has pointed to no unsupported facts assumed by Dr. Meyer.  We, accordingly, affirm the compensation judge’s determination that the employee did not sustain a Gillette-type injury in the nature of epididymitis arising out of his employment with the employer in April and/or June 2011.



[1] See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).

[2] Employee’s Ex. A.

[3] Id.

[4] Minn. Stat. § 176.421, subd. 1.

[5] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

[6] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

[7] Id.

[8] Memorandum at 4.

[9] Drews v. Kohl’s, 55 W.C.D. 33, 37-38 (W.C.C.A. 1996) (quoting Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)).

[10] In a letter dated October 7, 2011, Dr. Brew stated “We have no records of him having epididymitis prior to this year’s presentation.”  Joint Ex. 1.

[11] See Reinhardt, 337 N.W.2d at 93.

[12] Compare McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff’d (Minn. July 13, 1990).

[13] See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130, 1132 (Minn. 1988).

[14] See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

[15] Wilson v. North Star Steel, slip op. (W.C.C.A. Dec. 6, 1993); Caven v. Ag-Chem Equip. Co., Inc., slip op. (W.C.C.A. Sept. 14, 1993).

[16] See Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975); Vanda v. Minnesota Mining & Mfg. Co., 300 Minn. 515, 218 N.W.2d 458, 27 W.C.D. 379 (1974).

[17] Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).