RICK PETTIS, Employee, v. METAL MATIC, SELF-INSURED/BERKLEY ADM=RS, Employer/Appellant, and BONDHUS MFG. and MINNESOTA ASSIGNED RISK PLAN/BERKLEY ADM=RS, Employer-Insurer, and GRAPHIC COMMUNICATIONS LOCAL 1B H&W FUND and TWO RIVER CTR., INC., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 18, 2000
HEADNOTES
GILLETTE INJURY - DATE OF INJURY. Where the record as a whole clearly establishes sufficient Aascertainable events@ to indicate that the employee was disabled from work by May 22, 1997, the judge=s decision as to the date of the employee=s Gillette injury is modified accordingly.
Affirmed as modified.
Determined by Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Bernard Dinner
OPINION
DEBRA A. WILSON, Judge
Metal Matic, self-insured, appeals from the compensation judge=s finding that the employee sustained a Gillette-type injury in the course and scope of his employment with Bondhus Manufacturing effective March 1, 1999, arguing that the record as a whole compels an injury date of May 22, 1997. Under the particular circumstances of this case, we agree, and we therefore modify the judge=s decision accordingly.
BACKGROUND
On August 22, 1990, the employee sustained a work-related injury when he slipped and fell, landing on his tailbone, while employed as a laborer by Metal Matic. He sought treatment for low back pain several weeks later and apparently missed some time from work. He testified that he continued to experience low back pain thereafter but that he eventually returned to his usual job, working without restrictions until he left employment with Metal Matic in July of 1992 for reasons unrelated to his injury. A later CT scan disclosed a bulging disc at L4-5, and the employee and Metal Matic ultimately settled the employee=s claim for permanent partial disability to the extent of a 7% whole body impairment.
The employee began working for Bondhus Manufacturing shortly after leaving Metal Matic. After about a month of part-time work, the employee was promoted to a leadman/foreman position, usually working forty hours a week. The employee=s job duties as a foreman for Bondhus included running several machines and required the employee to remain on his feet for most of his shift and to bend over thirty or forty times a day to pick up parts. About every three months, the employee would assist in the loading of trucks with pails of scrap metal, each weighing about eighty pounds, and he occasionally drove the trucks to their destination.
The employee testified that his back condition gradually worsened during his employment at Bondhus and that he began limiting his work activities, his work hours, and his household and recreational activities in 1994 or 1995. However, except for a few flare-ups, he sought little significant additional treatment for low back symptoms until May 22, 1997, when he consulted Dr. E. Moussa, his usual family physician. Dr. Moussa=s note from that date reflects that the employee was complaining of severe low back pain, without radiation, and that he was having difficulty walking, lying down, and getting up. The employee was referred for physical therapy and for an opinion from a neurosurgeon.
The physical therapist=s report from May 27, 1997, indicates that the employee=s low back symptoms had been constant for the past four months, whereas they had been intermittent for the five years previous, and that the employee was then working a maximum of six hours a day. Dr. A.R. Watts, a neurosurgeon, began treating the employee on June 2, 1997. By September of 1997, after having the employee try a TLSO brace, Dr. Watts was recommending fusion surgery from L3 through S1. All during this period, however, the employee continued to work for Bondhus, which apparently continued to allow him to modify his job duties and to work reduced hours.
In November of 1997, the employee filed a medical request, seeking payment from Metal Matic of his treatment expenses and approval of the fusion surgery recommended by Dr. Watts. In response, Metal Matic denied that the employee=s treatment and the proposed surgery were necessitated by the employee=s 1990 work injury. Subsequently, on January 23, 1998, Metal Matic had the employee examined by Dr. John Dowdle. Dr. Dowdle reported, in part, that an MRI scan and a discogram should be conducted prior to any decision as to the proposed fusion surgery. Dr. Dowdle also indicated that 75% of the employee=s disability and need for treatment was attributable to the employee=s 1990 injury at Metal Matic and that 25% was attributable to the employee=s work activities at Bondhus.
In June of 1998, on Metal Matic=s motion, a temporary order was issued pursuant to Minn. Stat. ' 176.191, ordering Metal Matic to pay benefits pending a determination of liability. However, despite Dr. Dowdle=s report, Metal Matic apparently initially refused to authorize a discogram, and, on August 17, 1998, the employee filed a claim petition for approval of that procedure and Aauthorization for fusion surgery if necessary.@ Three months later, the employee=s November 1997 medical request and the August 1998 claim petition were consolidated for hearing. Not long after, on January 27, 1999, Metal Matic filed a petition for contribution and/or reimbursement from Bondhus, alleging that the employee=s work activities at Bondhus were a substantial contributing cause of the employee=s disability and need for treatment.
Metal Matic eventually approved the employee=s request for a discogram, without the need for a hearing on the issue, and, after a follow-up report by Dr. Dowdle, also approved a one-level fusion procedure, which was performed by Dr. Watts on March 1, 1999. Thereafter the employee was temporary totally disabled from employment.
On July 30, 1999, Dr. Dowdle gave testimony by deposition. In that testimony, he explained the basis for his opinion attributing liability for the employee=s low back condition to both employers and for his 75/25 apportionment.
Metal Matic=s petition for contribution and/or reimbursement came on for hearing before a compensation judge on August 6, 1999. At that time, Metal Matic asserted that the employee had sustained a Gillette-type injury[1] while employed by Bondhus, effective May 22, 1997, and asked the compensation judge to accept the 75/25 apportionment opinion of Dr. Dowdle. Bondhus was at one point asked to specify some other date of injury, if they disputed the May 22, 1997, date proposed by Metal Matic,[2] but the parties= discussion moved to other subjects before Bondhus did so. Bondhus argued, however, based on the opinion of Dr. John Sherman, their independent examiner, that the employee=s condition was solely attributable to his 1990 work injury at Metal Matic. When asked his position, the employee concurred with Metal Matic that May 22, 1997, was the logical culmination date for a Gillette injury, if the judge found that the employee had in fact sustained one. The only witness at hearing was the employee, who testified about his job duties at Bondhus, how his symptoms had progressed, why he had sought treatment from Dr. Moussa on May 22, 1997, and why and approximately when he had begun curtailing his activities due to his back pain.
In a decision issued on September 1, 1999, the compensation judge listed the issue as follows: AIs apportionment of liability applicable between the respective injuries; and the percentage of liability to the respective employers and insurers.@ The judge=s finding regarding the alleged Gillette injury reads:
6. That for period July 1992 up to surgical procedure on March 1, 1999, the employee sustained a permanent aggravation to the low back, a Gillette personal injury arising out of and in the normal course of work activities with Bondhus Manufacturing, which culminated in disability and need for surgery to the lumbar back on March 1, 1999.
The judge also expressly adopted Dr. Dowdle=s 75/25 apportionment opinion and ordered Bondhus to reimburse Metal Matic accordingly. Metal Matic appeals.
STANDARD OF REVIEW
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 (1992). 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). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
DECISION
There is no dispute as to whether the employee did in fact sustain a Gillette injury while employed by Bondhus or as to whether the judge properly apportioned liability on a 75/25 basis. The sole issue on appeal is whether the judge erred by finding a March 1, 1999, date of injury, the date of the employee=s fusion surgery, as opposed to the May 22, 1997, injury date asserted by Metal Matic. After careful review of the record with pertinent case law principles in mind, we are persuaded by Metal Matic=s position.
In Carlson v. Flour City Brush Co., 305 N.W.2d 347, 33 W.C.D. 594 (Minn. 1981), the Minnesota Supreme Court reversed a compensation judge=s finding, which had been affirmed by the Workers= Compensation Court of Appeals, that the employee had sustained a Gillette injury Abetween 1975 and December 31, 1977,@ noting that the employee had Aworked through February 5, 1978, and [that] there is no evidentiary support for a finding that the injury occurred prior to that date.@ Id. at 350, 33 W.C.D. at 598. The court then went on to explain as follows:
While logically it could be argued that employee sustained a personal injury on each day she worked because of the aggravation to her condition resulting from that day=s work, the only rule capable of practical application is that injuries resulting from repeated trauma or aggravations of a pre-existing condition result in a compensable personal injury when their cumulative effect is sufficiently serious to disable the employee from further work. The four isolated days in November and December 1977 on which employee sustained temporary total disability, although manifestations of disability related to her back condition, do not establish that she then sustained a compensable injury since she continued to work, albeit with a back brace after December 13.
Id. However, three years later, in Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 36 W.C.D. 504 (Minn. 1984), the supreme court explained that Carlson did Anot require an automatic determination that the employee sustained Gillette injuries on the day he quit@ work. Id. at 233, 36 W.C.D. at 509. Rather, Athe time by which he sustained those injuries should be determined on all the evidence bearing on the issue.@ Id. In Schnurrer, the court found Aseveral ascertainable events, not found in Carlson,@ to indicate that the employee had been disabled Afrom further work@ prior to the date he left his employment. Id. at 233, 36 W.C.D. at 508. Those Aascertainable events@ included the fact that the employee=s foreman had relieved him of his regular duties due to his physical condition, a doctor=s conclusion that the employee needed total knee replacement, the employee=s recognition that he could not continue even the lighter work to which he had been assigned, and his notice to the employer, prior to his termination, that he would have to quit. Id.
In the present case, it is clear from the hearing record that Metal Matic was asserting a May 22, 1997, date of injury with respect to the employee=s alleged Gillette injury at Bondhus, and it is also clear that the employee concurred with Metal Matic=s position as to the date of injury, at least. What is not apparent is Bondhus= position as to date of injury; no alternative date of injury was raised by any party. However, during discussion of the various claims, the compensation judge asked when it was that the employee had first become totally disabled due to his back condition, and the judge was informed that that date was March 1, 1999, the date of the employee=s fusion surgery. Later, in his decision, the judge did not list date of injury as an issue, and he did not explain why he rejected Metal Matic=s claim of a May 22, 1997, injury date. Given the ambiguities in the record and the compensation judge=s decision, it is inferrable that the judge either failed to remember that Metal Matic was claiming a May 22, 1997, injury date or that he erroneously assumed, contrary to Schnurrer, that total disablement from all work is a legal prerequisite to a Gillette injury determination. See also Shaffer v. The Minnesota Orchestra, 53 W.C.D. 341 (W.C.C.A. 1995); Johnson v. Brown & Bigelow, slip op. (W.C.C.A. July 22, 1994). In either event, the record as a whole compels the conclusion that the permanent aggravation caused by the employee=s work activities at Bondhus culminated in disability prior to the employee=s March 1, 1999, surgery.
The employee testified that he consulted Dr. Moussa on May 22, 1997, because his back pain had become so severe that something had to be done. Within weeks, Dr. Watts was suggesting that the employee might be a candidate for surgery, and his suggestion to this effect became a firm recommendation in early September of 1997. Within two months of that recommendation, the employee had filed a medical request seeking approval of the proposed procedure. It is evident from the record that the employee=s surgery was delayed until March 1, 1999, only because Metal Matic refused to approve it until after Dr. Dowdle=s evaluation and the completion of certain diagnostic tests. We do not think that delays occasioned by litigation should be determinative of the timing of a Gillette injury.
We acknowledge that there is evidence indicating that the employee=s work continued to aggravate his condition up until the date of his surgery. In addition, as Bondhus points out, certain earlier Aascertainable events@ testified to by the employee were vague as to timing. The employee testified, for example, that he started missing time from work in 1994 or 1995, that his sleep had been disturbed by back pain for four or five years, and that he had tried to stop performing activities that aggravated his back by 1996 or 1997. However, the employee=s testimony, which is supported in part by entries in certain medical records, firmly establishes that, by May 22, 1997, he had become unable to work his usual eight-hour shift; he had stopped performing certain job duties, such as loading pails filled with scrap metal onto trucks; and he had stopped performing most household chores, such as lawn mowing and snowplowing and shoveling. Whether or not more exact testimony as to the timing of these events might have been sufficient to establish a Gillette injury even earlier than May 22, 1997, the testimony that was offered certainly goes to support the conclusion that the employee was Adisabled from work@ at least by May 22, 1997, despite the fact that the employee continued modified work at reduced hours through the date of his actual surgery. We also note that, while no doctor offered any specific opinion as to date of injury, Dr. Dowdle first gave a Gillette injury opinion in January of 1998, fourteen months prior to the employee=s surgery. Finally, the judge=s choice of a March 1, 1999, date of injury suggests that no Gillette injury would have been found at all had the employee not undergone a surgical procedure. Given the employee=s reduced and modified work schedule and his need for medical treatment beginning in May of 1997, and given the judge=s acceptance of Dr. Dowdle=s opinion, that conclusion would not be affirmable.
A finding as to the timing of a Gillette injury is one of fact, which we are extremely hesitant to overturn on appeal. 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. However, May 22, 1997, was the only specific date alleged by any of the parties at hearing. Because the employee=s consultation with Dr. Moussa on May 22, 1997, began a period of significant treatment and testing and set in motion the process that led to a surgical recommendation shortly thereafter, and because the record as a whole clearly demonstrates other Aascertainable events@ indicating that the employee was disabled in part due to minute trauma caused by his work activities at Bondhus at least by May 22, 1997, we modify the judge=s decision to establish a May 22, 1997, injury date with Bondhus. Bondhus and its insurer are therefore liable for their apportioned share of benefits from and after that date.