MARK A. SCHARBER, Employee, v. HONEYWELL, INC., SELF-INSURED, Employer, and ALLIANT TECHSYSTEMS and RELIANCE INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 22, 2000

 

HEADNOTES

 

EVIDENCE - BURDEN OF PROOF; CAUSATION - GILLETTE INJURY.  Pursuant to  Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994), an employee is still required to prove a causal connection between her ordinary work and ensuing disability in order to prove a Gillette-type injury, but she may no longer be required to document an actual pattern of specific activities leading to specific symptoms in order to demonstrate that causal connection.  Where, in denying the occurrence of a Gillette injury in an employer=s claim for contribution and/or reimbursement under a temporary order, the compensation judge gave more consideration and address to the inconsistent testimony of the employee than to the details of the medical record, apparently applying elements of the previous standard of proof articulated in Reese v. North Star Concrete, 38 W.C.D. 63 (W.C.C.A. 1985), instead of the standard articulated in Steffen, the case was reversed and remanded for reconsideration and findings based on the proper legal standard.

 

Reversed and remanded.

 

Determined by Pederson, J., Rykken, J. and Wheeler, C.J.

Compensation Judge:  William R. Johnson

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

Employer Alliant Techsystems and its insurer appeal from the compensation judge's conclusion that the employee did not sustain a 1995 Gillette-type injury while working for self-insured employer Honeywell, Inc, and from the judge=s consequent denial of contribution and/or reimbursement.  We reverse and remand for reconsideration.

 

BACKGROUND

 

In August of 1979, Mark Scharber sustained a work-related injury to his low back while employed as a machinist for Honeywell, Inc., which was self-insured at the time against workers= compensation liability.  After some time off work, Mr. Scharber [the employee] subsequently returned to his job with Honeywell, Inc. [Honeywell], but in the years that followed he experienced numerous flare-ups, reinjuries, and alleged reinjuries of his low back.  In about September of 1990, Alliant Techsystems was formed as a spin-off company from Honeywell, and the employee=s employment as a machinist was transferred over to Alliant Techsystems [Alliant] at that time.  Under terms of the spin-off, Alliant and its insurer accepted responsibility for all work-related injures sustained at Honeywell by Honeywell employees who were transferred over to Alliant in the process of the spin-off.  About a year after the spin-off, in September of 1991, the employee experienced another recurrence of his low back pain, and a CT scan that month was evidently read to reveal a midline herniated disc at L5-S1, with posterior displacement of the left nerve root.  On December 13, 1991, the employee filed a Claim Petition, alleging, against both Honeywell and Alliant and its insurer, entitlement to underpayment of temporary total disability benefits continuing from September 20, 1991, based on specific work injuries on August 31, 1979, September 17, 1979, September 22, 1988, and April 9, 1990, and a Gillette-type injury^[1] on September 20, 1991.  Honeywell and Alliant and its insurer both denied liability for current temporary total disability benefits, and on March 4, 1992, the employee amended his claim petition to allege entitlement to temporary total disability benefits continuing from February 15, 1992, in addition to the previously alleged underpayment of benefits.  The parties stipulated for partial settlement of the claim on December 15, 1992, and a Partial Award on Stipulation was issued and filed the following day.

 

In April or May of 1993, the employee was laid off by Alliant and returned to working for Honeywell.  The employee=s low back problems were continuing, and about this same time his restrictions against lifting over twenty-five pounds and against repetitive bending or lifting were supplemented and made permanent.  On June 18, 1993, the employee was seen at the Blaine Medical Center Multicare Associates, where he complained of Acentral and left lower back pain, occasionally off to the right . . . with radicular symptoms into the left hip and a numbness sensation down the left leg to the calf area,@ which he claimed Abegan about five weeks ago post bending and lifting activities at work.@  An MRI scan of the lumbar spine was evidently read to reveal some degenerative disease at L5-S1 but no evidence of disc herniation or nerve root compression at that level.  Eventually, on May 18, 1994, the employee filed a Medical Request, seeking payment of bills associated with the five injuries previously alleged plus an injury on May 11, 1993.  An administrative conference was held, and, by a Summary Decision filed December 27, 1994, it was determined that the alleged May 11, 1993, injury was a temporary aggravation of the employee=s preexisting condition.  There was no appeal from that decision.

 

The employee=s low back pain continued, and on June 2, 1995, he underwent another lumbar MRI scan, which was evidently read to reveal moderate degenerative disc disease at L5-S1, with a small central bulge.  On about August 16, 1995, the employee experienced renewed low back pain after stooping to assist a stepchild who had fallen from her bike.  He saw his doctor the following day, who took him off work, noting the following:  APain has been severe recently, especially the past two weeks.  States he has been calling in sick to work recently because of his low back pain.  Both legs have been aching.  He has had a difficult time walking because of the lower back and leg pain.@  On October 26, 1995, the employee filed another Claim Petition, this time alleging entitlement to temporary total disability benefits continuing from August 17, 1995, based again on the same five work-related injuries alleged previously.  In February of 1996, the employee underwent a discogram with CT scan, which reproduced 7.5/10 concordant back pain at L5-S1 with a full-thickness annular tear present, and the following month the employee complied with Dr. Garry Banks= recommendation that he undergo spinal fusion at L5-S1.

 

On November 7, 1996, the employee was examined for Alliant and its insurer by orthopedist Dr. Stephen Barron.  On that date, Dr. Barron received from Alliant and its insurer=s attorney a seven-page letter much of which was devoted to tracing the medical history of the employee=s low back condition from August of 1979 up through his fusion surgery in June of 1996.  The letter indicated that the employee=s work for Honeywell was for many years Aas a machine operator@ and then, as of about April 1993, when he returned to Honeywell after his stint with Alliant, Aassembly work.@  Neither of these jobs is described in detail, but the August 1979 injury is reported to have occurred Abending over to pick up two pans of shafts or gears@ from Aa pallet which was sitting on the floor,@ the September 1982 work injury is reported to have occurred Amoving tables,@ the September 1988 work injury is reported to have occurred Alifting about 70 pounds worth of parts and putting them on a scale,@ and the May 11, 1993, work aggravation is reported to have occurred Awhile packaging parts into a crate.@  In that same letter, the employee is reported to have been Aput on light duty assembly work after the May 11, 1993 incident.@

 

In his November 15, 1996, report on his evaluation, Dr. Barron indicated that, prior to examining the employee, he had reviewed various medical records also sent to him by Alliant and its insurer=s attorney, including records from about fourteen providers whom he named.  Dr. Barron reported a lengthy medical history, based apparently on both the above-referenced medical records and his interview of the employee but with little by-name reference to specific medical records.  In that history, Dr. Barron identified chronologically about fifteen aggravations or Aflares@ of the employee=s low back since his initial 1979 injury, several of them at work and several unrelated to work,^[2] the last of those being that following the employee=s lifting of his stepchild in August of 1995.  Prior to referencing this final flare, Dr. Barron recounted that the employee had told him Athat in the spring of 1995 he gradually developed increasing lower back pain.  He did not remember a specific injury.  He stated that his symptoms worsened.@  The employee reportedly told the doctor that, with his symptoms worsening, he Areturned to Blaine Medical Center@ and Awas given conservative treatment which included physical therapy,@ until A[o]n June 2, 1995, an MRI scan showed moderate degenerative disc disease at L5-S1 with a small central bulge.@

 

After physical examination of the employee, Dr. Barron diagnosed a postoperative fusion of L5-S1, concluding that the employee was capable of full-time, light-duty, primarily sedentary work, with restrictions against lifting over ten pounds or doing any repetitive bending from the waist on a continuous basis.  Dr. Barron further concluded in part that, while he had not sustained a Gillette-type injury in September 1991, the employee had sustained a specific work-related injury on May 11, 1993, Aand a Gillette injury while employed at Honeywell@ in 1995, both of which injuries the doctor found to be Asubstantial contributing causes to [the employee=s] disability and need for medical care and treatment from and after August 17, 1995.@  In his final substantive paragraph, Dr. Barron stated as follows:

 

In my opinion, all the responsibility for [the employee=s] disability and need for medical care and treatment from August 17 to October 8, 1995, are the responsibility of the injury of August 17, 1995, when he was helping his stepchild get up after she had fallen off a bike.  In my opinion, the apportionment and responsibility for Mr. Scharber=s disability and need for medical care and treatment since his surgery in June 1996 should be arranged in the following manner: 25% for the 1979 injury, 25% for the June 1991 injury, 25% for the May 11, 1993, injury, and 25% for the Gillette injury of 1995.

 

On December 12, 1996, the employee amended his claim petition, now basing his claim on the five injuries previously alleged plus two additional injuries - - a specific injury on May 11, 1993, and a Gillette-type injury on August 17, 1995.

 

On February 4, 1997, the employee was examined for Honeywell by orthopedic surgeon Dr. Joseph Tambornino.  Dr. Tambornino diagnosed chronic recurrent lower back syndrome with lumbar disc protrusion, surgically treated, attributing 75% of the employee=s low back problem to his work activities and 25% to nonwork activities.  In the course of his report, Dr. Tambornino made no mention of any Gillette-type injury, and he suggested by his history, apparently based on his interview with the employee, that the employee=s 1995 problems were due to the employee=s assistance of his stepchild after her bike accident.  It was Dr. Tambornino=s opinion that the employee=s 1996 discogram and spinal fusion were reasonable but perhaps not necessary treatment, and his report suggests that it is also his opinion that any current work-related low-back disability is due to the condition that preexisted the employee=s return to working for Honeywell in the spring of 1993.  In his report, Dr. Tambornino indicated that he had reviewed medical records from sixteen named providers, but his history is without by-name reference to specific medical records.

 

On January 5, 1998, pursuant to a partial stipulation for settlement still in the process of execution, the compensation judge in this matter issued and filed a Temporary Order, pursuant to which Alliant and its insurer became payors of benefits owed to the employee and to certain intervenors.  Execution of the partial stipulation for settlement was subsequently completed, and a Partial Award on Stipulation Under Temporary Order was issued and filed February 9, 1998.  Pursuant to that award, Alliant and its insurer made payments including payment of $12,852.00 in compensation to the employee, $957.52 in taxable costs and disbursements, $15,917.95 to Blue Cross/Blue Shield of Minnesota in settlement of its intervention interest, and $1,100.00 to Honeywell in settlement of an intervention interest that it was maintaining.  Eventually, on August 24, 1998, Alliant and its insurer filed a Petition for Contribution and/or Reimbursement against Honeywell.

 

On June 17, 1999, Dr. Barron testified by deposition, essentially reiterating opinions that he had asserted in his report on November 15, 1996, indicating in the course of that deposition that he had also reviewed three depositions of the employee that had been delivered to him the previous day.

 

The matter came on for hearing on June 22, 1999.  The sole issue at hearing was Alliant and its insurer=s entitlement to contribution and/or reimbursement from Honeywell, based on Honeywell=s responsibility for a May 11, 1993, injury to the employee and Honeywell=s liability for a Gillette-type injury to the employee on August 17, 1995.  Alliant and its insurer were seeking reimbursement of 50% of the approximately $30,826.95 that they had paid pursuant to the Partial Award on Stipulation Under Temporary Order filed in this matter on February 9, 1998.  No live testimony was taken at the hearing, which was comprised solely of oral argument to the judge by attorneys for Honeywell and for Alliant and its insurer.  Various exhibits were offered into evidence at hearing, including a deposition by Dr. Barron, a report by Dr. Tambornino, and what the attorney for Alliant and its insurer described as Aunfortunately, a voluminous file of medical records from approximately 19 different providers,@ covering the employee=s entire medical history since his original 1979 work injury.  The attorney for Alliant and its insurer objected to admission of Dr. Tambornino=s report on grounds of foundation, because Ait purports to be an apportionment opinion . . . and it=s not clear to me that Dr. Ta[m]bornin[]o was fully appri[z]ed of all the various injuries that are claimed in this case.@  With regard to Dr. Barron=s testimony, Honeywell=s attorney argued that ADr. Barr[o]n had absolutely no understanding, no idea of [the employee=s] job duties at Honeywell in any shape or form, other than it was light assembly.@  To this the employer for Alliant and it insurer responded as follows:

 

[W]hile Dr. Barr[on] didn=t have detailed description of any everything [sic] the employee did in his work at Honeywell, he did consistently get from the employee and receive in this letter and in the depositions that he said he looked at, a description of the light assembly work and assembly work that the employee did and the repetitive nature of it; that he could conclude that there was a Gillette injury.  And I don=t have to remind you of [Steffen] having overruled the past law saying you have to have specific work activities causing specific complaints.@

 

Also offered into evidence at the hearing were three depositions that had been taken of the employee over the years of litigation of this matter - - in January 1992, in January 1996, and in May 1997.  Although it was Alliant and its insurer who were offering the depositions into evidence, the attorney for Alliant and its insurer conceded that the employee=s

 

testimony, and I won=t hide from this fact either, . . . is not always consistent.  I think that might be a charitable way of putting it.  You=re going to see three depositions, and in some of those depositions, frankly, you=re going to think you[>re] listening to different witnesses because he says different things about the same facts.  He is, to put it charitably, somewhat of a mal[le]able witness.

 

 The attorney subsequently conceded also the following, to similar effect:

 

Later on in his testimony [the employee] goes on to say that his symptoms have been worse since May of 93.  Now, [Honeywell=s attorney] will probably point out that there are times in [the employee=s] testimony when he seems to suggest quite the opposite.  And I guess that=s why God invented compensation judges; you=ll have to reconcile that when you read the testimony and the evidence.

 

Similarly, Honeywell=s attorney, too, later argued, ASo, you know, you=re going to have a varied factual scenario from [the employee].  You=re going to probably be able to pluck almost any factual scenario you wish out of the evidence that will be presented.@  Alliant and its insurer=s attorney did ultimately argue, however, that the employee Awas not equivocal about one thing, though, and that is that beginning in approximately the spring of 1995, his back problems began to gradually worsen.@  Apparently in rebuttal to this assertion, Honeywell=s attorney argued that, subsequent to May of 1993, A[t]here really isn=t any change in [the employee=s] restrictions, there really isn=t any change in the pattern of [the employee=s] complaints other than he did complain of increasing symptoms to some people.@  A[T]he one constant that we have here,@ Honeywell=s attorney argued, Ais that none of this stuff, none of it, is tied to work activities at Honeywell by [the employee].  And with that, Dr. Barr[o]n admits that his opinion fails.@

 

By Findings and Order filed September 20, 1999, the compensation judge concluded in part (1) that Alliant and its insurer had failed to prove that the employee sustained a Gillette-type injury with Honeywell in 1995, (2) that the May 11, 1993, incident was only a temporary aggravation of a preexisting condition, and (3) that Alliant had therefore failed to prove entitlement to contribution and/or reimbursement from Honeywell.  Alliant and its insurer appeal.^[3]

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.@  Id.

 

DECISION

 

Basic to the compensation judge=s denial of contribution and/or reimbursement in this matter was the judge=s conclusion that the employee did not suffer a Gillette-type injury while working for Honeywell in 1995.  Alliant and its insurer contend that the compensation judge, in so finding, erred by applying an improper standard of proof.  We agree.

 

From March 1985 until June 1994, the standard applied in proving and finding a Gillette injury was that articulated in this court=s decision in Reese v. North Star Concrete, 38 W.C.D. 63 (W.C.C.A. 1985).  In Reese, the Workers= Compensation Court of Appeals [WCCA] indicated that, in order to prove a Gillette injury, an employee must be able to demonstrate Athat specific work activity caused specific symptoms leading to disability@ and Awhat activities affected the employee in what specific manner, forming a basis for medical opinion of causal relationship.@  Id., 38 W.C.D. at 65 (emphasis added).  Near the conclusion of its decision in Reese, the WCCA reiterated, in similar language, that, in order to prove a Gillette injury, an employee must prove Athat specific work activity caused specific symptoms which led cumulatively and ultimately to disability constituting personal injury due to work."  Id., 38 W.C.D. at 66.  That standard is no longer the law.  In 1994 the supreme court held that, A[w]hile that kind of evidence may be helpful@ in proving a Gillette injury (emphasis added), Athe question of a Gillette injury primarily depends on medical evidence.@  Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).  Pursuant to the supreme court=s standard in Steffen, an employee is still required to Aprove a causal connection between her ordinary work and ensuing disability@ (emphasis added), but she may no longer be required to document an actual pattern of specific activities leading to specific symptoms in order to demonstrate that causal connection.  Id.  To require such a showing is now held to cast Aan unfair burden@ upon employees attempting to claim benefits based on a Gillette injury.  Id.  This conclusion stands to reason in that, by its very nature, a Gillette injury may develop so inconspicuously as to not demand, perhaps until as late as the injury=s culmination, the sort of close attention necessary to identify any clear pattern of association between Aspecific@ activities and Aspecific@ symptoms.  By the same reasoning, any such employee-perceived pattern is equally unavailable evidence to an employer attempting to prove a Gillette injury against another employer, as is here the case.

 

In Finding 3 of his Findings and Order, the compensation judge states in part that, A[i]n order to establish a Gillette-type injury the employee must prove that specific work activity caused specific symptoms leading to disability.   Reese v. North Star Concrete, 38 W.C.D. 63 (1985).@  This, as we have indicated, is no longer the law.  The judge goes on in that same finding to appear to attempt to qualify his use of the Reese standard, stating, AIn Steff[e]n v. Target Stores, 517 N.W.2d 579 (Minn. 1994) the Supreme Court indicated that the determination of a Gillette-type injury depends primarily on the medical evidence.  However, the employee still must show >a causal connection between [the] ordinary work and the ensuing disability.=@  The judge=s clearly affirmative assertion of the Reese standard, however, as a factor in the determination of a Gillette injury, remains unqualified.

 

In Finding 4, after referencing Dr. Barron=s opinion supporting the claim of a Gillette injury, the judge states that A[t]he problem with Dr. Barron=s opinion is that the employee in his various depositions does not attribute any worsening of his back symptoms to his work at Honeywell.@  (Emphasis in original.)  The judge concedes in the same finding that the employee has discussed his work activities and aggravations with his doctors, but he goes on to state that A[t]he Compensation Judge is not persuaded that this evinces the type of pattern of connection between work activities and symptoms that will support a finding of a Gillette-type injury.@  (Emphasis added.)  Later in Finding 4 the judge asserts that A[t]here were not [sic] new physical findings which would indicate some new injury@^[4] and that, A[s]ince there really are no new physical findings which would point towards a new Gillette type injury the employee=s testimony about how he felt becomes a critical factor.@  (Emphasis added.)  We conclude that the judge=s application of law to the facts in Finding 4 reflects a clear presumption that the Reese standard=s focus on the employee=s perceptions of the development of his disability remains a material element of the post-Steffen standard for proving a Gillette injury.  Although evidence of such perceptions may be Ahelpful@ in proving a Gillette injury, the lack of such evidence may no longer be cited as a basis for denying a Gillette injury.  See Steffen, 517 N.W.2d at 581, 50 W.C.D. at 467.

 

Finally, In his Memorandum, the compensation judge further explains his rejection of Alliant and its insurer=s medical evidence as follows:

 

Dr. Barron also must overcome the employee=s testimony which indicates that he can=t attribute his decision to have surgery in 1995/1996 to anything that he did at work.  There are some isolated references to pain with work activities but there is no clear pattern of coordinating work activities and symptoms that would indicate that the work was the cause of the employee=s ultimate decision to have surgery.

 

(Emphasis added.)  This statement by the compensation judge appears clearly to suggest a presumption that an employee=s lay perceptions as to the causation of his condition are to be attributed greater weight than a medical expert=s opinion as to the causation of that condition.  This is directly contrary to the supreme court=s statement in Steffen, that Athe question of a Gillette injury primarily depends on medical evidence@ and that Aapplication of the [Reese standard] to establish the required causal relationship in the field of law casts an unfair burden upon a person injured by the duties of employment.@  Steffen, 517 N.W.2d at 581, 50 W.C.D. at 467.

 

As we indicated earlier, the evidentiary burden of an employer attempting to prove a Gillette injury against another employer runs parallel to the evidentiary burden of an employee attempting to claim benefits based on such an injury.  On that basis, and concluding that the compensation judge=s application of an erroneous standard of proof in this case constitutes a potentially material error, we remand this matter to the compensation judge for further consideration.  On remand, the compensation judge should consider the employee=s testimony as to causation only to the extent that it bears on the date of ultimate breakdown or to the extent that it bears on the medical experts= understanding as to the nature of the Aordinary work@ that the employee was doing for Honeywell leading up to the date of his alleged Gillette injury.  The judge should not consider the employee=s ability to recollect and to connect Aspecific@ work activities with Aspecific@ symptoms, except to the extent that doing so might be Ahelpful@ to the claiming parties in demonstrating the injury and so recouping funds that they have voluntarily paid on behalf of Honeywell and are owed by that employer.  See Steffen, 517 N.W.2d at 581, 50 W.C.D. at 467.  The judge may, after reconsideration in keeping with this decision, arrive again at the same conclusion that is here on appeal, but his factual findings must be presented to this court as ones reviewable under the proper standard.