GEORGE F. TITERA, Employee, v. CLEARWATER-POLK ELEC. COOP. and FEDERATED RURAL ELEC. INS. CO., Employer-Insurer/Appellants, and CLEARWATER-POLK ELEC. COOP. and MINNESOTA RURAL ELEC. TRUST/COMPCOST, Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF MINN., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 13, 2000

 

HEADNOTES

 

GILLETTE INJURY - DATE OF INJURY. Where the employee was having worsening pain on December 27, 1994, and his MRI scan on December 29 indicated a need for the surgery that was performed the following January 11, 1995, the compensation judge's conclusion that the employee's Gillette-type injury culminated on December 29, 1994, rather than on January 11, 1995, when the employee first went off work, was not clearly erroneous and unsupported by substantial evidence.

 

CAUSATION - AGGRAVATION.  Where it was supported by expert medical opinion  and other medical evidence, the compensation judge=s conclusion that the employee=s June 1995 surgery was a consequence or complication of his January 1995 surgery, and not a new injury, was not clearly erroneous and unsupported by substantial evidence.

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Where the employee was not taken off work by any medical provider in January 1996, and where there was no evidence that there was any change in the employee=s medical condition about that time, the compensation judge=s conclusion that the employee did not sustain a new Gillette-type injury at that time was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the intervenor paid for medical treatment in that month.

 

PERMANENT PARTIAL DISABILITY.  Where the employer and insurer had already paid the employee Aold law@ permanency benefits following his 1989 shoulder surgery as treatment for a 1981 personal injury, and where the compensation judge had ordered them to pay benefits for a 3% whole body impairment referable to a Apersonal injury@ on the date of the 1989 surgery, the matter was remanded to the compensation judge for clarification.

 

PERMANENT PARTIAL DISABILITY - SCHEDULE.  Where the compensation judge had apparently adopted an expert medical opinion rating the employee=s permanent impairment by combining two subparts of the permanency schedules that, pursuant to a third subpart, may not be combined, the matter was remanded to the compensation judge for further consideration.

 

NOTICE OF INJURY; APPEALS - SCOPE OF REVIEW; PRACTICE & PROCEDURE - MATTERS AT ISSUE.  Where the parties were expressly invited by the compensation judge to set forth the issues and their defenses, and where notice of injury was not presented to the judge as an issue, the compensation judge did not err in failing to make a finding on the issue, and the issue was not properly before the Workers= Compensation Court of Appeals.

 

Affirmed in part and remanded in part.

 

Determined by Pederson, J., Wilson, J., and Johnson, J.

Compensation Judge:  John E. Jansen

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and Federated Rural Electric Insurance Company appeal from the compensation judge=s finding of a Gillette injury^[1] to the employee=s left shoulder on December 29, 1994, from the judge=s finding that the employee=s subsequent left shoulder surgery on June 14, 1995, was related to the December 29, 1994, injury and not a new injury, from the judge=s finding that the employee did not sustain any further or additional injury to either shoulder on or about January 1, 1996, and from the judge=s award of permanent partial disability benefits.  The employer and Federated  Rural also contend that the judge failed to determine whether or not the employer had knowledge or due notice of the December 29, 1994, injury.  We remand for clarification on the award of permanency benefits, and we affirm on all other issues.

 

BACKGROUND

 

George Titera began working for Clearwater-Polk Electric Co-op in 1968, when he was in his mid twenties.  Clearwater-Polk [the employer] is a two-county rural electric cooperative located in northwestern Minnesota.  Mr. Titera [the employee] began his thirty-plus-year career with the employer as a lineman and worked in that capacity until June of 1995, when he was promoted to a less physical and more supervisory position as lineman foreman.  The lineman=s job consisted of heavy physical labor, including a considerable amount of overhead work.  For the first ten years or so, the employee=s duties required that he climb poles and trees.  The employer then began using bucket trucks, which minimized the climbing but still required overhead work.

 

On January 26, 1981, the employee was working with a frost bar, about eight feet long and weighing seventy pounds, when he sustained an injury to his right shoulder.  The employee continued to work but obtained therapy and periodic injections of steroids from Dr. Fred Martin at the Clearwater Clinic in Bagley.  Eventually, the employee was referred to orthopedist Dr. Tom Hamilton at the Fargo Clinic, who performed an exploration of the rotator cuff with arthroplasty on December 9, 1981.  The employer and Federated Rural Electric Insurance Company [Federated Rural] accepted liability for a January 26, 1981, work-related injury and paid certain benefits which are not presently in dispute.^[2]

 

Although he noted improvement following his right shoulder surgery, the employee continued to experience progressive pain and discomfort in his right shoulder and came under the care of Dr. Thomas Miller, an orthopedic surgeon.  On May 31, 1988, the employee had a right shoulder arthrogram and was advised of a full thickness tear of the rotator cuff.  On February 2, 1989, the employee underwent a second right shoulder operation at North Country Regional Hospital, to repair a massive rotator cuff tear.  Dr. Miller reported subsequently, in a letter to the employee=s attorney about five years later, that Ahis remaining rotator cuff was extremely thin and not very good quality tissue.@^[3]  In a maximum medical improvement physician=s report on August 30, 1989, Dr. Miller rated the employee=s related whole-body impairment at 6%.

 

Following recovery from his second right shoulder surgery, the employee was released to return to work, restricted from climbing poles.  He continued to follow up with Dr. Miller, and in 1991 he complained also of left shoulder pain.  The employee had a left shoulder arthrogram on April 17, 1991, which was negative for a rotator cuff tear.  Dr. Miller performed arthroscopic decompression on April 29, 1991, which relieved the employee=s symptoms, and the employee returned to work for the employer at his previous duties.

 

The employee continued to have pain and discomfort in both shoulders and periodically sought treatment with Dr. Miller.  On December 27, 1994, the employee returned to Dr. Miller complaining of increased pain and discomfort in his left shoulder. Dr. Miller diagnosed degenerative changes of the acromioclavicular joints and referred the employee for an MRI scan.  On January 3, 1995, Dr. Miller reviewed the MRI with the employee and reported a rotator cuff tear in his left shoulder.  On January 11, 1995, the employee again underwent a rotator cuff repair, with excision of the distal clavicle.  The employee subsequently received therapy for his left shoulder at the Clearwater Memorial Hospital into March of 1995.  Commencing about early April of 1995, the employee again began experiencing discomfort in his left shoulder, and he subsequently underwent further surgery on June 14, 1995, to repair a re-rupture of his previous cuff repair.  The employee did not report any subsequent injuries of his left shoulder.

 

Beginning in August of 1994, the employee filed a series of claim petitions that ultimately led to a hearing before Compensation Judge John E. Jansen on February 26, 1999.  In Findings and Order issued May 28, 1999, the compensation judge determined that the employee had sustained a Gillette injury to his left shoulder on April 29, 1991, but that, as the employee had made no claim for medical expenses or time loss and had brought no action within the six-year time limit allowed by statute, the claim was barred.  The judge further concluded that the employee had sustained a further Gillette injury to his left shoulder culminating on December 29, 1994, the date of the employee=s MRI scan, as a result of which Dr. Miller had diagnosed a complete tear of the rotator cuff and recommended surgery on January 11, 1995.  The compensation judge also determined that the surgery performed on June 14, 1995, was a consequential progression or complication resulting from the January 1995 surgery.  He further awarded the employee benefits for a 3% permanent partial disability of the whole body referable to his right shoulder, Acaused or substantially contributed to by the personal injury of February 2, 1989,@ and benefits for a combined 9% impairment caused by the left shoulder injury of December 29, 1994.  The employer and Federated Rural appeal.

 

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

 

Dates of Injury - December 29, 1994

 

The employer and Federated Rural appeal from the compensation judge=s finding that the employee=s second injury to his left shoulder occurred on December 29, 1994, rather than on January 11, 1995.  They argue that the employee=s left shoulder gradually worsened between 1991 and 1995 and that there is no testimony or medical evidence indicating that the employee was disabled from working prior to his surgery date.  In fact, they contend, the employee could have continued to work indefinitely if it had not been for the surgery.  As such, they argue, there is no reason why the surgery date should not be the controlling date of disability in this case.  We are not persuaded.

 

As a general rule, a Gillette injury culminates when the cumulative effect of the repetitive trauma is sufficiently serious to disable the employee from further work.  Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981).  However, it is not mandatory that an employee be disabled from work activity or suffer a wage loss in order for a judge to determine that a Gillette injury has occurred.  The date of disability may be determined by considering ascertainable events other than the last day the employee worked.  See Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 233, 36 W.C.D. 504, 508 (Minn. 1984).  A[T]he date on which minute trauma culminates in a Gillette-type injury is not so much a medical question as a question of ultimate fact for the compensation judge, to >be determined on all the evidence bearing on the issue.=@  Friedrich v. First Bank Sys., slip op. (W.C.C.A. May 4, 1999), quoting Schnurrer, 345 N.W.2d at 233, 36 W.C.D. at 509.

 

The employer and Federated Rural do not take issue with the judge=s determination that the employee sustained repetitive and cumulative trauma causing a permanent aggravation of his previous left shoulder injury.  Their point of disagreement is the date of the culminating event found by the judge.  It is clear that the judge credited the employee=s testimony regarding his worsening pain and symptoms at the time he returned to Dr. Miller on December 27, 1994, as well as the results of the MRI scan performed on December 29, 1994.  The MRI scan showed a complete tear of the rotator cuff.  When the employee returned to Dr. Miller on January 3, 1995, he was advised to undergo surgery, which was performed on January 11, 1995.  There is no evidence that there was any change in the employee=s medical condition between December 29, 1994, and January 11, 1995.  Because the compensation judge=s determination of a December 29, 1994, date of injury is supported by substantial evidence in the record, we affirm.  See Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235.

 

June 14, 1995

 

The employer and Federated Rural also contend that the employee=s need for surgery on June 14, 1995, was the result of a new injury occurring on that date and not a consequence of the January 1995 surgery.  They argue that the medical records indicate the employee had a good result following the January surgery and that it was not until he returned to work that his symptoms returned.  Because the operative report of June 14, 1995, indicates a Are-rupture of a rotator cuff repair,@ they argue, the judge should have found a new injury on that date.  We disagree.

 

At Finding 8, the compensation judge noted that, commencing about early April of 1995, the employee began experiencing discomfort in his left shoulder Awithout any specific incident or onset, and thereafter the pain got progressively worse.@  In his report of January 9, 1998, Dr. Gary Wyard concluded, AThere is nothing to suggest there is any further aggravation from January 1, 1995  to January 15, 1995, or for that matter to June 14, 1995.@^[4]  Further, in the admitting history and physical on June 14, 1995, Dr. Miller=s assessment was A[p]robable re-rupture of his cuff repair, possibly just related to bursitis and subacromial adhesions.@  The compensation judge concluded that the need for the June 1995 surgery was a consequence or complication of the January 1995 surgery and did not involve or constitute a new injury in June 1995.  Because the judge=s conclusions are reasonably supported by the employee=s testimony and the medical evidence, we affirm.  Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235.

 

January 1, 1996

 

At Finding 10, the compensation judge determined that A[i]t has not been established by a fair preponderance of the evidence that the employee sustained any further or additional injury to either shoulder . . . on or about January 1, 1996, or any other date through and including the date of the hearing.@  The employer and Federated Rural contend that Dr. Miller=s records indicate that the employee continued to have right shoulder problems up to 1996.  The intervenor, Blue Cross/Blue Shield, paid for medical treatment related to the right shoulder in January 1996.  Therefore, the employer and Federated Rural argue, the judge erred when he failed to find a Gillette injury in January 1996.  We are not persuaded.

 

The employee testified that he was never taken off of work by any medical provider on January 1, 1996.  He also testified that he was not treating with any doctor for his right shoulder or left shoulder conditions during that time frame.  Nor was he working under any additional restrictions.  Because there is no evidence that there was any change in the employee=s medical condition on or about January 1, 1996, we cannot conclude that the judge was unreasonable in finding no new injury on that date.  Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235.

 

Permanent Partial Disability - Right Shoulder

 

In unappealed Finding 12, the compensation judge found that the employer and Federated Rural paid the employee for a 10% permanent partial disability to the right arm and that the employee Ais not entitled to any additional permanency referable to the 1981 injury or surgery to the right arm.@^[5]

 

At Finding 13, the compensation judge determined that,

 

[a]s of the date of the hearing, February 26, 1999, the employee has 3 percent permanent partial disability of the whole body referable to his right shoulder, caused or substantially contributed to by the personal injury of February 2, 1989, and rated pursuant to Minn. Rule 5223.0110, Subp. 2C, pursuant to the opinion of Dr. Thomas Miller, M.D.; accordingly, the employer and insurer, Federated Rural, are liable for payment to the employee of $2,250.00 impairment compensation.^[6]

 

The employer and Federated Rural have appealed from Finding 13, contending that, following his 1989 right shoulder surgery, the employee was compensated for the permanency found by the compensation judge when they paid Aold law@ permanency benefits for a 10% permanent partial disability of the arm on September 8, 1989.  Pursuant to Minn. R. 5223.0250 C, they argue, the 6% impairment rating offered by Dr. Thomas Miller on August 30, 1989, translated to the 10% Aold law@ rating that they paid on September 8, 1989.  Absent some evidence of additional disability under the schedules, they argue, the employee has already been compensated for permanency related to his right shoulder.  The employee contends that the compensation judge determined that the employee=s right shoulder permanency was increased by 3%.  He asserts that Dr. Miller has indicated that, besides the previous 10% rating, the employee is also entitled to benefits for an additional 3% rating for loss of range of motion following the 1989 surgery.^[7]

 

We are inclined to agree with the analysis offered by the employer and Federated Rural, but we elect to remand the issue to the compensation judge for clarification.  In his maximum medical improvement physician=s report of August 30, 1989, Dr. Miller provided a 6% impairment rating relative to the employee=s right shoulder pursuant to Minn. R. 5223.0110, subps. 2C and 3E.  In a subsequent report dated November 13, 1995, Dr. Miller states, A[w]ith respect to his right shoulder I wouldn=t change his disability rating as I had laid forth previously.@  It would appear from the record that the employee has already been compensated for permanency related to limitation of motion in his right shoulder as specified by the judge.  The issue has become clouded, however, by the employer and insurer=s decision in 1989 to pay the employee=s permanency under the 1981 claim.  We therefore remand Finding 13 to the compensation judge for clarification in light of the employer and Federated Rural=s 10% permanency payment to the employee in 1989.

 

Left Shoulder

 

In unappealed Finding 14, the compensation judge concluded in part that

 

the employee has 0 percent permanent partial disability of the whole body referable to his right shoulder, caused or substantially contributed to by the personal injury of April 29, 1991, and rated pursuant to the rules then in effect; however, even if any permanent partial disability were rated for this injury, it would not be payable because the employee=s claim is barred by statute as described in Finding 3 above.^[8]

 

(Emphasis added.)  At Finding 15, the compensation judge determined that

 

the employee has 6 percent permanent partial disability of the whole body referable to his left shoulder, caused or substantially contributed to by the personal injury of December 29, 1994, and the subsequent surgery performed January 11, 1995; additionally he has 3 percent permanent partial disability of the whole body referable to his right shoulder caused or substantially contributed to by the same personal injury and the subsequent surgery of June 14, 1995, rated pursuant to Minn. Rule 5223.0450, Subp. 3A(2) and Subp. 2C, respectively with said ratings combined pursuant to Minn. Rule 5223.0300, subp. 3E; accordingly the employer and insurer, Federated Rural, are liable for payment to the employee of appropriate impairment compensation.^[9]

 

(Emphasis added.)

 

Reading Findings 14 and 15 together leads us to conclude that the compensation judge resolved the conflict in medical opinions in favor of attributing the employee=s entire left shoulder impairment to the injury of December 29, 1994.  In a report of June 30, 1997, Dr. Michael Davis related all of the employee=s left shoulder disability to a single Gillette injury.  He rated the employee=s permanent impairment at 6% of the body as a whole in accordance with Minn. R. 5223.0450, subp. 3A(2).^[10]  Dr. Miller, in his report of November 13, 1995, rated the left shoulder impairment at 3% under the 1991 schedules.  Dr. Wyard, contrary to the compensation judge=s Finding 14, apportioned some of the employee=s left shoulder disability to his condition prior to the 1995 surgeries.  The compensation judge apparently adopted Dr. D. F. Person=s May 22, 1997, report, in which the doctor assessed permanency under Minn. R. 5223.0450, subps. 3A(2) and 2C.  However, we note that, pursuant to subpart 1 of that same rule, subparts 2 and 3 cannot be combined.  The rule provides that an impairing condition designated as Aexclusive@ under subpart 2 must be rated under that category only.  In order to receive a permanent partial disability rating, the employee must prove each element of the scheduled disability.  Davies v. Marriott-Host Int=l, 39 W.C.D. 631, 633 (W.C.C.A. 1987).

 

We remand the employee=s left shoulder permanency assessment to the compensation judge for further consideration.  Although permanency ratings offered by physicians may assist the compensation judge in determining the extent of permanency, these opinions are not binding.  Erickson by Erickson v. Gopher Masonry, Inc., 329 N.W.2d 40, 43, 35 W.C.D. 523, 528 (Minn. 1983).  The judge should consider the applicable permanency rules in light of subpart 1 of Minn. R. 5223.0450.

 

Notice

 

The employer and Federated Rural contend that, even if the employee sustained an injury to his left shoulder on or about December 29, 1994, the employer did not have knowledge or receive due notice of the occurrence of the alleged injury as required by Minn. Stat. ' 176.141.  They assert that the first knowledge they had of the employee=s claimed injuries and need for surgery in 1995 was the receipt of the employee=s amended claim petition, served on October 7, 1996.  They argue that, although they were aware of the employee=s shoulder symptoms, it is not enough that the employer is aware that the employee is having pain; there must be more than knowledge of medical symptoms, and Aan employer must have some information connecting the work activity with the ongoing injury or problems.@  Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 40 W.C.D. 270 (Minn. 1987).  The employee contends, on the other hand, that the employer had actual knowledge of the employee=s shoulder problems in 1995.  He argues that even the employer=s office manager, Mr. Lowell Jordan, testified that he was aware that linemen have problems with their shoulders and that those problems are related to heavy overhead work.  The employee argues that, since the employer knew about his shoulder surgery and knew that he was in a position where workers suffer from shoulder problems, it is appropriate to find that the employer had actual knowledge of the injury.

 

In the compensation judge=s Findings and Order of May 28, 1999, there is no indication that the compensation judge even considered the issue of statutory notice and its application to the alleged injuries in late 1994 and 1995.  In Finding 2, the judge sets forth nine issues that are described as Acontested issues of law and fact@ for his decision.   Statutory notice is not listed as one of those issues.  In carefully reviewing the transcript of the hearing, we note that the first seventy-two pages of the transcript are devoted to a preliminary discussion of the issues to be litigated and the opening statements of the attorneys.  Nowhere is the issue of notice raised with regard to the alleged injuries of December 29, 1994, January 11, 1995, June 14, 1995, or January 1, 1996.  Consequently, the compensation judge did not render a finding on the issue.

 

Resolution of a notice dispute calls for a factual analysis by the compensation judge.  In the instant case, the compensation judge solicited a recitation of the issues, and none of the parties made any reference to statutory notice.^[11]  Under the facts of this case, where the parties were invited to set forth the issues and their defenses, we conclude that notice of the December 29, 1994, injury, because not presented to the compensation judge, is not properly before this court.  See Malinoski v. North Am. Cable Sys. slip op. (W.C.C.A. Dec. 14, 1989) (an issue raised for the first time on appeal is not properly before the court and will not be addressed); Hartman v. 3M Co., slip op. (W.C.C.A. Sept. 8, 1992) (an issue raised for the first time in a party=s appellate brief is beyond the scope of the Workers= Compensation Court of Appeals= review).