LARRY R. BERGLUND, Employee/Appellant, v. ALEXANDRIA EXTRUSION CO., SELF-INSURED, adm=d by E.C. FACKLER, INC., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 22, 2002
HEADNOTES
CAUSATION - GILLETTE INJURY. Substantial evidence, including the well-founded opinion and testimony of the employer and insurer=s medical expert, supports the compensation judge=s determination that the employee failed to prove he sustained a Gillette injury culminating on July 13, 1999.
Affirmed.
Determined by: Johnson, J., Wilson, J., and Pederson, J.
Compensation Judge: Carol A. Eckersen
OPINION
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s finding on remand that he did not sustain a Gillette-type[1] personal injury arising out of his employment on July 13, 1999. We affirm.
BACKGROUND
Larry R. Berglund, the employee, started working as a press operator for Alexandria Extrusion Company, the employer, in November 1996. The employee=s job as a press operator involved the stretching, sawing and checking of aluminum parts. The aluminum parts were extruded from a press and then transferred to a cooling table. The parts ranged in length from six feet to 120 feet and weighed up to 100 pounds. After the parts cooled, two saw operators transferred the parts from the cooling table to a storage table about three feet high and 120 feet long. The employee and a co-worker then clamped the parts into a machine which stretched the parts to straighten them. The employee typically spent not less than two and a half hours each shift pushing and pulling aluminum parts. The parts were then moved from the storage table to the saw and feed table to be cut to order. After cutting, the parts were checked. Checking the parts required the employee to bend at the waist and at times kneel on one knee on the floor. Each part needed to be checked, and the employee performed this function from ten to thirty times each shift. During the six months prior to June 1, 1999, the employee worked primarily on stretching and sawing.
On or about June 1, 1999, the employee was rushing, attempting to get parts onto the saw table, when he felt a jolt or shock of pain running from his mid-back to his neck. As he continued working, the employee experienced the same shock of pain each time he pushed parts. The employee told his co-worker, Dale Schroeder, about the pain, but kept working thinking the pain would go away. The pain gradually worsened and the employee later developed a stiff neck.
On June 30, 1999, the employee sought treatment from Peter Pfeffer, D.C. The employee complained of frequent moderate upper back symptoms, which he had first noticed two months earlier. On examination, Dr. Pfeffer found muscle spasm and tenderness in the cervico/thoracic region with restricted range of motion. The doctor diagnosed cervical somatic dysfunction and commenced chiropractic care. The employee returned to see Dr. Pfeffer on July 2 with continued complaints of bilateral upper back and lower neck pain. Following an examination, the doctor noted the employee=s findings were less pronounced and were improving with treatment. The employee last saw Dr. Pfeffer on July 6, 1999, and stated his neck and arm pain were much better. The employee then complained of lower neck pain which radiated into his right shoulder. Dr. Pfeffer concluded the employee=s objective findings were decreasing and he stated the employee=s response to treatment was favorable. The doctor released the employee to return as needed. The employee, however, testified the chiropractic treatment relieved his symptoms only for a short period of time.
The employee missed no time from work and continued to perform the same job following the June 1, 1999 incident. The employee testified his symptoms gradually increased, and stated that by the end of his shift he would have sore shoulders and pain around his neck down to his mid-back. On Sunday, July 11, 1999, the employee worked four hours of overtime unloading boxes and cutting parts. The following day, the employee worked his regular eight-hour shift. By the end of the day, the employee noticed he was having a difficult time writing with his right hand and had pain in his back, neck and right arm. That evening, the employee stated his right arm felt numb. On July 13, 1999, the employee awoke and experienced numbness in his right arm into his chest, and testified he was in Aexcruciating pain.@
On July 13, 1999, the employee saw Dr. Robert Telste at the Alexandria Clinic. The employee complained of pain in his neck and right arm, which he stated he initially noticed when he was at work. An MRI scan showed a large disc herniation at C6-7 with bilateral severe foraminal stenosis. The employee was seen at the Douglas County Hospital emergency room on July 14, 1999 and reported a sudden worsening of neck and right arm pain the previous morning. On July 16, 1999, Dr. Sunny Kim examined the employee and recommended surgery due to progressive weakness and numbness. Dr. Kim performed an anterior cervical decompression and fusion on July 19, 1999. Post-operatively, the employee complained of residual arm pain and was returned to surgery on the evening of July 19, 1999, for re-exploration. Dr. Kim found another fragment of a disc and replaced the bone graft. Dr. Kim reexamined the employee on August 6, 1999, and noted the employee had no right arm pain but had some mild residual numbness. By September 3, 1999, the doctor noted the employee=s arm pain was gone and the numbness had mostly dissipated. Dr. Kim released the employee to return to work effective October 20, 1999.
On September 2, 1999, the employee=s attorney wrote a letter to Dr. Kim describing, in detail, the employee=s job duties with the employer and asking Dr. Kim to respond to a number of questions. Dr. Kim opined the employee=s work activities and the injury he sustained on June 1, 1999, were substantial contributing factors to the employee=s current condition. Dr. Kim further stated that the employee sustained a Gillette injury to his cervical spine as a result of his work activities with the employer.
Dr. Paul T. Wicklund, an orthopedic surgeon, examined the employee on March 18, 2000, at the request of the self-insured employer. The doctor obtained a history from the employee, reviewed his medical records, and reviewed a copy of the job description previously provided to Dr. Kim. On May 2, 2000, Dr. Wicklund=s deposition was taken. Dr. Wicklund diagnosed a C6-7 anterior disc fusion with a good result. Dr. Wicklund opined the employee did not sustain a personal injury on or around the middle of May 1999. He testified the employee=s description of a shock-like pain in the mid-scapular area of his back was unrelated to the disc herniation at C6-7. In his opinion, the C6-7 disc herniation did not occur in mid-May because the employee did not then demonstrate symptoms consistent with a disc herniation. Dr. Wicklund further opined the employee=s symptoms prior to July 13, 1999 were not consistent with a C6-7 disc herniation. He testified the employee=s symptoms on the morning of July 13, 1999 were, however, consistent with a herniated disc. The doctor testified the disc herniation caused entrapment of the seventh cervical nerve root causing the severe pain, numbness, weakness and decreased strength in the right arm demonstrated by the employee on July 13, 1999. This disc herniation, Dr. Wicklund testified, was unrelated to the employee=s work activities. Dr. Wicklund stated it was possible the employee=s cervical disc herniated spontaneously and that it was not uncommon for patients to give a history of sleeping with the wrong posture as the cause of a disc herniation.
The employee filed a claim petition seeking workers= compensation benefits for a claimed Gillette injury on June 1, 1999. The claim petition was later amended to claim a specific injury on May 15, 1999 and a Gillette injury on July 13, 1999. The case was heard by a compensation judge at the Office of Administrative Hearings on May 19, 2000. In a Findings and Order filed July 25, 2000, the compensation judge concluded the employee did not sustain a personal injury on June 1, 1999. The employee appealed contending the compensation judge failed to make factual findings determining whether the employee sustained a Gillette injury culminating on July 13, 1999. In a decision filed January 12, 2001, this court remanded the case to the compensation judge for a finding of whether the employee sustained a Gillette injury culminating on July 13, 1999. In a Findings and Order on Remand filed September 18, 2001, the compensation judge found the employee did not sustain a Gillette injury on July 13, 1999, and denied the employee=s claims for benefits. The employee again appeals.
DECISION
In her memorandum, the compensation judge noted the employee=s testimony regarding the onset of his symptoms was inconsistent with the medical records. The judge stated she Arelied also on the contemporaneous medical records in reaching the conclusion that the employee did not have a gradual progression of symptoms.@ (Memo. at p. 3.) The employee argues the compensation judge apparently required the employee to prove he experienced a gradual onset of symptoms as a prerequisite to establishing he sustained a Gillette injury. The employee contends the compensation judge applied an improper legal standard which mandates a reversal. We disagree.
In Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994), the Supreme Court overruled the case of Reese v. Northstar Concrete, 38 W.C.D. 63 (W.C.C.A. 1985) which required the employee prove specific activities caused specific symptoms which led cumulatively and ultimately to disability. The court held that while that kind of evidence might be helpful as a practical matter, the question of a Gillette injury depends primarily on the medical evidence.
Although the employee testified his symptoms worsened from June 1 to July 13, 1999, the records of Dr. Pfeffer indicate the employee=s findings became less pronounced and improved with treatment. Dr. Kim opined the employee sustained a Gillette injury to his cervical spine as a result of his work activities with the employer. Dr. Wicklund opined the employee did not sustain a Gillette injury. While not dispositive of the question of whether the employee sustained a Gillette injury, the judge could reasonably infer the medical records support the opinion of Dr. Wicklund that the employee=s disc herniation may have occurred spontaneously, without trauma. It is the function of the compensation judge to choose between conflicting expert opinions. If Dr. Wicklund=s opinions are adequately founded, the judge=s election must be affirmed. See, Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The employee argues Dr. Wicklund=s opinion lacked adequate foundation. Specifically, the employee points to Dr. Wicklund=s testimony that his opinion might be different had the employee had right arm and neck symptoms prior to July 13, 1999. The employee did testify to a progression of symptoms prior to July 13, 1999, and the compensation judge did not find the employee=s testimony not credible. Accordingly, the employee argues, Dr. Wicklund=s opinions lack foundation and the compensation judge erroneously relied upon them. Again, we are not persuaded.
Dr. Wicklund opined it was possible the employee=s cervical disc herniation occurred spontaneously on July 13, 1999, and was unrelated to the employee=s work activities. The doctor testified it was not uncommon for patients to give a history of sleeping in the wrong posture which might be the cause of a disc herniation. The doctor obtained a history from the employee, reviewed his medical records, examined the employee and, at his deposition, was provided with a lengthy hypothetical question concerning the employee=s work activities. This information provides a sufficient factual basis for an expert medical opinion. The compensation judge could reasonably rely on the opinion of Dr. Wicklund. The decision of the compensation judge must, therefore, be affirmed.