APRIL DEEL, Employee, v. MINNESOTA EAR, HEAD & NECK CLINIC and DODSON INS. GROUP/ASU, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 19, 2002

 

 

HEADNOTES

 

PRACTICE & PROCEDURE - MATTERS AT ISSUE; GILLETTE INJURY - DATE OF INJURY.  Where it was clear that the employee=s claim of a work-related injury had long been based on the specific additionally strenuous activities of her employment in the seven weeks prior to her vacation, where no moment of specific injury was ever asserted or described in any of the pleadings or evidence submitted at hearing, and where the date of injury found by the compensation judge differed by only a day from the date alleged by the employee and at issue at hearing, the compensation judge did not err in finding a cumulative trauma work injury on a date different from the injury date at issue, although the Gillette claim was not referenced by name in the employee=s pleadings.

 

EVIDENCE - ADMISSION.  Where the employer and insurer had ample opportunity to cross examine the employee about her answer to a Aleading@ question permitted over objection at hearing, and where the information in that question was far from dispositive of the issue being litigated and so could not have resulted in any prejudice under the facts of the case, the compensation judge did not exceed either her obligation for fairness or her judicial discretion under the statute in overruling the objection at issue.

 

CAUSATION - GILLETTE INJURY; EVIDENCE - CREDIBILITY.  Where the independent medical examiner had concluded that the employee strained her low back in June of 2000 presuming that the employee had given an accurate report of her work activities over the past seven weeks, where the employee=s testimony to those same work activities had been uncontroverted at hearing and credited by the compensation judge, where, even absent any formal medical opinion as to causation, there was clear evidence in the medical record to support the employee=s claim of a June 2000 Gillette-type work injury, and where the employee=s own testimony as to her work activities and ultimate breakdown was expressly credited by the judge, the compensation judge=s award of payment of medical benefits based on a Gillette-type work injury at the end of June 2000 was not clearly erroneous and unsupported by substantial evidence in light of Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994), and other case law.

 

Affirmed.

 

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

Compensation Judge:  Jeanne E. Knight

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's award of payment of  medical expenses based on a Gillette-type injury.^[1]  We affirm.

 

BACKGROUND

 

April Deel [the employee] has had intermittent low back pain ever since about 1981, when she was fourteen years old.  She experienced some of this pain, which sometimes radiated down into her knees, during her pregnancies, and she was led to understand that it was sciatica.  The pain did not preclude her from performing physical labor, either at her employer herein, Minnesota Ear, Head & Neck Clinic [the employer], or at her previous employer, United Business Mail.  In the spring of  2000, the employee=s position with the employer was as a record clerk.  Her duties in that capacity included filing and pulling medical charts and carting those charts between the file room and the clinic on another floor, transporting the charts between floors either by elevator or, when the elevator was too slow, by stairs.  In May and June of 2000, the employee=s duties came to include transporting large quantities of these charts to another building at a different work site for storage.  To accomplish this transfer, the employee would pack the charts into boxes, move the boxes by cart to her car, load the boxes from the cart into her car, drive to the storage site, and then reverse the loading procedure.  During the months of May and June 2000, the employee performed this chart-relocation work for about seven weeks, making about two or three trips each day, transporting about four to six boxes of charts each trip.  On June 29, 2000, the employee worked at her job without any sharp back pain.  The following day, June 30, 2000, she went off work on what she had requested as a ten-day vacation for camping, instead staying home with her young son as he recovered from unanticipated oral surgery.

 

On July 3, 2000, the employee noted some lower back pain, and the following day, at a picnic, she began experiencing an increase and a sharpness in that pain as she tried to sit down on a blanket and in a lawn chair.  By the following day, July 5, 2000, the pain was radiating into her right hip and leg, and she sought treatment at an urgent care center, where records indicate that she was complaining of A[p]ainful R[ight] hip X 3 weeks@ and that she had stated, AI=ve had this before, I think it=s a pinched nerve.@  The attending physician diagnosed lower back pain, and the employee followed up on July 10, 2000, with family practitioner Dr. Daniel Goldblatt, to whom also she reported Asymptoms off and on for 3 weeks.@  Upon essentially normal physical examination and x-rays, Dr. Goldblatt diagnosed Aright sciatica due to a herniated disc,@ prescribed medication, and restricted the employee to half-time work, with no lifting, pushing, pulling, or carrying of over five pounds for one week.  The employee subsequently returned to her job half time, and the employer and insurer commenced payment of temporary partial disability benefits.  The employee at this time was thirty-two years old and was earning a weekly wage of $440.00.

 

On follow-up with Dr. Goldblatt on July 17, 2000, straight leg raising tests proved positive, and Dr. Goldblatt continued the employee=s restrictions, adding a restriction against repetitive bending and increasing the employee=s medication.  On July 31, 2000, with the employee=s pain continuing and with findings on straight leg raising tests still positive, Dr. Goldblatt recommended an MRI scan of the lumbosacral spine.  The scan, which was conducted on August 1, 2000, was read to reveal minimal lower lumbar disc and facet degenerative change, without evidence of spinal canal neural foraminal stenosis or disc protrusion/extrusion.  On August 4, 2000, Dr. Goldblatt completed a Health Care Provider Report, on which he indicated that the employee=s right sciatica condition was causally related to a work injury on July 5, 2000, that there was no evidence of a pre-existing condition affecting this condition, that further treatment was being contemplated, and that the employee had not yet reached maximum medical improvement [MMI] with regard to her condition.  On a Report of Work Ability completed August 22, 2000, Dr. Goldblatt indicated that the employee=s restrictions were continued from August 11, 2000, to September 1, 2000.

 

On September 1, 2000, Dr. Goldblatt wrote to the insurer, indicating that he had seen the employee on August 25, 2000, and had restricted her from all work for a week consequent to an acute exacerbation of her symptoms, noting that MRI scans can have falsely negative results and that there was Asome discrepancy@ with the employee=s scan.  Dr. Goldblatt had recommended that the employee see a back specialist, and on that same date, September 1, 2000, the employee saw orthopedic surgeon Dr. Jeffrey Dick.  While finding no explanation for the employee=s radicular complaints on her lumbar MRI scan, Dr. Dick nevertheless prescribed physical therapy and restricted the employee from all work until September 11, 2000, also recommending that she cut back on her use of prescription medications and tobacco.  On September 6, 2000, noting that the employee was displeased with Dr. Dick=s advice--that she Adoes continue to smoke more because she has been missing work@ and that she Awould like to go back to work at this time@--Dr. Goldblatt completed a fitness for duty sheet for the employee Aso she could return to work with limitations.@  That report, evidently given to the employee on that date for her faxing to the employer, restricted the employee from work only through September 8, 2000, instead of September 11, otherwise specifying for work thereafter essentially the same restrictions as those to which the employee had previously been subject, except that it did not expressly specify any restriction to working only half-time.  Upon later preparing to fax this report to the employer as instructed, the employee noticed this difference from previous slips and added to the specified restrictions the phrase A2 days.@  Physical therapy records for September 11, 2000, list Dr. Goldblatt as the employee=s physician and restrictions to include limitation to half-time work.

 

On September 21, 2000, the employee saw spine specialist Dr. Garry Banks, who reported that the employee had Asustained a work injury when she had been moving charts and packing boxes repetitively July 5, 2000@ and had had Ano prior back problems prior to July 5, 2000.@  Dr. Banks diagnosed disc degeneration from L4 to S1, together with posterior annular tearing, concluding that surgery would not be an appropriate consideration for the time being.  On those conclusions, Dr. Banks released the employee to return to work immediately, first for six hours a day within certain specified physical restrictions for one week, then full time within those physical restrictions for four weeks, and then without restrictions on either work hours or physical activity.  On September 27, 2000, Dr. Goldblatt reported that the employee was Aoverall doing well,@ that she had Ano radicular symptoms,@ and that she was undergoing physical therapy.  The employee apparently continued her return to work according to the proposed schedule, but in the early days of December 2000 she returned again to see Dr. Goldblatt, complaining of increasing right calf, thigh, and buttock discomfort and Avery upset about@ the fact that her workers= compensation claim was being denied.  Upon unremarkable findings on examination on December 11, 2000, Dr. Goldblatt diagnosed A[r]ecurrence of degenerative disc disease with right sided sciatica, possibly associated with chemical or related irritation of the nerve roots,@ indicating that treatment would be similar to that undertaken in the past, pending the employee=s failure to improve.

 

On December 12, 2000, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Paul Wicklund, who diagnosed right leg and foot pain and multilevel degenerative disc disease of the lumbar spine.  Upon interview of the employee and review of her medical history, Dr. Wicklund concluded that, A[a]ssuming [the employee=s] history of lifting boxes and moving boxes for 7 weeks to be correct, it would be my opinion to a reasonable degree of medical certainty that [the employee] strained her low back in June of 2000.@  Dr. Wicklund suggested that the employee had apparently sustained a recurrence of that strain more recently, but, finding no objective evidence of any right leg sciatica, he concluded nevertheless that the employee required no medical treatment beyond exercises and anti-inflammatories, was subject to no permanent injury, and could work subject only to a thirty-pound lifting restriction until recovery from her most recent strain.

 

On December 15, 2000, the employee filed a claim petition, alleging entitlement to rehabilitation benefits and to continued treatment with Dr. Goldblatt consequent to a work injury on A6-29-00 (previously 7-5-00).@  In their answer filed January 2001, the employer and insurer denied all liability for the alleged injury, in effect asserting that any benefits paid previously had been paid under a mistake of fact.

 

When she saw Dr. Goldblatt again on December 22, 2000, the employee indicated that her symptoms had improved, and Dr. Goldblatt recommended continuation of her current treatment regimen.  None of Dr. Goldblatt=s three reports of work ability in December 2000 and January 2001 either expressly restricted the employee from working full time thereafter or expressly permitted her to do so.  The employee saw Dr. Goldblatt again twice more in the first months of 2001, and on February 26, 2001, reporting that A[o]verall she feels quite content and is not having any pain,@ Dr. Goldblatt changed the employee=s treatment regimen to an as-needed basis, indicating that A[s]he did not feel any long term restrictions were necessary as she can modify her work as needed.@

 

On March 30, 2001, a compensation judge issued an Order Granting Intervention, identifying June 29, 2000, as the date of the claimed injury.  Proof of Service of that order, however, identifies July 5, 2000, as the date of the alleged injury at issue, as do subsequent notices issued by the Department.

 

On June 13, 2001, Dr. Goldblatt testified by deposition, in part that he had no independent recollection one way or another as to whether or not his actual intention on September 6, 2000, aside from his Report of Work Ability of that date, had been to continue the employee=s restriction to half-time work or to release her instead to full time work.

 

The matter came on for hearing before a compensation judge on May 2, 2002, as of which date the employee was evidently continuing to perform her job full time with the employer, with occasional low back complaints but no loss of work time due to her back condition. Issues at hearing included whether or not the employee had sustained a Gillette-type injury to her low back culminating on or about June 29, 2000, and the employer and insurer=s liability for consequent medical and related expenses in the amount of $3,778.10.  Secondary issues before the compensation judge included whether the employee was a credible witness and whether benefits already paid to the employee had been paid  under a mistake of fact.

 

At hearing, the employee testified in part that, in the course of the file archiving work that she performed for the employer in May and June 2000, she sometimes experienced back pain but considered that pain nothing more than muscle spasm unwarranting of treatment--pain that might be expected in her circumstances, given the nature of the work.  She testified that, on the last day she worked in June 2000, June 29, she still Adidn=t have any sharp pain@ and that also on the day following that, June 30, the first day of her vacation, still A[t]here were no sharp pains in my back,@ that A[m]y back was just aching and I figured, well, just from what I=m doing it=s going to ache.@  The employee suggested in her testimony that her personal addition of the phrase A2 days@ to Dr. Goldblatt=s Report of Work Ability on September 6, 2000, was based on a supposition that its omission had been inadvertent.  In support of that inference, she testified that, at her appointment that day, Dr. Goldblatt had been several times called away from the examining room by the needs of another patient, that she had previously been restricted to half-time work for some time, and that the doctor=s instructions to her on that date had been Alet=s keep doing what we=ve been doing.@  She testified that, when she later told him what she had done, Dr. Goldblatt offered to write her out a new report but agreed not to when she said she had already faxed the altered one.  The employee also admitted that she had testified falsely about the modification at her deposition because she had been frightened at the thought that Dr. Goldblatt might have changed his report.  The employee testified also that, by her denial of any pre-2000 low back problems at her examination with Dr. Banks on September 21, 2000, she had meant only that she had never before experienced any sharp pain in the middle of her low back of the sort that she was then experiencing.  She maintained that she did not understand the doctor=s question to be whether or not she had ever had any low back pain prior to the alleged work injury.

 

In its Motion to Intervene filed June 13, 2002, prior to the compensation judge=s issuance of her decision, intervenor Blue Cross and Blue Shield of Minnesota identified June 29, 2000, as the date of alleged injury at issue, and in her June 17, 2002, Order Allowing Intervention, Compensation Judge Jeanne E. Knight identified both June 29, 2000, and July 5, 2000, as the date of the alleged injury.  By findings and order filed June 17, 2002, the compensation judge concluded in part that the employee had sustained a Gillette-type injury to her low back on June 28 (sic), 2000, and that the treatment at issue was compensable.  In support of that conclusion, the judge expressly found the employee to have been a credible witness, even while acknowledging in her memorandum that the employee had rendered histories that did not necessarily coincide, that she had altered a work release slip, and that she had lied about that alteration.  The Department=s Proof of Service of the Judge=s Findings and Order identifies July 5, 2000, as the date of the injury at issue.  The employer and insurer 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

 

The employer and insurer contend on appeal that the compensation judge erred in awarding medical benefits based on a Gillette-type injury on June 28, 2000, in that (1) no Gillette injury on that date was either pleaded or manifested, (2) the judge=s finding of such an injury was dependent on testimony that was rendered pursuant to a leading question and admitted over the objection of the employer and insurer, and (3) the judge=s finding of such an injury is unsupported by substantial evidence of the sort required under Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994), and other case law.

 

1.  Date of Injury

 

The employer and insurer contend that the compensation judge=s award of benefits based on a June 28, 2000, Gillette-type injury is erroneous in part because such an injury Awas neither pleaded nor properly before the compensation judge.@  They argue that the notice of hearing in this matter identified an alleged injury date of July 5, 2000, that the employee=s attorney then appeared to modify that date to June 29, 2000, in his opening statement at hearing, that the compensation judge herself then, in the statement of issues in her findings and order, identified the latter date as the alleged date of injury, and that the caption of the transcript of the May 2, 2002, hearing then reiterated July 5, 2000, as the alleged date of injury.  Citing Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894 (Minn. 1988), for support, the employer and insurer assert that Athe compensation judge=s finding of a type and date of injury never pled by the Employee was legal error@ (underscoring added).  We are not persuaded.

 

Initially, we find the compensation judge=s finding of a Gillette-type of injury not unreasonable, notwithstanding the fact that the employee may not have referenced the Gillette case expressly by name in her pleadings.  No moment of specific injury was ever asserted or described in any of the pleadings or evidence submitted at hearing, and the employee=s claim was clearly based on testimony and medical records referencing the activities of her employment in the several weeks prior to the end of June 2000, particularly those activities pertaining to her transfer of boxes of charts from one building to another during a seven-week period in May and June of 2000.  Moreover, while a compensation judge does not necessarily err by refusing to find a Gillette injury where none was specifically pleaded, see Wach v. Northern States Power Co., slip op. (W.C.C.A. July 3, 1991) (Gillette injury claim denied where none was pleaded prior to the date of the hearing), we know of no law affirmatively requiring a judge to deny such a claim.

 

The judge=s finding as to the date of the employee=s injury was also not legally erroneous.  In this case, the employee apparently originally asserted July 5, 2000, to be the date of her alleged work injury.^[2]  Given, however, that June 29, 2000, had been the employee=s final day at work prior to that treatment, it was reasonable for the employee to subsequently assert a modification of that date which appeared to better comport with the work activities that she thought had injured herBher last day actually on the job prior to her vacation, June 29, 2000.  That the compensation judge has dated the injury a day earlier than that may well be a mere typographical error, given that that date is stated only once and without any explanation of its discrepancy with the date earlier identified as at issue.  At any rate, at issue was whether the employee had sustained an injury Aon or about@ June 29, 2000, and the two dates are near enough to each other so as to constitute virtually the same date for purposes of proof of a cumulative trauma injury.  There was no legal error in the judge=s finding of a Gillette injury on a date one day different from the date alleged.^[3]

 

2.  Evidentiary Ruling

 

The employer and insurer contend also that the compensation judge=s finding of a Gillette injury on the date alleged was erroneous for being the product of an improper evidentiary ruling at the hearing.  They argue that the employee=s attorney, before eliciting any testimony at all from the employee, introduced his first question with the words, ANow, I understand that at some stage in the late spring or early summer of June you began having some pain in you[r] back, is that correct?@  They argue that the judge=s overruling of their objection to the question as a leading question was improper, that it Aprecluded the compensation judge from hearing what the Employee would have herself testified to on the penultimate fact question of >What symptoms did you first experience, and when?=@ We do not agree.

 

A compensation judge has substantial discretion in the admission of evidence.  See Ziehl v. Vreeman Constr., slip op. (W.C.C.A. Oct 15, 1991) (evidentiary rulings are generally within the sound discretion of the compensation judge).  Noting that the employer and insurer had ample opportunity to cross examine the employee about her answer to her attorney=s Aleading@ question, see Bradley v. Burger King/Pillsbury, slip op. (W.C.C.A. Feb. 24, 1992), and concluding also that the information in that question was far from dispositive of the issue being litigated and so could not have resulted in any prejudice under the facts of the case, cf. Pearson v. Beltrami County, slip op.  (W.C.C.A. Dec. 16, 1991), we decline to reverse the judge=s finding of a Gillette injury on grounds that it was founded on testimony improperly admitted over objection.  The compensation judge did not exceed either her obligation for fairness or her judicial discretion under the statute in overruling the objection at issue.

 

3.  Substantial Evidence

 

The employer and insurer acknowledge that the important question in establishing liability for a Gillette-type injury Ais whether the employment is a proximate contributing cause of the disability.@  Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 466 (Minn. 1994), quoting Forseen v. Tire Retread Co., Inc., 271 Minn. 399, 403, 136 N.W.2d 75, 77 (1965), quoting Gillette v. Harold Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).  They contend, however, quoting Bicha v. Ford Motor Company, 34 W.C.D. 320, 322 (Minn. 1981), to the effect that A[a] Gillette type injury is not proved by establishing the absence of specific trauma,@ that, in the present case, Athe compensation judge had little more than the absence of specific trauma@ to support her decision.  They argue that none of the treating doctors Aever supplied any narrative report indicating that [the employee=s] sharp-pain complaints with right leg symptoms starting July 4, 2002 were the result of work she last performed nearly a week earlier.@  They argue further that Dr. Wicklund found no objective evidence to support the employee=s claim of right-leg sciatic symptoms and that Aonly if an assumption is made that the Employee is telling the truth does Dr. Wicklund indicate that there may have been a back strain.@  We are not persuaded.

 

Initially, we would emphasize that the referenced opinion by Dr. Wicklund was not just that Athere may have been a back strain@ if the employee was generally Atelling the truth.@  It was Dr. Wicklund=s more specific opinion that, A[a]ssuming her history of lifting boxes and moving boxes for seven weeks@ to be correct, the employee Astrained her low back in June of 2000.@  The truth of the employee=s history of moving boxes at work was uncontroverted at hearing.  Moreover, in its decision in Steffen, the supreme court has held that a detailed history by the employee of the development of pre-breakdown symptomology is not as essential to proving a Gillette claim as is expert medical opinion and other more strictly medical evidence.^[4]  As such, any history of symptoms as the employer and insurer appear to be requiring would arguably be secondary to, if not superfluous to, the medical records in evidence, particularly supported as those records are by the employee=s uncontroverted testimony as to her work activities in the weeks immediately prior to her emergency treatment.^[5] 

 

With regard to the specificity of the expert opinion and other affirmative medical evidence of record, we acknowledge that none of the employee=s treating doctors may have ever issued any Anarrative report@ as such, specifically relating the employee=s Asharp-pain complaints with right leg symptoms starting July 4, 2002,@ to her work activities the previous month.  However, the following medical evidence does exist:  (1) medical records of the employee=s treatment at the urgent care center on July 5, 2000, indicating expressly that the employee had been experiencing a APainful R[ight] hip X 3 weeks@; (2) Dr. Goldblatt=s report on July 10, 2000, indicating that the employee was on that date complaining of Asymptoms off and on for 3 weeks@ and that the doctor had diagnosed on that date Aright sciatica due to a herniated disc@; (3) Dr. Goldblatt=s Health Care Provider Report on August 4, 2000, diagnosing a right sciatica condition attributable to a work injury on July 5, 2000^[6]; and (4) Dr. Banks=s examination record for September 21, 2000, indicating that the employee Asustained a work injury when she had been moving charts and packing boxes repetitively July 5, 2000.@ Moreover, all of these records reasonably proceed from the breakdown that compelled the employee=s visit to the emergency room on July 5, 2000.  Finally, as indicated above, the employer and insurer=s own independent examiner, Dr. Wicklund, also concluded that the employee=s condition constituted an injury that had occurred Ain June of 2000.

 

In that the employer and insurer are apparently contesting the employee=s claim for payment for the treatment at issue only on grounds that they are not liable for the work injury on which that claim is based, we conclude that the above-referenced records constitute sufficient Amedical evidence@ of the sort required under the Steffen decision^[7] to support the judge=s award of the treatment here at issue.  To the extent that that evidence itself depends on the credibility of the employee=s histories to the various medical examiners, we defer to the compensation judge=s express finding of credibility.  See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).  Because it was not unreasonable in light of the medical and other evidence of record, we affirm the compensation judge=s award of payment of the medical benefits here at issue.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.^[8]