STEVEN R. FOSTER, Employee, v. METRO PRODUCE DISTRIBS., and CHUBB & SON GROUP, Employer-Insurer/Appellants, and METRO PRODUCE DISTRIBS., and INDIANA INS. COS., Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF MINN., and ALLERGY & ASTHMA SPECIALISTS, PA, and JACOBS CONSULTING SERV., Intervenors.

 

WORKERS' COMPENSATION COURT OF APPEALS

DECEMBER 13, 2002

                                                                             

HEADNOTES

 

CAUSATION - AGGRAVATION.  Substantial evidence, including expert medical opinion, supports the compensation judge's finding that the employee's work-related exposure to ethylene gas caused a significant aggravation of his pre-existing asthma condition.

 

CAUSATION - SUBSTANTIAL EVIDENCE.   Substantial evidence supports the compensation judge's finding that the employee's  continued exposure to the chemical irritant at work from January 3, 2000, the date a doctor first indicated that the employee should avoid the exposure, through August 11, 2000, when the employee stopped being exposed to the chemical at work, was not a substantial contributing cause of the aggravation of the employee's condition.

 

Affirmed.

 

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

Compensation Judge: Bradley J. Behr.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and Chubb & Son Group appeal the compensation judge's findings that the employee's work-related exposure to ethylene gas caused a significant aggravation of his pre-existing asthma condition, that the employee sustained a Gillette injury as a result of this aggravation, and that the date of injury was January 3, 2000, when a doctor first advised the employee to change jobs.  We affirm.

 

BACKGROUND

 

Steven Foster, the employee, began working for Metro Produce Distributing, the employer, in November 1986 as a warehouse manager.  From that time until 1992, the employee did not have any breathing problems or physical limitations.  In 1992, the employer began using a ripening process for fruit.  The employee was trained in this process, which involved ripening the fruit with the application of concentrated aerosolized ethylene gas in pressurized rooms.  The employee was in charge of the ripening process, which required him to enter the rooms to maintain the proper temperature and to check the quality of the fruit.  Initially, there were four pressurized rooms, and the employee estimated that he spent fifteen to twenty percent of his work day in the rooms.  He wore no breathing protection while working in these rooms.  In 1996, the employer added two more ripening rooms, and the employee's job included overseeing all six rooms.

 

In approximately 1993, the employee began to experience breathing difficulties at work.  The employee was treated at emergency rooms on several occasions, and was prescribed an inhaler.  In 1996, the employee worked less in the ripening rooms, but his breathing condition continued to deteriorate, albeit at a slower pace.  In 1997, the employee returned to the same amount of hours as a ripener.  The employee began treating with Dr. Marvin Brooks at the North Memorial Clinic in 1997.  He also treated at emergency rooms and used medications more frequently than he had in the past.  In 1999, he began using a nebulizer at home. 

 

In December 1999, the employee was referred to Dr. Harold Kaiser at Allergy and Asthma Specialists, who diagnosed occupational asthma and/or reactive obstructive airway disease secondary to occupational exposure.  In January 2000, Dr. Kaiser recommended that the employee avoid exposure by not working in the ripening rooms.  The employee testified that his breathing problems continued to worsen through August 2000.  In August 2000, Dr. Kaiser opined that the employee's problems were work-related and resulted from exposure to the ethylene gas which was used to ripen the fruit.  Dr. Brooks recommended that the employee find a different job.  In August 2000, the employee notified the employer of his alleged work-related injury.  Based on the employee's physician's restrictions, the employer revised the employee's duties so he no longer worked as a fruit ripener and no longer worked in the ripening facility.  Starting August 11, 2000, the employee began working in the main warehouse about two miles away from the ripening facility.  The employee testified that his condition has continued to deteriorate since the job change, but at a slower rate. 

 

On November 13, 2000, the employee filed a claim petition alleging that he had sustained asthma/respiratory disease as a result of his work activities, and claiming temporary partial disability benefits from and after August 11, 2000, permanent partial disability, and medical expenses.  The claim petition named two insurers: Chubb & Son Group, which provided workers' compensation coverage for the employer at least from April 1, 1999, until April 1, 2000, and Indiana Insurance Company, which provided workers' compensation coverage for the employer from April 1, 2000, through April 1, 2001. 

 

On January 16, 2001, the employee was evaluated by Dr. Ronald Vessey at the request of the employer and Chubb & Son Group.  Dr. Vessey concluded that the employee had suffered an aggravation of his adult onset asthma secondary to various airborne products present at the employer's workplace.  Dr. Vessey also stated that "[i]t does not appear to me that this man has suffered a de novo pattern of occupational asthma, but rather, this patient has developed adult onset asthma and has had some element of aggravation of his asthma secondary to exposure to the fruit ripening gases at work."  On April 20, 2001, the employee was evaluated by Dr. Paul Johnson at the request of the employer and Indiana Insurance Company.  Dr. Johnson opined that the employee has adult onset asthma and experienced a temporary aggravation by exposure at work to cold air or by the non-specific irritant effects of the ethylene gas, but that the employee's work activities for the employer from April 1, 2000, through August 11, 2000, were not a substantial contributing cause of the employee's breathing problems or asthma condition. 

 

A hearing was held on March 21, 2002.  At the hearing, the employee argued that the date of disablement was August 11, 2000, or alternatively that the date of injury was January 4, 2000, the date of the report when Dr. Kaiser first indicated that the employee should avoid working in the ripening rooms.^[1]  The compensation judge found that the employee sustained a Gillette injury^[2] on January 3, 2000, and found Chubb & Son Group liable for payment of the employee's medical and rehabilitation expenses.  The employer and Chubb & Son Group appeal.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. § 176.421, subd. 1 (1998).  Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, "[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, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole."  Id.

 

DECISION

 

The employer and Chubb & Son Group (Chubb) argue that there is not substantial evidence in the record  to support the compensation judge's finding that the employee's exposure to chemicals at work caused significant aggravation to his asthmatic condition.  They argue that the employee's aggravation of his condition should have ended once he stopped working in the ripening rooms if the workplace exposure was the cause of the aggravation, citing Dr. Johnson's opinion.  Questions of medical causation fall within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).   The compensation judge noted that the employee did not have any breathing difficulties until after he began working in the ripening rooms.  The compensation judge relied upon Dr. Vessey's opinion that the employee's exposure to ethylene gas had significantly aggravated the employee's asthmatic condition, that often a substantial healing period is required after exposure to a chemical irritant, and that such exposure could result in permanent damage.  It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony, Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985), and the compensation judge reasonably relied upon Dr. Vessey's opinions in reaching his conclusions.  Substantial evidence supports the compensation judge's finding that employee's exposure to chemicals at work caused significant aggravation to the employee's asthmatic condition, and we affirm.

 

The employer and Chubb also argue that the compensation judge erred by failing to find that the employee had sustained an occupational disease, and that the date of disablement for this disease was when the employee stopped working in the ripening rooms on August 11, 2000.  The term "occupational disease" is defined by Minn. Stat. § 176.011, subd. 15.^[3]  The compensation judge found that the employee's condition is more closely analogous to a Gillette injury than an occupational disease, since the employee's "preexisting nonoccupational condition was aggravated by repetitive minute trauma."  A Gillette injury is a result of minute injuries from repeated trauma which results in a  compensable injury when the cumulative effect culminates in disability.  See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960). "[W]hile >occupational disease= may be statutorily defined, just what constitutes a >disease,= per se, as opposed to >injury' from minute trauma, is not at all clear."  Jesse v. Northwest Airlines, slip op. (W.C.C.A. Sept. 14, 2000).^[4]  In this case, however, the relevant issue is not the date of injury, but whether the employee's continued exposure to the chemical irritant at work from January 3, 2000, the date Dr. Kaiser first indicated that the employee should avoid working in the ripening rooms, through August 11, 2000, when the employee stopped working in the ripening rooms, represents a substantial contributing cause of the aggravation of the employee's respiratory condition. 

 

An employee's work activities during an insurer's period of coverage must have substantially contributed to the employee's disability in order for liability to be imposed on that insurer.  See Tannahill v. Mid-American Lines, Inc., 40 W.C.D. 726, 728 (W.C.C.A. 1987), summarily aff=d (Minn. Feb. 1, 1988); see also Gray v. Sears Roebuck & Co., 60 W.C.D. 273, 282 (W.C.C.A. 2000); Crimmins v. NACM No. Central Corp., 45 W.C.D.435, 439 (W.C.C.A. 1991), summarily aff=d (Minn. Nov. 26, 1991).  Dr. Johnson opined that the employee's work activities from April 1, 2000, through August 11, 2000, were not a substantial contributing cause of the employee's breathing problems or alleged asthma/respiratory condition or his need for medical treatment.  The compensation judge found that the employee's exposure to ethylene gas from April 1, 2000, when the Indiana Insurance Company came on risk, through August 11, 2000, was not shown to have significantly changed his condition in comparison to January 3, 2000, or to be a substantial contributing factor to his need for medical treatment after August 11, 2000.  (Finding 8.)  By contrast, the record, including medical records and expert medical opinion, supports a conclusion that the employee's work during Chubb's period of coverage, extending up to April 1, 2000, substantially contributed to the employee's disability.  As substantial evidence supports the compensation judge's finding, we therefore affirm.