ALEX LUBET, Employee, v. UNIVERSITY OF MINN., SELF-INSURED/SEDGWICK CLAIMS MANAGEMENT SERVS., Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 12, 2002

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  The judge did not err in deciding the employee=s Gillette injury claim on an Aaggravation,@ rather than Acause@ basis, and substantial evidence, including expert opinion, minimally but adequately supported the judge=s decision that the employee=s work activities aggravated the employee=s neck condition.

 

Affirmed.

 

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

Compensation Judge:  William R. Johnson.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the compensation judge=s decision that the employee sustained a work-related Gillette-type injury^[1] to his cervical spine.  We affirm.

 

BACKGROUND

 

The employee has been a music professor at the University of Minnesota [the employer] since 1979, teaching primarily music theory and composition.  In the course of his teaching duties, the employee plays the piano, and his research and composition work -- considered a part of his job duties -- requires substantial computer use.  The employee also plays several stringed instruments and performs publically on guitar, bass guitar, and mandolin.  He testified that he typically works between forty and eighty hours a week, spending five to ten hours of those hours at the piano and twenty or thirty or more hours at his computer keyboard.  If he is writing an article, he might be on the computer all day.  He works both at his home and on campus.

 

The employee testified that he first began experiencing neck pain, after prolonged piano playing, as early as his undergraduate years, but he apparently sought no treatment for neck symptoms at that time.  Then, in 1994, he was seen at urgent care for neck and knee pain after a motor vehicle accident.  He was prescribed a soft cervical collar and medication, and his neck pain apparently resolved after several weeks.  Records from a routine physical examination two years later, in 1996, indicate that the employee had been involved in another motor vehicle accident about five days before and had experienced some neck discomfort that had resolved by the time of his examination; his neck examination was viewed as Aremarkably normal.@  After a third accident, in 1998, the employee apparently experienced Ano problem@ with respect to his neck.

 

In July of 1999, the employee was seen at his usual clinic for what the treating physician described as Aa week of right upper back and neck pain that probably followed some unusual activity.@  The employee later testified that he had no idea what the physician meant by Aunusual activity.@  In any event, the physician noted the presence of a tight right upper trapezius muscle, prescribed medication, and advised the employee to call if his symptoms did not improve.  The employee testified that the condition cleared up in about two weeks without the need for further treatment.

 

On September 9, 1999, the employee was seen again at his usual clinic, this time for complaints of right elbow pain Aproximally up his arm to his shoulder area, which Abegan fairly acutely four days ago without any trauma.@  The treatment note also indicates that the employee did Aa lot of wo[r]d processing and noticed the symptoms are worse in that position.@  The examining physician suggested the possibility of lateral epicondylitis, gave the employee a tennis elbow strap to wear, and prescribed Naprosyn.  However, the employee=s symptoms gradually worsened, despite treatment, including physical therapy, and came to include radiating neck pain.  Medical providers were initially unsure as to whether the employee=s symptoms originated in his neck or his right arm, but, after diagnostic tests, including an MRI and EMG, the employee was diagnosed as having not only epicondylitis but herniated cervical discs, including a C7 radiculopathy.  On February 18, 2000, the employee underwent a foraminotomy with hemilaminectomy and discectomy at C6-7.

 

In conjunction with his neck and right arm problems, the employee was treated or evaluated by several physicians, including Dr. Frederick Arnason, his usual physician, Dr. Marlon Rimando, a physiatrist, and Dr. Mark Larkins, who performed the February 2000 cervical surgery.  Many of the records generated prior to the employee=s surgery contain references to the kind of work the employee did and indicated that he had noticed particular trouble Akeyboarding,@ which the employee testified meant both piano playing and computer use.  Eventually, Drs. Rimando and Larkins concluded that the employee=s neck condition was causally related to his work activities.  Dr. Joel Gedan, the employer=s independent examiner, disagreed, reporting that the employee=s herniated disc had occurred spontaneously and was not related to his work, which, according to Dr. Gedan, was not the kind known to cause that type of neck injury.  Dr. Gedan did believe, however, that the employee had lateral epicondylitis on the left and probably the right, as well, as a result of his employment with the employer.  The employer evidently accepted liability for bilateral epicondylitis but denied that the employee=s cervical condition arose out of and in the course of his employment.

 

On July 6, 2001, the matter came on for hearing before a compensation judge for resolution of the employee=s claim for medical benefits related to his neck condition, including surgery.  At the beginning of the hearing, the employee=s attorney indicated that the claim was for a Gillette injury culminating on September 9, 1999.  The sole issue was causation.  In his decision issued on August 28, 2001, the compensation judge resolved the issue in the employee=s favor.  The employer appeals.

 

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

 

In his decision, the compensation judge explained that he generally agreed with Dr. Gedan that the employee=s work activities did not cause the employee=s herniated cervical disc.  The judge went on to note, however, that Dr. Gedan did not offer any specific opinion on the issue of whether the employee=s work activities Acould have aggravated and rendered symptomatic his underlying disc herniation/weakness.@  In this regard, the judge expressly accepted the opinion of Dr. Larkins, the employee=s surgeon, in concluding that the employee=s Awork activities were a substantial contributing factor in aggravating and rendering symptomatic the [employee=s] underlying condition here.@

 

On appeal, the employer argues in part that the compensation judge erred in finding that the employee=s work activities had Aaggravated@ his underlying condition, in that the employee=s claim was that his work Acaused,@ not that it aggravated, his herniated disc.  We are not persuaded.  At hearing, the employee specifically contended, without objection or any claim of surprise by the employer, that he had sustained a Gillette-type injury as a result of his work activities, and, in our view, a Gillette injury claim reasonably encompasses cause or aggravation or acceleration of the employee=s disability.  See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960); Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994).  Moreover, Dr. Gedan, the employer=s independent examiner, wrote a supplemental report in which he characterized Dr. Larkins= report as saying that the employee had a Apreexisting disc herniation@ that Abecame symptomatic relating to [the employee=s] work related activities.@^[2]  Given the medical evidence, clearly the employer was, or should have been, aware that an aggravation claim was one of the employee=s theories of liability.  For these reasons, we find no error in the fact that the judge decided the employee=s claim on an aggravation basis.

 

The employer also argues that the judge erred in relying on Dr. Larkins= causation opinion, because Dr. Larkins= records do not describe the specific instruments the employee plays or the frequency or duration he plays them; because Dr. Larkins references Athe mechanics regarding [the employee=s] head position@ relative to the instruments the employee plays, without any indication in his records that the doctor was ever provided information in that regard; and because, while Dr. Larkins= report addresses Athe repetitive nature of the employee=s work, his records and reports make no mention of the employee=s activities at the keyboard, the very activities that the employee implicates as being repetitive.@  While some of these complaints may have some merit, it seems to us that the alleged deficiencies in Dr. Larkins= opinion go to weight, not foundation, and were for the compensation judge to evaluate.  See Drews v. Kohl=s, 55 W.C.D. 33 (W.C.C.A. 1996).

 

In his September 11, 2000, report, Dr. Larkins wrote as follows:

 

I have reviewed the independent medical evaluation of Dr. Joel Gedan, neurologist, and I do take exception to several of comments made.

 

I do believe that [the employee=s] cervical radicular problems are related to his repetitive activity as a music professor at which time he spends a great deal of time at the piano and computer keyboard.  I would not classify that as intermittent music playing, but almost a continuous activity on his part.  Very specifically, Dr. Gedan referred to his Aintermittent playing of instruments including playing the piano or string instruments would not predispose or cause right disc herniation@.  I do believe that his work activities are a direct cause of his current complaints, and I do not believe that the previous motor vehicle accidents cause his problem.

 

Basically he was not symptomatic from those problems at the time of his current injury.  I do believe that the mechanics regarding head position and arm movement and with all the instruments that [the employee] plays are most likely related to his work injury whether the disc was present there or not initially.

 

As the judge noted, Dr. Larkins= opinion was Anot the most artfully worded.@  However, the report clearly indicates, contrary to the employer=s contention, that Dr. Larkins was aware that the employee spent a great deal of time on the computer, and the employee testified that he had discussed with Dr. Larkins what he did for a living.  Under these circumstances, and in view of the employee=s testimony about his work and the development of his symptoms, the compensation judge was entitled to accept Dr. Larkins= opinion in reaching his ultimate conclusion.  In the end, this case rests simply on the judge=s legitimate choice between conflicting expert opinions.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).^[3]  We agree with the judge that this was a close case, but it is evident that the judge considered the evidence very carefully, and we cannot conclude that his decision was clearly erroneous or unsupported by the record as a whole.  We therefore affirm that decision in its entirety.