TODD A. SCHULTZ, Employee, v. TWIN CITY DIE CASTINGS CO. and CNA COMMERCIAL INS., Employer-Insurer/Appellants, and MINNEAPOLIS ORTHOPAEDIC AND ARTHRITIS INST. and MINNEAPOLIS CLINIC OF NEUROLOGY, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 7, 2002

 

HEADNOTES

 

CAUSATION - PERMANENT INJURY; EVIDENCE - EXPERT MEDICAL OPINION.  Substantial evidence, including expert medical opinion, supported the compensation judge=s decision that the employee=s September 1999 bilateral hand and wrist injury was permanent in nature, and the expert opinion in question was not so speculative as to require reversal of the compensation judge=s decision to rely on it.

 

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  Pursuant to Oldenburg v. Phillips & Temro Corp., 60 W.C.D. 8 (W.C.C.A. 1999), the compensation judge correctly concluded that the medical treatment parameters were inapplicable to the employee=s medical expense claim where the employer and insurer were contending that the work injury was merely temporary and had ended well before the treatment at issue.

 

Affirmed.

 

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

Compensation Judge:  Bradley J. Behr.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge=s decision that the employee sustained a permanent injury, in the nature of bilateral carpal tunnel syndrome, as a result of his work for the employer, and that the medical treatment parameters did not apply to the employee=s claim for expenses related to an EMG given the employer and insurer=s claim that the work injury was merely temporary.  We affirm.

 

BACKGROUND

 

The employee first began working in the tool and die trade in the late 1980s or early 1990s, employed by two other tool and die companies before beginning work for Twin City Die Castings Company [the employer] on August 23, 1999.  His first job for this employer involved the production of parts for Polaris, which required the employee to inspect the parts as they came out of the machine and then to lift them over his head and slam them onto his work table to break off Agates,@ or excess aluminum on the parts.  The employee testified that the parts were heavy, weighing about 14 pounds, that he sometimes had to slam the parts down several times to get the gates to break off, and that he might handle 200 to 450 of these parts, in this manner, during a shift.  He also used a hammer to knock other excess aluminum off the parts and testified that both breaking off gates and using the hammer caused his hands to hurt at work.  Within a short period, he also began experiencing a tingling, numbness, and burning in his hands and fingers, especially on awakening in the morning.

 

The employee first sought treatment for bilateral hand symptoms on September 23, 1999, a month after beginning his job with the employer.  Dr. C. E. Michael Oldenburg=s report from that examination indicates that the employee was complaining of bilateral wrist pain and thumb paresthesias, and the doctor restricted the employee from certain hand activities and advised him to use splints at work and ibuprofen and ice and heat as needed.  The employee was also referred for physical therapy and for an EMG, which was read as revealing mild carpal tunnel syndrome on the right. 

 

The employee=s symptoms apparently improved with physical therapy, and on November 18, 1999, Dr. Oldenburg released the employee to return to work Awith no limitations,@ indicating that the employee had reached maximum medical improvement [MMI] with 0% permanent partial disability.  In that same report, however, Dr. Oldenburg noted that the employee should continue to use bilateral wrist guards at work, should wear 9-inch wrist guards at night while sleeping, and could continue to use ibuprofen and heat or ice as needed.  In virtually all of his reports through this date, Dr. Oldenburg had indicated that the employee=s condition was work-related.  The employer and insurer apparently accepted liability for the employee=s condition and paid medical expense benefits.

 

The employee testified that his hand symptoms never fully resolved and that he changed jobs at the employer within a few months to protect his hands.  His new job, as a material handler, apparently required substantially less repetitive hand work, but the employee testified that he continued to use the braces, at least intermittently, and to take ibuprofen every day.

 

The employee left employment with the employer in June of 2001, under circumstances not disclosed by the record.  At some point, he obtained work at Harmon Auto Glass, doing windshield replacement, which sometimes irritated his hands.  In August of 2001, the employee sought treatment again for bilateral hand symptoms -- the first treatment for those symptoms since November of 1999.  The employee=s new physician, Dr. Douglas Becker, diagnosed probable bilateral carpal tunnel syndrome and recommended another EMG.^[1]

 

In early November of 2001, the employee filed a medical request, seeking payment of medical bills related to his carpal tunnel syndrome, as well as payment for the recommended EMG.  In their response, the employer and insurer denied liability for the requested medical expenses on grounds that the employee=s September 1999 injury was only temporary and had resolved prior to the treatment at issue.

 

After losing at the administrative conference level, the employer and insurer filed a request for formal hearing, and a hearing was held before a compensation judge on May 8, 2002.  Issues included whether the employee=s September 1999 bilateral hand and wrist injury was permanent or merely temporary and whether the EMG recommended by Dr. Becker, which had been performed on December 18, 2001, was noncompensable as inconsistent with the requirements of the permanent treatment parameters.  Evidence included the employee=s medical records and causation opinions from Dr. Becker and from Dr. Joel Gedan, the employer and insurer=s independent examiner.  Dr. Becker reported that the employee=s current condition was related to his work for the employer; Dr. Gedan found no such causal relationship, indicating that the employee=s September 1999 injury had long since resolved.

 

In his decision issued on May 23, 2002, the compensation judge concluded that the employee=s September 1999 work injury was permanent and a substantial contributing cause of the employee=s need for the treatment at issue.  The judge also concluded that the EMG expense claim was not barred by the treatment parameters.  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

 

1.  Medical Causation

 

The employee claimed that he had sustained a permanent Gillette-type injury,^[2] in the nature of bilateral carpal tunnel syndrome, from his work for the employer on the Polaris parts job into September of 1999,^[3] and that that injury was a substantial contributing cause of his need for bilateral hand treatment beginning in 2001.  The employer and insurer admitted that the employee=s work in September of 1999 produced temporary bilateral carpal tunnel syndrome symptoms but maintained that the injury had resolved by November 18, 1999, well prior to the treatment in dispute in the current proceedings.  The compensation judge expressly adopted the opinion of Dr. Becker over the opinion of Dr. Gedan on this issue, finding the injury to be permanent.  On appeal, the employer and insurer contend that the judge=s decision is not supported by the record because Dr. Becker was not aware of the employee=s Harmon Auto Glass work and because Dr. Becker=s opinion was simply too speculative to form a basis for a finding of causation.  These arguments are unpersuasive.

 

It is true, as the employer and insurer allege, that the question of a Gillette injury depends primarily on medical evidence.  Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994).  However, we are satisfied that the opinion of Dr. Becker, in conjunction with other evidence of record, is adequate to support the judge=s decision.

 

In a report dated May 7, 2002, Dr. Becker responded to a series of questions posed by the employee=s attorney.  After indicating that he had reviewed Dr. Gedan=s report and that he was aware that the employee had only worked for the employer for about two weeks when his symptoms began, Dr. Becker went on to respond as follows to the attorney=s remaining questions:

 

3.  Can you get carpal tunnel within 2 weeks[?]

 

ANSWER:

Yes.  It is possible to become symptomatic for carpal tunnel syndrome after a single incident such as a traumatic event leading to severe flexor tenosynovitis and secondary carpal tunnel syndrome.  One initiating event can lead to the onset of permanent and progressive symptoms requiring treatment and this appears to be the case for Mr. Schultz.  His work activities over a two week period of time which were very repetitive in nature appears to have caused a significant flexor tenosynovitis in the wrist leading to onset of symptoms which, by my discussions with Mr. Schultz and my review, does not appear to have significantly subsided.  It went on to cause significant discomfort and failed to respond to conservative measures and will require additional treatment including surgical intervention.

 

4.  Is this a work related injury?

 

ANSWER:

Again, based on the information I have available, this certainly does appear to be a work related injury.  There are no significant outside contributing factors which can be attributed to onset of his carpal tunnel complaints.  His repetitive work activities as a die caster would certainly fit the repetitive model that often leads to onset of carpal tunnel syndrome and this would, therefore, be considered a work related bilateral carpal tunnel injury.

 

Citing Holmlund v. Standard Constr. Co., 307 Minn. 383, 240 N.W.2d 521, 28 W.C.D. 317 (1976), the employer and insurer allege that Dr. Becker=s opinion is inadequate, asserting that Ait is not enough if there is medical evidence that the injury >might have= caused the subsequent condition or >could have= caused the condition, but there must be medical testimony that the injury did cause the condition.@  (Emphasis in the employer=s brief.)  However, as this court has explained,

 

with regard to causation opinions, an expert=s opinion need be stated only in terms of a reasonable degree of medical probability, and A[r]easonable probability . . . is determinable by consideration of the substance of the [expert=s opinion] and does not turn on semantics or on the use by the witness of any particular term or phrase.@  Boldt v. Jostens, Inc., 261 N.W.2d 92, 94, 30 W.C.D. 178, 181 (Minn. 1977), quoting Insurance Co. of North America v. Myers, 411 S.W.2d 710, 713 (Tex. 1966).  An expert witness is not required to speak with such confidence as to exclude all doubts in his mind but may qualify his opinion in expressions that fall short of absolute conviction, and such qualification affects merely the probative force of the testimony.  See Hiber v. City of St. Paul, 219 Minn. 87, 16 N.W.2d 878, 13 W.C.D. 302 (1944).

 

Trom v. Express Personnel, slip op. (W.C.C.A. Jan. 28, 2000).  In the present case, it is clear from Dr. Becker=s report as a whole that he intended to express the opinion that the employee=s work for the employer did cause his bilateral carpal tunnel syndrome, not merely that it might have done so.

 

We also find no reason to overturn the judge=s decision to rely on Dr. Becker=s opinion based on the fact that Dr. Becker may not have known that the employee=s work for Harmon Auto Glass sometimes irritates his hands.  First, there is no medical evidence indicating that the Harmon Auto Glass work is medically significant to the employee=s bilateral hand condition.  Second, the fact that the Harmon Auto Glass work may also be contributing to the employee=s condition does not relieve the employer of liability in any event.

 

Finally, we would note that other evidence in the record supports the compensation judge=s decision that the employee=s September 1999 work injury is a substantial contributing cause of the employee=s current symptoms and need for treatment.  While it is true that the employee sought no hand and wrist treatment between November of 1999 and August of 2001, he testified that he continued to use splints and ibuprofen, explaining that he did not ask for additional care because he Aknew what he had@ and did not see the point.  Also, while Dr. Becker released the employee to work Awith no limitations@ and 0% permanent partial disability in November of 1999, he at the same time advised the employee to continue using splints and ibuprofen and ice and heat as needed, clearly suggesting the presence of an ongoing condition.

 

Certainly there is evidence that, if accepted by the compensation judge, would have supported the conclusion that the employee=s September 1999 work injury was merely temporary.  However, the issue on appeal is not whether the record would support some other finding, but whether the judge=s decision is supported by substantial evidence in the record.  Because the record, and particularly the opinion of Dr. Becker, is adequate to support the judge=s decision that the employee=s September 1999 work injury is a substantial contributing cause of the employee=s current bilateral hand condition and need for treatment, we affirm his decision on this issue.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

2.  EMG

 

The employer and insurer contend that the compensation judge erred in awarding treatment expenses incurred in connection with the employee=s second EMG, performed in December 2001, asserting that the permanent treatment parameters allow only one such test and that the employee and the provider failed to provide prior notification as the rules require for a departure from the parameters.  We note initially that we see nothing in the parameters that expressly precludes more than one EMG for diagnosis of carpal tunnel syndrome.  See generally Minn. R. 5221.6300, subps. 1 and 13 (rules governing upper extremity disorders and nerve entrapment syndromes).  Moreover, it is evident that the compensation judge correctly applied this court=s holding in Oldenburg v. Phillips & Temro Corp., 60 W.C.D. 8 (W.C.C.A. 1999), in determining that the medical treatment parameters are simply inapplicable to the treatment at issue here.  As the judge noted, it was the employer and insurer=s position that the employee=s September 1999 injury was merely temporary, ending long before the claimed medical services were provided, and, as we said in Oldenburg, Aan employer and insurer alleging that an injury is merely temporary may not reasonably rely on the parameters to deny payment for treatment rendered after the alleged resolution of the injury.@  Id. at 13.^[4]  We are unpersuaded by the employer and insurer=s attempts to distinguish Oldenburg from the present case on a factual basis, and we are similarly unpersuaded of any need to somehow limit the application of Oldenburg for policy reasons.

 

In that the employer and insurer=s sole argument on this issue was that payment for the EMG was precluded by the treatment parameters, we affirm the judge=s decision in its entirety.