HEIDI J. VINKEMEIER, Employee/Appellant, v. CROWN HOLDINGS and AMERICAN COMPENSATION INS. CO./ RTW, INC., Employer-Insurer, and PREMERA, MN DEP=T OF LABOR & INDUS./VRU, and ST. CLOUD HOSP., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 26, 2002

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE; CAUSATION - AGGRAVATION.  Substantial evidence, including expert opinion, supported the compensation judge=s finding that the employee did not sustain a work-related respiratory injury.

 

Affirmed.

 

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

Compensation Judge:  Gary M. Hall.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s denial of her respiratory injury claim.  We affirm.

 

BACKGROUND

 

The employee began work as a secretary at Crown Holdings [the employer] in November of 1999.  The employer was a machine shop engaged in custom machining and welding. The employee spent 75% of her time in the office and 25% of her time in the production area.   The office was separated from the production area by a wall, which had three doors that opened into the production area.

 

On December 21, 1999, the employee began having difficulty breathing at work.  She completed her work day but used an inhaler when she got home.  When the symptoms did not go away, she went to the emergency room at St. Cloud Hospital.  On examination, the employee had Aa bit of end expiratory wheezing.@  She was given a nebulizer treatment, reported that she felt much better, and was released with a prescription for prednisone.  The employee followed up with her family doctor, Dr. Susan Johnson, who prescribed different inhalers and prednisone but allowed the employee to continue working, assuming that the employee was experiencing an acute exacerbation of some mild pre-existing asthma that would quickly resolve.  The employee continued working for the employer without any modifications.

 

The employee was initially better but later testified that, by March of 2000, the shop was working longer hours, she observed more smoke present in the workplace, and she became increasingly short of breath, causing her to use an inhaler.  On March 31, 2000, the employee was seen in Urgent Care with Aincreasingly severe difficulty with wheezing, shortness of breath and chest pain over the last months.@  The employee reported that she felt that the dusty environment at work had aggravated her symptoms.  She responded well to a nebulizer treatment.

 

The employee returned to Dr. Johnson on April 3, 2000, complaining of problems with her asthma that she related to exposure to chemicals at her job.  Dr. Johnson prescribed two inhalers, a nebulizer and prednisone, and took the employee off work, noting, AI certainly think it is making her asthma much worse.@  On April 4, the employee returned to the employer to give notice, clean out her desk, and train co-employees on some of her job responsibilities.  The employee has not returned to the employer since that date.

 

On April 7, 2000, when the employee had not improved, Dr. Johnson hospitalized her.  Dr. Johnson diagnosed a severe asthma/reactive airway disease [RAD] exacerbation.  When the employee was discharged on April 8, 2000, she was noted to be A100% better@ with Acompletely clear@ lungs. 

 

The employee returned to Dr. Johnson on April 14, 2000, complaining of shortness of breath when walking across a room.  On examination, no wheezing was noted, but the employee did not have good air movement.  Dr. Johnson referred her to pulmonary specialist Dr. David Shuster.  In his office notes of April 17, 2000, Dr. Shuster noted that the employee was intermittently short of breath at rest and could not tolerate any physical activity whatsoever due to breathlessness.  He diagnosed dyspnea (shortness of breath) of uncertain origin and noted that, Agiven the patient=s spirometry today, despite the presence of a poor effort on this study, as well as [the employee=s] examination, I have difficulty blaming asthma for the patient=s extreme exercise limitation.@  He ordered further testing.

 

The employee returned to Dr. Shuster on April 28, 2000, at which time he diagnosed Apossible RAD syndrome with questionable antecedent asthma@ and Aresidual dyspnea, etiology uncertain.@  He further stated that, A[a]lthough difficult to stay [sic] with certainty, given the temporal relationships, I am willing to say that [possible RAD] did develop from exposures at her previous work place.  Whatever breathlessness is left over from the above diagnosis should gradually clear over the ensuing months.@

 

On May 10, 2000, the employee filed a claim petition, listing a claimed injury of Aoccupational asthma@ occurring in March of 2000 and seeking temporary total disability benefits, medical expenses, and rehabilitation benefits.  The employer and its workers= compensation insurer denied the occurrence of a work injury.

 

Integrated Loss Control, Inc., conducted an air sample survey at the employer on August 13, 1997, because workers had expressed concern about the presence of smoke produced in a cutting process in the production area.  The study revealed the presence of AHexavalent Chromium, total mass, [and] routine metals which include Chromium, Iron, Manganese, Nickel, and Lead.@  The study indicated that none of the exposures was significant and that the observed smoke was

 

created by the thermal decomposition of the oils and other coatings present on the raw materials.  Once heated to a thermal decomposition temperature, these oils break down to hydrocarbon and form uncombusted, suspended particulate (smoke).  While these smokes may be irritating, and their appearance creates employees anxiety, they are largely inert.

 

On April 27, 2000, air sampling was performed at the employer by Environmental Health & Safety, Inc.  Based on the type of welding being conducted and the coatings present on metal parts, nitrogen dioxide and aldehydes were determined to be the most likely chemical air contaminants capable of inducing asthma.  Air sampling revealed low levels of nitrogen dioxide in the immediate vicinity of the welding station on the shop floor, with none in the office area, and no aldehydes were detected on either the shop floor or in the office area.

 

The employee returned to Dr. Johnson on June 9, 2000, indicating that she was getting worse.  Dr. Johnson modified the employee=s medications and noted that the employee was following up with Dr. Shuster.  A cardiopulmonary stress test conducted on July 5, 2000, was interpreted by Dr. John Olsen, who reported that the A[employee] appears to be cardiac limited; she is not respiratory limited.@   

 

On August 24, 2000, the employee was examined by independent medical examiner Dr. Samuel Hall, a board certified specialist in medical toxicology, internal medicine, and preventive medicine (occupational medicine).  He concluded that the employee suffered from chronic and recurrent dyspnea at rest, most likely secondary to vocal cord dysfunction, not work-related, and possible mild asthma, also not work-related.

 

The employee was seen by Dr. Shuster again on September 19, 2000, at which time she reported being bothered by exertional dyspnea.  Dr. Shuster noted that the employee was in a formal pulmonary rehab program at that time.  He ordered complete pulmonary function tests and an echocardiogram Ato reassure myself that no other alternative diagnosis is present.@

 

After reviewing Dr. Hall=s report, Dr. Johnson referred the employee to an ear, nose, and throat specialist, Dr. R. D. Hanson.  Dr. Hanson performed a fiberoptic laryngoscopy on October 3, 2000, and found the employee=s vocal cords to be normal, noting that there was dyspnea but no stridor present during the test.

 

On October 18, 2000, when she returned to Dr. Shuster, the employee indicated that she felt improved in comparison with her condition on September 19, 2000, and that she was completing a rehab program which she found helpful.  At that time, Dr. Shuster noted that his impression was Aasthma, exacerbated in late 1999 and early 2000 from a work-related environmental exposure.@ On November 14, 2000, Dr. Shuster wrote a letter disagreeing with Dr. Hall=s diagnosis.

 

The claim petition proceeded to hearing, and, in a findings and order filed on August 21, 2001, the compensation judge found, in part, that the employee had pre-existing allergy and asthma conditions, that the employee=s efforts on pulmonary function tests given on and after April 17, 2000, were suboptimal and inconsistent, and that the employee had not sustained an injury arising out of and in the course of her employment with the employer.  The compensation judge therefore denied the employee=s claims in their entirety.  The employee appeals from these findings.

 

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 employee first contends that the compensation judge implicitly found that the employee did not suffer a physical injury at any time in 1999 or 2000 and that there is no evidentiary support for such a finding, as it is undisputed that the employee received treatment and was hospitalized in early 2000.  However, the employee=s claim, as set forth in opening statements at hearing, was for a work-related Apermanent aggravation of an underlying asthmatic condition which has left the employee with a diagnosis of suffering from reactive airways disease.@  Whether an injury of some kind occurred was not the question; rather, the issue was whether the employee sustained an injury arising out of and in the course of her employment with the employer.

 

Next, the employee contends that the compensation judge suggested that the employee=s condition preceded her employment and therefore was not work-related, and she argues that there was no factual support for that part of the judge=s decision.  We are not persuaded.  While the compensation judge made an explicit finding that the employee had pre-existing asthma, he also explicitly found the causation opinion of Dr. Hall to be the most convincing.  Dr. Hall diagnosed chronic and recurrent dyspnea at rest, most likely secondary to vocal cord dysfunction, which he opined was not work-related.  While Dr. Hall also diagnosed possible mild asthma, he explained in the discussion portion of his report why he did not think that the employee=s pre-existing asthma had been aggravated by any exposure at the workplace.^[1]

 

The employee argues that Dr. Hall is the only doctor to diagnose vocal cord dysfunction and that Dr. Hall=s diagnosis is lacking in foundation.  We agree that Dr. Hall is the only doctor to have diagnosed vocal cord dysfunction, but we know of no requirement that a doctor=s diagnosis be confirmed by another doctor in order to be accepted by a compensation judge.

 

This case comes down to a choice between expert opinions.  Certainly, there is evidence which would have supported an alternative finding.  But, where the evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  A trier of fact=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The employee has not pointed to any facts assumed by Dr. Hall that were not supported by evidence.  Rather, the employee attacks Dr. Hall as having formed his opinion as to a diagnosis Airrespective and irregardless of any clinical findings.@  Again, we are not persuaded.  Dr. Hall is board certified in medical toxicology, internal medicine, and preventative medicine (occupational medicine and medical toxicology).  He examined the employee and reviewed relevant medical records, and his report is detailed and complete.  In addition, he wrote two follow-up letters addressing concerns that Dr. Shuster and Dr. Johnson raised about the conclusions contained in his August 24, 2000, report.^[2]  Clearly, it was not unreasonable for the compensation judge to accept the opinions of Dr. Hall.

 

In addition to the medical opinion of Dr. Hall, the May 8, 2000, report of Ronald L. Pearson, a toxicologist/industrial hygienist, and Charles McJilton, senior industrial hygienist of Environmental Health & Safety, Inc., supports the compensation judge=s findings.  Mr. Pearson and Dr. McJilton concluded that the employee=s exposure to airborne contaminants from welding operations at the employer was not responsible for the employee=s asthma.   

 

The employee also appealed from the judge=s finding that the employee=s efforts on pulmonary functions tests were suboptimal and inconsistent.  A pulmonary function test conducted by Dr. Shuster on April 24, 2000, revealed Ainconsistent patient effort.@  Dr. Olsen noted on July 5, 2000, that the spirometry testing that day revealed suboptimal patient effort, and he interpreted pulmonary function tests on October 3, 2000, as showing Apatient=s effort is somewhat suboptimal and inconsistent.@  As such, there is support in the record for the judge=s finding.^[3]

 

Because substantial evidence supports the compensation judge=s findings, we affirm his decision in its entirety.