Burke v. Precision Eng'g/SPM Dynacast

DEBRA L. BURKE, Employee, v. PRECISION ENG=G/SPM DYNACAST and ROYAL INS. GROUP, Employer-Insurer/Appellants, and PRECISION ENG=G/SPM DYNACAST and LIBERTY MUT. INS. COS., Employer-Insurer, and REHABILITATION HEALTH SERVS., MINNEAPOLIS CLINIC OF NEUROLOGY, LTD., MN DEP=T OF LABOR & INDUS./VRU, and CIGNA HEALTH CARE, Intervenors.

GILLETTE INJURY - DATE OF INJURY; CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE. Where it was conceded that the employee had continued to perform work that was outside her restrictions through the April 28, 1999, date of her Gillette injury, where neither insurer ultimately contested the occurrence of that injury, and where the judge essentially concluded, reasonably, that each day that the employee worked between late 1998 and April 28, 1999, contributed to her disability, the compensation judge=s finding on remand that the employee=s work activities during final insurer=s two-week period of coverage immediately prior to the date of the Gillette injury were a substantial contributing cause of that injury was not clearly erroneous and unsupported by substantial evidence, notwithstanding the brevity of the final period of coverage.

PRACTICE & PROCEDURE - DEPOSITIONS. Where it was apparent from a preceding Findings and Order that the judge had thoroughly reviewed evidence submitted by the parties with regard to the occurrence of and date of a Gillette injury, where neither of the two insurers had sought in that proceeding to take the deposition of the employee=s treating physiatrist, and where the WCCA had affirmed the judge=s finding of a Gillette injury and remanded only for findings as to the substantial contribution to that injury of work activities during a certain period of time, the compensation judge did not err in refusing to allow the deposition of the physiatrist on remand.

The employer and insurer Royal Insurance Group appeal from the compensation judge=s determination on remand that the employee=s work for the employer from late 1998 to April 28, 1999, including the period from April 16 through April 28, 1999, was a substantial contributing factor in the employee=s Gillette-type^[1] injury of April 28, 1999, and from the judge=s denial of their motion to allow the deposition of Dr. Alan Bensman. We affirm.

This matter is before the court on appeal from the compensation judge=s findings and order following a remand for consideration and determination of whether the employee=s work from April 16, 1999, through April 28, 1999, was a substantial contributing factor in the employee=s Gillette injury of April 28, 1999.

Debra Burke [the employee] sustained a work-related injury to her low back on April 12, 1996, while working for Precision Engineering [the employer]. On that date, the employer was insured against workers= compensation liability by Royal Insurance Group [Royal], which accepted liability and commenced payment of benefits. In August 1997, this court affirmed a determination by Compensation Judge Harold Schultz that a recommended fusion surgery was reasonable and necessary and causally related to the employee=s April 12, 1996, injury. Burke v. Precision Eng=g, slip op. (W.C.C.A. Aug. 21, 1997). On October 30, 1997, the employee underwent a lumbar laminectomy at L4-5, discectomies at L4-5 and L5-S1, and a posterior fusion from L4 to S1, all performed by Dr. Andrew Smith. Following this surgery, the employee returned to work for the employer at lighter duty in March 1998. In a report to the employee=s attorney dated October 7, 1998, the employee=s treating physiatrist, Dr. Alan Bensman, rated the employee=s permanent partial disability at 22% of the whole body, based on the employee=s condition at L4 to S1. In that report, Dr. Bensman issued Apermanent restrictions because of the injury sustained on April 12, 1996,@ noting, near the end of his report, A[t]he possibility of her having progressive degeneration at the L3-4 level.@

On January 1, 1999, the employer=s workers= compensation liability coverage was temporarily shifted from Royal to Liberty Mutual Insurance Company [Liberty]. On March 1, 1999, the employee returned to see Dr. Bensman, complaining of an increase in left hip and thigh pain, with symptoms increasing with work. The doctor noted upon examination that there was Aincreased lumbosacral and iliolumbar ligament involvement as well as irritation of the gluteal, piriformis and quadratus muscles,@Asignificant tightness of the left iliotibial band,@ and Aresidual left L5 nerve root involvement@ but Ano evidence of active nerve irritation.@ Upon these findings, the doctor prescribed physical therapy, continued the employee=s restrictions, and recommended extension of the employee=s health club membership.

The employee=s March 1, 1999, appointment with Dr. Bensman was the employee=s only medical visit during the first three months of 1999. On April 1, 1999, the employee left on a planned vacation to Mexico, and she returned to her job with the employer on April 11, 1999. On April 16, 1999, Royal reassumed the risk for the employer=s workers= compensation coverage. On April 28, 1999, the employee saw Dr. Bensman again, who reported that she was complaining on that date of Aa significant increase in low back and left leg symptoms since about 4/21/99.@ Dr. Bensman indicated that the pain was Anow radiating into the left foot following primarily an L5 and possibly S1 dermatome.@ He stated, AInitially she was having increased low back symptoms at work, and the foot symptoms have come on in the last several days. She specifically denied any new injuries or other events that caused this.@ Dr. Bensman went on to indicate that the employee had been feeling better during her recent vacation to Mexico but that Athe symptoms increased when she returned to work.@ He noted that A[c]linically she presents with an exacerbation of the lumbosacral and gluteal myofascial areas of involvement@ and that A[t]here is also clinical evidence of increased left L5 and S1 nerve root irritation.@ In light of these findings, Dr. Bensman prescribed medication and restricted the employee from working.

Still off work, on June 1, 1999, the employee underwent an MRI scan of her lumbar back. In a June 17, 1999, report to Dr. Smith, Dr. Bensman indicated that the MRI had revealed some facet degeneration together with some Aevidence of retrolisthesis and a small left foraminal disc herniation which is causing slight displacement of the left L3 nerve.@ Minimal retrolisthesis and mild disc dehydration at L2-3 were also observed, but there was no observable evidence of disc herniation or stenosis. In a letter on that same date to the employee=s attorney, Dr. Bensman indicated that the retrolisthesis at L3 Ahas been progressively occurring since the fusion@ and that, in his opinion, Aall of the present findings are related to the injuries that were initially sustained on 4/12/96.@

On July 13, 1999, the employee returned to see Dr. Smith, on referral from Dr. Bensman, Afor reevaluation of a possible new problem, related of course to the old work injury, but an extension to the disc above the two that were previously fused.@ Dr. Smith reported on that date that, following her L4-5 and L5-S1 surgery, the employee Awas feeling much better and then over the last several months she has gradually gotten recurrent back pain.@

The employee remained off work through the end of 1999, and Dr. Bensman eventually prescribed physical therapy and referred her to Dr. Smith for a surgical evaluation. Dr. Smith recommended bilateral hemilaminotomies and discectomies at L3-4, with posterolateral anterior transverse process fusion at that level, which he performed on February 23, 2000, with Dr. Mark Gregerson, the operative report indicating that the back and leg pain being treated were Asecondary to instability at L3-L4.@

On June 6, 2000, the employee returned to be examined by Dr. Smith. In a letter on that date to the employee=s attorney, Dr. Smith indicated that, subsequent to undergoing her surgery at L4-5 and L5-S1, the employee had Ahad a new injury, this time affecting the L3-4 level as opposed to the L4-5 or L5-S1 and it was in conjunction with lifting and pushing and pulling when she went back to work after the previous work-related injury had healed sufficiently.@ Dr. Smith went on to state, AThe only relationship to the previous work-related injury in my opinion is the fact that it was in the same part of the spine but as I mentioned this would, in my opinion, reflect a new injury.@ Dr. Smith went on, AIn my opinion, the work activities as described to me by the patient just before the reinjury to her back were the cause of this new injury and were in fact lifting, pushing, pulling, and those sorts of things as described to me by the [employee].@ Dr. Smith did not mention a specific date on which the Anew injury@ to which he refers occurred.

On June 8, 2000, the employee was examined for the employer and Royal by Dr. Mark Friedland. Dr. Friedland concluded that the employee had sustained a Gillette-type injury on April 1, 1999, and that that injury was a substantial contributing factor in any perceived need for the surgery performed by Drs. Gregerson and Smith on February 23, 2000, at the L3-4 level of the employee=s spine.

In October 2000, the employee filed a claim petition seeking compensation for temporary total disability continuing from April 29, 1999, and payment of various medical expenses, both consequent to work injuries on April 12, 1996, April 1, 1999, and April 29, 1999. By Findings and Order filed July 23, 2001, Compensation Judge Harold Schultz determined that the employee had sustained a permanent injury to her back in the nature of a Gillette injury that had culminated on April 28, 1999. The judge also determined that the employee=s April 12, 1996, injury and her April 28, 1999, injury were both substantial contributing causes of the employee=s need for medical care and time off from work as of April 28, 1999. The judge concluded that Royal was responsible for the employee=s benefits, since it was the insurer on the risk for the 1996 injury and was on the risk at the time of the culmination of the Gillette injury on April 28, 1999.

In a decision issued April 24, 2002, this court affirmed the judge=s determination that the employee=s Gillette injury occurred on April 28, 1999. We noted, however, citing Tannahill v. Mid-American Lines, Inc., 40 W.C.D. 726 (W.C.C.A. 1987), that it was unclear from the judge=s decision whether he considered the fact that liability for a Gillette-type injury does not necessarily attach arbitrarily to the carrier on the risk at the time of the injury. The judge had failed to address the issue of whether the employee=s work from April 16, 1999, through April 28, 1999, had been a significant contributing factor in the employee=s Gillette injury, and accordingly we remanded the matter for reconsideration and further findings regarding liability for the April 28, 1999, Gillette-type injury.

On July 1, 2002, Judge Schultz conducted a pre-trial conference regarding the issue on remand. At the conference, an oral motion was made by counsel for Royal to consider the testimony of Dr. Bensman by deposition. Judge Schultz denied the motion and requested that the parties submit proposed findings for his consideration. On October 30, 2002, the judge issued his Findings and Order on Remand. Referring extensively to the medical records of Dr. Bensman, Judge Schultz determined that the employee=s work duties for the employer from late 1998 through April 28, 1999, were outside her restrictions and were a substantial contributing factor in the Gillette injury that culminated on April 28, 1999. The judge concluded that Dr. Bensman=s offices notes also supported the finding that the employee=s work activities from April 16, 1999, through April 28, 1999, were substantial contributing factors in the employee=s disability. Royal appeals.

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.

The dispositive issue in this case is whether substantial evidence supports the compensation judge=s determination that the employee=s work activities from April 16, 1999, through April 28, 1999, were a substantial contributing factor in the employee=s Gillette injury culminating on April 28, 1999. Royal essentially argues that the employee=s back and leg pain, for which Dr. Bensman took the employee off work on April 28, 1999, had already existed and reached maximum severity before the employee went on vacation on April 1, 1999. Judge Schultz had previously issued a finding, on September 29, 2000, that the employee had testified to back symptoms and shooting pain in her left leg down to her left foot by April 1, 1999, and Royal contends that there is no credible evidence that there was any appreciable change or progression in the employee=s condition consequent to her work activities between April 16 and April 28, 1999. Royal argues that the employee testified that, immediately upon her return to work after her vacation, her symptoms redeveloped to their pre-vacation level and intensity and that the history set forth in Dr. Bensman=s April 28, 1999, office note, that the employee had a significant increase in her low back and leg symptoms Asince about 4/21/99,@ is not consistent with the employee=s testimony or the prior findings of the judge. Royal contends that the judge=s assessment of liability against it is manifestly contrary to the evidence and should be reversed, in that the evidence establishes that the employee=s symptoms Apeaked and plateaued@ by April 1, 1999, and the employee=s own testimony does not support a worsening of her condition attributable to her employment during Royal=s coverage. We are not persuaded.

The employee appeared and testified before Judge Schultz on three separate occasions. While the employee did not testify to specific work activities causing specific symptoms during the period of coverage provided by Royal, such testimony is not necessary in a Gillette case. See Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). Moreover, the employee did testify that after October 8, 1998, her symptoms gradually worsened until Dr. Bensman took her off work on April 28, 1999. Further, in unappealed Findings 23 and 11, respectively, of the judge=s October 30, 2002, Findings and Order, the compensation judge found that the employee=s work duties at the employer from late December 1998 through April 28, 1999, were outside her restrictions as assessed by Dr. Bensman and that those duties, which included repetitive bending, stooping and squatting, as well as prolonged standing, were performed during Royal=s coverage. In his memorandum, the judge acknowledged the employee=s testimony of back symptoms and shooting pain in the left leg down to the foot by April 1, 1999, but he explained that his prior finding in that regard Adoes not eliminate [the employee=s] work duties after April 1, 1999 as being a substantial contributing factor to her disability.@ The judge also found it significant that the employee reported an increase in low back and leg symptoms on April 28, 1999, and that Dr. Bensman reported increased L5 and S1 nerve irritation at that time. The judge also noted that, while the employee had symptoms when she left for vacation on April 1, she could walk well enough to go to Mexico and to return to work on April 11, whereas on April 28 Ashe could not walk up to a block and could not continue with her work duties.@

The totality of the evidence is that the employee=s work activities from April 16 to April 28, 1999, which were outside her restrictions, are a substantial contributing factor to the Gillette injury that culminated April 28, 1999. Those nine days of work are just as much a substantial contributing factor to her disability than any other nine day period of work from late December 1998 to April 15, 1999. During that nine day period, she experienced an increase of symptoms while performing her duties at work, had to seek medical treatment and had to leave her job because of her physical inability to perform it. Also, there are medical opinions addressing the significance of her duties during 1999.

A Gillette injury is a result of repeated trauma or aggravation of a pre-existing condition which results in a compensable injury when the cumulative effect is sufficiently serious to disable an employee from further work. Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W.2d 200, 205-06, 21 W.C.D. 105, 111-13 (1960); see also Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981). In order to establish a Gillette injury, an employee must Aprove a causal connection between [her] ordinary work and ensuing disability.@ Stephen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). Further, it is well settled that injuries are compensable if the employment is a substantial contributing factor not only in the cause of the present condition but also in the aggravation or acceleration of a pre-existing condition. Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975). An employee need not prove that the employment was the sole cause, only a substantial contributing cause, of the disability for which benefits are sought. Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989). Ultimately, 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 reasonably concluded that the fact that the employee had symptoms on April 1, 1999, does not compel a finding that her work activities thereafter are not a substantial contributing factor in her disability. As the judge pointed out, the employee continued to perform work that was outside her restrictions through April 28, 1999. Neither insurer in this case ultimately contested the occurrence of the employee=s Gillette injury, and the judge essentially concluded, reasonably, that each day the employee worked between late 1998 and April 28, 1999, contributed to her disability. This conclusion is supported by the medical records of Dr. Bensman and Dr. Smith. The fact that the employee experienced low back and leg symptoms prior to April 21, 1999, does not negate the evidence in Dr. Bensman=s records that the employee was experiencing an increase in symptoms when she was seen on April 28, 1999, that there was a documented change in her condition at that time when compared with her condition on March 1, 1999, and that her increased symptoms required her to be taken off work.

Given the brief period of Royal=s coverage in April 1999, we acknowledge, as did the compensation judge, that this is a close case. However, because it is a close case, more than one inference may reasonably be drawn from the evidence. Where more than one inference may reasonably be drawn from the evidence, the finding of the judge is to be affirmed. Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240. The judge=s conclusion that Royal=s coverage is a substantial contributing cause of the employee=s Gillette injury is reasonably supported by the evidence as a whole, including the medical opinions expressed by Drs. Bensman and Smith. We conclude that the compensation judge=s finding that the employee=s work activities from April 16, 1999, through April 28, 1999, were a substantial contributing factor in her disability and medical treatment is supported by substantial evidence in the record, and must be affirmed. Minn. Stat. ' 176.421, subd. 1 (1992); Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

Royal also contends that the compensation judge committed an error of law by refusing to allow the deposition of Dr. Bensman after this court=s remand on the issue of liability for the Gillette injury. It contends that Dr. Bensman=s records are arguably the sole source of any fact that could be construed as supporting a Gillette injury during its coverage. We do not agree.

First of all, it is apparent from the Findings and Order issued by Judge Schultz on July 23, 2001, that the judge thoroughly reviewed the evidence submitted by the parties. At issue at that time was whether the employee had sustained a work injury subsequent to her injury of April 12, 1996, and, if so, the date of such an injury. Neither Royal nor Liberty sought at that time to take the deposition of Dr. Bensman, although each had reason to know that the determination of a date of injury would impact on its own liability. This court subsequently did find a post-April 12, 1996, work injury, and we remanded the case to the compensation judge only for a finding on whether the employee=s work from April 16, 1999, through April 28, 1999, was a substantial contributing factor in that injury. We did not remand the case for development of additional evidence. Royal=s motion for the deposition was objected to by Liberty, and the judge ultimately concluded that he did not require additional evidence from Dr. Bensman to make his finding on the remanded issue. We see no basis on which to conclude that the judge erred in denying Royal=s motion. The judge=s determination in this regard is affirmed.

^[1] See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).

^[2] For a more extensive factual background in this matter, see this court=s decisions in Burke v. Precision Eng=g, slip op. (W.C.C.A. Aug. 21, 1997) and Burke v. Precision Eng=g, slip op. (W.C.C.A. Apr. 24, 2002).