Dulon v. Andersen Corp.

LINDA DULON, Employee/Appellant, v. ANDERSEN CORP. and INSURANCE COS. OF WAUSAU, Employer-Insurer, and BLUE CROSS-BLUE SHIELD OF MINN./BLUE PLUS, METROPOLITAN NEUROLOGY, HEALTHEAST MEDHOME, and MIDWEST SPINE & ORTHOPEDICS, Intervenors.

CAUSATION - GILLETTE INJURY. Substantial evidence supports the determination of the compensation judge that the employee did not sustain a Gillette injury to her cervical spine.

The employee appeals from the determination of the compensation judge that she did not sustain a work-related injury to her cervical spine. We affirm.

Linda Dulon, the employee, claims that she sustained a Gillette^[1] injury to her cervical spine as a result of her work activities at Andersen Corporation. Andersen and its insurer, Insurance Companies of Wausau, denied the employee=s claim. The employee=s claim petition, filed March 22, 2001, was heard by Compensation Judge Jeanne Knight on August 23, 2002.

The employee began her most recent period of employment with Andersen in 1987.^[2] The employee, who was born December 10, 1958, was 29 when she began work and testified that she had no history of cervical injuries or pain before her employment.

Andersen is a manufacturer of windows and the employee worked a variety of production line jobs. For the first two years of her employment, her job was to stack windows that came off the production line. The job required lifting of up to 30 pounds unaided; windows weighing more than that were lifted with the help of a co-worker. The employee then moved to an easier job on the line, installing weather stripping. She did this assignment for four years. The employee testified that she was able to physically tolerate both jobs and had no cervical complaints during that time.

In 1992, the employee moved to what she described as the Agravy job on the line@, bead pounding. ABead@ refers to a plastic strip which is inserted between the window and the frame to hold the window in place. As a window came down the line, the employee and a co-worker would each insert two pieces of bead. This was done by using a tool, a bead pounder, to force the bead into place.

Extensive testimony was provided at the hearing as to the exact body positioning used by the employee to do this assignment. The employee had to bend over at the waist to do the bead pounding and she was expected to visually inspect the product as well. This activity required head positioning which was demonstrated to the compensation judge at hearing. The employee testified that between 900 and 1,200 windows were done each day.

On December 1, 1998, the employee consulted with her family doctor, Dr. R. J. Stoy at Hudson Physicians. Her history was Ais in with neck pain for two weeks. She had the same problem a year ago. No known injuries. She does lean over a belt in a factory at Andersen=s 8-10 hours a day and sometimes on Saturdays.@ Dr. Stoy diagnosed a left trapezius muscle strain and prescribed medications. The employee returned on December 3 with a complaint that the pain was not responding to the medication. Dr. Stoy referred her to physical therapy. In the physical therapy intake note of December 7, 1998 the employee was quoted, in referring to the origin of her pain, that she was Anot sure if it=s from bending my neck down at work all the time.@

Although there was some initial indication of improvement, the employee=s neck pain continued and after her January 13, 1999 visit, Dr. Stoy referred her to an orthopedist, Dr. Thomas Rieser. The employee first saw Dr. Rieser on January 20, 1999. A history was taken of neck pain which had started about one year ago. The employee could not recall any precipitating factors or injuries or accidents. Arm symptoms had started in November 1998. An MRI which had been taken on January 7 showed a herniated disc at C5-6. Dr. Rieser recommended an EMG of the upper extremity and, depending on the EMG results, a C6 nerve root block.

The employee had two nerve root injections, but at the C5 nerve root, and some brief improvement was noted. With the employee noting continuing neck pain and with a positive discogram Dr. Rieser recommended surgery at the time of the employee=s October 6, 1999 visit with him. On October 25, 1999, Dr. Rieser performed an anterior cervical fusion at the C5-6 and C6-7 levels.

The employee had been taken off work by Dr. Stoy on December 1, 1998. On December 11 she was released to light duty work at Andersen and then was taken off work on January 4, 1999. She remained off work through April 4, 1999, returned to light duty work until September 9, 1999 and then went off work again. It was the employee=s testimony that she first determined that her neck condition was work related in March 1999 when she discussed the issue with Dr. Rieser. The employee testified that she advised a nurse from Andersen who had been helping her with her light duty assignments that she had incurred a work injury. Andersen denied it had any notice of a claimed cervical work injury until November 1999.

After the 1999 surgery, the employee returned to light duty briefly as of September 24, 2000 and then stopped working again on October 16, 2000. In a December 20, 2000 visit, Dr. Rieser noted that a recent CT scan showed a nonunion at the C5-6 level. Dr. Rieser recommended a posterior fusion at that level, an operation which was done on January 22, 2001. Thereafter, the employee=s condition slowly improved and the parties stipulated that the employee reached maximum medical improvement on November 8, 2001. On November 15, 2001, Dr. Rieser released the employee to sedentary work with no static neck flexion, no repetitive neck flexion, no repetitive overhead activities and no repetitive neck rotations.

On November 8, 2001, Dr. Rieser prepared a report at the request of the employee=s attorney. In his report, Dr. Rieser stated that Awith regards to causation, it is my opinion that she has degenerative disc disease of her cervical spine which was aggravated by a work situation to a significant degree.@ Dr. Rieser concluded that 50 percent of the condition was due to work and 50 percent to non work related issues. In response to a letter from the employee=s attorney which detailed the employee=s work activity, Dr. Rieser issued a report of June 13, 2002 in which he stated Aher job involved long flexion of the neck as well as repetitive rotation of the neck. This can certainly cause an aggravation to degenerative disc disease. It is my opinion that it has caused an aggravation beyond normal progression.@

On August 28, 2001, the employee was evaluated on behalf of the employer and insurer by Dr. Edward Szalapski. In his report of that date, he concluded that the employee=s cervical condition was the result of degenerative changes and not her employment, Athe head position discussed and described by Ms. Dulon is not significantly different from head positions required in the everyday life of a very large number of American citizens. I do not feel that it is of a severe enough nature to cause her degenerative condition. With a reasonable degree of medical certainty, this condition is caused by constitutional factors such as genetics.@ In his deposition, Dr. Szalapski restated his conclusions and basis for them.

At the hearing, the issues for the compensation judge=s determination were whether the employee had sustained a work-related injury to her cervical spine, whether the employee had provided notice to the employer of that injury as required by statute, and whether the employee had engaged in a reasonably diligent job search after December 20, 2001, the date Dr. Rieser believed she could work full-time. In addition to stipulating as to the date of maximum medical improvement, the parties also agreed that, if the employee=s condition was compensable, that she had a 15 percent permanent partial disability of the body due to her cervical condition.

In her Findings and Order, served and filed October 22, 2002, the compensation judge found that the employee had failed to prove by a preponderance of the evidence that she had incurred a Gillette injury to the cervical spine in November or December 1998 or at any other time in her employment at Andersen, that the employee had failed to provide notice to her employer of a claimed cervical injury and that the employee did not engage in a diligent search for employment. The employee appeals.

The employee contends on appeal that substantial evidence does not support the decision of the compensation judge and that the clear weight of the evidence mandates a reversal and award of benefits.

The determination of whether the employee has sustained a work-related injury is a finding of fact to be made by the compensation judge and if that finding is supported by substantial evidence, it is to be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235, (Minn. 1984). We have held that the question of causation in a Gillette claim is primarily based on the medical opinions produced on the issue. Marose v. Maislin Transport, 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987).

In the present case, the compensation judge specifically accepted and relied upon the opinion of Dr. Szalapski, the independent medical examiner. Dr. Szalapski concluded that the employee did not have a Gillette injury to the cervical spine and that the cause of the employee=s condition was degenerative disc disease or arthritis. While the treating doctor, Dr. Rieser, may have reached a contrary opinion, the choice between competing medical opinions is for the compensation judge to make. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

The employee argues, however, that Dr. Szalapski=s opinion lacked foundation in that he misunderstood the way in which the employee had to position her head to do her job and that he was not aware of the number times in a day that the employee had performed those functions. That information was presented to Dr. Szalapski in his deposition and did not change his opinion that the employee=s job did not produce the type of stress on the cervical spine which would result in injury.

Further, the manner in which the bead pounding job required the employee to hold her head was the subject of extensive testimony and was demonstrated to the compensation judge. The compensation judge had ample opportunity to compare that evidence with the assumptions made by the doctors. The compensation judge obviously concluded that Dr. Szalapski=s opinion was best supported by the evidence. We find the compensation judge=s decision to be supported by substantial evidence and it is affirmed.

The employee has also appealed the determination of the compensation judge that she did not provide notice to her employer as required by Minn. Stat. ' 176.141. Given our approval of the compensation judge=s decision on primary liability, the issue of notice will not be considered.

^[1] Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W.2d 200, 205-06, 21 W.C.D. 105, 111-13 (1960).

^[2] The employee had worked previously for Andersen from 1977 to 1979.