SHARON DWYER, Employee/Appellant, v. ST. MARY=S MEDICAL CTR./DULUTH CLINIC, SELF-INSURED/BERKLEY RISK ADM=RS, Employer, and MN DEP=T OF HUMAN SERVS. and MEDICA/HEALTHCARE RECOVERIES, INC., and MN DEP=T OF LABOR & INDUS./VRU, Intervenors.

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 23, 2003

HEADNOTES

EVIDENCE - EXPERT MEDICAL OPINION; EVIDENCE - BURDEN OF PROOF; CAUSATION - SUBSTANTIAL EVIDENCE.  Where it was clear from his memorandum that the compensation judge did not reject the treating physician=s opinion without weighing it against contrary medical evidence of record, and where that contrary medical evidence of record was substantial notwithstanding arguable foundational weaknesses in the only formal adverse expert opinion, the compensation judge=s conclusion that the employee did not prove by a preponderance of the evidence that her work activities were a substantial contributing factor in the development of her bilateral arthritic thumb condition did not constitute an improper dismissal of prima facie evidence.

Affirmed.

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

Compensation Judge:  Ronald E. Erickson.

OPINION

WILLIAM R. PEDERSON, Judge

The employee appeals from the compensation judge's denial of benefits on grounds that the employee did not prove that her work activities for the employer were a substantial contributing cause of her bilateral thumb condition.^[1]  We affirm.

BACKGROUND

During the 1970s Sharon Dwyer worked mostly at waitressing, laundry, and secretarial jobs, and during the 1980s she worked mostly as a bartender.  In 1989, Ms. Dwyer [the employee] commenced employment with St. Mary=s Medical Center/Duluth Clinic [the employer], first in the laundry and later in the medical records section.  Over the ensuing years, the employee sustained several work injuries in the course of her employment with the employer.  In April of 1991, during her employment in the laundry, she reached maximum medical improvement [MMI] with regard to carpal tunnel syndrome, medial epicondylitis, and ulnar neuropathy injuries, with no permanent partial disability.  In the report to that effect on April 8, 1991, Atingling and numbness of right hand@ about a year earlier was listed as a preexisting condition affecting the disability.  During her subsequent employment in the medical records section, beginning about May 1, 1993, the employee normally worked the evening shift, where her principal task was to pull medical charts from tightly packed files, put them onto carts, and then distribute them to assigned sections or floors of the hospital.  Being right-handed, the employee would normally pinch and pull the charts out from the files with her right hand while pressing surrounding charts aside with her left.  She would handle up to two hundred charts in an evening in this manner, sometimes being required also to photocopy certain items from the files for distribution to third parties or to operate a hole punch to prepare items for binding in the charts.

In August of 1997, the employee began complaining to family practitioner Dr. George Jennings of pain and decreased strength in her hands and thumbs that had been increasing over the past couple of years.  Dr. Jennings diagnosed arthritis of the hands bilaterally, possibly rheumatoid, and provisionally prescribed anti-inflammatories.  On September 5, 1997, after checking the results of certain lab tests for an early onset of rheumatoid arthritis, Dr. Jennings diagnosed hand pain Asecondary to osteoarthritis,@ concluding that it was probably related to neck and knee pain that the employee was also being treated for at the time.   On April 16, 1998, the employee saw Dr. Jennings again, who diagnosed A[d]iffuse arthritis affecting neck, hands, and feet.@  Although lab tests in the fall of 1997 had proved negative for a rheumatoid factor, Dr. Jennings noted that the employee Acertainly seems to have clinical findings and subjective complaints of a more aggressive arthritis,@ and he referred the employee to rheumatologist Dr. Robert Leff.

When she saw him on May 20, 1998, the employee complained to Dr. Leff of pain and swelling in her hands that had been continuing for over a year and that was causing her to have difficulty pulling charts in the course of her work for the employer, due to the pain in her fingers.  X-rays revealed moderately advanced degenerative changes about the first carpal metacarpal [CMC] joint on the left and mild such changes about that joint on the right.  Dr. Leff diagnosed osteoarthritis of the first CMC joints, with A[n]o evidence of an inflammatory arthritis,@ and prescribed Tylenol, anticipating the possible need for injections if the Tylenol proved ineffective.  On May 27, 1998, Dr. Leff stated in a letter to Dr. Jennings,

I think that most of [the employee=s] problems are osteoarthritis. . . .  If necessary I can inject her CMCs bilaterally in the future if needed or use splints.  We could also consider having her see an orthopedist if this gets bad enough for possibly a fusion or tendon transposition into the first CMC joint.

In the spring of 2000, the employee evidently began having a substantial amount of pain in her right knee in addition to ongoing pain in her thumbs. On May 3, 2000, she saw Dr. Catherine Buley, who noted, with regard to the thumbs, swelling and tenderness along the first metacarpal of both thumbs bilaterally, and Dr. Buley diagnosed bilateral hand arthritis.  On May 11, 2000, the employee saw Dr. Leff again, who diagnosed osteoarthritis of the first CMC joints bilaterally and administered injections of Aristospan and Lidocaine bilaterally.  X-rays on May 26, 2000, revealed osteoarthritis changes that had progressed since the x-rays of May 20, 1998, and Dr. Leff discussed with the employee the possibility of fusion of the first CMC joints or perhaps tendon transfer surgery, noting that he thought Ashe needs to see an orthopedist for their opinion as the type of work she is doing may be aggravating things and she may have to stop that.@

About two years later, on May 15, 2000, the employee called in to the rheumatology section of her treatment facility, complaining of continuing bilateral thumb pain, and she was referred back to Dr. Leff, whom she saw on May 26, 2000.  X-rays revealed marked changes of osteoarthritis involving the first CMC joints bilaterally, with subchondral cyst formation bilaterally, and Dr. Leff referred the employee to orthopedic surgeon Dr. J. Joseph Davis, whom she saw on June 28, 2000.  She complained to Dr. Davis of significant pain at the base of her thumbs over the past three or four years, that seemed to be getting worse, and of having difficulty performing any pinching or grasping tasks such as pulling charts or turning door handles.  Dr. Davis diagnosed severe bilateral first trapeziometacarpal joint osteoarthritis and provisionally recommended surgical soft tissue interposition arthroplasty with lateral ligament reconstruction.  On August 16, 2000, after braces and injections had not resulted in significant relief of the employee=s thumb pain, Dr. Davis performed the recommended surgery on the employee=s right hand.  On the date of her surgery, the employee was fifty-five years old and was earning a weekly wage of $340.44.  Subsequent to that surgery, on September 6, 2000, Dr. Davis restricted the employee from working until November 1, 2000, based in part on the post-surgical status of her thumbs.

Subsequent to the surgery on her right hand, employee continued to experience increasing pain in her left hand, and on November 29, 2000, she was seen, on referral from Dr. Davis, by  Dr. William Haug, for a preoperative physical in that regard.  Dr. Haug diagnosed pain secondary to arthritis, noted a history of rheumatoid arthritis, and cleared the employee for surgery on the left thumb.  The following day, November 30, 2000, Dr. Davis performed on the employee=s left hand a trapezoidometacarpal soft tissue interposition arthroplasty with lateral ligament reconstruction with flexor carpi radialis and a partial ulnar tendon.  Subsequently, on December 15, 2000, he restricted the employee from working and issued permanent restrictions against repetitive pinching activity.

On January 30, 2001, the employee=s attorney wrote to Dr. Davis, inquiring as to several matters regarding potential workers= compensation claims related to the employee=s right knee and both hands.  In his letter, the employee=s attorney described in substantial detail the employee=s work in the medical records section at the employer and requested in part Dr. Davis=s opinion as to whether the employee=s thumb condition was causally related to her work activities.  The employee was eventually released to return to limited work on March 1, 2001, restricted from performing any gripping or pinching tasks with her left hand or any repetitive pinching tasks with her right.  On or about that same date, the employee=s employment with the employer was evidently terminated.

In office notes dated March 19, 2001, Dr. Davis stated, AIt is my thought that the work activities were particularly the medical records as a substantial contributing factor to the problems in her bilateral thumbs@ (sic).  In a report to the employee=s attorney dated that same day, Dr. Davis stated,

it is my feeling that the trapezial metacarpal arthrosis, for which [the employee] ultimately underwent bilateral thumb surgery, can be substantially aggravated by the job requirements of someone working in medical records.  The pinching and pulling of charts and other papers would consistently place stress in the joint in question.

On March 23, 2001, the employee was examined by Dr. Haug again with regard to multiple issues, including Aher rheumatoid arthritic condition in her thumbs,@ and four days later Dr. Haug wrote to Dr. Leff, referring the employee back to him regarding her Ahistory of rheumatoid arthritis.@  On April 12, 2001, the employee saw Dr. Davis again with continuing thumb dexterity problems, but the employee=s Apinch power@ improved over the course of the next few months, apparently thanks to a regimen of hand therapy, and on July 19, 2001, Dr. Davis released the employee to work restricted only to using a thumb brace Aas needed for comfort[].@

On December 7, 2001, the employee filed a Claim Petition, alleging entitlement to temporary total and permanent total disability benefits continuing from August 16, 2000, together with unspecified permanent partial disability benefits, certain medical benefits, and rehabilitation benefits in the event that permanent total disability benefits should be deniedBall consequent to a Gillette-type injury^[2] on August 15, 2000.  Subsequent to filing her claim petition, the employee continued to be treated for both her thumb condition and a right knee condition.  Between December 6, 2001, and April 25, 2002, she saw orthopedist Dr. Robin Hendricks at least five times for what was diagnosed as right knee arthritis.  By deposition on April 2, 2002, Dr. Haug testified in part that the cause of the employee=s thumb condition may have been rheumatoid arthritis, agreeing that one of the characteristics of rheumatoid arthritis is that it manifests itself bilaterally.  Dr. Haug testified also that the employee=s movements at work Acould have@ played a causative role in the development of her thumb condition, that there was, in fact, Aa higher probability that the work had something to do with [the condition].@  On April 4, 2002, QRC Dale Kinnunen determined that the employee was entitled to rehabilitation services based on her alleged August 15, 2000, work injury.

The employee had been examined for the employer the previous month by orthopedic surgeon Dr. Robert Hartman, regarding neck, knee, and bilateral thumb pain.  In his report on May 8, 2002, Dr. Hartman indicated that he had reviewed extensive medical records, including ones from Orthopaedic Associates of Duluth (Dr. Hendricks), from the employer (Drs. Leff and Davis), and from Duluth Family Practice Center^[3] (Drs. Jennings, Buley, and Haug), prior to the examination.  In the history section of his report, Dr. Hartman noted the employee=s report that she had been employed Aon the midnight shift in medical records,@ that that job Afrequently required her to take charts off of upper shelves,@ and that Ashe was required to do this on a repetitious basis.@  He reported also that the employee Astates that she has given up several activities including knitting and gardening because of thumb pain, and neck pain,@ and near the end of his report he noted that the employee had been Aasked if she had further information to provide@ and that she had Aresponded that she did not.@  With regard to the employee=s bilateral thumb condition, it was ultimately Dr. Hartman=s opinion that the condition was not due to the employee=s work activities at the employer.  Noting that the employee did not recall any specific injury to her thumbs, Dr. Hartman opined more specifically as follows:

Considering the natural history of CMC joint arthritis, it can be stated within a reasonable degree of medical certainty, that [the employee=s] degenerative CMC joint arthritis developed as a consequence of factors completely unrelated to her employment.  That is, CMC joint arthritis is a common finding in women, particularly older than age 40 years.  CMC joint arthritis has a significant heredity component as does osteoarthritis in general.   Clearly, [the employee] had a diagnosis of ANA positive osteoarthritis.  This condition developed entirely as a consequence of hereditary factors and the aging process. [The employee=s] day to day activities, activities of daily living, and recreational activities, as well as employment activities prior to [the employer] were all contributory in the development of CMC joint arthritis. [The employee=s] activities at [the employer] were not the substantial contributing cause to the development of CMC joint arthritis.

Dr. Hartman went on to state,

While [the employee=s] surgical procedures were performed with appropriate indications, they were not necessary entirely as a consequence of [the employee=s] employment activities at [the employer].  Again, numerous other factors including heredity, aging, prior employment activities, day to day activities, and recreational activities were all equally as important in aggravating [the employee=s] CMC joints, as compared to her employment activities at [the employer].

Dr. Hartman concluded that the employee did require certain restrictions on her physical activities as a consequence of her CMC arthroplasty, but he reiterated that Athese restrictions are imposed as a consequence of the pre-existing CMC joint arthritis and not as a consequence of any alleged injury stemming from [the employee=s] employment at [the employer].

On May 9, 2002, in a letter responding to a query from the employee=s attorney, Dr. Hendricks stated his opinion that it was reasonable for the employee to be subject to permanent restrictions on gripping, grasping, pinching, and fine use of her left hand, as would best be specified by means of a functional capacity evaluation.  On May 14, 2002, in response to a query from the employee=s attorney, Dr. Davis indicated in part that the employee had lost 100% function in each of her CMC joints, each ratable as a 17% whole body impairment under Minn. R. 5223.0480, subp. 2.D. 

The matter came on for hearing on June 5, 2002.  Issues at hearing included the employee=s entitlement to compensation for either temporary total or permanent total disability consequent to a work injury on or about August 15, 2000.  The employee testified at hearing in part that she did not remember exactly when her hands had started to bother her but that she did know that she had been working in the medical records section at the employer for a few years already when that occurred.  She testified also that her examination with Dr. Hartman had lasted about twenty-five minutesBtwenty minutes of interview and five minutes of physical examination, with a five-minute telephone interruption.  She testified also that Dr. Hartman had indicated to her that he had read the materials that had been sent to him pertaining to his examination of her.  When asked on direct examination whether Dr. Hartman had questioned her about her work at the employer or about her family medical history, she answered, respectively, AI don=t think he did@ and ANo, I don=t think so.@  Similarly, when asked whether she had told Dr. Hartman that she had once enjoyed gardening and knitting, she answered again, AI don=t believe I did.@  When asked whether she had talked with Dr. Hartman about her work history prior to her employment with the employer, she answered, AI don=t remember, I really don=t.@  Under cross-examination, the employee testified also that she did not recall ever talking with Dr. Davis either about her employment history or her recreational activities.

By findings and order filed September 6, 2002, the compensation judge concluded in part that the employee had failed to prove that her work activities at the employer were a substantial contributing cause of her bilateral thumb disability.  Based in part on that conclusion, the judge denied the employee=s claims in their entirety.  The employee 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

At Finding 18, the compensation judge concluded that the employee had Afailed to establish by a preponderance of evidence@ that her work activities at the employer were a substantial contributing cause of her bilateral thumb condition.  In the memorandum accompanying his decision, the compensation judge asserted that the employee=s position had relied on Dr. Davis=s report of March 19, 2001, to the effect that bilateral thumb arthritis such as the employee=s Acan be substantially aggravated by the job requirements of someone working in medical records@ (underscoring added).  The judge noted that ADr. Davis does not say that the employee=s underlying arthritis was substantially aggravated by her work activity@ (underscoring added), adding that the doctor had also provided no Arationale for why or how the employee=s work activity was a substantial contributing factor to the development of her osteoarthritic thumbs.@  Noting that Dr. Davis=s report was also Aconsistent with the view [that the employee] simply had an exacerbation of symptoms as a consequence of her underlying condition@ and that there was no indication as to Awhether [Dr. Davis] considered other factors such as heredity, gender, and preexisting and off-duty activities,@ the judge concluded that Dr. Davis=s report was Atoo equivocal to rely upon as the basis for a finding of causation.@  On appeal, the employee contends that the compensation judge Aerred, as a matter of law, in concluding [that the employee] did not submit a prima facie case of causation@ and so did not weigh the competing opinions of the treating doctor and the IME doctor.  She argues that this court should therefore either substitute its own findings as to work-relatedness or remand the matter for a new hearing before a different compensation judge.  We are not persuaded.

Although the compensation judge references no causation opinion by either Dr. Davis or any other medical expert in his findings proper, the memorandum accompanying those findings clearly contains extensive discussion not only of the opinion and records of Dr. Davis but also of those of Dr. Jennings, Dr. Leff, Dr. Haug, and Dr. Hartman, all of which discussion repeatedly implies the issue of causation.  It is clear to us from the analysis in his memorandum that the judge did not dismiss Dr. Davis=s opinion on a prima facie basis but instead did indeed weigh all of the medical evidence of record prior to concluding, at Finding 18, that the employee had failed to prove Aby a preponderance of evidence@ (underscoring added)--not by virtue of an absence of evidence--that her work at the employer was a substantial contributing cause of her thumb condition.  Dr. Davis=s opinion and records, as well as those of Dr. Hartman and the other physicians here referenced, were formally and properly received into evidence.  Once expert medical opinion has been admitted into evidence, the evidentiary issue becomes one of weight rather than one of competence.  Burke v. Precision Eng=g and Royal Ins. Co., slip op. (W.C.C.A. Aug. 21, 1997).  It is evident to us from the judge=s memorandum that Dr. Davis=s opinion was not dismissed out of hand but was instead properly weighed on its merits against other evidence of record prior to being found insufficient proof of the employee=s entitlement.  Nor would the judge at any rate have been legally obligated to accept Dr. Davis=s opinion even had Dr. Hartman=s opinion been found lacking in foundation, as the employee has argued that it is.  See Ruether v. State, Mankato State University, 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1123 (Minn. 1990) (even where there is no adverse medical opinion rendered, rejected expert medical testimony is not necessarily unopposed where there exists other sorts of medical evidence to the contrary).  Moreover, although, under Flansburg v. Giza, 284 Minn. 199, 201-02, 169 N.W.2d 744, 746, 25 W.C.D. 3, 6 (1969), unopposed expert medical testimony may not be disregarded, such testimony is not necessarily conclusive upon the trier of fact, so long as it is, as was here the case with Dr. Davis=s opinion, duly considered.  See Tuomela v. Reserve Mining Co., 299 Minn. 203, 204, 216 N.W.2d 638, 639, 27 W.C.D. 312, 313 (1974).

In this case, it was not unreasonable for the compensation judge to conclude in his memorandum that the employee=s position hinged on the opinion of Dr. Davis and that that opinion was Atoo equivocal to rely upon.@  As the compensation judge suggested, Dr. Davis clearly did not opine that the employee=s arthritic condition was substantially aggravated by the employee=s work activities, only that such a condition Acan be@ aggravated by such activities.  The judge=s conclusion that Dr. Davis=s opinion was also insufficient for its lack of a full enough explanation of the mechanism of injury was also not improper.  Cf. Welton v. Fireside Foster Inn, 426 N.W.2d 883, 41 W.C.D. 109 (Minn. 1988).  The employee has argued that Dr. Hartman=s medical opinion, opposed to Dr. Davis=s, is of far less substantiality than Dr. Davis=s.  Even if that assertion were true, and we do not concede that it is,^[4] it is not in this case dispositive, since there is no evidence that the compensation judge relied any more importantly on Dr. Hartman=s opinion than on the absence of any other support for the employee=s position in the remainder of the employee=s very substantial medical record.  Cf. Reimer v. Minnit Tool/M.I.T. Tool Corp., 520 N.W.2d 397, 51 W.C.D. 153 (Minn. 1994) (while medical opinion evidence as to causation is desirable, it is not essential where there is other reliable evidence on the issue).  Osteoarthritis and possible rheumatic arthritis were evidently present not only in the employee=s hands but also in her knees and possibly in her neck.  It would not have been unreasonable for the compensation judge to conclude from that fact, particularly in light of Dr. Hartman=s opinion and the absence of certainty in Dr. Davis=s opinion, that the employee did not prove that the disabling arthritis in this case was substantially caused by the employee=s work for the employer.

Concluding that the compensation judge=s decision not to rely on the opinion of Dr. Davis was legally well within the judge=s prerogative, cf. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (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), and finding the judge=s decision in this case not otherwise unreasonable, we affirm the compensation judge=s decision that the employee failed to prove a causal relationship between her bilateral thumb condition and her work activities at the employer.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.