NOEMI FIGUEROA, Employee/Cross-Appellant, v. HEALTHEAST CARE CENTER, and SELF-INSURED/BERKLEY RISK ADMIN CO., Employer-Insurer/Appellants, and SUMMIT LANDMARK ORTHOPEDICS, LTD., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 16, 2003

 

 

HEADNOTES

 

CAUSATION.  Substantial evidence supports the findings of the compensation judge that the employee sustained a work related injury to her left shoulder but did not have a work related injury to the left elbow.

 

Affirmed.

 

Determined by Stofferahn, J., Johnson, C.J., and Pederson, J.

Compensation Judge: Jane Gordon Ertl

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer has appealed the compensation judge=s decision that the employee sustained a work-related injury to her left shoulder.  The employee has cross-appealed from the denial of her claim that she had a work-related injury to her left elbow.  We affirm.

 

BACKGROUND

 

Noemi Figueroa began working for HealthEast, the employer, in November 1997.  The employee worked as a nursing assistant at White Bear Lake Care Center providing care to residents.  The employee testified that she had no problems or symptoms with her left arm before beginning work for the employer. 

 

The employee first noted pain in her left elbow after transferring a resident on May 1, 2001.  She testified that the resident resisted the movement and the employee felt a strain in her left arm in the elbow area as she completed the procedure.  She did not report the incident to her employer and she continued to perform her regular duties.  

 

On May 3, 2001, the employee consulted with her family doctor, Dr. Alfredo Beltran for a routine examination as well as for a skin rash and left elbow pain.  Dr. Beltran assessed the employee as having lateral epicondylitis and prescribed Vioxx for her.  The employee returned to see Dr. Beltran on May 22 for left elbow pain.  His examination found tenderness on the lateral epicondyle and he continued his prescription of Vioxx and also injected her elbow with a mixture of Kenalog and Lidocaine.  There was no history in either of these visits that the employee attributed her pain to a work injury.  The employee testified that she told co-workers and supervisors that she had hurt her elbow at work but no report was filed.  The employee indicated that her symptoms were relieved by the injection. 

 

The employee visited Dr. Beltran on October 19, 2001, because her left elbow pain had returned and the pain was worse than it had been in May.  Dr. Beltran provided her with samples of Vioxx and gave the employee another injection of Kenalog and Lidocaine.  The employee testified that the shot gave her no relief from her pain.  She returned to Dr. Beltran on November 8.

 

In his history on that date, Dr. Beltran noted that the employee was a nursing home assistant and Ashe lifts a lot and carries heavy patients.  She also does a lot of repetitive movements of her left elbow because of the kind of job she does.  For this reason, she has been babying her left elbow while at work because after doing all of the activities, she experiences severe pain.@  Dr. Beltran referred the employee to an orthopedic surgeon, Dr. Lewis Gramer. 

 

Dr. Gramer saw the employee on November 13, 2001.  He took a history of left elbow pain for five months which had been aggravated by work activity.  On examination, he found sensitivity to palpation over the lateral epicondyle and diagnosed lateral epicondylitis.  His initial plan was for the employee to do stretching and to use ice massage.  He also did a cortisone injection.  The employee reported on a return visit of December 11 that she had significant improvement and Dr. Gramer released the employee to regular activities. 

 

On January 6, 2002, the employee was helping a resident into a wheelchair.  The resident sat down unexpectedly and sat on the employee=s left arm.  The employee stated she could not pull out her arm because the resident was a large woman.  A co-worker had to stand the woman up so the employee could remove her arm.  The employee testified that her entire left arm and shoulder hurt after this incident.  The employee reported this incident to her employer. 

 

On January 8, 2002, the employee returned to Dr. Gramer complaining of a recurrence  of significant lateral epicondylitis that caused her to be unable to function at work.  Dr. Gramer found sensitivity to palpation over the lateral epicondyle which was accentuated with extension against resistance.  Dr. Gramer recommended surgery.  No reference was made to the January 6 incident or to left shoulder pain.  The employee had a pre-operative physical with Dr. Beltran on January 29 and there was no mention of shoulder pain in Dr. Beltran=s records. 

 

Dr. Gramer did surgery on the employee=s left elbow on February 4, 2002, a lateral epicondylar release.  The employee noted relief from the surgery and followed up with Dr. Gramer  for care of her elbow.  On May 2, 2002, Dr. Gramer prepared a work release which would allow the employee to lift/carry and push/pull 11-25 pounds, with no use of vibrating tools or coarse manipulation with the left arm. 

 

The employee saw Dr. Beltran again on February 19, 2002.  She advised him on that date of the January 6^th incident and complained of pain which was described as being in the upper left pectoral area and upper left back and mid-back area.  Dr. Beltran assessed the discomfort as being due to lack of use since the elbow surgery and also due to a questionable muscle strain incurred on the job.  The employee was given medications, exercises to do and was advised to use a hot pack.  The employee returned on March 19 with continuing left shoulder and arm pain.  Dr. Beltran restated the history of the January 6 incident and also indicated that the left elbow surgery was work related because of the repetitive use of her left upper extremity.  The employee was kept off work, scheduled to begin physical therapy, and prescribed Darvocet and Vioxx.  An x-ray of the left shoulder taken on that date showed an intact joint space. 

 

The employee saw Dr. Beltran again on May 21 with continued left shoulder pain.  Physical therapy had helped with her symptoms but had to be stopped for lack of insurance payment.  Dr. Beltran continued to keep her off work and continued her medications.  On May 28, 2002, Dr. Beltran wrote a letter in which he referred to the employee=s repetitive use of her arm as a nursing assistant and stated Athis repetitive trauma somehow culminated to a form of permanent injury to her left elbow and this necessitated left lateral epicondyle release done on 2/4/02.@ 

 

At the request of the employer and insurer, the employee was seen by Dr. Paul Dworak for an evaluation of her left elbow and left shoulder pain.  In his April 30, 2002 report, Dr. Dworak provided his opinion that the employee=s lateral epicondylitis was not work related.  In his deposition, Dr. Dworak explained that, although the job of a nursing assistant might involve repetitive use of the arms, the activity is not of the sort which would bring on epicondylitis.  Dr. Dworak found no objective evidence of a shoulder injury in his examination and concluded that the employee had not sustained a shoulder injury on the job. 

 

The employee filed a claim petition on February 8, 2002, alleging injuries of May 1, 2001 and January 6, 2002, to the left elbow and left elbow, neck and shoulder.  She claimed entitlement to temporary total disability from January 22, 2002 and continuing as well as medical expense for the elbow surgery.  At the hearing, the employee also claimed to have sustained Gillette^[1] injuries to her left elbow on October 19, 2001 and November 8, 2001.  The employee=s claim petition was heard by Compensation Judge Jane Gordon Ertl on May 31, 2002. 

 

In her Findings and Order, served and filed July 31, 2002, the compensation judge determined that the employee=s lateral epicondylitis was not due to a May 1, 2001 work injury.  She also found that the employee did not incur Gillette injuries to her left elbow or an injury to her left elbow on January 6, 2002.  The compensation judge determined that the employee had sustained an injury to her left shoulder on January 6, 2002 and awarded temporary total disability from February 19, 2002 and continuing.  The compensation judge determined the employee had not reached MMI, Maximum Medical Improvement, for her left shoulder injury. 

The employer appeals from the finding that the employee sustained a work-related shoulder injury and from the award of temporary total disability.  The employee has cross-appealed from the denial of her claims related to the left elbow. 

 

DECISION

 

The employer argues on appeal that the decision of the compensation judge which found a work injury to the employee=s left shoulder is not supported by substantial evidence.  The employee argues on appeal that the decision of the compensation judge which found that the employee=s left elbow condition was not work related is not supported by substantial evidence.  We conclude that the compensation judge=s decision on both issues is supported by substantial evidence and we affirm the decision. 

 

Left Shoulder

 

The employer and insurer argue that there is no persuasive evidence that the employee sustained a left shoulder injury on January 6, 2002.  Rather, the Asignificant@ gap in time between the alleged injury and medical treatment for the shoulder and the absence of objective findings would indicate that no shoulder injury exists. 

 

The employee testified as to the nature of the January 6, 2002 incident and indicated that she reported the incident to the employer.  While the accident report refers to the left elbow, it also refers to the left arm and does not preclude shoulder involvement.  The employee testified that she told Dr. Gramer about her shoulder pain but was told that the elbow would be the focus of treatment.  Given the chronic recurrent nature of her left elbow problems, the absence of notation for shoulder pain for six weeks is not significant. 

 

While Dr. Dworak testified that the crackling noise heard by Dr. Beltran was not significant, the compensation judge was not compelled to accept his opinion on this point.  Dr. Beltran=s records provided a basis for the compensation judge=s conclusion that the employee had a left shoulder injury from the injury from the incident on January 6, 2002.  Dr. Beltran=s records indicate an on-going course of treatment aimed at returning the employee to work.  There is substantial evidence that the employee had not reached maximum medical improvement as of the date of hearing. 

 

Left Elbow

 

The employee argues that the compensation judge=s determination that the employee did not sustain a work-related left elbow injury is manifestly contrary to the evidence in this matter.  The employee contends that she had Gillette injuries to the left elbow on October 19, 2001 and November 8, 2001 and a specific injury to the left elbow on January 6, 2002. 

 

With regard to the January 6, 2002 incident, there is a reference in the injury report that the injury involved the left elbow.  However, the employee had well documented left elbow problems before that date and no doctor ever indicated that the January 6 incident was a factor in the employee=s left elbow treatment.  While the employee saw Dr. Gramer two days after the incident, Dr. Gramer did not comment on the incident or provide an opinion which established causation between the incident and the employee=s condition.   

 

With regard to the claimed Gillette injuries, we have often held that the question of causation in a Gillette injury 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).  The compensation judge accepted the opinion of Dr. Dworak on this issue.  The choice between competing medical opinions is for the compensation judge.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  We find no foundational defect in Dr. Dworak=s opinion which would make the compensation judge=s reliance on his opinion inappropriate. 

 

The compensation judge=s decision is affirmed.