GEORGE J. GUSTAFSON, Employee/Appellant, v. CATERAIR INT=L/LSG SKY CHEF and ST. PAUL FIRE & MARINE INS. CO., Employer-Insurer, and ALLINA MEDICA CLINIC HASTINGS and ORTHOPAEDIC & FRACTURE CLINIC, Intervenors/Medical Providers.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 9, 2003

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including the employee=s testimony, medical records, and expert medical opinion, supported the finding that the employee=s right wrist condition was causally related to a pre-existing condition and not the result of his work activities during the summer of 1997.

 

Affirmed.

 

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

Compensation Judge: Bernard Dinner

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s findings that the employee=s work activities at a light duty job in the summer of 1997 were not a substantial contributing cause of a Gillette^[1] injury to the employee=s wrist culminating on or about August 27, 1997.  We affirm.

 

BACKGROUND

 

                        The employer, LSG/Sky Chef^[2], is engaged in the preparation of food for airline meals.  In about 1984, the employer hired the employee, George Gustafson, as a refrigeration engineer.  At first the employee was responsible only for maintaining the employer=s refrigeration equipment, but after about a year he was given responsibility for all of the employer=s plant maintenance.  Among his expanded duties was repairing and replacing floor tiles, sections of which were frequently chipped or broken by the heavy wheeled carts used to move products through the plant.  The employee testified that, on average, he replaced tile at least a few days each month and that the activity required repetitive use of his right wrist. 

 

By 1992, the employee began to experience pain in his right wrist whenever he replaced tile.  He reported the wrist pain to the employer and was encouraged to seek medical treatment if necessary; however, the employee decided that he did not need medical treatment if the employer would provide a wrist brace.  The employer then provided him with wrist braces and he continued to work his regular duties without medical treatment or lost time due to wrist problems. 

In 1993, the employee was promoted to Maintenance Manager.  After that date he did not need to do as much tiling work but would help other employees if the work was behind schedule.  He did continue to have problems with his right wrist when performing tile work, but with the use of the wrist brace he did not find the pain to be unbearable. 

 

In the summer of 1995, the employee sustained a hernia at work while lifting an engine head from a bench.  He was treated surgically for the hernia injury on July 19, 1995 and was thereafter entirely off work for medical reasons related to the hernia until May 27, 1997, when he returned to light duty work with the employer beginning at one hour per day.  The job the employer provided to the employee was filling out paperwork for Aliquor kits@.  This job involved taking orders from an Ain@ basket and writing the liquor quantities and order numbers on a printed form,  which was then paired with a tag seal and placed in an Aout@ basket.  After about a week the employee progressed from one to two hours per day in this job.  He subsequently progressed to three hours per day sometime in July but did not work five days a week.  Time records indicate the employee worked between 6.3 and 12 hours per week during the summer of 1997.

 

On June 19, 1997 the employee was seen by Dr. Hipp, who was treating his hernia condition, for followup of left groin pain.  The employee told Dr. Hipp that he was now having right wrist pain Aof an achy nature@ which he had previously experienced in the past when laying tile.  The employee thought that the return of this pain was related to writing out the tickets for liquor orders.  Dr. Hipp noted that there was some tenderness over the dorsum of the employee=s right wrist, with a mildly decreased range of motion, although no swelling, redness or warmth was noted.  As the employee=s groin condition had not worsened, Dr. Hipp recommended that the employee now increase to four hours per day at his light duty job.  Dr. Hipp provided no diagnosis on treatment recommendations for the right wrist.

 

On July 3, 1997 the employee was seen by his family physician, Dr. John C. Carlson, at the River Valley Clinic.  He reported that driving one hour each way to his job caused discomfort over his groin area and that he had been unable to tolerate four hours work per day in addition to the travel time, so that he had not been able to increase his work hours.  The employee told Dr. Carlson that the office work he had been doing had exacerbated wrist pain that had previously been related to tiling and grouting.  He requested a splint.  Dr. Carlson diagnosed a probable overuse syndrome of the right wrist with synovitis.  He provided the employee with a wrist splint but recommended that he see an orthopedic surgeon for evaluation of his wrist. 

 

The employee was seen by Dr. Bradley R. Wille at the Orthopaedic & Fracture Clinic in Northfield on July 14, 1997 on referral from Dr. Carlson.  Dr. Wille diagnosed a presumed right wrist tendinitis secondary to overuse and prescribed anti-inflammatory medicine and physical therapy.  He also recommended fabrication of a new splint for the employee to wear during his work activities.  On August 25, 1997 Dr. Wille recorded that the employee=s wrist symptoms had gradually been improving.  He continued the employee=s physical therapy for six weeks, noting that the employee would be off work for reasons related to his hernia surgery, which would give his wrist more time to heal.  The employee stopped working for the employer on August 25, 1997 and had not returned to employment as of the date of hearing.

The employee returned to Dr. Wille on October 6, 1997.  He had continued to have persistent right wrist pain and inflammation with only minimal improvement despite treatment.  Dr. Wille recommended an MRI scan to check for intra-articular pathology that might account for the employee=s wrist symptoms.            The MRI, performed on October 17, 1997, displayed degenerative changes at the radiocarpal, scapholunate and capitulunate joints and several apparent ganglion cysts.  Based on the scan, Dr. Wille advised the employee on November 3, 1997 that he had little further to offer by way of treatment.  He suggested that the employee see a hand surgeon for a second opinion.

 

The employee saw the surgeon, Dr. Jeffrey B. Husband, on December 10, 1997.  Dr. Husband diagnosed degenerative arthritis of the right wrist.  He offered four options: no further treatment, use of a splint, wrist fusion surgery or total wrist arthrodesis.  The employee decided to defer surgery for the immediate future.

 

The employee filed a claim petition on June 12, 1998 seeking various benefits and reimbursement of medical expenses based both on his June 1995 hernia injury, while the insurer CNA Insurance was on the risk, and on an alleged Gillette injury to the right wrist on August 26, 1997, when St. Paul Fire & Marine Insurance was on the risk.  By amended claim petition the alleged date of the Gillette injury was changed to June 16, 1997. 

 

On July 31, 1998 the employee was seen by Dr. Chris P. Tountas for an evaluation on behalf of the employer and CNA Insurance.  Dr. Tountas diagnosed a degenerative arthritis to which the employee=s work activities prior to May 29, 1996 had been a substantial and contributing factor.  He opined that the employee=s work activities after his return to light duty work in the summer of 1997 were not a substantial contributing cause or aggravation for the employee=s underlying pre-existent degenerative arthritis, and that the employee did not sustain a Gillette injury to his right wrist as a result of the work activity during that period. 

 

The employee was seen by Dr. William H. Call, a hand surgeon, on October 1, 1998 for an evaluation on behalf of the employer and St. Paul Fire & Marine Insurance.  Dr. Call also opined that the employee=s work activities after his return to work on May 27, 1997 did not cause or exacerbate the employee=s pre-existing wrist arthritis.  Unlike Dr. Tountas, Dr. Call did not think that the employee=s grouting work for the employer prior to 1997 had contributed to his right wrist difficulties, but instead speculated that the employee must have experienced some significant traumatic event in the remote past, whether a fall from a height, motor vehicle accident or sports injury, which had initially caused the employee=s wrist difficulties. 

 

The parties entered into a partial stipulation for settlement which was submitted to the compensation judge on May 14, 2002.  A APartial Award on Stipulation for Pieringer Settlement@ was served and filed on May 16, 2002.   The stipulation constituted a settlement of claims related only to the hernia injury on June 7, 1995.  Subsequently, the employee went forward with the right wrist Gillette injury claim against the employer and insurer St. Paul Fire & Marine Insurance.  At the hearing, the employee=s attorney suggested a date on or about August 26, 1997 for the culmination of this alleged Gillette injury.  

 

Following the hearing, the judge found that pre-existing arthritis, and not the work activities during the employee=s light duty job in the summer of 1997, was the substantial contributing cause of any wrist disability on or about August 27, 1997.  The judge further found that the employee=s work activities in 1997, when St. Paul Fire & Marine Insurance was on the risk, were not a substantial cause or aggravation of the employee=s pre-existing arthritis.  The employee appeals.

 

DECISION

 

The primary issue in this case is whether the employee=s work activities during the summer of 1997, when St. Paul Fire & Marine Insurance was on the risk, resulted in a Gillette injury to the employee=s right wrist on or about August 26, 1997.

 

The employee contends that substantial evidence fails to support the compensation judge's determination that the employee's work activities during the summer of 1997 were not a substantial contributing cause of the employee's right wrist condition.  We affirm.

 

In order to establish a  Gillette injury, the employee must "prove a causal connection between her ordinary work and ensuing disability.@ Determination of a Gillette injury primarily depends on medical evidence. Steffen v Target Stores, 517 N.W.2d 579, 581, 50 W.C.D.464, 467 (Minn. 1994). Both Dr. Call and Dr. Tountas were of the opinion that the employee=s work activities of filling out liquor slips in the summer of 1997 were not a substantial contributing cause of or substantial aggravation to his wrist condition.  The employee argues that other physicians rendered opinions which provide support to the claim that the work during this period did contribute to the employee=s right wrist disability.  However, the compensation judge=s choice among the various expert medical opinions must be affirmed unless the opinion relied upon did not have an adequate foundation.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). Here there is ample foundation for the opinions of Drs. Call and Tountas.  Substantial evidence supports the determination of the compensation judge and we affirm. 

 

The employee next argues that the compensation judge committed two errors of law: first, failing to determine a date of disablement for the employee=s right wrist condition; and second, failing to admit and consider evidence regarding the possible causal link between the employee=s work activities laying quarry tile in the early 1990s and his right wrist condition.  The employee bases these arguments on the contention that the evidence clearly demonstrated that the employee=s wrist condition was the result of laying quarry tile during his earlier work for the employer, but that, as a matter of law, in the absence of a disablement until a later date the employer and insurer on the risk at the time the employee was in fact disabled must bear the responsibility for the injury.

 

Generally, the insurer on the risk at the time the employee becomes disabled^[3] is responsible for workers= compensation benefits.  However, this general rule "is subject to the finding that during the last period of employment the work duties performed by the employee must have been a substantial contributing factor to the employee's disability."  Tannahill v. Mid-American Lines, Inc., 40 W.C.D. 726, 728 (W.C.C.A. 1987).  Crimmins v. NACM No. Cent. Corp., 45 W.C.D. 435, 439 (W.C.C.A. 1991).  Imposition of liability on the last insurer is not automatic but must rest on proof connecting the employee's disability to the employee's job duties during that insurer's period of coverage.

 

Here, the compensation judge found, and we have affirmed, that the work activities during the coverage period at issue were not a substantial contributing cause of the employee=s disability.  The employee limited the claims he raised below to those against the employer and insurer St. Paul Fire & Marine Insurance, and his potential claims against the earlier period of coverage and the employer and insurer for that prior period were not heard below.  The compensation judge did not err in failing to address issues which were not crucial to the determination of the issue before him and which might affect the rights of a third party respecting a claim not raised before him.