NANCY L. HEINEMANN, Employee, v. INDEPENDENT SCH. DIST. #279, SELF-INSURED, adm=d by BERKLEY RISK ADM=RS, Employer/Appellant, and INDEPENDENT SCH. DIST. #279 and LIBERTY MUT. INS. CO., Employer/Insurer, and COLUMBIA PARK MEDICAL GROUP and DOWNTOWN ORTHOPEDICS, P.A., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 23, 2003

 

HEADNOTES

 

CAUSATION - CONSEQUENTIAL INJURY.  Where the employee sought workers= compensation benefits claiming, at least in part, that the medical condition in dispute was caused or substantially contributed to by the employee=s work activities, the compensation judge erred in applying the direct and natural consequences rule to find a consequential injury.

 

CAUSATION - GILLETTE INJURY.  Where all of the evidence supports the conclusion that the employee sustained a Gillette injury to her right and left shoulders, the compensation judge=s finding of a consequential injury is vacated and the case remanded for findings regarding the date or dates of the Gillette injury or injuries.

 

Vacated in part and remanded

 

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

Compensation Judge:  Rolf G. Hagen

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The self-insured employer appeals the compensation judge=s finding that the em­ployee=s right and left shoulder injuries occurred as a natural consequence and manifestation of her October 12, 1995 work injuries and the finding that the employee did not sustain a bilateral Gillette injury^[1] to her shoulders due to her work activities.  We vacate findings 6, 7, 10, 11 and 12 and remand the case to the compensation judge for further findings.

 

BACKGROUND

 

Nancy L. Heinemann, the employee, sustained an admitted, personal injury on Octo­ber 12, 1995, while working as a baker for Independent School District #279.  The nature of the injury was chronic tendinitis of the forearms, wrists and hands and bilateral epicondylitis of the elbows.  At the time of the October 12, 1995 injury, the employer was self-insured for work­ers= com­pensation purposes with claims administered by Berkley Risk Administrators.  From July 1, 1997 through June 30, 2000, the employer was insured by Liberty Mutual Insurance Com­pany.

 

The employee has been a food service worker for the employer since 1980.  Since 1994, the employee=s primary responsibility has been to prepare baked goods for school meals.  The employee testified that she baked cookies, dinner rolls and breads for up to 550 students.  The baking process required the employee to measure out the ingredients and mix them in a floor mixer which she cranked by hand.  She then removed the dough and formed the cookies or rolls by hand using an ice cream scoop, then placed the dough on a large sheet and placed the sheet in the oven.  To make bread, the employee weighed out four and a half pounds of dough, placed the dough in a machine and pulled a lever to form a dough ball, placed the dough on a cookie sheet and put the bread in the oven.  The process for making cakes and cupcakes was similar.  The employee described her job as very repetitive and stated it required her to use her arms at shoulder level and above.  The em­ployee worked approximately five hours a day and stated she was physically active during that entire time.  The employee testified her work duties remained the same through the date of the hearing. 

 

In October 1995, the employee was examined by Dr. Donald E. Johnson for com­plaints of pain in both wrists and elbows.  The doctor diagnosed early bilateral upper extremity overuse tendinitis which he attributed to her work activities.  An EMG in November 1995 was consistent with early carpal tunnel syndrome on the right.  Dr. Johnson referred the employee to Dr. Mark E. Holm, whom she saw on February 1, 1996.  The doctor injected the employee=s left medial epi­condyle with corti­sone and Xylocaine.  In March 1997, the employee was seen by Dr. Daniel F. Borgen with continuing com­plaints of pain, numbness and tingling in both hands which had gradual­ly worsened over time.  The doctor ordered another EMG study and concluded the employee had ulnar nerve symptoms.  Dr. Borgen recommended ulnar nerve transposition surgery.

 

In November 1997, the employee returned to see Dr. Johnson complaining of pain extending across her shoulders and down her upper back and into the base of her neck.  The employee reported these symptoms seemed to be aggravated by her duties at work, particularly lifting pans and racks into the oven above chest height.  Dr. Johnson diagnosed cervicothoracic myofascial discomfort involving the trapezius muscles and restricted the employee from reaching above chest level for three weeks.

 

On January 20, 1998, Dr. Borgen performed an ulnar nerve trans­position on the right elbow.  The employee was off work for approximately six weeks following her January 1998 surgery and then returned to work at her regular job with the employer as a baker, without re­strictions.  On April 17, 1998, the employee returned to see Dr. Borgen, com­plaining of continuing problems with her right elbow.  An x-ray showed some calcification along the medial aspect of the elbow.  On August 6, 1999, Dr. Borgen concluded the employee had reached maximum medical improvement with respect to her right elbow problem.

 

On January 25, 2000, the employee returned to see Dr. Johnson complaining of pain in both elbows and left shoulder pain when raising her left arm.  On examination, Dr. Johnson found shoulder pain on palpation, limited range of motion and marked discomfort with abduction/external rotation.  The doctor diagnosed bilateral medial epicondylitis of the elbows, right lateral epicondy­litis, and tendinitis of the left shoulder.  Dr. Johnson prescribed physical therapy for the employee=s left shoulder.  On May 9, 2000, the employee saw Dr. Brian Kanter, her family physician, com­plaining of left shoulder pain for the past four to five months.  The employee stated she was then un­able to lift her left arm above 90 degrees and that lifting or pulling caused pain in the anterior shoulder.  Dr. Kanter diagnosed work-related left shoulder tendinitis and impingement syndrome.  He pre­scribed prednisone and physical therapy and took the employee off work.^[2]

 

The employee was examined by Dr. Larry Stern on November 27, 2000, at the request of Liberty Mutual Insurance Company.  The employee reported that following her elbow surgery, she used her left arm to a greater extent while performing her work duties, which she described as requiring the repetitive use of both arms.  The doctor diagnosed left shoulder mild rotator cuff tendinitis.  Dr. Stern concluded Athe medical records and Ms. Heinemann=s own history clearly indicate that the left shoulder complaints are related to increased use of her left arm since she was recovering from her right elbow surgery with a rather unsatisfactory clinical result.  This required her to use her left arm more than she normally would and, in my opinion, led to the left shoulder rotator cuff tendinitis.@  (Jt. Ex. 11.) 

 

On December 18, 2000, the employee was examined by Dr. William Call at the request of Berkley.  The employee gave a history of shoulder symptoms commencing in 1998 which gradually increased to the point where she could not lift her left arm above 90 degrees because of left shoulder pain.  Dr. Call opined the employee sustained a Gillette injury to her left arm on April 5, 1999, in the nature of a left shoulder anterior impingement syndrome and epicondylitis.^[3]  Dr. Call recommended the employee see an orthopedic surgeon experienced in shoulder care for treatment of her anterior impingement syndrome.

 

Dr. Robert A. Wengler examined the employee on March 13, 2001, October 23, 2001 and January 29, 2002 at the request of her attorney.  The employee complained of bilateral shoulder and elbow pain with painful limitation of motion of both shoulders.  The doctor diagnosed bilateral subacromial impingement of the shoulders and tardy ulnar nerve palsy of the right elbow.  Dr. Wengler concluded that the employee had developed overuse problems with both arms as a result of her work activities with the employer.  He found the employee=s bilateral subacromial impinge­ment caused a loss of active and passive motion and rated permanent disability of both shoulders.

 

The employee returned to see Dr. Kanter on March 15, 2002, with complaints of pain in her left and right shoulders, left worse than right.  The doctor diagnosed thoracic outlet syndrome on the left and bilateral carpal tunnel syndrome.  Dr. Kanter suggested the employee wear nighttime splints and perform stretching exercises.  Dr. Kanter opined the employee needed to decide whether to continue in her present job or retire, and felt her symptoms would gradually disappear if she retired except for occasional periods of overuse.  An MRI scan of the right shoulder on March 25, 2002, showed an extensive partial thickness tear/tendinopathy of the supraspinatus tendon and to a lesser degree the infraspinatus tendon without a full-thickness rotator cuff tear or muscle atrophy.

 

The employee filed a claim petition seeking wage loss and medical benefits resulting from her admitted injury of October 12, 1995, and a claimed Gillette injury on April 5, 1999 and/or January 25, 2000 and/or May 8, 2000.  The case was tried before a compensation judge on August 7, 2002.  In a Findings and Order filed October 24, 2002, the compensation judge found the em­ployee did not sustain Gillette-type injuries to her right or left shoulder as a result of her work activities with the employer.  The judge further found the employee sustained consequential injuries to her right and left shoulders as a natural consequence/manifestation of the October 12, 1995 work injury.  Accordingly, the judge ordered the employer and Berkley to pay benefits to the employee and denied apportionment of liability to Liberty Mutual.  Berkley appeals.

 

DECISION

 

The compensation judge noted in his memorandum that Athe employee=s job duties and the repetitive nature of same would support the idea of a new-subsequent Gillette-type injury.@  (Mem. at 9.)  The judge, however, found the employee did not sustain Gillette-type injuries to her right and left shoulders as a result of her work activities.  Rather, the compensation judge found the employee sustained what he described as Aconsequential@ injuries to her shoulders as Aa natural consequence/manifestation of the October 12, 1995 work injuries.@  Accordingly, the judge ordered Berkley to pay all benefits to the employee.  Berkley appeals this order.  We conclude the compen­sation judge failed to apply the proper test of causation, and remand.^[4]

 

In this case, the employee sought medical and wage loss benefits for a bilateral injury to her shoulders, claiming the condition was a consequence of the October 12, 1995 personal injury and/or a Gillette-type injury arising from her work activities for the employer.  Both insurers denied liability for the injury.  In determining the compensability of an injury in such cir­cumstances, a clear distinction must be made between the rules applicable to establishing liability for a personal injury, and the causation rules applicable to a claimed consequential injury. 

Primary liability in workers= compensation cases addresses the work-connectedness of the claimed personal injury.  In cases involving disputed primary liability, the question is whether the injury Aarose out of and in the course of employment.@  Minn. Stat. ' 176.011, subd. 16.  The Aarising out of@ requirement is a causation test although Anot necessarily in the proximate cause sense.@  Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988).  An employee=s entitlement to workers= compensation benefits for a personal injury is not based on fault or negligence.  Minn. Stat. ' 176.021, subd. 1.  See Yacoub v. Ameri­can Nat=l Ins. Co., 59 W.C.D. 104 (W.C.C.A. 1999); State ex rel Green v. District Court, 145 Minn. 96, 176 N.W. 155 (1920); Mathison v. Minneapolis St. Rw. Co., 126 Minn. 286, 148 N.W. 71, 17 W.C.D. 7 (1914). 

The concept of a consequential injury derives from a line of supreme court cases com­mencing with Eide v. Whirlpool Seeger Co., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961).  In Eide, the court held that where a permanently weakened physical condition caused by a personal injury is aggravated by an employee=s subsequent normal physical activities to the extent of requiring additional medical treatment, such treatment is compensable, so  long as it could be said that the additional care was Aa natural consequence flowing from the primary injury@ and not the result of Aunreasonable, negligent, dangerous, or abnormal activity on the part of the employee.@   Id. at 49-50, 21 W.C.D. at 441.  In Gerhardt v. Welch, 267 Minn. 206, 125 N.W.2d 721, 23 W.C.D. 108 (1964), the court, in again reviewing the range of compensable consequences of a personal injury, adopted the Adirect and natural consequence rule@ set forth at Larson, Worker=s Compensation Law' 13.00, which stated:

 

When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is a result of an independent intervening cause attributable to the claimant=s own negligence or misconduct.^[5]

 

Id. at 723, 23 W.C.D. at 112.  Thus, when the issue is the compensability of a claimed consequence of a personal injury, fault or negligence is a factor and the employee=s own intentional conduct may be an independent or intervening cause of the disability.

 

 Where, however, the Aoriginal injury is aggravated by or the injured person sustains a new injury as a result of an occurrence that has no causal relation to the original injury, it must be said that the later injury is not a consequence of the first; hence, that no liability exists.@  Wallace v. Judd Brown Constr. Co., 269 Minn. 455, 131 N.W.2d 540, 544, 23 W.C.D. 362, 368-69 (1964).  Thus, for a consequential injury, causation must be established between the primary injury and the claimed compensable consequence. 

 

The supreme court articulated the distinction between the two causation tests in Jackson v. Red Owl Stores, Inc., 375 N.W.2d 13, 17-18, 38 W.C.D. 170, 177 (Minn. 1985).    The court observed that medical causation is a Adistinct legal concept that concerns the connection be­tween the primary injury and a later condition . . . >how far the range of com­pensable conse­quences is carried, once the primary injury is causally connected with the employment=. @^[6]  The court again quoted Professor Larson:

 

A distinction must be observed between causation rules affecting the primary injury . . . and causation rules that determine how far the range of compensable consequences is carried, once the primary injury is causally connected with the employment.  As to the primary injury, it has been shown that the >arising= test is a unique one quite unrelated to common-law concepts of legal cause and it will be shown later that the employee=s own contributory negligence is ordinarily not an intervening cause preventing initial compensability.  But when the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of >direct and natural results= and of claimant=s own conduct as an independent intervening cause. 

 

(Larson ' 13.11.)

 

We conclude the direct and natural consequence rule is applicable only in those cases in which the consequences for which benefits are sought did not result from a second work injury.^[7]  Where, as here, the claim is that the disability was caused, at least in substantial part, by the effects of a second personal injury, the issue is whether the claimed injury arose out of and in the course of employment.  Although the compensation judge found the employee did not sustain Gillette injuries to her shoulders, the judge failed to apply the correct causation test in making that decision.  We therefore vacate Finding 6, 7, 10, 11 and 12.

 

Although mindful that it is not this court=s function to make factual findings, all of the evidence in this case supports the conclusion that the employee sustained a Gillette injury to her right and left shoulders as a result of her work activities for the employer.  The employee testified that following her right arm surgery in January 1998, she gradually developed pain in her left shoulder and, to a lesser extent, in her right shoulder.  She attributed these problems to her daily work activities and the fact that she was overcompensating at work because of her continuing right elbow and arm problems following her surgery.  She testified she relied more on her left arm to perform her work tasks than she had before the surgery.  Dr. Kanter diagnosed left shoulder ten­dinitis and impingement syndrome related to the employee=s work.  Dr. Wengler diag­nosed bilateral subacromial impingement which he causally related to the employee=s work activities.  Dr. Call opined the employee sustained a Gillette injury to her left arm on April 5, 1999.  Dr. Stern diagnosed left shoulder mild rotator cuff tendinitis which he related to the employee=s increased use of her left arm at work following her right elbow surgery.

 

The compensation judge found Athe employee altered her work activities causing additional and undue stressors upon her shoulders . . . .@  (Finding 11.)  It is clear from the com­pensation judge=s findings and memorandum that he would have found the employee sustained a Gillette injury to her shoulders but for his application of the direct and natural consequences rule.   Accordingly, we hold the employee did sustain a Gillette injury to her left and right shoulders during the coverage of Liberty Mutual Insurance Company.  We must, however, remand the case to the compensation judge to make findings regarding the date of the Gillette injury or injuries, findings regarding the notice issue, and other findings necessary to the resolution of this case.