JODI L. BARROS, Employee, v. SCIMED LIFE SYSTEMS, and TRAVELERS PROPERTY & CASUALTY, Employer-Insurer/Appellants, and CICH CHIROPRACTIC, Intervenor.

WORKERS= COMPENSATION COURT OF APPEALS

MAY 5, 2004

HEADNOTES

CAUSATION - GILLETTE INJURY.  Given the lack of supporting medical opinion, substantial evidence does not support the compensation judge=s finding that the employee sustained a Gillette injury to her right arm.

Reversed in part, vacated in part and remanded in part.

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

Compensation Judge: John Ellefson

Attorneys:  Mark J. Padgett, Law Offices of Donald F. Noack, Jr., Mound, MN, for the Appellants.  Donald G. Fernstrom, Fernstrom & Associates, Maple Grove, MN, for the Respondent.

OPINION

MIRIAM P. RYKKEN, Judge

The employer and insurer appeal the compensation judge=s finding that the employee sustained a Gillette injury^[1] to her right arm.  We reverse in part, vacate in part and remand in part.

BACKGROUND

In July 1997, Jodi L. Barros, the employee, began working as an assembler for Scimed Life Systems, the employer, which was insured for workers= compensation liability by Travelers Property & Casualty, the insurer.  The employee is left hand dominant and in 1999 began experiencing symptoms that led to restrictions in the use of her left arm.  The first report of injury, which lists an injury date of December 1, 1999, refers to the employee=s left wrist, forearm, and shoulder.  The employee first treated with Dr. Thomas Oas at NorthWorks Occupational Health Services, reporting pain in her left upper extremity.  An EMG of the left arm taken on December 15, 1999, indicated carpal tunnel syndrome on the left side.  The employee=s right arm was not tested at that time.  The employer and insurer admitted liability for a Gillette injury of the employee=s left wrist, forearm, and shoulder.  The employee continued to work in her assembly job for approximately three weeks.  She testified that she used her right arm more and developed increased pain in her right arm, which she claims she reported to her employer.  The employee was then transferred from her assembly job to the mail room, where she continued to work on a full-time basis.  On January 28, 2000, the employee again consulted Dr. Oas, reporting ongoing pain symptoms in her left neck and shoulder area and left arm.

On February 7, 2000, the employee sustained an admitted specific injury to her cervical spine, back, left shoulder, and skull when she tripped while pushing a mail cart and struck her head and left shoulder on a glass security door.  She was examined by Dr. Karen Kane, also at NorthWorks, on February 8, 2000, who diagnosed a head contusion, cervical strain, left shoulder and upper arm pain, thoracic and lumbar pain.  Dr. Kane recommended that the employee return to work with restrictions, and stated that the employee

was quite unhappy about this but in my opinion, some light activities actually are beneficial for her recovery.  I have indicated these are the kinds of activities she should do whether she is at work or at home.  They would include no lifting or carrying more than ten pounds or pushing/pulling more than twenty pounds.  At this point in time because of discomfort I would not insist that she lift her arms about chest level.  Also, I continued her previous work restrictions regarding torquing, crimping and firm grasping of her left hand.

The employee sought chiropractic treatment from Dr. Curtis Cich, D.C., that same day, reporting her injury of the previous day, and advising Dr. Cich of neck and left shoulder pain.  Dr. Cich=s chart note of February 8, 2000, states that the employee Aalso reports some carpal tunnel symptoms in both hands aggravated by working with a microscope at work@ and that she Adescribes some past low back pain that improves with massage@ that was more prevalent on the left side and worse in the morning.  Dr. Cich treated her cervical and thoracic spine on that date.  The employee remained off work for approximately seven weeks, during which time she received further treatment for her neck, left shoulder and low back symptoms.

By April 2000, the employee attempted to return to work in a light duty capacity.  After a few weeks, the employer determined that it could no longer accommodate her restrictions, and terminated her employment.  The employee received additional treatment from various physicians, including orthopedic, neurologic and osteopathic consultations and physical therapy.  The employee was eventually diagnosed as having left shoulder adhesive capsulitis.  She also received chiropractic treatment for her low back and neck symptoms, between at least February and October 2000, and again between July 2001 and August 2002.  Dr. Cich=s records consistently refer to the employee=s reports of, and his treatment for, cervical, thoracic, low back and left shoulder symptoms, and make no further reference to symptoms in either arm.

The employer and insurer provided rehabilitation services to the employee after her 2000 injury.  The employee began working with QRC Kathy Tuff in June 2000.  At Dr. Cich=s referral, Dr. Bruce Bartie, D.O., examined the employee on August 10, 2000.  He diagnosed a A[m]ild compression injury, chronic at C6 secondary to injury on February 7, 2000.  No evidence of radiculopathy or myelopathy.@  Dr. Bartie recommended conservative treatment and an active exercise program, and recommended against any surgical intervention.  At the referral of Dr. Cynthia Larson, her treating physician, the employee was examined by Dr. Paul Schultz on September 7, 2000,  for her left arm.  He diagnosed the employee as having left volar wrist pain, and concluded that Ashe also has probably mild left carpal tunnel syndrome and probable volar wrist tenosynovitis.@  He provided her with a steroid injection, which resulted in symptomatic relief.

In September 2000, Dr. Larson referred the employee for a functional capacities evaluation (FCE).  At the time of the evaluation on September 19-20, the employee reported Aperiodic shooting pain in the neck and upper back and down the right and left arms, right greater than left.@  She also reported that she had some increased low back pain since seeking chiropractic treatment.  The therapist noted A[u]pper extremity appearance significant for swelling noted on the left wrist volar surface@ and ATinel positive for left cubital tunnel.@  The FCE indicated that the employee could perform light duty work with lifting/carrying of no more than 20 pounds and frequent lifting/carrying up to ten pounds, occasional neck flexion, and restrictions on reaching below shoulder level, firm grasping and pinching; the restrictions outlined on the FCE did not distinguish between the right and left extremities.  The therapist noted that the requirements of the employee=s previous job as a medical assembler exceeded these restrictions.

The employee followed up with Dr. Schultz on October 18, 2000, reporting significant improvement and no complaints of numbness or hand pain.  Dr. Schultz advised that he recommended no further evaluation at that time, Ain view of her resolution of her immediate problems.@  On November 28, 2000, Dr. Paul Crowe conducted an orthopedic examination of the employee to assess her back and left leg pain, and found normal results.  He concurred with her treating doctor=s earlier referral to physical therapy, and recommended no additional treatment.

On January 4, 2001, the employee again consulted Dr. Bartie, reporting symptoms in her left upper extremity and some neck symptoms.  He found that she had Aa fairly fluid cervical range of motion,@ and concluded that the employee had a musculoligamentous sprain/strain of the neck, but did not require surgery to her cervical spine.  An EMG of the employee=s left upper extremity, conducted on April 5, 2001, indicated Aleft carpal tunnel syndrome and superimposed left ulnar neuropathy across the elbow.@   

The employee continued to receive chiropractic treatment in 2001.  On October 1, 2001, the employee was examined by Dr. William Call at the employer and insurer=s request.  Dr. Call opined that the employee=s diagnosis was a minimal left carpal tunnel syndrome which was developmental and idiopathic, and not causally related to the employee=s work with the employer.  Dr. Call also opined that the employee was not totally disabled, but could work with a splint on her left wrist without any restrictions.

On October 2, 2001, the employee was examined by Dr. Mark Friedland at the employer and insurer=s request.  Dr. Friedland opined that the employee may have sustained some type of overuse syndrome of the left upper extremity as a result of her work activities for the employer, but found no objective findings on physical examination that indicated any permanent injuries to her left arm.  He also determined that the employee may have sustained a contusion to her left shoulder and a minor lumbosacral strain/sprain as a result of the slip and fall incident of February 7, 2000, that she sustained a cervical strain as a result of that incident, and that she had reached maximum medical improvement (MMI) regarding her head, left shoulder, cervical, thoracic and lumbar injuries on February 7, 2000.  He concluded that the employee had sustained no permanent partial disability as a result of that injury, and that she required no physical restrictions.

As part of her rehabilitation plan, the employee received job placement services, which were not successful in locating employment.^[2]  The employer and insurer paid the employee 101 weeks of temporary total disability from February 22, 2000, through April 10, 2000, and from May 1, 2000, through February 26, 2002.  On February 26, 2002, the insurer served the employee with a Notice of Intention to Discontinue Workers= Compensation Benefits, stating that notice of MMI had been served on the employee on November 2, 2001, and that benefits were being discontinued as more than 90 days post-MMI had expired. 

The employee found a position on her own at a Polo Ralph Lauren retail store in April 2002, but quit in August 2002 because of an increase in arm and neck pain which she experienced as a result of her cashiering duties.  On July 30, 2002, the employee consulted Dr. Larson for continued problems with left shoulder adhesive capsulitis, right hand symptoms and headaches.  Dr. Larson assessed a possible right carpal tunnel syndrome, and referred the employee for an EMG of her right upper extremity and consultation with Dr. Schultz.  The employee had last consulted Dr. Schultz in October 2000 for her left wrist symptoms.  An August 2002 EMG indicated right carpal tunnel syndrome, and in his chart note of August 29, 2002, Dr. Schultz diagnosed bilateral cubital tunnel syndromes and right carpal tunnel syndrome.  He recommended right carpal tunnel release and ulnar nerve transposition, but did not offer an opinion as to whether the employee=s work injuries in 1999 and 2000 were a substantially contributing cause of the employee=s right arm condition and need for surgery. 

On April 27, 2002, the employee filed a claim petition for temporary partial disability benefits from and after April 8, 2002, due to her alleged bilateral carpal tunnel syndrome injury of December 1, 1999, and her other work injuries sustained on February 7, 2000.  The employer and insurer denied her claim, arguing that the employee=s claimed bilateral carpal runnel syndrome was developmental and idiopathic in nature, based upon the report by Dr. Call, that the petition did not include medical support, that the employee=s work activities were not a substantial contributing cause of the employee=s claimed conditions or disability, and that the employee had reached maximum medical improvement for her neck, back and left shoulder conditions as of October 2001.

The employee later amended her claim petition to include a claim of temporary total disability benefits from August 9, 2002, through August 30, 2002, a three-week period of time when she was off work from her position at the retail store.  The employee also requested an authorization for surgery on her right arm.

The employee=s claims were addressed at a hearing held on August 6, 2003.  In his findings and order served and filed August 26, 2003, the compensation judge found that the employee=s work activities with the employer were a substantial contributing cause of her Abilateral upper extremity problems@ and her need for surgery on her right arm, based upon the employee=s testimony that she developed right arm symptoms while still doing assembly work, before she was transferred to the mail room.  The compensation judge found that the employee=s transfer from the assembly area to the mail room and her related  Achange of work duties constituted the culmination of a work-related Gillette injury to the employee=s right upper extremity,@ and that the employee provided proper notice of that injury to the employer.^[3]  The judge accordingly awarded the employee=s claim for medical expenses for the proposed surgery, three weeks of temporary total disability benefits, temporary partial disability benefits, attorney=s fees, reimbursement out-of-pocket medical expenses and of travel expenses plus a penalty for failure to pay the travel expenses when requested, and a penalty for late payment of temporary total disability benefits. 

As to the employee=s claim for temporary total disability benefits, the compensation judge concluded that the employee remained entitled to payment for three weeks after she left her job with the retail store, on the basis that she was not at maximum medical improvement with regard to her right upper extremity injury and still had restrictions related to her work injuries.

In an unappealed finding, the compensation judge found that the chiropractic treatment the employee received after January 30, 2001, was not reasonable or necessary, and denied payment for the related expenses.

The employer and insurer appeal the finding that the employee sustained a Gillette injury to her right arm and appeal the award of medical expenses, temporary total disability benefits, and temporary partial disability benefits.  The employer and insurer do not appeal the award of travel expenses and related penalty, nor do they appeal the penalty for late payment of temporary total disability benefits.

STANDARD OF REVIEW

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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.  Substantial evidence sup­ports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

DECISION

A Gillette injury is a personal injury caused not by a specific event but by the effects of minute trauma over time.  To es­tablish a Gillette injury, an employee must "prove a causal connection between [his or her] ordinary work and ensuing disability . . . . Whether given by testimony or written report, an opinion by a medical expert as to the causal link between the claimant's disability and the job must be based on adequate foundation.@  Steffen v. Target Stores, 517 N.W.2d 579, 582, 50 W.C.D. 464, 467 (Minn. 1994).  While evidence of specific work activities causing specific symptoms leading to disability "may be helpful as a practical matter," the court stated that determination of a Gillette injury "primarily depends on medical evidence."  Id. at 581, 50 W.C.D. at 466-67. 

The employee argues that when determining whether a Gillette injury has occurred all of the facts and circumstances must be considered.  See Friedrich v. First Band Systems, slip op. (W.C.C.A. 1999).  The employee argues that her testimony regarding her development of symptoms and ability to perform her job duties supports the judge=s finding, citing Aderman v. Care Free Living Retirement Home, slip op. (W.C.C.A. Apr. 27, 2000), which states:

Whether an employee sustained a Gillette injury is primarily, but not solely dependent on medical testimony.  As a general rule, the compensation judge should consider the nature and extent of the employee=s work duties.  This consideration, in addition to the medical evidence and other facts unique to each case, are integral to a determination of legal causation.  Ultimately, it is the responsibility of the compensation judge to weigh all of the evidence in the case to decide whether the work activities caused the disability. 

Aderman, however, was an affirmance of a compensation judge=s opinion based upon substantial evidence.  Given this court=s standard of review, cases affirmed on substantial evidence grounds have little or no precedential value.  See Carlson v. Nabisco Brands, slip op. (W.C.C.A. May 2, 1994).  In addition, the facts unique to this case do not provide support for the compensation judge=s conclusion that the employee sustained an injury to her right upper extremity that culminated in late 1999 or early 2000.

The employee has the burden of proving a causal relationship by a preponderance of the evidence.  Minn. Stat. ' 176.021, subd. 1a; see also Schopf v. Red Owl Stores, Inc., 323 N.W.2d 801, 803, 35 W.C.D. 216, 220 (Minn. 1982).  In this case, the compensation judge relied solely on the employee=s testimony concerning her job activities and development of her right wrist symptoms.  There are no medical opinions or medical records in evidence to support a finding that the employee sustained a Gillette injury to her right arm in late 1999 or early 2000.  The employee did not treat with Dr. Schultz from October 18, 2000, when she was treated for her left arm only, until August 2002, when she reported right arm symptoms.  Dr. Schultz did not opine whether these right arm symptoms were causally related to the employee=s 1999 or 2000 injuries.  Other than the one reference to some bilateral hand symptoms in the employee=s initial chiropractic chart note of February 8, 2000, and the reference to right arm pain in the FCE report in September 2000, there is no other mention in the employee=s medical records of right arm symptoms until July 2002, despite the extensive medical and chiropractic treatment the employee received following her February 2000 work injury.  In addition, the record contains the contrary medical opinion of Dr. Call, who concluded that the employee=s only objectively supported diagnosis was a minimal left carpal tunnel syndrome which in his opinion was not causally related to the employee=s work activities.  Under these circumstances, the employee=s testimony alone is not enough to establish causation.

We therefore reverse the compensation judge=s finding that the employee sustained a Gillette injury to her right upper extremity in approximately December 1999 as a result of her work activities with the employer, and reverse his related finding that employee=s current right arm and wrist condition and need for surgery on her right arm are causally related to the employee=s work activities with the employer.  We also reverse the compensation judge=s award of payment for past medical expenses related to the employee=s right arm and wrist.

However, the record does not clearly indicate whether any of the employee=s restrictions, assigned after her admitted injuries of December 1, 1999, and February 7, 2000, remain in effect.  As a result, it is unclear whether the employee=s admitted injuries continue to substantially contribute to her claimed disability and resulting wage loss.  We therefore vacate the compensation judge=s award of temporary total disability benefits and temporary partial disability benefits.  We remand for further findings and determination of those claims.

The compensation judge concluded that the employee was temporarily totally disabled for three weeks between August 9-30, 2002, as a result of her claimed right upper extremity injury; however, our reversal of any award of benefits related to an alleged right upper extremity injury renders that claim moot.  In addition, the employee is not entitled to additional temporary total disability benefits allegedly due as a result of her February 7, 2000, injury as she is well beyond the 90-day period post-service of notice of MMI for that injury.  See Minn. Stat. ' 176.101, subd. 1(k).  But the employee may still be entitled to the claimed three weeks of temporary total disability benefits, if the compensation judge concludes that the employee has not yet reached MMI from her admitted left wrist injury of December 1, 1999.  The judge should therefore address whether there is a causal relationship between the employee=s left wrist injury and her time off work between August 9-30, 2002.

With regard to the employee=s claim for temporary partial disability benefits, the judge should address whether the employee=s left upper extremity injury of December 1, 1999, and her injuries of February 7, 2002, remain a substantial contributing cause of the employee=s disability for the period of time those benefits were claimed.   (See Exhibit H.)  The compensation judge shall make his additional findings on the existing record.