KEVIN S. CARTER, Employee/Appellant, v. RITE HETE CORP. and EMC INS. CO., Employer-Insurer, and MEDICA/HEALTHCARE RECOVERIES, INC., TWIN CITIES ORTHOPEDICS, BLUE CROSS/BLUE SHIELD OF MINN., DR. FRANK WEI, FAIRVIEW HEALTH SERVS., and MN DEP=T OF ECONOMIC SECURITY, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 8, 2004
HEADNOTES
CAUSATION - GILLETTE INJURY. Substantial evidence supports the finding that the employee failed to establish a Gillette injury to his wrist which resulted in surgery.
Affirmed.
Determined by Wilson, J., Stofferahn, J., and Johnson, C.J.
Compensation Judge: Jeanne Knight
Attorneys: Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Appellant. Roger H. Willhaus, Pustorino, Tilton, Parrington & Lindquist, Minneapolis, MN, for the Respondents.
OPINION
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s findings that his work for the employer was not a substantial contributing cause of the need for surgery to his right wrist and of the disability which followed. We affirm.
BACKGROUND
The employee, Kevin Carter, first sustained an injury to his right wrist while serving in the United States Marines in 1977, when he fell going down a flight of stairs and landed first on his right hand. His hand was bent backwards and he had immediate pain in the right wrist. The wrist was placed in a cast, but the cast was removed prematurely when the employee sought relief from insect bites he subsequently had underneath the cast. The employee did not notice any further wrist symptoms either at that time or for many years after this injury.
The employee began working for the employer, Rite Hete, in 1997 as a welder, initially on a contract basis, but later as a regular full-time employee. His work involved assembling melting pots manufactured by the employer, and the employee worked primarily on the pots made for one customer. The work involved assembling the pots from sheet metal, attaching electrical elements, and then stripping and attaching wires to electrical contacts. The employee used a screwdriver, a nut driver, and other hand tools which required firm grasping with his right hand.
After the employee had performed this work for about one year, he began to experience right wrist symptoms. The initial symptom was a non-painful lump on the back of his right hand from the base of the thumb to the wrist. This lump would come and go. After a period of time the lump became painful, and later the employee developed pain and swelling in the same area.
The employee first sought medical advice for this problem on August 1, 2000, when he was seen by Dr. Lex Nerenberg at Bass Lake Physicians. He complained of right hand and wrist pain accompanied with swelling for about a week. He recalled no specific injury. Dr. Nerenberg observed that the employee=s wrist was mildly swollen and tender but had good range of motion. He ordered an x-ray of the employee=s wrist and prescribed Darvocet.
The employee=s wrist did not improve over the next few weeks and Dr. Nerenberg referred the employee to an orthopedic surgeon, Dr. Clare McCarthy, who first saw the employee on August 29, 2000. The employee told her that, two weeks previously, his hand had swollen up to the point where he was having difficulty with work. He also recounted for the doctor the history of his fall in the Marines. The employee complained of significant pain in his right wrist. On examination, the employee=s right wrist was seen to be thicker as compared with the left. Tinel=s sign was positive on the volar aspect over the median nerve. Dr. McCarthy noted that the employee=s x-rays showed an old scaphoid malunion with advanced degenerative changes at the scaphotrapezial and trapezoid joint, as well as some changes at the lunocapitate joint. Her impression was of an advanced collapse from a scaphoid non-union (ASNAC wrist@). She suggested that the employee undergo scaphoid excision and a four-corner fusion.
On September 18, 2000 the employee underwent the fusion surgery. Subsequent to the surgery, the employee had significant numbness and tingling in a median nerve distribution. Dr. McCarthy at first believed this to be due to a new onset of carpal tunnel symptoms due to bleeding or swelling in his wrist. On October 20, 2000 the employee underwent right endoscopic carpal tunnel release surgery. The employee continued to show median nerve palsy. An EMG on January 8, 2001 was consistent with a lesion of the median nerve, and in March 2001 Dr. McCarthy referred the employee to Dr. Anne Van Heest at the Fairview University Medical Center for a second opinion.
Dr. Van Heest saw the employee on April 23, 2001. In the health history form he completed on that date, the employee referred to a 1998 injury as being the cause of his problems. No further evidence is in the record of any such injury. Dr. Van Heest=s assessment was of median neuropathy. She ordered a CT scan of the employee=s right wrist, which showed a non-union of the scaphoid to the trapezial trapezoid junction. Dr. Van Heest recommended that the employee undergo further fusion surgery together with median nerve decompression. On May 17, 2001 Dr. Van Heest performed this third surgery, consisting of a right carpal tunnel release, right median nerve decompression, and right revision STT fusion with interfragmentary screw fixation. The surgery did not restore the employee=s median nerve sensation but did result in improved movement. The employee was released to return to work on July 30, 2001 with a lifting restriction of 25 pounds and instructions to limit right hand use to the extent of pain tolerance.
The employee returned to Dr. Van Heest on November 7, 2002 and stated that he continued to have extremely limited feeling over his thumb, index and long fingers and in the radial aspect of his right palm. Dr. Van Heest suggested to the employee that he consider further surgery in the form of a tendon transfer in his right wrist, to give him opposition strength of his thumb and thus afford him better grip positioning with the right hand. The employee decided to accept this recommendation and underwent this fourth surgical procedure on January 30, 2003. As of May 12, 2003, the employee was allowed to work under a restriction against fine motor repetitive work with the right hand as well as a 20-pound lifting restriction.
On January 2, 2001 the employee filed a claim petition alleging a work-related Gillette injury[1] to the employee=s right upper extremity. The employer and insurer answered and denied primary liability. The parties subsequently reached a to-date settlement of the employee=s claims which was embodied in an Award on Stipulation served and filed on May 12, 2002. However, the employer and insurer expressly reserved the right to assert a primary liability defense to any further claim by the employee. On or about December 9, 2002 the employee filed a second claim petition asserting temporary total disability compensation, permanent partial disability, and medical expenses.
The employee=s claims were heard by Compensation Judge Jeanne Knight on June 18, 2003. In her Findings and Order, the compensation judge found that the employee had failed to prove by a preponderance of the evidence that his work activities were causally related to his right wrist surgeries and disability. The employee appeals.
DECISION
The question of a Gillette injury primarily depends on medical evidence. Marose v. Maislin Transport, 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987). In order to establish a Gillette injury, an employee must prove a causal connection between the employee's ordinary work and the ensuing disability. Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464 (Minn. 1994). The central issue presented in this appeal is whether the employee established work-related causation for a Gillette injury to his right wrist. Questions of medical causation are issues of fact which fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).
In the present case, the employee relied on the opinion of Dr. Van Heest, while the employer and insurer relied upon the medical opinion of Dr. William Call, who examined the employee on their behalf on June 19, 2001 and again on June 10, 2003. Both Dr. Van Heest and Dr. Call agreed that the initial cause of the employee=s right wrist problems was the employee=s fall during his service in the Marine Corps, which likely caused a fracture of the scaphoid and which failed to heal properly. The fracture led to the development of scaphoid trapezial trapezoid (ASTT@) arthritis and necessitated the employee=s initial surgery. Both doctors further agreed that the employee=s symptoms following his first surgery were not the result of his work activities or of a progression of the STT arthritis, but were instead due to complications from the surgery on September 18, 2000.
However, the two medical experts disagreed as to whether the employee=s work for the employer contributed to the development of his arthritis. Dr. Van Heest opined that torquing and rotatory movements of the right wrist, such as were used in tightening bolts during the employee=s work for the employer, aggravated or accelerated the natural progression of the employee=s arthritis and led to the emergence of his symptoms. Dr. Call, on the other hand, considered the employee=s work activities wholly unrelated to the development of his arthritis. He testified that the type of injury the employee sustained while in the Marines was Aa classic mechanism for causing a fracture of the scaphoid@ and that malunion of the scaphoid likely followed from the early removal of the employee=s cast. The malunion would normally result in STT arthritis which would typically become symptomatic between 15 and 25 years from the injury, regardless of the employee=s subsequent activities with his right upper extremity. Dr. Call further testified that, in his opinion, the work activities were not causal, exacerbatory or irritative to the arthritis.
Generally, this court must uphold findings based on a compensation judge=s choice between conflicting expert opinion, unless the facts assumed by the expert on whom the judge relies are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). While conceding this point, the employee argues that Dr. Call=s opinion actually supports a finding of compensability for the employee=s right wrist problem. According to the employee, since Dr. Call conceded that the employee=s work activity could make the arthritis symptomatic and since the surgery was done because of those symptoms, the employee is entitled to compensation even if Dr. Call=s opinion was accepted by the compensation judge. We disagree. It was Dr. Call=s opinion that the emergence of symptoms at work was Afortuitous@ and that similar symptoms could be expected from activities at home and were a function not of the activity but of the development of the arthritis.
We find substantial evidence to support the compensation judge=s decision and we affirm.