MARY DAVIDSON, Employee, v. SDW HOLDINGS CORP. d/b/a SAPPI FINE PAPER, and ACE USA, Employer-Insurer/Appellants, and BLUE CROSS AND BLUE SHIELD OF MINN., and MN DEP=T OF LABOR & INDUS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 21, 2004
HEADNOTES
CAUSATION - GILLETTE INJURY. Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee=s work activities for the employer were a substantial contributing cause of the employee=s Gillette injury.
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence, including medical records and the employee=s testimony, support the compensation judge=s finding that the employee had not reached maximum medical improvement as of October 9, 2002.
Affirmed.
Determined by Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Catherine A. Dallner
Attorneys: James B. Peterson, Falsani, Balmer, Peterson & Quinn, Duluth, MN, for the Respondent. Kathleen S. Bray, Hanft Fride, Duluth, MN, for the Appellants.
OPINION
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal the compensation judge=s findings that the employee=s work activities for the employer represented a substantial contributing factor in the employee=s Gillette[1] injury sustained on May 25, 2002, and that the employee had not reached maximum medical improvement. We affirm.
BACKGROUND
Mary Davidson, the employee, started working full time for Potlatch Corporation in 1978 and worked in a variety of positions. She began working as a filter helper or classified filter lead worker in the mid 1990's. Working eight hour shifts, the employee walked through the plant, pushing a cart and replacing filters used in the plant=s ventilation or air purification system; this required her to walk on flat and inclined cement floors, climb stairs, and push and pull a cart loaded with filters. The employee testified that in 1997 she noticed a gradual onset of foot pain. She sought treatment with Dr. L. E. Riess on August 22, 1997, who diagnosed tendinitis of the heels, but recommended no treatment at that time other than shoe inserts and ibuprofen. On July 31, 1998, the employee again sought treatment and was referred to Dr. R. W. Hendricks, an orthopedic surgeon. Dr. Hendricks ordered physical therapy, which improved the employee=s symptoms significantly. The employee did not lose any time from work and had no formal restrictions. In 1998, the employee filed a first report of injury with Potlatch, reporting bilateral heel pain. The employee testified that her workers= compensation claim was denied at that point by Potlatch; she apparently did not pursue that claim any further. The employee also testified that she modified her work by using an electric cart, receiving assistance from another filter employee, and spreading out the times she needed to climb stairs.
The employee underwent an annual physical examination in April 2002; the examination report did not mention any foot pain. In May 2002, the mill was sold to SDW Holdings Corporation d/b/a/ SAPPI Fine Paper (SAPPI), the employer, which was insured for workers= compensation liability by ACE USA. The employee was formally hired by SAPPI on May 13, 2002, and began working for the new company on May 20, 2002. The employee was placed in a job that was significantly different from her job with Potlatch. Her new job was a Asheeter trucker@ position, which required her to work twelve-hour days. The employee was required to drive a Achariot@ truck, a fork-lift type of machine which she operated while standing, using foot pedals to operate the machine, and was required to climb or jump on and off the machine more than an estimated 200 times in the twelve-hour shift. The employee testified that whereas she was able to work at her own pace in her Potlatch position, the job she was assigned at SAPPI was more intensive and demanding, requiring that she work at a quicker pace.
During the employee=s first shift in this new position, she developed severe bilateral foot pain. The employee next had three scheduled days off, and then worked an eight-hour shift. She was then scheduled for a twelve-hour shift on May 25, 2002, but was only able to work eight hours on that day because of her foot pain. The employee was treated at an emergency room for shin pain, heel pain and cramping in her calves, and was taken off work. She saw Dr. Mollie Stapleton on May 28, 2002, and was taken off work and was assigned restrictions of not being on her feet more than six hours. She underwent physical therapy beginning May 30, 2002, reporting an onset of pain when she began working with SAPPI on May 20, and that she noted an improvement in her symptoms already after being off work the past five days. On June 13, 2002, the employee asked Dr. Stapleton to lift her restrictions since the employer could not accommodate them; she apparently was concerned about being able to continue working at her new job. The employee worked in the same sheeter trucker position, but the pain in her feet, heels and shins increased until August 2, 2002, when she again treated with Dr. Stapleton, who confirmed a continuation of her work restrictions; those restrictions limited her to standing less than four hours each day with a change in activity for one hour in-between the time she spent standing. The employee was also treated for depression at this time by Dr. Stapleton, who later advised that the employee had had a progressive onset of depression exacerbated by her work situation as well as her bilateral foot pain. Dr. Stapleton recommended a four to six week leave of absence and a transfer to a different job upon her return; by September 14, 2002, Dr. Stapleton wrote to a representative of SAPPI, stating that AMary has recovered from her depression sufficiently to go back to work, 9/27. The foot issue remains unresolved.@
The employee treated with Dr. Daniel Wallerstein in the fall of 2002, who diagnosed Abilateral mid-foot pronation@ and Asignificant tightness in the heel cord/gastroc soleus complex.@ He prescribed orthotic devices and physical therapy, and recommended that the employee either rotate her jobs or alternate her job tasks in order to allow her to walk during her shift. Dr. Wallerstein later advised that she could work eight hours a day, as long as she either spent 20 minutes of each hour off her feet or stood on a cushioned surface if standing still. In January 2003, the employee treated with Dr. Jed Downs, an occupational medicine specialist. Dr. Downs prescribed additional physical therapy, and released the employee to work a 12-hour shift as long as she was on her feet for four hours or less per day. The employer was unable to accommodate the restrictions assigned by Drs. Wallerstein and Downs.
In September 2002, the employee was examined by Dr. Lowell Lutter at the request of the employer and insurer, who diagnosed Achilles tendinosis with insertional calcification, bilateral heel cord contracture, diffuse heel fat pad pain, and intermittent secondary forefoot pain. Dr. Lutter opined that the employee=s condition was due to pre-existing degenerative problems aggravated by her work activities for Potlatch. Dr. Lutter also opined that the employee had reached maximum medical improvement as of the date of his September 12, 2002, report. The employee was served with Dr. Lutter=s report on October 9, 2002.
On July 1, 2002, the employee filed a claim petition, claiming temporary total disability benefits from May 25, 2002, through June 13, 2002, and from and after August 8, 2002, rehabilitation benefits, and medical expenses. The employer terminated the employee=s employment on May 19, 2003. A hearing was held on August 6, 2003. The compensation judge found that the employee had sustained a Gillette injury culminating on May 25, 2002, and awarded the claimed benefits. The compensation judge also found that the employee had not reached maximum medical improvement from her work injury. The employer and insurer appeal.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.@ Id.
DECISION
The employer and insurer argue that the compensation judge=s finding that the employee sustained a Gillette injury on May 25, 2002, is not supported by substantial evidence. A Gillette injury is a result of repeated trauma or aggravation of a pre-existing condition which results in a compensable injury when the cumulative effect is sufficiently serious to disable an employee from further work. Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W.2d 200, 205-06, 21 W.C.D. 105, 111-13 (1960); see also Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981). In order to establish a Gillette injury, an employee must Aprove a causal connection between [her] ordinary work and ensuing disability.@ Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). Further, it is well settled that injuries are compensable if the employment is a substantial contributing factor not only in the cause of the present condition but also in the aggravation or acceleration of a pre-existing condition. Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975). An employee need not prove that the employment was the sole cause, only a substantial contributing cause, of the disability for which benefits are sought. Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989). Ultimately, questions of medical causation 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 this case, the employee=s treating physicians all indicated that she could not work for the employer without restrictions. Although the employee had experienced foot symptoms since 1997, before she began working for SAPPI, the employee had been able to work since September 1998 with no time lost from work and no medical treatment for her feet. Dr. Downs opined that the employee=s work activities as of May 20, 2002, aggravated her bilateral foot condition. The compensation judge stated:
While Dr. Downs does state in his report that he is not able to offer an opinion regarding causation between the employee=s symptoms in 1997 and 1998 and her work activities at that time, Dr. Downs=s opinion regarding the causal relationship between the employee=s work activities for the employer on May 20, 2002 and her bilateral foot condition, in concert with the employee=s credible testimony at the hearing and the records and reports of the employee=s other treating physicians is sufficient to establish that the employee=s work activities for [the employer] during the week of May 20 through May 25 constitute a substantial contributing factor to the aggravation of her bilateral foot condition which culminated in disability on May 25, 2002.
Further, Dr. Lutter opined that the employee=s condition was due to pre-existing degenerative problems aggravated by her work activities for Potlatch, and did not specifically indicate whether the employee=s work activities for SAPPI were causally related to the employee=s condition. Where more than one inference may reasonably be drawn from the evidence, the finding of the judge is to be affirmed. Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240. The judge=s conclusion that the employee=s work activities for the employer were a substantial contributing cause of the employee=s Gillette injury is reasonably supported by the evidence as a whole, including Dr. Downs=s medical opinion and the employee=s testimony. We conclude that the compensation judge=s finding, that the employee=s work activities for the employer were a substantial contributing factor in her disability and need for medical treatment, is supported by substantial evidence in the record, and must be affirmed.
The employer and insurer also argue that the employee was taken off work in August 2002 due to depression, not her foot condition. In June 2002, the employee had asked to be taken off her physical work restrictions in order to enable her to return to work, and the employee had returned to work at that time. The compensation judge concluded that the employee continued to experience pain and problems with her feet while continuing to work in her new job for her new employer throughout June and July of 2002, and that she returned to her treating physicians during that period of time for her ongoing bilateral foot pain. The compensation judge noted that after August 2002 the employer could not accommodate her physical work restrictions, and also that the employee=s depression was only a temporary condition. Substantial evidence supports the compensation judge=s finding that the employee=s foot condition continued to be a substantial contributing cause of the employee=s disability after August 2002.
The employer and insurer also appeal the compensation judge=s finding that the employee had not reached maximum medical improvement as of October 9, 2002, when she was served with Dr. Lutter=s September 12, 2002, report. Dr. Lutter=s report stated that the employee was at maximum medical improvement, but indicated that the employee could possibly improve her symptoms and recommended a rheumatoid or inflammatory workup, intensive physiotherapy and a sleeping splint, an MRI scan, and consideration of a fractional lengthening of the Achilles tendon. The employee treated with Dr. Wallerstein and Dr. Downs after September 2002 and continued physical therapy. The employee reported significant improvement in spring of 2003 and was released to work with lessened restrictions. Dr. Lutter noted improvement when he reevaluated the employee in April 2003. Substantial evidence supports the compensation judge=s finding that the employee had not reached maximum medical improvement as of October 9, 2002, and we affirm.