GARY L. KLEIN, Employee/Appellant, v. THOMSON CORP./WEST GROUP and PACIFIC EMPLOYERS INS./ACE-ESIS, Employer-Insurer, and THOMSON CORP./CNA COMMERCIAL INS., Employer-Insurer, and HARTFORD ACCIDENT AND LIFE INS. CO., MN DEP'>T OF LABOR AND INDUS./VRU, and ALLINA HOSPS. AND CLINICS/UNITED HOSP., Intervenors.

 

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 8, 2004

 

HEADNOTES

 

CAUSATION - MEDICAL EXPENSES; CAUSATION - INTERVENING CAUSE; CAUSATION - PRE-EXISTING CONDITION.  Where it was not unreasonable and was supported by adequately founded expert medical opinion, the compensation judge=s conclusion that the employee=s 1998 work injury was not a substantial contributing factor in the employee=s January 2002 need for low back surgery or in his March 2002 motor vehicle accident or in his subsequent disability and need for medical treatment was not clearly erroneous and unsupported by substantial evidence.

 

CAUSATION - GILLETTE INJURY.  Where the employment tasks identified by the employee did not in and of themselves appear to be so stressful and repetitive as to require reversal of the compensation judge=s conclusion contrary to the medical opinion on which the judge relied, and where the medical opinion on which the judge relied was not unfounded and did not improperly apply the Reese legal standard instead of the Steffen legal standard, the compensation judge=s conclusion that the employee did not sustain a Gillette-type work injury was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

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

Compensation Judge: Paul V. Rieke

 

Attorneys: T. Michael Kilbury, Peterson, Logren & Kilbury, St. Paul, MN, for Appellant.  James S. Pikala, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for Respondents.

 

 

                                                                             

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's denial of the employee=s claim for benefits stemming from an admitted specific work injury on July 14, 1998, and an alleged Gillette-type injury^[1] on January 21, 2002.  We affirm.

 

BACKGROUND

 

Gary Klein has received treatment for temporary low back injuries and degenerative problems intermittently since at least 1979.  In August of that year he was treated for complaints of acute low back pain which were related to his lifting of a snow blower two months earlier.  In November of 1993 he was treated for complaints of persistent back pain that he had been experiencing off and on for three weeks.  In July of 1994 he was treated for complaints of low back pain that he had been experiencing for the past six or eight weeks.  In October of 1995 he was treated for complaints of low back pain that he had been experiencing for two days.

 

On July 14, 1998, Mr. Klein [the employee] sustained an admitted work-related injury to his low back when a one-hundred-pound basket fell on him in the course of his employment as a pressman with the Thomson Corporation/West Publishing [the employer], which was at that time insured against workers= compensation liability by Continental Casualty Company/CNA [CNA].  The employee was fifty-four years old on that date and was earning a weekly wage of $759.00.  The employee commenced treatment for his injury with his family physician since 1979, Dr. Carol Entwistle, who ordered x-rays, which were read to reveal mild anterior spurring throughout the lumbosacral spine, joint space narrowing at L5-S1, and minimal posterior subluxation of L3 on L4 and L4 on L5, but no acute fracture.  The radiologist=s summary impression of the films was of degenerative disease of the lumbosacral spine, and Dr. Entwistle diagnosed lumbar and thoracic contusion to the low back, prescribed anti-inflammatories, and restricted the employee from working.  A week later, on July 22, 1998, Dr. Entwistle diagnosed Aresolved acute contusion to the back but with twinges of sciatica when he sits too long@ and released the employee to return to work at light duty, restricted from lifting over ten pounds, from lifting more than four times an hour, and from repetitive stooping and bending at the waist, with instructions to change positions frequently and to alternate sitting and standing at least every hour.  On November 2, 1998, Dr. Entwistle concluded that the employee had reached maximum medical improvement [MMI] with regard to his July 1998 work injury, and, diagnosing A[r]esolved lumbar contusion@ with A[n]o evidence of residual,@ she released him to work without restrictions.  The employee subsequently returned to his regular job as a pressman at full capacity.

 

The employee continued to work at his job with the employer for nearly two years without any medical attention to his back or any time lost from work because of any back-related problems.  On October 18, 2000, he experienced a recurrence of acute low back pain in the process of carrying some leaf bags after raking in his yard.  He was subsequently examined at a hospital emergency room, where he complained of left-sided pain in his low back and buttock that he said was different from the pain he experienced with his work injury in 1998.  The employee was diagnosed with lower back strain, prescribed medications, and referred for follow-up with his treating physician.  Two days later, on October 30, 2000, he saw Dr. D. Piper, an associate of Dr. Entwistle, for concerns including Aa back strain associated with bagging leaves, then lifting them into his truck, then taking them to the dump and the pain is in the same area where he was hit industrial by a 200 lb steel basket.@  Dr. Piper noted that the Aacute low back strain is resolving in uncomplicated fashion apparently@ and released the employee apparently without radiological tests to return to his regular job without restrictions.  The employee did not receive any further treatment for his low back for over a year, although he did treat with Dr. Entwistle for other health concerns over the course of that time.

 

On December 18, 2001, the employee returned to see Dr. Entwistle, with complaints of gradually increasing frequency of back pain and sciatica into the knee of his left leg over the last two months Awithout any specific injury.@  The employee wondered if his pain could be an exacerbation of his 1998 work injury.  Dr. Entwistle noted that the employee had missed two days of work in the past week due to his pain and that he A[f]inds climbing ladders at work the hardest part,@ although he was Aable to do his regular bending and lifting@ and A[t]hinks actually that it is better for him to be working because he stays limber.@  Dr. Entwistle prescribed medication and physical therapy, restricted the employee from further ladder climbing at work, and ordered a CT scan.  The CT scan, conducted on that same date, was read to reveal mild central canal narrowing at the L4 level and advanced degenerative changes involving the L5 disc, resulting in at least mild bilateral neural foraminal narrowing.

 

On January 14, 2002, the employee returned to Dr. Entwistle, who reported that the employee=s symptoms had improved and that he was able to perform his full work duties.  However, when he returned again about a week later, on January 22, 2002, the employee complained of worsening back pain, which he said radiated from his left buttock down into his thigh and calf.  Dr. Entwistle restricted the employee from all work and ordered a lumbar MRI scan.  The scan, which was conducted on January 28, 2002, was read to reveal a moderately large left paracentral disc extrusion at L4-5 that was compressing the left L5 nerve root, mild central stenosis at L4-5, mild right foraminal stenosis at L5-S1, and various degenerative changes.  On referral from Dr. Entwistle, the employee underwent an orthopedic consultation on January 29, 2002, by Dr. Bruce Bartie, DO, who diagnosed an L5 radiculopathy, with a symptomatic inferiorly extruded L4-5 disc after failed conservative treatment.  The following day, Dr. Bartie performed a microdiscectomy on the employee=s spine at L4-5 on the left.  Subsequent to that surgery, the employee continued to have low back pain and limitation of function, and he has not returned to work since January 21, 2002.  On the employee=s last day of work, the employer was insured against workers= compensation liability by Pacific Employers Insurance Company/ACE-ESIS [Pacific], the employee was fifty-eight years old, and his average weekly wage was $806.00.

 

On March 26, 2002, while driving home from a physical therapy session related to treatment for his back condition, the employee was involved in a motor vehicle accident that significantly aggravated his back condition.  About two weeks later, Dr. Entwistle wrote to the employer=s claim=s adjuster, stating in part as follows:

 

[The employee] has requested that I submit record[s] to you for consideration as to whether his recent lumbar disc disease was caused or aggravated by his significant back injury on the date of 7/14/98.  He has had a flare-up of lumbar disc disease, which required emergent low back surgery 1/30/02 . . . and has now raised the question of whether the injury in 1998 . . . may have actually been the ro[o]t cause of this current problem.  I think it is a reasonable question . . . .

 

Dr. Entwistle thereupon referenced certain notes among her submitted records but rendered no opinion herself in answer to the question at issue.  The effects of that motor vehicle accident continue to play a significant role in the employee=s ongoing low back condition.^[2]

 

On June 14, 2002, the employee filed a claim petition, alleging entitlement to temporary total disability benefits continuing from January 21, 2002, to payment of various unquantified medical and other benefits, and to appointment of a QRC, reserving a claim to unknown permanent partial disability benefits, all stemming from the employee=s admitted work injury on July 14, 1998, and an alleged Gillette-type injury on January 21, 2002.  Subsequently, on September 4, 2002, the employee amended that petition, alleging entitlement also to temporary partial disability benefits from January 15, 2002, through January 26, 2002, to permanent total disability benefits continuing from August 9, 2002, and, apparently in the alternative to the latter, to rehabilitation services specifically including retraining.

 

On September 19, 2002, the employee underwent an independent medical examination by orthopedic surgeon Dr. Jack Drogt.  Dr. Drogt concluded in part that the employee=s July 1998 work injury had been a temporary contusion that had resolved by November 2, 1998, and that the employee=s March 2002 motor vehicle accident had been a nonwork-related superseding intervening event that had aggravated an underlying degenerative disc disease, resulting in current mechanical low back pain for the employee.  Based on a comparison between the two scans, Dr. Drogt surmised that an event may have occurred between the employee=s CT scan of December 18, 2001, and his MRI scan of January 28, 2002, that caused the change in the scans and that was causally unrelated to the July 1998 work injury.  Dr. Drogt concluded further that it was

 

certainly possible that [the employee] sustained a Gillette injury in the course of his work activities at [the employer] as a pressman in the two months leading up to his presentation on December 18, 2001 culminating on or about January 21, 2002, which subsequently required his admission on January 28, 2002.  However, contemporaneous medical records do not include any work-related association as documented in the history provided by [the employee] to suggest that his increased pain presenting December 18, 2001 was work-related either by specific event or Gillette injury.

 

On February 28, 2003, Dr. Entwistle wrote to the employee=s attorney, responding to various queries.  In that letter, Dr. Entwistle opined in part that the employee=s March 26, 2002, motor vehicle accident was a Asignificant contributing cause@ of the employee=s need for his subsequent ongoing care and treatment.  The employee saw Dr. Entwistle for the last time on July 10, 2003, on which date Dr. Entwistle concluded that the employee had reached maximum medical improvement [MMI] and was permanently disabled.  Notice of that MMI opinion was served on the employee=s attorney at the time of Dr. Entwistle=s deposition on August 22, 2003.  At that deposition, Dr. Entwistle testified in part that the employee=s condition was Amulti-factorial,@ being partly attributable to the employee=s weight, partly to the continuing effects of his motor vehicle accident, partly to the July 1998 work injury, and partly perhaps to some event between December 2001 and January 2002 that might have precipitated the disc herniation.  Dr. Entwistle also testified that it remained Acertainly possible that the Workers= Comp. injury in >98 could have weakened [the employee=s] back and contributed to bulging disks in the future.@  She noted also that 1998 x-rays had revealed degenerative changes that predated the employee=s 1998 injuryBchanges that apparently had caused the employee=s back problems in 1993, 1994, and 1995Band she testified also in part that there Acould be a contributory cause from [the July 1998] injury, although I agreed that he functioned well in the period in between [the employee=s 1998 work injury and his post-March 2002 low back condition].@

 

On August 28, 2003, deposition testimony was also taken from Dr. Drogt.  Dr. Drogt reiterated in testimony his opinion that the employee=s July 14, 1998, work injury was not a substantial contributing factor in the condition that led to the employee=s January 2002 surgery and his subsequent disability.  Dr. Drogt reiterated that the employee=s work injury was in his opinion only a temporary contusion that resolved after a brief period of temporary partial disability, after which the employee returned effectively to full duty, without any permanent partial disability.  Dr. Drogt testified also that in his opinion there was no evidence to support a conclusion that the employee had sustained a Gillette-type injury as a result of his work activities with the employer leading up to January 21, 2002. 

 

The matter came on for hearing on August 29, 2003.  On the date of the hearing, the employer stipulated that the employee was permanently and totally disabled.  Issues at hearing included whether or not the employee had sustained a Gillette-type injury to his low back on January 21, 2002, and whether or not the employee=s July 14, 1998, work injury had been a substantial contributing cause of the employee=s January 2002 low back surgery and subsequent medical treatment and disability.  By findings and order filed September 4, 2003, the compensation judge concluded in part that the employee=s 1998 work injury was not a substantial contributing factor in the employee=s ongoing back condition or need for surgery in January 2002 and that the employee had not sustained a Gillette-type work injury on January 21, 2002, as claimed.  The employee appeals.

 

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 (1992).  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

 

1.  The July 1998 Work Injury as a Cause of the Employee=s Need for Surgery in January 2002

 

At Finding 11, the compensation judge concluded that the employee=s July 14, 1998, work injury was not a substantial contributing cause of the employee=s need for low back surgery in January 2002 or of his subsequent disability and need for medical treatment, suggesting that all significant effects of the 1998 injury had resolved no later than November 1998.  The judge supported this conclusion by stating,

 

Primary evidentiary factors taken into consideration by the Court in making this finding concerning the 1998 injury are the medical records indicating that the employee=s condition had resolved in November 1998; the significant periods of time when there was no treatment for the employee=s low back subsequent to the 1998 injury; the employee=s ability to return to work without restrictions or lost time; and the opinions of the Independent Medical Examiner, Dr. Drogt.

 

The employee contends that substantial evidence does not support the compensation judge=s determination and that the opinions of Dr. Drogt are of insufficient foundation to have been relied upon by the judge.  We are not persuaded.

 

With regard to the judge=s reliance on medical records, work history, and other non-expert-opinion evidence, we conclude that the compensation judge=s conclusion was not at all unreasonable, even without the support of Dr. Drogt=s opinion.  The surgery and disability here at issue occurred fully three and a half years after the employee=s work injury and over three years after the employee=s doctor pronounced that work injury A[r]esolved@ with A[n]o evidence of residual@ and released the employee to return to his pre-injury job without restrictions.  Nor was that clearance only a brief one; the employee continued to work at his job full time without restrictions for nearly two years before seeking any medical attention to his back.  Even then the medical records appear to associate the reappearance of back pain more with yard work than with work activities, and within two weeks the pain was medically reported to be apparently Aresolving in uncomplicated fashion.@  Moreover, after that single documented episode of pain, the employee was once again released to return to work without restrictions and did so without further back treatment for over a year.  In light of this post-injury medical and work history, it was not unreasonable for the compensation judge to conclude, notwithstanding any adverse testimony by the employee, that there was insufficient evidence of a causal relation between the employee=s work injury and his post-January 2002 low back problems to warrant compensation.

 

With regard to the judge=s reliance on the opinion of Dr. Drogt rather than that of Dr. Entwistle, the compensation judge explained at Finding 11 that Dr. Entwistle

 

only opined that it is certainly possible that the workers= compensation injury of 1998 could have weakened the employee=s back and contributed to the bulging disks in the future and that the 1998 work injury was certainly a significant enough injury that it could exacerbate the development of degenerative disk disease.

 

(Emphases in original.)  The judge went on to note that, A[i]n expressing her opinions, [Dr. Entwistle] indicates that this is >tricky . . . because there=s a lot of factors.=@  It is clear that the judge found Dr. Entwistle=s causation opinion to be of insufficient medical certainty to be relied on, in contrast with the more certainly stated opinion of Dr. Drogt.  The employee concedes that a judge=s choice between expert medical opinions is normally granted substantial deference by this court, but he argues that that deference is only granted where the chosen opinion is sufficiently founded, arguing that Dr. Drogt=s opinion lacks sufficient foundation to be relied upon.  We disagree.

 

The employee=s principal argument on this issue is that Dr. Drogt=s opinions are internally inconsistent, that, to explain one such inconsistency, ADr. Drogt opines that in December 2001 and January 2002, the employee provided no contemporaneous history in the medical records linking work activity to his increasing symptoms and disability,@ and that A[t]hat is wrong.@  We conclude, however, that any inconsistency identified by the employee in Dr. Drogt=s opinions is minor and is a matter not of foundation but of weight.  Dr. Drogt=s multipage report on September 19, 2002, indicates that he was fully informed of a full history of the employee=s work activities and symptomology since the date of the employee=s 1998 work injury, that he conducted a thorough review of the employee=s medical and radiological records for that period of time, and that he was well aware of the employee=s social history and ongoing medical conditions.  As the employee has acknowledged, this court generally defers to a compensation judge=s choice between expert medical opinions, so long as the facts assumed by the expert in rendering his opinion are not unsupported by the evidence.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  Here there is no evidence that the opinions at issue were based on any false premises.

 

Because it was not unreasonable and was supported by substantial and adequately founded expert medical opinion, we affirm the compensation judge=s conclusion that the employee=s July 14, 1998, work injury was not a substantial contributing cause of the employee=s need for low back surgery in January 2002 or of his subsequent disability and need for medical treatment.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

2.  A Gillette-type Injury as a Cause of the Employee=s Disability and Need for Surgery in January 2002

 

At Finding 13, the compensation judge concluded that the employee did not sustain a Gillette-type injury with the employer in January 2002, explaining that he was Anot convinced that the work activities of the employee at the employer were physically >heavy duty= in nature or that such were undertaken on the kind of a repetitive basis that would constitute a Gillette-type injury.@  The judge noted in this regard that the employee had testified that Ain the last few years many of his repetitive activities at work had been modified and significantly diminished by automated devices,@ that Athe most repetitive task had been altered by a device several years ago so that 99.5% of the procedure was not done manually.@  The judge indicated that, in declining to find a Gillette-type injury, he was accepting Dr. Drogt=s opinions over the opinions of Dr. Entwistle, which the judge found Anot sufficiently founded to establish a Gillette-type injury.@  The employee argues that substantial evidence does not support the judge=s conclusions as to the nature of the employee=s work activities and that the opinions of Dr. Drogt on which the judge relied were based on a no longer applicable legal standard.  We are not persuaded.

 

With regard to the judge=s conclusions as to the nature of the employee=s work, the employee argues that only two of the employee=s job activities were automated^[3] and that even with regard to those two activities several related secondary activities remained to be performed manually even after the automation.  These activities included manual removal of wrappings from the twelve- to fourteen-hundred-pound paper rolls, manual rolling of those paper rolls up to twenty-five feet into position for automated lifting, and A[r]eaching, stretching, positioning, kneeling, etc.@ with regard to facilitating the automated lifting of bundled print product from the bundling area to the transport skid.  The employee argues further that all other job activities remained unchanged, including

 

climbing the Aback press@ ladder of 10 to 12 steps, 10 to 30 times daily; changing plates 10 to 30 times daily; kneeling, crouching, and bending at a 90[degree] angle to such plates; crawling on hands and knees to stretch and position ribbons and paper in the industrial Afolder;@ sweeping; and changing ink barrels.

 

We conclude that, although they might have supported a decision contrary to that reached by the judge, the tasks here identified by the employee do not in and of themselves appear to us to be so stressful and repetitive as to require our reversal of the compensation judge=s decision contrary to the opinions of Dr. Drogt.

 

With regard to the propriety of the judge=s reliance on those opinions of Dr. Drogt themselves, the employee contends that Dr. Drogt Aapplied erroneous >burden of proof= standards and >causation= tests which have been rejected by the Minnesota Supreme Court relative to Gillette or repetitive-trauma injuries.@  The employee cites Dr. Drogt=s reference to the employee=s failure to report specific work-related symptoms to Dr. Entwistle as evidence that Dr. Drogt was applying the no longer applicable standard articulated in Reese v. Northstar Concrete, 38 W.C.D. 63 (W.C.C.A. 1985), rather than the current standard articulated in Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994).  In Reese, this court had established that A[t]he employee must prove, in order to establish a Gillette injury, that specific work activity caused specific symptoms leading to disability.  The record must show what activities affected the employee in what specific manner, forming a basis for medical opinion of causal relationship.@  Reese v. North Star Concrete, 38 W.C.D. 63, 65 (W.C.C.A. 1985).  In Steffen, nine years later, the supreme court essentially over-ruled this standard, holding that, A[w]hile that kind of evidence may be helpful as a practical matter, as we=ve said before the question 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), citing Marose v. Maislin Transport, 413 N.W.2d 507, 512, 40 W.C.D. 175, 182 (Minn. 1987).  The court stated that

 

where there is objective medical evidence coupled with the opinion of a medical expert and where the ultimate objective is the attainment of substantial justice according to the purposes of the Workers= Compensation Act, application of the standard followed by the WCCA to establish the required causal relationship in the field of law casts an unfair burden upon a person injured by the duties of employment.

 

Id., 517 N.W.2d at 581, 50 W.C.D. at 467.

 

We conclude that the compensation judge did not err in relying on the opinion of Dr. Drogt.  The current standard itself, as articulated in Steffen, does not at all disqualify a medical opinion for the expert=s having inquired into the specific work activities of the employee or the history of the employee=s development of symptoms.  Indeed, as quoted above, Athat kind of evidence may be helpful as a practical matter.@  Steffen, 517 N.W.2d at 581, 50 W.C.D. at 467.  The point of the current standard is that the onus of proving a Gillette- type injury rests not in the employee=s documentation of his or her minutely developing injury but in a medical expert=s opinion as to the probability that the employee=s condition resulted from the employee=s work activities as the expert understood them.  In this case, although Dr. Drogt did apparently consider the employee=s reports as to the nature of his work and the development of his symptoms in making his determination, we see no evidence that Dr. Drogt=s opinion hinged on the employee=s own documentation of those things to such an extent as to remove the issue from the purview of the doctor=s own medical expertise.  Because it was not unreasonable on a factual basis and was not improperly based on an unfounded medical opinion or a medical opinion applying an improper legal standard, we affirm the compensation judge=s decision that the employee did not sustain a Gillette-type work injury in January of 2002.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

The decision of the compensation judge is affirmed in its entirety.