LINDA NAGEL, Employee/Appellant. v. HENNEPIN COUNTY, SELF-INSURED, Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 6, 2004

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including expert opinion, supported the judge=s conclusion that the employee did not sustain a work-related Gillette injury to her cervical spine.

 

EVIDENCE - ADMISSION.  The compensation judge did not abuse her discretion in refusing to admit into evidence a detailed written description of the employee=s job duties that was duplicative of the employee=s testimony.

 

Affirmed.

 

Determined by: Wilson, J., Pederson, J., and Rykken, J.

Compensation Judge: Cheryl LeClair-Sommer.

 

Attorneys: Luke Seifert, Quinlivan & Hughes, St. Cloud, MN, for the Appellant.  Mary M. Wahlstrand, Assistant Hennepin County Attorney, Minneapolis, MN, for the Respondent.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s finding that the employee did not sustain a Gillette^[1] injury and from the judge=s refusal to accept an exhibit into evidence.  We affirm.

 

BACKGROUND

 

The employee began working full-time for Hennepin County [the employer] in 1977.  For the first year, her duties required answering phones, folding certificates of title, and filing receipt cards and documents.  The employee answered fifty to one hundred calls a day during that period and cradled the phone between her head and shoulder while writing.

 

The employee=s next position with the employer was that of a cashier, which involved repetitively stamping documents with a hand stamper, requiring her to bend her head downward to look at her desk, writing, ringing up money, operating an adding machine, maintaining ledgers and deposits, answering the phone, filing, and periodically lifting and carrying large books.  The employee worked in that position for a few years.

 

The employee next worked in data entry for the employer, which required her to sit at a computer and type most of the day.  This job also involved stapling and hand stamping.  The employee worked in the data entry job until June of 1992, when she went to part-time employment.

 

The employee worked part-time for the employer, 20-25 hours per week, from 1992 until 2000.  During that period, she worked in several different jobs, including data entry, cashier, and Torrens satisfaction.  Her Torrens satisfaction duties included checking the computer screen, writing on documents, and hand stamping.  The computer work necessitated frequent change of neck position.

 

In 2000, the employee returned to full-time employment, performing Torrens satisfactions and working with incoming mail, which involved lifting mail buckets, opening and sorting the mail, pulling out staples, and delivering mail.

 

In approximately 2000, the employee began noticing numbness and tingling in her right arm and fingers, which she related to the high volume of stamping and writing that her work involved at that time.  However, she did not seek immediate medical treatment.  By October of 2001, the employee had sharp pain in the elbow and fingers and had difficulty holding a pen to write or a stamp to hand stamp.  The employee reported a work injury to her employer on October 22, 2001, describing her injury as Anumbness, tingling, sharp pains from fingers & arm, lack of strength@ and relating the onset of those symptoms to Aconstant repetitive 10 key action on a keyboard, constant writing, typing.@  She treated with the Johnson Street Medical Clinic on October 24, 2001.  Carpal tunnel syndrome was suspected but ruled out when an EMG was read as being normal.  The employee subsequently underwent x-rays and an MRI, which revealed degenerative disc disease from C3-C4 through C6-C7 as well as foraminal stenosis at multiple cervical spine levels.

 

In November of 2001, the employee=s treating doctors referred her to Dr. T. Hood, with Millennium Neurosurgery.  Dr. Hood prescribed a home cervical traction unit.

 

In March of 2002, the employee was seen by Dr. Robert Wengler at her attorney=s request.  In his letter to the employee=s attorney on March 19, 2002, Dr. Wengler stated that A[t]he development of her symptoms relates to stresses to which the neck was subjected during the course of her work activities at Hennepin County and may be considered the product of a Gillette injury.@  Dr. Wengler recommended a home traction unit with re-evaluation in six months.

 

The employee filed a claim petition on April 4, 2002, seeking temporary partial and permanent partial disability benefits and medical expenses related to an alleged Gillette injury to her cervical spine occurring on or about October 24, 2001.  The employee underwent a four-level cervical discogram on August 15, 2002, to determine whether she was a candidate for surgery.  The discogram revealed multilevel degenerative disc disease, but Dr. Wengler recommended surgery only if the employee=s symptoms became intractable.

 

The employer had the employee examined by Dr. Mark C. Engasser on June 15, 2002.  It was Dr. Engasser=s opinion that the employee=s Acervical condition is not caused or substantially caused by her work activity at Hennepin County.  This patient basically performed clerical work and in my opinion there is really no substantial excessive stress to her neck.@

 

The claim petition proceeded to hearing on September 24, 2003.  At the hearing, employee=s counsel attempted to introduce into evidence a complete description of the various jobs that the employee had performed for the employer, including her current employment.  The judge did not allow the exhibit into evidence.

 

In findings and order filed on October 17, 2003, the compensation judge determined that the employee had not sustained a Gillette injury arising out of and in the course and scope of her employment.  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.  Evidentiary Ruling

 

In her brief on appeal, the employee contends that the compensation judge erred in admitting a letter that employer=s counsel wrote to Dr. Engasser and in refusing to admit the exhibit outlining the employee=s job duties.  We note initially that the employee did not raise the admission of the letter to Dr. Engasser in her notice of appeal.  Only issues raised in the notice of appeal are appropriately before this court.  Minn. Stat. ' 176.421, subd. 6.  We therefore may not consider the arguments regarding the letter to Dr. Engasser.  Id.

 

With respect to the exhibit outlining the employee=s job duties, we would note initially that a compensation judge is not bound by the common law or statutory rules of evidence.  Minn. Stat. '176.411, subd. 1.  Generally, a compensation judge has broad discretion regarding the admissibility of evidence.  Ziehl v. Vreeman Constr. Co., slip op. (W.C.C.A. Oct. 15, 1991).

 

In the instant case, the compensation judge refused to admit the exhibit in question because the exhibit was duplicative of the employee=s testimony.^[2]  The employee testified in detail at hearing about her job duties over the 24 years that she worked for the employer.  The employee on appeal has pointed to no information contained in the excluded exhibit that was not received at hearing via the employee=s testimony or other exhibits.  We therefore conclude that the compensation judge=s ruling did not constitute an abuse of discretion and did not unfairly prejudice the employee.  There is simply no basis for reversal of the compensation judge=s decision on these facts.

 

2.  Causation - Gillette Injury

 

The employee contends that she established the elements of a Gillette injury by a preponderance of the evidence.  Specifically, the employee points to her testimony regarding the onset of her symptoms, the progression of those symptoms over time, the history of her work activities, and the causation opinion of Dr. Wengler.  The issue on appeal, however, is not whether substantial evidence would support an alternative finding, but whether substantial evidence supports the judge=s findings.  In this case, we find no basis to reverse.

 

Dr. Engasser=s report indicates that the employee described the nature of her work and provided him with Aa typewritten description of her problems and diary of aches and pains.@  He also indicated that he relied, in part, on the First Report of Injury and an ergonomic evaluation of the employee=s job site dated November 2, 2001.  After considering this information, Dr. Engasser concluded that Amoving the neck as part of her job or performing reaching, bending, twisting of the upper extremities would in no way produce inordinate stress on her neck.  I feel that her cervical stenosis is a degenerative condition which is not work related.@

 

The compensation judge specifically stated in her memorandum that she found the opinion of Dr. Wengler less persuasive than the opinion of Dr. Engasser.  In so doing, the judge pointed to specific concerns that she had with Dr. Wengler=s opinion, including his lack of explanation for his opinion that stooping, bending, lifting, and repetitive arm movement can produce microtrauma to the cervical spine.  In addition, Dr. Wengler testified that one of the work activities that contributed to the employee=s cervical disc problems was Atime she spent on the phone with the phone cradled over her ear in between her neck and shoulders.@  He went on to explain that Apeople who cradle telephones in their head and neck for years at a time may develop such problems.@  At hearing, however, the employee testified that her extensive use of the telephone occurred while she was working in the clerk typist job back in 1977.  She offered no testimony to support the conclusion that she cradled the telephone in that manner for Ayears at a time.@

 

A judge=s choice between expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W. 2d 337, 37 W.C.D. 364 (Minn. 1985). The employee argues in her brief that  Dr. Engasser did not have adequate foundation for his opinions and that he Adoes not state in detail which medical records he reviewed.@  We note, however, that Dr. Engasser did specifically identify the medical records from the Johnson Street Clinic, Minneapolis Clinic of Neurology, North Memorial Medical Center, Millennium Neurosurgery, and Dr. Wengler as sources of his information.^[3]  Clearly Dr. Engasser had adequate information to give an opinion on the issue of causation.  What the employee is actually arguing is that the compensation judge erroneously gave more weight to Dr. Engasser=s opinion than she did to Dr. Wengler=s.  However, it is the role of the trier of fact to choose between conflicting medical opinions.  Id.  As Dr. Engasser=s report provides substantial evidence to support the judge=s decision, we affirm that decision in its entirety.