TODD C. NOGGLE, Employee, v. LAZER COMMUNICATIONS, INC., and MINNESOTA ASSIGNED RISK PLAN adm=d by BERKLEY RISK ADM=RS CO., Employer-Insurer/Appellants, and MERCY HEALTH SYS., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 10, 2004
No. WC04-216
HEADNOTES
ARISING OUT OF & IN THE COURSE OF. Substantial evidence supports the compensation judge=s determination that the employee=s cervical injury and need for surgery arose out of and in the course of his employment where the employee, while driving in the course of his employment as a technical supervisor, described a pop in his neck and immediate onset of severe pain while turning his head sharply to the right to merge into traffic.
Affirmed.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Grant R. Hartman, Attorney at Law, Edina, MN, for the Respondent. Matthew H. Jones, Brown & Carlson, Minneapolis, MN, for the Appellants.
OPINION
THOMAS L. JOHNSON, Judge
The employer and the insurer appeal the compensation judge=s finding that the employee sustained a personal injury that arose out of his employment. We affirm.
BACKGROUND
On April 10, 2004, Todd C. Noggle, the employee, was employed by Laser Communications, Inc., the employer, as a technical supervisor earning a weekly wage of $807.69. On that date, the employer was insured for workers= compensation liability by the Minnesota Assigned Risk Plan, administered by Berkley Risk Administrators Company.
The employee began working for the employer in August 1998. By April 10, 2002, the employee was a technical supervisor whose duties included hiring, firing and training employees. The employee generally performed his job duties in the Janesville, Wisconsin, area. In March 2003, the employer assigned the employee to Brooklyn Park, Minnesota, to provide training to technical employees in the Minneapolis area. One of his duties was to follow technicians to job sites, monitor their performance and provide additional training.
On April 10, 2003, the employee was working with a technician for the day. In the late morning, the employee and the technician were leaving St. Louis Park going to Minneapolis. The employee was driving. The employee testified that, as he began to merge into traffic, he turned his head sharply to the right to see if there was any traffic coming. The employee testified he thought he saw oncoming traffic so he turned his head again Areal sharp and I heard a big pop in my neck.@ (T. 27.) Immediately thereafter, the employee stated his neck Afelt like electricity, like I was being electrocuted and heat in my neck and shoulder and an unbelievable headache I got from that.@ (T. 32.) The employee followed the technician to the next job, reported to the technician that he had done something to his neck and had a massive headache and then returned to the office. The employee told his manager he injured his neck and would be taking the rest of the day off.
On April 14, 2003, the employee sought treatment with Dr. G. H. Lind in Beloit, Wisconsin. The employee gave a history of a neck injury six or eight months previously when he was carrying a ladder. The employee stated he went to the emergency room, was examined and was told he had strained a muscle. The employee reported that recently he had been driving a lot for work and had to look over his shoulder all the time and, in so doing, started to have an aggravation of his symptoms. Dr. Lind prescribed Flexeril. On May 1, 2003, the employee saw Dr. Rodney J. Van Beek complaining of right neck pain with burning and tingling down the neck into his shoulder. The doctor recorded that Aduring a driving episode, he [employee] had a near collision incident on the road and had to look quickly to the right to check a visual field. With that, he had right neck, burning and tingling with a electricity-like sensations going down the neck and into the shoulder.@ (Pet. Ex. D.) Dr. Van Beek referred the employee to Dr. Sivakumar Jaikumar, a neurosurgeon in Janesville, Wisconsin. An MRI scan showed some stenosis at C5-6 with end plate changes, a right paracentral disc herniation at C5-6 and a small right paracentral disc herniation at C6-7. In July 2003, Dr. Jaikumar performed an anterior cervical diskectomy and fusion at C5-6 and C6-7.
Dr. H. William Park examined the employee in April 2004 at the request of the employer and insurer. The employee gave a history of having experienced an acute onset of neck pain and right trapezius muscle area pain while driving at work trying to merge into traffic. The employee reported that he turned his head to the right and felt a severe popping sensation with pain in the lower neck area on the right side. Following a review of the medical records and an examination, Dr. Park concluded the employee had degenerative disk disease at C5-6 and C6-7 which was present prior to April 10, 2003. The doctor opined the employee=s symptoms on April 10, 2003, upon turning his neck while driving were consistent with the natural course of degenerative disk disease of the cervical spine and were unrelated to the employee=s work activities. The two-level diskectomy and fusion, the doctor opined, was for treatment of the preexisting condition and was unrelated to the employee=s work activities on April 10, 2002.
The employee=s claim for benefits was heard before a compensation judge at the Office of Administrative Hearings. In a Findings and Order filed June 17, 2004, the compensation judge found the injury resulted, in substantial part, from the employee=s turning his head sharply to monitor safety concerns while merging into heavy traffic. The compensation judge concluded the employee=s injury arose out of his employment and awarded benefits. The employer and insurer appeal.
DECISION
The compensation judge found the employee sustained a personal injury that arose out of his employment. The appellants contend this decision is clearly erroneous and unsupported by substantial evidence. They contend the employee has not produced any evidence to establish any causal connection between his neck condition and the work activities. The appellants argue that, to be compensable, there must be something unique about the job activities that increase the risk of a particular injury. In this case, the employee was driving his car when the injury occurred. There was not, the appellants argue, anything specific about driving a car that put the employee at an increased risk for a cervical spine injury. Accordingly, the appellants asked this court to reverse the compensation judge=s award of benefits.
A personal injury is defined as an Ainjury arising out of and in the course of employment.@ Minn. Stat. ' 176.011, subd. 16. The Aarising out of@ requirement is a causation test although Anot necessarily in the proximate cause sense.@ Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988). For an injury to arise out of the employment, there must be a causal connection between the employment and the injury. Lange v. Minneapolis-St. Paul Metro. Airport Comm=n, 257 Minn. 54, 99 N.W.2d 915, 21 W.C.D. 61 (1959). The requisite causal connection Aexists if the employment, by reason of its nature, obligations or incidents may reasonably be found to be the source of the injury-producing hazard.@ Nelson v. City of St. Paul, 249 Minn. 53, 55, 81 N.W.2d 272, 275, 19 W.C.D. 120, 123 (1957). The burden of proving that a personal injury arose out of the employment is on the employee. Minn. Stat. ' 176.021, subd. 1. The issue on appeal is whether the employee sustained that burden.
In the United States, and in Minnesota, the primary test for determining whether an injury arises out of the employment is the Aincreased risk@ test. This test requires a showing that the Ainjury was caused by an increased risk to which the claimant, as distinct from the general public, was subjected by his or her employment.@ 1 A. Larson and L.K. Larson, Workers=Compensation Law, ' 3.00 (1999). In Minnesota, the supreme court has stated, A[t]he >arising out of= requirement refers to the causal connection between the employment and the injury. This requirement requires a showing of some hazard that increases the employee=s exposure to injury beyond that of the general public.@ Kirchner v. County of Anoka, 339 N.W.2d 908, 911, 36 W.C.D. 335, 338 (Minn. 1983). The injury need not be peculiar to the employment, so long as the injury-producing risk or hazard has its origin or source in the employment. See Larson ' 3.00; Briemhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719, 15 W.C.D. 395 (1949).
Injuries that arise out of conditions personal to the employee do not arise out of the employment unless the employment aggravates the injury. An employee=s pre-existing condition or infirmity is compensable if the employment is a substantial contributing factor not only to the cause of the condition, but also if the injury results in an aggravation or acceleration of a pre-existing condition. Wallace v. Hanson Silo Co., 235 N.W.2d 363, 28 W.C.D. 79 (Minn. 1975). Whether there exists the requisite connection between the work activities and the disability is a question of fact. Rondeau v. Metropolitan Council, 58 W.C.D. 338, 342 (W.C.C.A. 1998). As the supreme court noted in Gibberd, AWe have recognized that no one comprehensive definition can be fashioned to fit all cases and that each case must to a great extent >stand on its facts=.@ Id., at 780, 40 W.C.D. at 1047.
In this case, the employee turned his head sharply, immediately heard a pop in his neck, and experienced the onset of severe pain. Dr. Van Beek concluded the employee=s rotation of his neck Amost likely does substantiate a contributing factor to his final injury.@ (Pet. Ex. B.) Based upon this evidence the compensation judge certainly could conclude the work activities were the medical cause of the employee=s injury. To be compensable however, the employee must also establish legal causation. The Aarising out of@ and Ain the course of@ requirements of Minn. Stat. ' 176.011, subd. 16, are not independent, but are elements of a single test of work-connection. United Fire & Casualty Co. v. Maw, 510 N.W.2d 241 (Minn. Ct. App. 1994). In Bohlin v. St. Louis County, 61 W.C.D. 69 (W.C.C.A. 2000), this court adopted Larson=s balancing test. That is, in any given case, a certain minimum level of work-connection must be proven. Where the Acourse@ test is weak but the Aarising@ test is strong, the necessary minimum quantum of work-connection may be met. Similarly, where the Acourse@ test is strong but the Aarising@ test is weak, the work-connection may also be met. Where both tests are weak, however, a sufficient connection to the employment may not exist.
There is no dispute the employee=s injury occurred during his normal work hours while engaged in activities incidental to his employment. The course test is, therefore, strong. Even though the medical cause of the injury was the employee turning his head sharply, the arising test is not equally strong. Certainly, however, the employment placed the employee in a position where he was required to twice sharply turn his head. Thus, the employment increased the risk of injury to the employee, at least to some extent. Even if, as the appellants argue, the Aarising@ test is weak, a reversal is not automatically mandated. Whether an injury was one arising out of and in the course of employment is a fact question for the compensation judge. As observed by this court in Bohlin, A[w]hen a line is drawn, there are always cases very close to each side of the line. No absolute rule can be derived, since there are too many factual variables that could affect the result.@ Id. at 81. This one of those cases very close to the line. We conclude, however, the evidence is minimally sufficient to support the compensation judge=s decision and must, therefore, affirm.