ROBERT OLSON, Employee/Appellant, v. HORMEL FOODS CORP., SELF-INSURED/REM, LTD., Employer, and HORMEL FOODS CORP., Intervenor.

 

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 27, 2004

 

No. WC04-248

 

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, supported the compensation judge=s decision that the employee=s right elbow and left shoulder conditions were not causally related to his work activities.

 

Affirmed.

 

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

Compensation Judge:  Jane Gordon Ertl

 

Attorneys:  Ross L. Leuning, Walbran, Furness & Leuning, Owatonna, MN, for the Appellant.  Thomas P. Kieselbach, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Respondent.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the judge=s decision that the employee=s right elbow and left shoulder conditions were not causally related to his work activities.  We affirm.

 

BACKGROUND

 

The employee began work in the shipping department of Hormel Foods Corporation [the employer] in June of 1999.  Two-thirds of his work involved forklift driving, and he worked 45 hours per week.  While driving the forklift, he spent 50% of his time driving forward and 50% driving backward.  He used the index and middle fingers of his right hand to run three levers on the forklift.  The levers moved very easily with just a flick of the fingers.  He used his left hand to steer the forklift.  The wheel turned easily.  While driving, his left arm was flexed and held out three to six inches from his body.  When driving backward, he would turn to his right and put his right arm on the back of his seat.

 

In July of 2001, the employee reported to the medical department of the employer with bilateral shoulder and elbow pain.  The employee indicated that he had experienced pain off and on over the past few months, and he stated that he could not identify a specific incident that caused the pain.  On August 13, 2001, a First Report of Injury was completed, listing a right elbow injury that the employee related to driving the forklift.  The date of injury was listed as July 18, 2001.  Prior to July of 2001, the employee had worn an arm strap off and on for pain near the right elbow.

 

The employee was eventually referred to Dr. Paul C. Matson, who saw him on April 3, 2002, for right shoulder pain and right lateral epicondylitis (tennis elbow).  The employee=s right shoulder was injected, and the doctor advised that the employee could perform his usual work.

 

When the employee returned to see Dr. Matson on September 11, 2002, his right shoulder was reportedly doing fairly well, but he was complaining of left shoulder and right elbow pain.  The office notes from that visit reflect that the employee Ahas had a chronic history of left shoulder symptoms, back to the early 90's, and this is apparently a Work Comp injury.@^[1]  The office notes also indicated that the employee=s right elbow pain Ahas been flaring with work activities.@ 

 

On October 14, 2002, the employee was seen by Dr. Matson for reevaluation of his left shoulder condition.  On that date, Dr. Matson noted that the employee had Aknown Type III acromion with significant AC arthrosis causing a subacromial spur which was causing his rotator cuff tendinitis.@  Dr. Matson opined that the employee=s left shoulder rotator cuff tendinitis and possible tear was related to his work activities as a forklift driver, Awhich is predominantly left-handed work,@ but okayed the employee to continue working in that position.  Dr. Matson also  recommended an MRI of the left shoulder.

 

The MRI of the employee=s left shoulder, taken on October 22, 2002, showed AType III acromion with mild osteophytic spurring . . . tendinosis/partial tear/s at bursal surface . . .  subchondral cyst formation at lateral aspect bicipital groove . . . and small acromioclavicular and glenohumeral joint effusions.@  At an October 30, 2002, office visit with Dr. Matson, it was agreed that the employee would undergo a left shoulder arthroscopy and arthroscopic subacromial decompression, which was performed on November 22, 2002.  Dr. Matson released the employee to return to light-duty work on December 16, 2002. 

 

On January 6, 2003, Dr. Matson restricted the employee from lifting more than five pounds with his left arm and from repetitive overhead work.  The doctor noted that this Awould preclude him working on a forklift.@  During that same visit, Dr. Matson recommended that the employee undergo an MRI of the right elbow, because of chronic pain complaints.

 

The MRI of the employee=s right elbow, performed on January 13, 2003, showed a complete or almost complete tear of the common extensor tendon, from the lateral tuberosity and radial collateral ligament proper, and small to moderate joint effusion.  On January 15, 2003, Dr. Matson indicated that the employee could attempt to return to work as a forklift driver on February 10, 2003, but he also recommended that the employee undergo a lateral epicondylar release of the right elbow.  In his office note of February 11, 2004, Dr. Matson opined that the right elbow problem Ais felt to be secondary to his repetitive work duties required as a forklift driver using his hands in an odd position when he has to turn his neck back.@

 

On March 5, 2003, the employee filed a claim petition seeking temporary total, temporary partial, and medical benefits as a result of a A01/04/02 >Gillette=@ injury in the form of subacromial impingement of the left shoulder.

 

Independent medical examiner Dr. Paul Wicklund examined the employee on June 17, 2003.  It was his opinion that the activity of driving the forklift and turning the steering wheel with the left hand would not cause the kind of complaints that the employee was having in his left shoulder.  He also opined that the employee=s manipulation of the forklift levers by flexing his fingers would not cause tendinitis of the right elbow.  In his deposition, taken on June 1, 2004, Dr. Wicklund testified that using the levers of the forklift would not put undue stress on the extensor tendons of the wrist or forearm.  He also testified that the tear of the labrum in the left shoulder was a nontraumatic problem, totally unrelated to any motion of the shoulder, and that the anterior acromial spur with impingement syndrome was an age-related phenomenon due to the fact that the employee had an abnormally shaped acromion.

 

The employee=s claim petition proceeded to hearing, and, in findings and order filed on July 13, 2004, the compensation judge found that the employee=s right elbow and left shoulder conditions were not causally related to his work activities.  The employee appeals.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2004).  Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

1.  Right Elbow

 

The employee contends that he demonstrated for the judge how he used the controls with his right hand and in doing so Ashowed the Court both visually and through testimony that the very same tendons identified by Dr. Wicklund in Exhibit C were continuously flexing.@  However, this court has no means to review the demonstration at hearing and must instead rely on the transcript of the employee=s testimony and the exhibits offered at hearing.^[2]

 

The employee testified that he tips his hand up slightly when he operates the three levers and that he flicks his index and middle fingers to move the levers.  He also testified that there is no repetitive twisting or torqueing or forceful or firm grasping and that the levers move very easily.

 

While Dr. Matson opined that the employee=s tennis elbow was secondary to his work as a forklift driver, he provided little explanation for his opinion.  In his February 11, 2004, office note, Dr. Matson related the condition to the employee=s repetitive work duties A required as a forklift driver using his hands in an odd position when he has to turn his neck back,@ and in his June 2, 2004, letter, he stated, Athe frequent hand control movements required as forklift operator are a substantial contributing cause@ of the employee=s tennis elbow.  However, the employee did not testify that he used his right hand in an odd position when he was driving in reverse.

 

The compensation judge accepted the opinions of Dr. Wicklund over those of Dr. Matson.  A judge=s choice between expert witnesses 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 does not argue that Dr. Wicklund relied on facts unsupported by the evidence, but rather contends that Dr. Wicklund=s deposition supports a finding that manipulating controls with the right hand was the mechanism of the employee=s right elbow injury.  On direct examination, Dr. Wicklund very clearly stated that there was no correlation between any work that the employee did and the development or progression of right lateral epicondylitis.  On cross examination, the employee=s attorney had Dr. Wicklund demonstrate how certain movements caused the extensor muscles to tighten, but at no time did Dr. Wicklund change his opinion as to causation.  Accordingly, the report and testimony of Dr. Wicklund provide substantial evidence to support the judge=s finding that the employee=s right elbow condition is not causally related to his work activities.

 

2.  Left Shoulder

 

The employee contends that the compensation judge misunderstood the employee=s testimony as to how the forklift job was performed, in that the judge indicated that the employee operated the steering wheel with his left arm out in front of him.  We are not convinced.  The employee demonstrated for the compensation judge exactly what movements were performed to operate the forklift.  The fact that the judge only mentioned the position that the employee=s arm was in when the employee was driving forward does not mean that she was unaware that the employee=s arm extended to the side when the employee was driving backward.  The employee does not contend that the judge did not watch the demonstration; in fact, the transcript reflects that the judge asked the employee to repeat his demonstration Aone more time.@

 

Dr. Wicklund testified that there was no relationship between the work the employee was doing with his left arm and shoulder and any development, progression, or worsening of his left shoulder condition.  The employee contends that the judge overlooked Dr. Wicklund=s testimony about the stress placed on the left shoulder when the left arm is held away from the body.  Dr. Wicklund did testify that holding the arm out to the side, even below 90 degrees, could cause problems if Ayou had a weight in your hand or had to hold the arm out there for extended periods of time@ or were pushing with the arm.

 

The employee testified that, when driving in reverse, he turned to the right, put his right arm on the back of the seat, and had his left arm extended to the side six inches with his left hand on the steering wheel knob.  He also testified that, while looking backward, he put Aa little@ pressure on the steering wheel but that most of his weight would be on the seat and right arm.  At no time did the employee testify that he held his left arm out to the side unsupported or pushed with his left hand when the arm was extended to his side.^[3]

 

It was Dr. Wicklund=s opinion that driving the forklift and turning the steering wheel with the left hand would not cause the kind of complaints that the employee had in his left shoulder and that any impingement would be due to the Type III acromion, which was a developmental problem not related to work.  Dr. Wicklund=s opinions provide substantial evidence to support the judge=s finding that the employee=s left shoulder condition is not related to the employee=s work activities.  The judge=s findings are therefore affirmed in their entirety.^[4]