Reel v. Loftness Specialized Farm Equip.

THOMAS L. REEL, Employee, v. LOFTNESS SPECIALIZED FARM EQUIP., and STATE FUND MUT. INS., Employer-Insurer, and LOFTNESS SPECIALIZED FARM EQUIP., and WESTERN NAT=L MUT. INS. CO., Employer-Insurer/Appellants, and FEDERATED MUT. INS. CO./THE RAWLINGS CO., LLC., and MN DEP=T OF LABOR AND INDUS./VOCATIONAL REHAB. UNIT, and MAYO FOUND., Intervenors.

GILLETTE INJURY - DATE OF INJURY. Substantial evidence supported the compensation judge=s decision as to the date of the employee=s Gillette injury, and, while the record might also have supported the choice of some other date, no other injury date was so obviously correct as to justify reversing the judge=s decision.

Attorneys: Ronald M. Stark, Jr., Attorney at Law, Minneapolis, MN, for the Appellants. Christopher E. Sandquist and Christopher P. Rosengren, Gislason & Hunter, Mankato, MN, for the Respondents. Barbara G. Lawton, Koll, Morrison, Charpentier & Hagstrom, St. Paul, MN, for the Respondents.

The employer and Western National Mutual Insurance Company appeal from the compensation judge=s decision as to the date of the employee=s work-related Gillette-type injury.^[1] We affirm.

The employee was employed by Loftness Specialized Farm Equipment [the employer], a farm equipment manufacturer, from November of 1996 to September of 1998 and again from May 1999 through the date of hearing. His job duties included welding and machine operation, which required him to hold his head in static positions while welding and to repetitively turn his head while operating the machinery. The work also involved heavy lifting. For purposes of this appeal, it is undisputed that the employee sustained a Gillette-type injury, in the nature of an aggravation of preexisting degenerative cervical disc disease, as a result of his work activities. The sole issue on appeal is when the injury culminated for purposes of determining the responsible insurer: during State Fund Mutual Insurance Company=s period of coverage (at least February 21, 2000, through September 16, 2000), or during Western National Mutual Insurance Company=s period of coverage (September 17, 2000, through at least June 21, 2001).

The employee testified that he has received periodic chiropractic care since sustaining a low back injury in the mid 1980=s at age 22. Chiropractic records submitted at hearing contain complaints of neck symptoms beginning in 1993 after the employee went snowmobiling. As early as August 1997, the employee=s chiropractor diagnosed a cervical subluxation, and subsequent chiropractic records contain at least intermittent mid back and cervical complaints. The employee testified, however, that he does not recall having experienced any significant neck symptoms until at least 1999, during his second stint of employment with the employer.

On February 21, 2000, during an appointment for a complete physical at Affiliated Community Medical Centers, P.A., the employee expressed concern about Awide spread areas of numbness. . . present for the last couple of years,@ including Aan area on the right side of his neck which is numb, tops of both hands, and his mid back.@ Two MRI scans of the head, ordered to rule out multiple sclerosis, were negative for that disease. The employee apparently sought no additional medical care until late that year. However, in the meantime, on June 6, 2000, he returned to his chiropractor, noting right-sided neck pain that had worsened over the past two days. The chiropractor diagnosed a cervical subluxation, as well as torticollis. The employee returned for additional chiropractic care the following day, indicating, however, that his bilateral neck pain had significantly decreased.

On November 8, 2000, the employee was seen by Dr. Robert Haakenson, complaining of neck pain over the past three months and a recent severe headache that had lasted for five days. According to the history taken by Dr. Haakenson, A[t]he head and neck pain actually began about a year ago but has been worse over the past three months.@ Dr. Haakenson diagnosed probable tension headaches but noted that the employee might need cervical x-rays or even an MRI scan and neurology consultation later, depending on how things went.

The employee saw Dr. Haakenson again on May 18, 2001. At that time, Dr. Haakenson arranged for the cervical MRI scan and neurological consultation. The MRI scan, performed on May 29, 2001, disclosed mild multilevel spondylosis with a small to moderate right C6-7 disc herniation, producing central canal stenosis and moderate right subarticular recess stenosis. Disc degeneration was noted from C3-4 through C7-T1.

On June 21, 2001, the employee was seen for the neurological consultation by Dr. Steven Stein. Dr. Stein ultimately recommended work restrictions. Treatment for the employee=s cervical condition has included chiropractic care, medication, physical therapy, and epidural steroid injections. Surgery was proposed but declined by the employee. The employee has missed little or no work as a result of his condition and testified that he has continued to perform his usual job for financial reasons, despite medical advice to find another line of work to avoid aggravating his neck.

The matter came on for hearing before a compensation judge for resolution of the employee=s claim that he had sustained a Gillette type injury as a result of his work activities with the employer. He proposed two potential dates of injury: February 21, 2000, when he complained of numbness during his general physical examination, during State Fund=s period of coverage, and June 21, 2001, the date of his appointment with Dr. Stein, when Western National was on the risk. Both insurers denied primary liability.

In a decision issued on May 13, 2003, the compensation judge concluded that the employee had sustained a Gillette injury to his cervical spine as claimed and that the injury had culminated on May 18, 2001, during Western National=s period of coverage. Western National appeals.

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 (1992). 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).

Western National concedes that the employee sustained a Gillette injury to his cervical spine as a result of his work activities. They argue, however, that the judge erred in selecting May 18, 2001, as the date of injury. More specifically, they contend that the employee=s neck symptoms were clearly documented prior to their period of coverage and that the judge=s decision was arbitrarily based solely on when the diagnosis of degenerative disc disease was made. We are not persuaded.

In Carlson v. Flour City Brush Co., the Minnesota Supreme Court explained that Ainjuries resulting from repeated trauma or aggravations of a pre-existing condition [i.e., Gillette injuries] result in a compensable personal injury when their cumulative effect is sufficiently serious to disable the employee from further work.@ Carlson, 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981). Subsequently, in Schnurrer v. Hoerner-Waldorf, the court clarified that ACarlson does not require an automatic determination that the employee sustained Gillette - type injuries on the day he quit work@ and that Athe time by which he had sustained those injuries should be determined on all the evidence bearing on the issue.@ Schnurrer, 345 N.W.2d 230, 233, 36 W.C.D. 504, 509 (Minn. 1984). The court in Schnurrer went on to identify several Aascertainable events@ indicating that the employee in that case had been disabled prior to his termination from employment.

The present case is unlike either Carlson or Schnurrer in that the employee has not missed any significant amount of work or modified his job activities as a result of his work-related cervical condition.^[2] As such, it was necessary for the judge to evaluate other Aascertainable events@ in determining the date of injury.

In the present case, the employee has not really sustained an Aultimate breakdown.@ As of the date of hearing he continued to perform his normal job duties. He testified that he was concerned about losing his health insurance and source of income if he sought to limit his job duties. Establishment of an injury date becomes significantly more difficult, since it is really an ongoing process. . . .

The 2/21/00 treatment date may, in fact, relate to the employee=s degenerative condition, however no physician has specifically indicated that the symptoms of numbness described on that date are causally related to his cervical disc disease. The examiner, Melanie Dunlap, RN of Affiliated Community Medical Center, obtained an MRI of the employee=s head to rule out multiple sclerosis. . . . The scan was negative and there was no further follow-up. In June of 2000 the employee was seen twice by Neubauer Chiropractic for complaints of increased neck and upper back pain. (Exhibit J) He was next seen by Dr. Robert Haakenson of Prairie Family Practice on 11/8/00 for headaches.

The employee=s neck and arm symptoms continued and increased to the point that he began to seek ongoing medical care in the spring of 2001. He returned to Dr. Haakenson on 5/18/01 with complaints of neck pain. He indicated that his symptoms increased while holding his head in certain positions for welding. Dr. Haakenson suspected cervical disc syndrome and ordered an MRI scan and consultation with a neurologist. The scan demonstrated multilevel spondylosis of the cervical spine with multiple herniated discs. Dr. Stein advised the employee that he felt the condition was work-related and the employee apparently reported this to his employer in July of 2001.

By definition, a Gillette injury is an ongoing process. In theory, therefore, any date during the employment with the employer on which the employee sought medical treatment could represent a date of injury. I have tried to select a date which is more meaningful than the others. Based upon all of the above, and the Supreme Court=s rationale in Schnurrer, I find that the most reasonable date for the employee=s Gillette injury is 5/18/01. This is the date his complaints reached a level where he began to seek treatment on a regular and consistent basis. This is also the visit which ultimately led to diagnosis of his degenerative cervical condition. For these same reasons I decline to find that a Gillette injury was sustained on 2/21/00 or some other date.

As the compensation judge recognized, any of several dates might have served as a Gillette injury date in this case. However, contrary to Western National=s contention, no other injury date is so obviously correct as to justify reversing the judge=s decision. The timing of a Gillette injury is a fact question, see Pettis v. Metal Matic, slip op. (W.C.C.A. January. 18, 2000), and the issue on appeal is not whether the record would have supported some other determination, but whether the judge=s decision is supported by evidence that a reasonable mind might accept as adequate. Because the judge=s selection of May 18, 2001, as the injury date is reasonable on this record, for the reasons expressed by the judge, we affirm his decision on this issue.

^[1] See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).

^[2] The employee testified that he thinks he missed a day here and there due to his symptoms, but there is no record as to when he might have been off, and there is no wage loss claim.