Schaar v. Andersen Corp.

RANDY L. SCHAAR, Employee/Appellant, v. ANDERSEN CORP., SELF-INSURED/GALLAGHER BASSETT, Employer, and ANDERSEN CORP. and EMPLOYERS INS. OF WAUSAU, Employer-Insurer, and LAKEVIEW HOSP., FORTIS BENEFITS INS., CENTER FOR DIAGNOSTIC IMAGING, BLUE CROSS & BLUE SHIELD OF MINN., TWIN CITIES SPINE CTR., and ST. CROIX ORTHOPAEDICS, P.A., Intervenors.

CAUSATION - GILLETTE INJURY. Where a doctor expressed an opinion with adequate foundation that the employee=s spondylolisis and spondylolisthesis was not caused or aggravated by his work activities, the compensation judge=s determination that the employee did not sustain a Gillette injury to his low back is supported by substantial evidence.

Attorneys: Mark J. Fellman, Attorney at Law, St. Paul, MN, for the Appellant. James S. Pikala and Jennifer M. Spalding, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents.

The employee appeals from the compensation judge=s finding that his low back condition was not related to his work activities and from the denial of his claim for wage loss and medical benefits. We affirm.

Randy Schaar, the employee, began working for the employer, Andersen Corporation, on a part time basis in 1986 at the age of 19. He became a full time employee in 1987 and thereafter worked a variety of production line jobs for Andersen. From 1987 to 1999, the employee worked an assignment referred to as laying glass in which he picked up glass sheets and laid them into a sash. In 1999, he started working a job identified as Ainside glass stop@ which required him to nail wood trim on the windows. Finally, in 2000, the employee moved to a Athree job rotation@ position in which he moved through different assignments on the production line. All of the jobs at Andersen required frequent and repetitive bending, twisting, pulling, reaching and lifting. His first two jobs involved lifting of up to 40 pounds alone and lifting of weights up to 100 pounds with the assistance of a co-worker. The last assignment, while still requiring repetitive movement, was not as heavy.

The employee testified that he had been diagnosed with scoliosis while in high school and had treated for a time with a chiropractor who recommended limiting athletic activities. The employee also engaged in weight lifting, and, beginning in 1993, participated in competitive weight lifting. His last competition was in 1998 or 1999, when he stopped that activity, at least in part, because of problems with his right shoulder for which he treated at Stillwater Medical Group.

The employee=s medical records indicate that his first visit for low back pain was at Stillwater Medical Group on September 17, 1998, after lifting weights. On March 5, 1999, the employee consulted with a physician at Stillwater Medical Group and presented a history of low back pain for five or six years which he attributed to his lifting at work. The doctor recommended therapy to learn stretching, provided Clinoril, but placed no work restrictions on the employee. The employee did not return to the medical clinic for this condition but did receive some chiropractic care thereafter. He saw Dr. James Penman on five occasions in May and June of 1999, and received chiropractic adjustments for his low back pain. In November 1999, the employee treated at Wildwood Chiropractic Clinic for low back pain, indicating on the intake form that Aheavy bench press@ made his symptoms worse. The employer accepted liability for the March 5, 1999 injury. There is no evidence that the employee missed any time from work or modified his job duties as the result of this injury.

On April 23, 2001, the employee consulted Dr. Penman for low back pain, advising the doctor that he believed his low back pain was due to repetitive lifting at work. The employee returned to Dr. Penman on April 24, for chiropractic adjustment and Dr. Penman took him off work until April 30. On April 24, the employee also saw Dr. Stephen Danaher at Stillwater Medical Group with a complaint of radicular lumbar back pain. The history he provided was that he Aworks at Andersen=s and does fairly easy repetitive type things.@ Dr. Danaher provided pain medication, recommended physical therapy, and noted that the employee felt that he could still go to work. On April 30, the employee returned to Stillwater Medical Group for his low back pain and other, non-work-related, problems and noted that his back had been better while he was on medication but that his symptoms had now returned. He also noted that he had not yet gone to physical therapy. Dr. Danaher recommended physical therapy again and advised the employee to return if his symptoms worsened. The employee returned to his regular duties at Andersen.

The employee testified that he left work early on July 10, 2001, because he could not stand the pain any longer. On July 12, 2001, the employee saw Dr. Jeanne Poulton at Stillwater Medical Group. Her examination showed tenderness to palpation in the right SI joint area and a positive straight leg raising on the right at about 20 degrees. Dr. Poulton assessed low back pain with radicular symptoms and prescribed Vicodin, Prednisone, application of ice and heat to the affected area, and took the employee off work through July 15. The employee also went to Wildwood Chiropractic Center on July 12, and began a course of chiropractic treatment. The chiropractor took him off work after July 16. The employee has not returned to work since that time.

The employee returned to Stillwater Medical Group on August 8, 2001, with symptoms of severe back pain which rendered him unable to sit or stand. The employee was referred to Dr. Bruce Bartie at St. Croix Orthopedics. The employee first saw Dr. Bartie on August 14, 2001. Dr. Bartie diagnosed L5-S1 spondylolisthesis with evidence of mechanical instability. Initially, Dr. Bartie provided conservative care aimed at reducing the employee=s symptoms. When the employee=s pain proved intractable, Dr. Bartie recommended surgery and on December 20, 2001, he performed an L5-S1 posterior fusion with instrumentation. For a time, the employee reported improvement in his low back pain but by the middle of March 2002, the employee reported increasing low back pain. Further diagnostic tests were done and Dr. Bartie concluded that the employee had a pseudoarthrosis at the L5-S1 level. In his visit with the employee on October 3, 2002, Dr. Bartie discussed revising the posterior fusion and instrumentation as well as doing an anterior fusion.

The employee wanted a second opinion and on December 10, 2002, he saw Dr. Manuel Pinto. Dr. Pinto agreed that there was a pseudoarthrosis at the L5-S1 level and recommended further surgery. As of the date of the hearing, the surgery had not taken place.

The employer denied liability for the employee=s continued low back problems and for a claimed April 23, 2001 injury. On February 28, 2002, the employee filed a claim petition seeking medical benefits and temporary total disability benefits from July 11, 2001 and continuing. The employee alleged that the benefits were due as a result of injuries sustained at Andersen on March 5, 1999 and April 23, 2001.

The employee was evaluated on behalf of the employer by Dr. John Dowdle on December 7, 2001. In his report of that date, Dr. Dowdle diagnosed mechanical low back pain, degenerative disc disease L4-5 and L5-S1, segmental instability at L5-S1 and spondylolysis and spondylolisthesis, grade 1. He concluded that the employee=s condition was developmental and not related to injury and that the employee had not sustained a Gillette injury at Andersen.^[1] Dr. Dowdle re-evaluated the employee on October 25, 2002. His opinion regarding causation did not change.

The employee=s claim petition was heard by Compensation Judge Kathleen Behounek on September 17, 2003. In Findings and Order, served and filed November 17, 2003, the compensation judge determined that a preponderance of the evidence failed to show that the employee=s work activities at Andersen caused or substantially aggravated the employee=s underlying disc disease and also found that the preponderance of the evidence failed to establish that the employee sustained a work injury on April 23, 2001. The employee appeals.

The doctors who provided opinions in this matter all agreed that the appropriate diagnosis for the employee=s condition was spondylolysis and spondylolisthesis. The primary issue before the compensation judge whether the work activity described by the employee was a substantial contributing factor in aggravating or causing this condition. On this issue, there were two competing medical opinions: that of Dr. Dowdle who stated that the employee=s condition was developmental with no connection to work activity, and that of Dr. Pinto who stated that the work activity described by the employee Acontributed towards the degenerative process in the disc at L5-S1 to the development of symptoms and to the surgery by Dr. Bartie.@

In deciding the issue of causation, the compensation judge adopted the opinion of Dr. Dowdle. The employee contends on appeal that she erred in doing so. We have held on numerous occasions that it is within the province of the compensation judge to choose between competing medical opinions and that a decision based on that choice will not be reversed if the opinion which is relied upon has adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Nitz v. Abbott Northwestern Hospital, 64 W.C.D. 191, 198 (W.C.C.A. 2004).

While acknowledging this general rule, the employee argues that the compensation judge may not rely on the medical opinion of a doctor when accepting that opinion results in adopting a standard contrary to law. Specifically the employee contends that Dr. Dowdle=s opinion, as expressed in his deposition, was that a specific traumatic incident was necessary for a work injury to be found in this case. According to the employee such an opinion is a rejection of the concept of cumulative trauma leading to an injury as set forth in Gillette.

We believe this argument misstates Dr. Dowdle=s opinion in this matter. It was Dr. Dowdle=s opinion that spondylolisthesis is the result of spondylolisis and that spondylolisis is a developmental disorder in which the progression of the disease is not affected by physical activity in the absence of a specific traumatic incident. Dr. Dowdle did not reject, in his deposition testimony, the concept of a Gillette injury despite extensive cross-examination on this point by the employee=s attorney. A medical opinion that a particular condition is the result of developmental changes and is not the result of cumulative trauma is not a Atotal abandonment of the case law@and need not be rejected by the compensation judge. Rice v. United Parcel Service, slip op. (W.C.C.A. August 5, 2003).

The employee also challenges the foundation for Dr. Dowdle=s opinion, claiming that Dr. Dowdle was not sufficiently familiar with the employee=s job duties. Dr. Dowdle examined the employee, reviewed the employee=s medical records, received and reviewed letters from the claims adjuster or from the employer=s attorney setting out the employee=s job duties, was provided a hypothetical question at his deposition, and was cross-examined on this point. This information typically constitutes sufficient foundation for rendering a medical opinion. Scott v. Southview Chevrolet, 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1987); Nini v. Gold=N Plump, slip op. (W.C.C.A. Mar. 15, 2004). The employee does not specifically identify what information Dr. Dowdle lacked other than to state that the information on the employee=s job duties was not sufficiently detailed. We conclude however, as did the compensation judge, that Dr. Dowdle had adequate foundation for his opinion.

Finally, the employee argues that Dr. Dowdle concluded that the employee=s work activity resulted in a temporary aggravation of his condition and that the compensation judge erred in failing to find at least a temporary injury. We disagree. Dr. Dowdle testified that physical activity, whether associated with the employee=s job or with his personal activities, could increase the employee=s symptoms. The employee did not identify any increase in symptoms which he could attribute to his work activity. There is no evidence that any of the claimed medical expenses or wage loss were due to any increase in symptoms rather than the underlying spondylolisthesis. We conclude that the compensation judge did not err in failing to award benefits for a temporary injury.

^[1] Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W.2d 200, 205-06, 21 W.C.D. 105, 111-13 (1960).