JILL R. VOSHAGE, Employee/Appellant, v. STATE (MNSCU), WINONA STATE UNIV., SELF-INSURED, Employer, and COMMUNITY MEMORIAL HOSP., BLUE CROSS/BLUE SHIELD & BLUE PLUS, HARTFORD LIFE, and GUNDERSEN CLINIC, LTD., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 24, 2004

 

No. WC04-199

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence in the form of a well-founded medical opinion supports the compensation judge=s determination that the employee did not sustain an injury to her cervical spine.

 

Affirmed.

 

Determined by: Stofferahn, J., Rykken, J., and Johnson, C.J.

Compensation Judge: John Ellefson

 

Attorneys:  Karl W. Sonneman, Sonneman & Sonneman, P.A., Winona, MN, for the Appellant.  State (MNSCU) - Winona State Univ., Self-Insured,Peter J. Pustorino, Pustorino, Tilton, Parrington & Lindquist, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s determination that she did not sustain a Gillette injury to her cervical spine which required surgery.^[1]  We affirm.

 

BACKGROUND

 

The employee, Jill Voshage, began working for the employer, Winona State University, in 1981.  About eight years later, she transferred to a job with the Careers Services Office at the university and continued working in that office throughout the times at issue here.  Initially, the employee did general office work and typing and also assisted students who came to the office for placement services.  In 1996, the employee=s employment changed when the office began using personal computers.  The employee described her work after that time as being primarily computer work.  She managed the office=s web site and maintained employment listings on the computer.  The employee testified that about seventy-five percent of her time was spent looking at her computer monitor.  The balance of her time included answering the telephone, responding to in-person inquiries, and monitoring student employees.

 

At the time the computers were added to the office in 1996, the employee and others in her office were using gray metal desks for work stations.  The desks were not designed for computer work and, as a result, power cords were exposed and were a potential source of injury.  Because of this safety concern, the office made use of the university=s carpenter to design and build work stations in 1998.  As completed, the employee=s work station essentially consisted of two sections, a computer station and a work desk.  The employee testified that her desk was at the usual height but the computer station was about five inches lower.  When the computer was placed on top, the employee needed to look down at the computer screen instead of having it at eye level.  The keyboard and mouse were also at uncomfortable levels, according to the employee.

 

The majority of the employee=s work day was spent on the computer, maintaining the office=s web site and entering information for students and for prospective employers.  In 2000, the office changed its data base software and the employee testified that during this change she was on the computer all the time and was working additional hours.  The employee usually worked eight hour days and was entitled to a fifteen minute break in the morning, a fifteen minute break in the afternoon, and a half hour for lunch.  The employee generally did not take her breaks so that she could have a longer lunch.  If the employee worked longer than eight hours a day she was given compensatory time off.

 

On July 5, 2002, the employee filed a first report of injury with the employer, advising the employer that she had sustained a personal injury in December, 2001.^[2]  The employee apparently claimed a Gillette injury involving her upper back and arms.  The employer denied liability and the employee continued to work her regular job and her regular hours until December, 2002.

 

In the response to the employee=s report of an injury, the university=s safety officer evaluated the employee=s work space on July 26, 2002.  He recommended that the height of the employee=s computer monitor be increased and this was done by placing the monitor on a ream of paper.  Other adjustments to the work station were also made in the fall of 2002 at the request of the employee.  These requests included adding a chair with arm rests, increasing the height of her keyboard, changing the keyboard, adding a separate joy-stick mouse, and placing the monitor on a separate riser.

 

The employee testified that she began experiencing sufficient pain to seek medical care in December, 2000, when she saw a chiropractor, Dr. Robert Woolley.  Dr. Woolley=s records indicate the employee first saw him on December 12, 2000.  Her primary complaint was of a pinched nerve in her left shoulder.  The records also indicate that she had seen Dr. Featherstone, not otherwise identified, for a similar complaint in the past.  Dr. Woolley provided an adjustment on December 12, and treated her again on March 14, 2001, September 17, 2001, April 23, 2002, May 7, 2002, May 10, 2002, and May 15, 2002.  At no time did Dr. Woolley=s notes indicate that the employee=s condition was related to her employment.

 

In May, 2002, the employee and a friend drove to Florida for a vacation.  While there, she consulted a physician, Dr. Paul Hart, on May 26, 2002.  The employee provided Dr. Hart with a history of left back and shoulder pain after lifting a suitcase.  She also advised Dr. Hart that she had chronic neck and back pain for which she saw a chiropractor.

 

On July 23, 2002, the employee consulted Dr. William R. Scorby of the Occupational Medicine Department at Gundersen Clinic in LaCrosse, Wisconsin.  The employee presented Awith a complaint of a several-month history of progressive neck, bilateral shoulder, and upper extremity pain with intermittent tingling in the arms and hands.@  She advised the doctor that her symptoms worsened as the day and week progressed.  Dr. Scorby diagnosed neck and bilateral shoulder strains, overuse syndrome and mild carpal tunnel symptoms on the left.  He recommended physical therapy.  No work restrictions were provided.  The employee returned to Dr. Scorby on August 6, 2002.  She had completed five physical therapy visits at that time.  She reported some changes to her work station and stated that these changes had helped her symptoms.  Dr. Scorby prescribed medication and cautioned the employee to take frequent rest and stretching breaks.  No other work restrictions were provided.  When the employee returned to see Dr. Scorby on September 5, she reported that generally she had done well on a driving trip to Alaska.  His impression was of bilateral upper extremity overuse syndrome without significant improvement.  Dr. Scorby recommended further physical therapy and a referral to a physical medicine and rehabilitation specialist.  Dr. Scorby allowed the employee to continue work with his previous recommendations of frequent stretch breaks.

 

The employee saw Dr. Douglas Hendricks in the Physical Medicine and Rehabilitation Department at Gundersen on September 30, 2002, for what was noted as left neck, arm and shoulder pain.  The employee attributed her symptoms Ato repetitive motion for years working on a computer at work.@  After examination, Dr. Hendricks assessed radicular pain from the neck down the left arm, possible bilateral carpal tunnel syndrome, and evidence for mild left shoulder impingement syndrome.  Dr. Hendricks recommended medication, an MRI, and no change in the employee=s work restrictions.  The subsequent MRI was read by Dr. Hendricks as showing a C5-6 disc herniation and mild to moderate arthritis.

 

The employee was seen for epidural steroid injections by Dr. Richard Olson at Gundersen on October 21, 2002, and November 12, 2002.  The employee was not provided any relief by these procedures according to her report to Dr. Hendricks when she saw him again on December 3.  The employee=s exam was unchanged and Dr. Hendricks performed a trigger-point injection and provided medication.  An EMG was recommended and the employee was restricted to working four hours a day.  The EMG, done on December 19, 2002, showed a probable left-sided cervical radiculopathy and no evidence of carpal tunnel syndrome.  The employee was then referred to neurosurgery.

Dr. Jerry Davis, a neurosurgeon, saw the employee on January 21, 2003.  She advised Dr. Davis that she worked Aat a computer screen with her head held in a static position for 8-10 hours a day.@  Dr. Davis recommended an anterior diskectomy and fusion at the C5-6 level.  This procedure was done by Dr. Davis on February 17, 2003.  When the employee returned to Dr. Davis for follow up on March 25, 2003, she reported Anumerous sites of pain, including her neck, both shoulders and the dorsum of her spine to name a few.@  She was referred back to Dr. Hendricks and saw him for treatment thereafter.  The employee has not returned to work since that time.

 

The employee filed a claim petition on July 11, 2003, alleging entitlement to wage loss and medical benefits resulting from personal injuries of December 1, 2001, and April 23, 2002,  in the form of a repetitive motion injury.

 

The employee was evaluated on behalf of the employer by Dr. Paul Wicklund on October 21, 2003.  In his report, Dr. Wicklund noted that he had reviewed the employee=s medical records and had performed an examination of the employee.  Dr. Wicklund=s diagnosis was 1) symptom magnification; 2) anterior cervical fusion; 3) subjective back pain and left arm pain.  He concluded that the employee=s work was not a causative factor in her disc herniation and need for surgery.

 

The employee=s claims were heard by Compensation Judge John Ellefson on March 9, 2004.  At hearing, the employee presented, in addition to medical records, deposition testimony of Sally Mergendahl, an occupational therapist from the Winona Hospital who did an ergonomic assessment of the employee=s work station in September, 2002, and Merrit Bebout, a safety officer from the employer who had reviewed the work station in July, 2002.  These witnesses testified that  adjustments to the employee=s work station had been necessary when it was evaluated.  The employee testified that the recommended changes were made by the end of September, 2002.

 

Dr. Hendricks testified by deposition and provided his opinion that the myofascial pain he had diagnosed was due to the employee=s work place environment, Asort of a repetitive thing with the poor posture, and as I understand it, poor ergonomic setup at work over the years.@  Dr. Hendricks also testified that the employee=s bulging disc was due to her work.

 

Dr. Wicklund testified by deposition as well.  He stated that a posture of prolonged immobilization of the head while viewing a video screen did not place undue stress on the neck and would not aggravate an underlying disc degeneration and result in disc injury.  He restated his conclusion set forth in his report that the employee=s work activity was not a causative factor in her disability.

 

The compensation judge issued his Findings and Order on May 5, 2004.  In his findings, the compensation judge determined that the employee had myofascial pain from her work activity but had not sustained an injury to her cervical spine as a result of her employment.  He specifically adopted the opinion of Dr. Wicklund on causation and denied the employee=s claim.  The employee appeals.

DECISION

 

On appeal, the employee contends that the compensation judge erred in denying her claim.  The employee argues that the compensation judge failed to give proper weight to a contract between AFSCME Council No. 6 and the State (hereafter referred to as union contract) and that the compensation judge placed improper weight on the opinion of Dr. Wicklund.  Each of these assertions will be considered in turn.

 

The employee refers to the union contract as the Athe critical piece of evidence in this case.@^[3]  The contractual language is argued by the employee to be an admission against interest by the employer which should have been given substantial weight by the compensation judge.  We disagree.

 

The language to which the employee refers is found in Appendix L-Policy on VDT Ergonomics.  Specifically, in addressing the question of work station design, the contract states on p. 45 AMany musculoskeletal problems of fatigue and stress which may arise through VDT/CRT use can be reduced through proper work station design.@  We do not find this language or other similar language in the contract to be as significant as the employee alleges.  Although this language identifies computer use as a possible causative factor in some cases, it does not automatically follow that computer use caused an injury for this particular employee.  Contrary to the employee=s assertions, we find nothing in this language which establishes that use of a computer terminal will aggravate an underlying degenerative disc disease so as to result in a need for surgery. We find the contract language to be nothing more than an identification of a potential work place hazard.  It does not constitute an admission by the employer which in some manner establishes liability.  The employee still has the burden of establishing, by preponderance of the evidence, that her injury arose out of and in the course of employment.  Minn. Stat. ' 176.021 subd. 1.

 

The employee also contends that the compensation judge erred in accepting the opinion of Dr. Wicklund.  We have held that the question of whether a Gillette injury has been established primarily depends on medical evidence.  Marose v. Maislin Transp., 413 N.W. 2d 507, 40 W.C.D. 175 (Minn. 1987), Carter v. Rite Hete Corp., slip op. (W.C.C.A. March 8, 2004).  Here, Dr. Wicklund reviewed the employee=s medical records, examined the employee, and was given a lengthy hypothetical regarding the employee=s job duties.  This information is sufficient to establish foundation and the employee does not point to specific information which Dr. Wicklund might have lacked.  Scott v. Southview Chev. Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978).

 

It is within the province of the compensation judge to consider competing medical opinions and the compensation judge=s choice in that regard will not be reversed if the opinion is adequately founded.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Dr. Wicklund explained at some length why he did not believe that the activity of holding one=s head in a fixed position would aggravate an underlying degenerative disc disease.  We do not find the compensation judge=s acceptance of that opinion to be unreasonable.

 

The employee argues however, that Dr. Wicklund did not adequately consider the employer=s Aadmission@ in the union contract.  We have noted above that this contract does not establish any liability on the employer.  It also cannot be read as a definitive medical conclusion which obligated Dr. Wicklund to accept a position that the employee=s work activity was a causative factor.  Dr. Wicklund, who was made aware of this document in his deposition, was not required, as a matter of law, to ascribe any extra weight to the contract.  The bulk of the employee=s argument in her brief is simply that Dr. Wicklund was wrong in concluding that the employee=s computer work did not aggravate the cervical condition.  While the employee=s position is expected, our inquiry is whether the compensation judge was entitled to accept that opinion as the basis for his determination.

 

The employee also argues on appeal that the compensation judge erred in not awarding a period of temporary partial disability compensation for the period between December 9, 2002 and February 14, 2003.  This claim was not made before the compensation judge and issues raised for the first time on appeal will not be considered by this court.  Troester v. Drapery Serv. of Austin, 49 W.C.D. 74 (W.C.C.A. 1993).  Further, we note that although the compensation judge found that the employee=s work activity caused myofascial pain, he also found that the employee had not sustained a work injury.  In the absence of an injury, the employee is not entitled to benefits.

 

The decision of the compensation judge is affirmed.