MICHAEL KVETON, Employee/Appellant, v. LAMETTI & SONS, and CNA INS., Employer-Insurer/Cross-Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 17, 2005

 

No. WC04-309

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including expert medical opinion, supports the arbitrator=s finding that the employee did not sustain a Gillette injury as a substantial result of his work activities.

 

Affirmed.

 

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

Arbitrator:  Caroline Bell Beckman

 

Attorneys:  Michael Kveton, Babcock, Neilson, Mannella, Klint, Anoka, MN, for the Appellant.  Jeffrey A. Magnus, Law Offices of Joseph M. Stocco, Edina, MN, for the Cross-Appellants.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the arbitrator=s finding that his work activities did not result in a Gillette^[1] injury on September 19, 2002, and the related denial of his claim for temporary disability benefits and medical expenses.  The employer and insurer cross-appeal from the findings concerning the job offer extended to the employee, the nature of the employee=s work restrictions, and the extent of the employee=s temporary disability.  The employer and insurer also appeal from the finding that the Jewison^[2] defense is inapplicable to this claim, and from the arbitrator=s evidentiary ruling concerning admissibility of Dr. Robert Wengler=s medical report.  We affirm the findings and order of the arbitrator.^[3]

 

BACKGROUND

 

Michael Kveton, the employee, began working for Lametti & Sons, the employer, on August 6, 2001.  He worked as a laborer; his job duties included heavy construction, demolition and laboring-type work.  The employee testified that he occasionally operated a bobcat, backhoe and bulldozer, and that approximately 50% of his time as a laborer involved heavy lifting; carrying heavy items such as valves, pipe, concrete bags, chains and cables; and digging with a shovel to install sewer and water piping.  His work also included placing concrete forms, and operating a tamper to compress soil at construction sites.

 

The employee had undergone extensive medical treatment to his low back since 1990.  On September 15, 1990, he sustained a low back injury while employed by Tires Plus, after lifting or throwing tires.  Medical records generated following his 1990 injury note that the employee reported low back symptoms at the time of his injury, including a knife-like pain, and that he later noticed occasional pain extending into his legs.  A CT scan of the employee=s lumbar spine taken on September 28, 1990, detected bulging discs at the L4-5 and L5-S1 vertebral levels.^[4]  At the time of an examination with Dr. John Stark on May 14, 1992, the employee reported difficulty walking and standing up straight.  As a result of his 1990 injury, the employee was assigned a rating of 14% permanent partial disability of the whole body, was paid 30 weeks of temporary total disability benefits between September 19, 1990, through April 16, 1991, and received additional payments pursuant to a Stipulation for Settlement finalized in January 1993.

 

On February 25, 1998, the employee also sustained an injury to his left shoulder while working for Green Bay Packaging.  He noted symptoms in his left shoulder, neck and upper back.  In February 1999, the employee and that employer entered into a settlement of his workers= compensation claims.

 

On January 17, 2002, the employee sustained an injury to his low back in the course of his employment with Lametti & Sons.  On that date, as he pulled concrete pans or forms off a forklift, the banding around the pans broke and some pans fell down.  The employee fell backwards and hit the center of his back against other concrete pans.  He sought emergency room treatment at Regions Hospital in St. Paul, reporting an immediate onset of pain in his lower back and left hip.  The employee was diagnosed with back pain and contusion, was prescribed Toradol, and missed work the following day, Friday, January 18, 2002, as well as the following Monday morning, January 21, 2002.  He returned to work thereafter and continued to work as a laborer.

 

The employee consulted Dr. Daniel Drassal, D.C., Cambridge Chiropractic, on January 26, 2002.  The employee reported to Dr. Drassal that his lower back symptoms had started 10 years ago, and he also related his lower back pain to years of hard construction work.  He reported that his problems had worsened over the last few months and especially during the past week.  He also reported pain radiating into both legs.  The employee treated occasionally with Cambridge Chiropractic between January 26 and September 10, 2002, for low back and other symptoms including symptoms in his cervical and thoracic spine and shoulder.

 

The employee continued working for the employer until mid-September 2002.  He  also testified that his work activities in 2002 aggravated his low back pain.  He testified that work activities such as kicking a shovel, twisting and bending caused an increase in his symptoms to the point that by approximately September 19, 2002, he could not climb out of bed or move his legs, due to symptoms of burning pain and numbness into his legs.  He also testified that before commencing work for the employer, he had never experienced that type of symptoms.  On or about September 18 or 19, 2002, the employee evidently requested a lay off in order that he could claim unemployment compensation and Atake care of his back.@  He advised his supervisor, Michael Mills, that he needed to consult his physician because he was unable to move his right leg and unable to work.  According to testimony by both the employee and Mr. Mills, the employee did not advise Mr. Mills that he had recently sustained an injury at work.  The employee testified that, at that point, he did not know whether his low back condition resulted from a work injury.

 

On September 22, 2002, the employee sought treatment from Perreault Chiropractic,  reporting sharp pains in his right hip extending to the center and left side.  He consulted Dr. John  Eikens, Fairview Lakes Clinic, on September 26, 2002, reporting that he had felt back pain for four weeks.  At Dr. Eikens=s referral, the employee underwent an MRI scan on September 29, 2002, which showed an L5-S1 herniated disc with a fragment displacing the S1 nerve root, as well as an L4-5 annular tear with small central disc herniation.  The employee was referred for a consultation with Dr. George Adam, Noran Neurological Clinic, who recommended steroid medication and an epidural steroid injection if needed for pain relief.  Dr. Adam restricted the employee from work for one month.  By October 21, 2002, the employee was examined by Dr. Michael McCue, neurosurgeon, at Abbott Northwestern Hospital, for evaluation of his right leg pain.  Dr. McCue recommended and then performed a surgery on October 24, 2002, in the nature of a right L5-S1 hemilaminectomy and microdiscectomy.

 

The employee testified that the surgery relieved his leg pain.  Dr McCue prescribed physical therapy for the employee post-surgery, and by November 25, 2002, Dr. McCue=s nurse practitioner, Sharon Eriksen, released the employee to return to work within a lifting restriction of 20 pounds, and recommended physical therapy as well as lighter-duty work.  As of December 23, 2002, Nurse Eriksen released the employee to return to work without restrictions, cautioning the employee to maintain good body mechanics with all movements and to continue his stretching exercises.  The employee apparently had requested a release without restrictions since the employer would not allow him to return to work if he had any physical work restrictions.

 

In January 2003, the employee returned to work for approximately one week, but his employment with Lametti & Sons was terminated.  That termination is the subject of other litigation, related to a wrongful discharge claim, and is unrelated to the employee=s appeal before this court.  Following the termination of his employment, the employee worked intermittently, performing construction and framing work, carpet cleaning business, and carpentry and insulation work.  As of August 8, 2004, the employee began working with Elite Trailers, full-time, building aluminum trailers.

 

The employee testified that his symptoms have continued since January 2003 and that he  limits his heavy lifting and bending.  He consulted Dr. Robert Wengler, orthopedist, on April 2, 2003.  In a report dated April 2, 2003, Dr. Wengler stated that the employee denied a history of  chronic back problems prior to the onset of symptoms in the winter of 2002.  Dr. Wengler diagnosed the employee with a lumbar disc herniation at the L5-S1 level, surgically repaired, with recurrent symptoms, and assigned a permanency rating of 14% permanent partial disability of the whole body.  Dr. Wengler concluded that the employee had sustained a Gillette injury as a result of his work activities for the employer and assigned a culmination date of September 28, 2002, as that was the date of the MRI scan that detected a disc herniation at the L5-S1 level.^[5]  He concluded that the employee=s injury of January 17, 2002, and his later Gillette injury substantially contributed to his current condition and need for work restrictions.  Dr. Wengler recommended that the employee receive additional medical attention to discern the cause of his recurring symptoms.  He also recommended work restrictions, including no lifting over 10-25 pounds, and avoidance of repetitive bending or stooping, shoveling, heavy pushing or pulling and working in positions of postural stress.

 

At his deposition, Dr. Wengler was provided with information on the employee=s history of prior back trouble and injuries and previous permanent partial disability ratings, including the positive findings of disc bulging at L4-5 and L5-S1 noted on a CT scan in September 1990.  After he was provided with this information, Dr. Wengler testified that the numbness or tingling the employee experienced in his upper thigh back in 1990 or 1992 Acould be the harbinger of things to come.  It may very well have represented an early manifestation of nerve root irritation.  I guess with the benefit of hindsight, that probably was the beginning of things.@  (Depo. Dr. Wengler, p. 14.)

 

The employer and insurer denied workers= compensation liability for the employee=s claimed Gillette injury of September 19, 2002.  Thereafter the employee filed an Application for Arbitration pursuant to the rules and regulations of the Union Construction Workers= Compensation Program (UCWCP), as provided by the union=s collective bargaining agreement, and as authorized by Minn. Stat. ' 176.1812, subd. 1.  As part of the litigation related to the employee=s claim, the employee was examined by Dr. Richard Hadley on March 31, 2004.  This examination was a Adispute resolution neutral examination,@ scheduled by agreement of the parties pursuant to Section 9 of the UCWCP rules and regulations.

 

Dr. Hadley reviewed medical records which predated the employee=s injury in 2002. And by report dated March 31, 2004, Dr. Hadley diagnosed degenerative disc disease of the lumbar spine based, in part, on an imaging study from 1990 showing bulging discs at the L4-5 and L5-S1 levels.  Dr. Hadley concluded that the employee=s degenerative disc condition was due to his preexisting condition, that there was insufficient documentation to indicate that the employee=s work activities either substantially changed or substantially contributed to his low back symptoms, and that there was insufficient documentation to show that the employee=s work activities constituted a Gillette injury.  Dr. Hadley concluded that the extruded disc herniation at the L5-S1 level, identified on the MRI scan of September 29, 2002, was related to the natural progression of the employee=s underlying degenerative disc disease.  He also assigned permanent work restrictions to the employee, despite the unrestricted release to return to work post-surgery by Dr. McCue.  Dr. Hadley agreed with the work restrictions imposed by Dr. Ottomeyer in January 1992, and assigned permanent restrictions of no lifting over 30 pounds and no repetitive bending more than 10 times per hour.  Dr. Hadley also agreed with Dr. Ottomeyer=s earlier assessment that the employee should seek alternative, lighter-duty employment.

 

On September 1, 2004, this matter came on for hearing pursuant to Section 6 of the UCWCP rules.  Carolyn Bell Beckman, Esq., was selected as the arbitrator.  Extensive medical records dated between 1990 and 2004 were submitted into evidence, in addition to transcripts from depositions of Drs. Hadley and Wengler, surveillance videotape, and employment and wage records.  Testimony was presented at the hearing from the employee as well as two representatives from the employer.

 

In the Findings and Order of Arbitrator dated September 13, 2004, the arbitrator determined that the employee=s January 17, 2002, injury to his hip and low back was a temporary aggravation of a pre-existing condition related to his earlier injury and underlying degenerative disc disease.  The arbitrator also denied the employee=s claim that he sustained a repetitive trauma to his low back that culminated in disablement on September 19, 2002, determining rather that the employee=s degenerative disc condition and subsequent disc herniation resulted from the gradual and natural progression of his September 15, 1990, injury.  Although the arbitrator found that the employee had been temporarily totally disabled from employment between September 19, 2002, and January 5, 2003, and also from January 19, 2003, to June 29, 2004, she concluded that the employee=s disablement did not result from a claimed Gillette injury culminating on September 19, 2002, but instead resulted from his underlying degenerative disc disease.  The arbitrator also found that the employee had been temporarily partially disabled intermittently since 2003, but that his temporary partial disability did not result from his claimed Gillette injury of September 19, 2002.  She therefore denied the employee=s claims for temporary wage loss benefits and medical expenses.

 

The employer and insurer have cross-appealed from the arbitrator=s findings concerning the job offer made by the employer and concerning the employee=s current physical work restrictions.  They also cross-appealed from the arbitrator=s findings concerning the extent of employee=s temporary total and temporary partial disability, even though the arbitrator found that the employee=s temporary disability was unrelated to his claimed Gillette injury of September 19, 2002.  The employer and insurer also cross-appealed from the arbitrator=s finding that the surveillance video tape submitted into evidence demonstrated activities that were not inconsistent with the employee=s restrictions or complaints of symptoms.  Finally, the employer and insurer cross-appealed from the arbitrator=s denial of their motion to exclude the report and deposition testimony of Dr. Wengler.

 

By letter dated November 16, 2004, Kevin S. Gregerson, the program facilitator and fund administrator for the UCWCP, filed with the Workers= Compensation Court of Appeals certain documents constituting the pleadings in this matter, including the Findings and Order of the Arbitrator, the transcript of the arbitration hearing, exhibits submitted by both parties, and notices of appeal and cross-appeal filed by the parties.  Those pleadings are deemed as part of the Judgment Roll.

 

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

 

The arbitrator denied the employee=s claim that he sustained a Gillette injury on September 19, 2002, as a result of his work activities for Lametti & Sons.  In her memorandum, the arbitrator concluded that although the employee was temporarily partially disabled during certain periods of time between 2002 and 2004, that disability occurred Anot as a result of a Gillette injury culminating on September 19, 2002[, but] rather as a result of his degenerative underlying condition.@  The employee appeals, arguing that the arbitrator=s decision was unsupported by substantial evidence and that the arbitrator committed an error of law when relying upon Dr. Hadley=s expert medical opinion.

 

A Gillette injury is a result of repeated trauma or aggravation of a pre-existing condition which results in a compensable injury when the cumulative effect is sufficiently serious to disable an employee from further work.  Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W.2d 200, 205-06, 21 W.C.D. 105, 111-13 (1960); see also Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981).  In order to establish a Gillette injury, an employee must Aprove a causal connection between [her] ordinary work and ensuing disability.@   Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).  While evidence of specific work activity causing specific symptoms leading to a disability Amay be helpful as a practical matter,@ determination of a Gillette injury Aprimarily depends on medical evidence.@  See id., citing Marose v. Maislin Transp., 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987).  Ultimately, questions of medical causation fall within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).

 

In her findings and order, the arbitrator referred to the chart notes and reports issued by the employee=s various treating and examining physicians and also to the reports and testimony provided by Drs. Hadley and Wengler following their examinations of the employee.  The arbitrator outlined the employee=s medical history, including the medical treatment he received for his back condition since 1990.  The arbitrator concluded from her medical record review that although the chiropractic records do indicate that Mr. Kveton does heavy work as a laborer, there is no medical support, from the employee=s treating chiropractor or physicians, that he sustained a Gillette injury as a result of his work activities culminating on September 19, 2002.

 

The arbitrator accepted the opinion of Dr. Hadley that the employee=s disc herniation resulted from his underlying degenerative condition initially documented on the 1990 CT scan.  She also accepted his opinion that there was insufficient documentation to indicate that the Employee=s work activities substantially contributed or constituted a Gillette injury.  In addition, the arbitrator referred to the medical records predating the alleged 2002 injury that reflect the employee=s severe low back pain and pain radiating down both legs; the employee complained of radicular symptoms as early as October 5, 1990, when the employee reported to Dr. Crispin See that he occasionally experienced pain extending into his right leg.  The arbitrator also referred to the chiropractic clinic intake form completed by the employee on January 26, 2002, relating that his lower back problems had started ten years ago.  In addition, she noted contradictions in the medical records and the employee=s testimony, for example, reports in certain medical records between 2002 and 2004 where the employee provided no history of a previous low back injury, nor radicular symptoms extending from his low back into his legs.

 

The arbitrator commented in her memorandum that Dr. Wengler=s opinion could be interpreted as consistent with Dr. Hadley=s opinion that the employee=s current low back condition is related to his pre-existing condition.  The arbitrator referred to deposition testimony provided by Dr. Wengler after he was asked about the prior findings on the CT scan and the employee=s reported numbness or tingling in his upper thigh back in 1990 or 1992.  She interpreted Dr. Wengler=s response, that those earlier findings Amay very well have represented an early manifestation of nerve root irritation,@ to be consistent with Dr. Hadley=s opinion that the employee did not sustain a Gillette injury in 2002.

 

The employee argues that substantial evidence of record does not support the arbitrator=s conclusions.  The employee contests the foundation for Dr. Hadley=s opinions, and also argues that the arbitrator erred by relying on Dr. Hadley=s opinion because there is no substantiation for Dr. Hadley=s opinions.  The employee argues that the arbitrator, by agreeing with Dr. Hadley=s causation opinion, focused incorrectly on the employee=s work activities and not on the medical evidence that strongly suggested the employee=s symptoms had changed due to his heavy labor work.  Citing to Steffen, the employee argues that the question of a Gillette injury primarily depends upon medical evidence, and that the medical evidence shows the following factors that support the employee=s claim:

 

1.         The MRI scan, taken on September 26, 2002, identified a new disc herniation at the L5-S1 level, not evident on earlier radiographic studies.

 

2.         On October 8, 2002, the employee reported to Dr. George Adam, neurosurgeon, that in spite of his long history of recurrent low back pain he was always able to work around the discomfort, and that for the past six weeks his symptoms were Avastly different@ from symptoms he had earlier experienced.

 

3.         Dr. Hadley, dispute resolution neutral examiner, diagnosed the employee=s condition as underlying degenerative disc disease, which indicated that the employee=s low back was in a weakened condition when he began working for Lametti & Sons.

 

4.         Dr. Hadley agreed that the employee=s work for the employer was comprised of activities that could aggravate a preexisting degenerative problem, and that such a laboring occupation was not ideal for someone with degenerative disc disease.

 

5.         Dr. Wengler concluded that the employee=s condition was a Aclassic example of a Gillette injury.@

 

6.         Although the employee earlier was able to perform his job duties without evidence of major difficulties or problems, by late 2002 he noted increasing difficulty performing his work.

 

In summary, the employee argues that the arbitrator=s decision is not supported by substantial evidence, in view of the fact that until September 2002, the employee had worked without significant symptoms, until such time that his job activities resulted in a herniated disc and disabling symptoms.

 

It is the province of the arbitrator to consider competing medical opinions and to adopt an opinion as the basis for her decision.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  In addition, A[w]here more than one inference may reasonably be drawn from the evidence, the compensation judge=s findings shall be upheld.@  Id.; see also Cameron v. Metro Transit, slip op. (W.C.C.A. October 1, 2004).  An expert=s opinion must, however, be based on adequate foundation.  Grunst v. Immanuel-St. Joseph=s Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1984).  Although the employee contests the foundation for Dr. Hadley=s opinion, Dr. Hadley obtained a history from the employee, reviewed the employee=s medical records and examined the employee.  As a general rule, this level of knowledge establishes a doctor=s competence to render an expert opinion.  See Grunst, 424 N.W.2d at 68, 40 W.C.D. at 1132-33; see also Scott v. Southview Chevrolet, 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1987); Schaar v. Andersen Corp., slip op. (W.C.C.A. Sept. 10, 2004).  Dr. Hadley determined that the employee=s work activities did not cause or aggravate his degenerative disc disease.  Rather, he concluded that the employee=s condition worsened as a result of the degenerative disc disease itself, notwithstanding his ongoing work activities for Lametti & Sons.  Dr. Hadley=s opinion was adequately founded, and therefore the arbitrator could reasonably rely upon that opinion when reaching her conclusions concerning the causation of the employee=s disc herniation, resulting symptoms and subsequent disability.

 

We acknowledge that there is evidence in the record that is supportive of the employee=s claim that he sustained a Gillette injury as a result of his work activities for the employer.  However, we conclude that substantial evidence, including expert medical opinion, supports the arbitrator=s findings that the employee=s disability from employment and need for medical treatment did not result from a Gillette injury on September 19, 2002.  We therefore affirm the denial of benefits.

 

In view of our affirmance of the arbitrator=s denial of the employee=s claim, we need not address the employer and insurer=s cross-appeal of the arbitrator=s evidentiary ruling concerning Dr. Wengler=s report and deposition nor their cross-appeal of the arbitrator=s decision concerning their Jewison defense.  In addition, in view of our decision, the remaining issues addressed by the employer and insurer=s cross-appeal are rendered moot, and therefore we need not address those remaining cross-appeals.