JOSEPH W. SORCAN, Deceased Employee, by MARJORIE SORCAN, Petitioner/Appellant, v. USX CORP. f/k/a U.S. STEEL CORP., SELF-INSURED, Employer/Cross-Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 29, 2005

 

No.  WC04-287

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including well-founded medical expert opinion, supports the compensation judge=s determination that neither the employee=s rheumatoid arthritis nor the medications used to treat it were a substantial contributing cause of the employee=s death.

 

OCCUPATIONAL DISEASE - DISABLEMENT.  Where the employee was found temporarily totally disabled in November 1974 during a period of hospitalization as a result of his silicosis, continued working while the employer investigated his claim, and was told by the employer in May or June 1975 that they did not have work for him, the date of Adisablement@ is November 1974, and not October 8, 1975, when the employee eventually stopped working.

 

Affirmed in part and reversed in part.

 

Determined by: Johnson, C.J., Pederson, J. and Wilson, J.

Compensation Judge: Carol A. Eckersen

 

Attorneys: Robert C. Falsani and Bill L. Thompson, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Appellant.  James P. Paciotti, Law Offices of James P. Paciotti, Duluth, MN, for the Cross-Appellant.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The petitioner, Marjorie Sorcan, appeals the compensation judge=s determination that neither the employee=s work-related rheumatoid arthritis nor the effects of medications used to treat the rheumatoid arthritis were a substantial contributing cause of the employee=s death.  The self-insured employer cross-appeals the judge=s finding that the employee=s date of injury was October 8, 1975.  We affirm the finding of no medical causation, and reverse the judge=s finding regarding the date of injury.

 

BACKGROUND ^[1]

 

The employee, Joseph W. Sorcan, was born in 1921.  He was employed by the self-insured employer, USX Corporation (f/k/a U.S. Steel Corporation), from 1947 through 1975.  The employee was diagnosed with silicosis in November 1974 as a result of inhalation of silica dust in the course and scope of his work for the employer.  He was diagnosed with rheumatoid arthritis shortly thereafter, in about January 1975.  In October 1976, this court found, in an unappealed decision, that the employee=s work-related silicosis was a substantial aggravating or accelerating factor in the employee=s rheumatoid arthritis.  Sorcan v. U.S. Steel Corp., 29 W.C.D. 162 (W.C.C.A. 1976).  In 1987, a compensation judge determined the employee had been permanently and totally disabled since April 14, 1976.  Over the years, the employee became increasingly disabled by his rheumatoid arthritis, and was eventually confined to a wheelchair.

 

Multiple medications were prescribed, beginning in 1975, to treat the employee=s rheumatoid arthritis.  These medications included large amounts of aspirin and non-steroidal anti-inflammatory drugs (NSAIDs) as well as long-term use of Prednisone, a corticosteroid.  The employee was also prescribed various disease‑modifying anti‑rheumatic drugs (DMARDs) over the years, including gold (until early 1988), Imuran, and for relatively brief periods, Methotrexate Sulfasalazine, Cuprimine and Arava, as well as periodic prescriptions for narcotic pain medication, including Wygesic, Tylenol #3 and Darvocet.

 

The employee was seen by Dr. Timothy Kleinschmidt, a general internist, in February and March 1999 for follow-up of mild anemia.  Dr. Kleinschmidt believed the employee=s iron-deficient pattern might be related to mild gastritis as a result of his chronic aspirin use.  The employee was taken off aspirin and prescribed Celebrex, a COX‑2 inhibitor NSAID, believed to be less hard on the stomach.  On April 26, 1999, the employee=s wife called the Duluth Clinic reporting itching with taking Celebrex.  The employee was taken off Celebrex and the itching gradually improved.  By the end of May 1999, the employee was advised he could retry Celebrex.

 

On June 21, 1999, the employee had an esophagogastroduodenoscopy (EGD) and colonoscopy to assess his ongoing iron deficiency anemia.  The EGD evidenced some gastritis, with no active bleeding or ulcerations, and no obvious neoplastic lesions.

 

In February 2000, the employee=s labs showed a significant drop in hemoglobin along with an increase in creatinine (a test of kidney function), and he was again taken off Celebrex.  Follow-up labs determined the employee had low iron, but everything else was normal.  The employee was prescribed iron, and advised he could restart Celebrex.  On March 16, 2000, Dr. Kleinschmidt saw the employee in follow-up.  The employee reported feeling weak and getting light-headed.  The doctor=s assessment was iron deficiency anemia likely due to recurrent gastritis.  Dr. Kleinschmidt also suggested an  upper gastrointestinal and small bowel follow through to rule out a small bowel lesion.  An endoscopy of the upper intestine on April 4, 2000, again showed evidence of gastritis with positive Helicobacter pylori (H. pylori), a bacterial infection that can contribute to gastritis and ulcers.

 

On May 30, 2000, the employee=s wife called the Duluth Clinic stating the employee had strong abdominal pains along with nausea and vomiting on Saturday continuing through Sunday, at which point he had bright red vomiting.  Mrs. Sorcan stated the employee was no longer experiencing these symptoms by the time she called.  The employee continued to experience intermittent, several day symptomatic episodes and on June 22, 2000, was admitted to St. Mary=s Medical Center with abdominal pain, nausea, vomiting, and dehydration.  A CT scan that same day showed apparent cirrhosis of the liver, and dilatation of multiple loops of the small bowel suggestive of a partial small bowel obstruction without an identifiable transition point.

 

The employee=s symptoms improved with conservative care, and he was released to the Virginia Regional Medical Center (VRMC) on June 29, 2000, with a principal diagnosis of abdominal pain with partial small bowel obstruction.  At the VRMC, the employee was provided rehabilitation for severe deconditioning and weakness.  He improved, and was discharged home on July 21, 2000.  Five days later, the employee was again admitted to St. Mary=s Medical Center.  An exploratory laparotomy was performed by Dr. Thomas Wiig, a general surgeon, on July 29, 2000.  Dr. Wiig noted the employee was in very fragile condition due to profound malnutrition, nodular liver disease, chronic steroid therapy and rheumatoid arthritis, making surgery a very high risk.  The surgery revealed a generalized intestinal paralytic ileus,^[2]  and one adhesion of the small bowel into the pelvis that was divided, freeing up the bowel.  The employee was placed in hospice where he died on August 4, 2000, at age 79.

 

The employee=s widow, Marjorie Sorcan, filed a claim for dependency benefits on October 16, 2000, alleging the employee=s rheumatoid arthritis was a contributing cause of his death.  The case was heard by a compensation judge at the Office of Administrative Hearings (OAH) and a  Findings and Order was issued on February 13, 2003.  In a decision issued on December 22, 2003, this court held the compensation judge had committed reversible error.  As the judge was no longer at OAH, the case was referred back to the OAH for assignment to a new judge for hearing.

 

The case was retried before a compensation judge at the Office of Administrative Hearings on June 25, 2004.  In a Findings and Order, served and filed September 20, 2004, the compensation judge found neither the employee=s rheumatoid arthritis nor the medications used to treat the rheumatoid arthritis were a significant contributing cause of the employee=s death.  Concluding the date of injury had not been litigated in any previous proceeding, the compensation judge further found the employee=s date of injury was October 8, 1975.  Both the employee and the self-insured employer appeal.

 

DECISION

 

Causal Relationship

 

The appellant asserts the Findings and Order are clearly erroneous and unsupported in view of the record submitted.  The appellant maintains the only issue before the compensation judge was whether the employee=s death was substantially caused by his rheumatoid arthritis or by the effects of the medications used to treat the rheumatoid arthritis, and argues that the evidence supports only one conclusion: the employee=s debilitation as a result of his rheumatoid arthritis and the medications used to treat it caused his death.  We disagree.

 

This case, at its heart, involves conflicting expert medical testimony.  The testimony and/or reports of five doctors were submitted into evidence.  All of the doctors agreed the ileus was the ultimate cause of the employee=s death.  They disagreed, however, on the likely cause of the ileus.

 

Dr. Kleinschmidt practices internal medicine at St. Mary=s/Duluth Clinic, and provided general care to the employee during the two years prior to his death.  By report dated February 5, 2001, Dr. Kleinschmidt observed that, based on the surgical notes, the employee had only one discrete adhesion and the remainder of the bowel was quite adynamic, more consistent with an ileus, which would be more due to his underlying medical problems, including rheumatoid arthritis.  The doctor opined the employee=s ability to survive such an event was severely hindered by his rheumatoid arthritis, and stated he strongly believed the employee=s death was directly related to his rheumatoid arthritis and secondary cirrhosis.  In his deposition taken June 13, 2002, Dr. Kleinschmidt reasserted his belief that the employee=s rheumatoid arthritis and long-term use of aspirin, NSAIDs and Prednisone substantially contributed to the ileus that lead to the employee=s demise.

 

In letter reports dated April 9 and 16, 2004, Dr. Robert Leff, the employee=s rheumatologist, agreed it was more probable than not that the medications used to treat the employee=s rheumatoid arthritis were a substantial factor leading to the employee=s death.  The doctor explained that chronic use of aspirin and NSAIDs can cause gastritis and have the potential to cause peptic ulcer disease and liver problems, and that Prednisone also can lead to irritation of the stomach and cause an individual to not eat well.  Dr. Leff maintained there was no evidence to suggest that a constricting adhesion caused the ileus, and opined it was more probable than not that long term use of the medications necessary to treat his rheumatoid arthritis contributed substantially to his declining health, leading up to the employee=s death.

 

Dr. Wiig, by letter dated May 14, 2004, maintained the single adhesion found and corrected in the surgery on July 29, 2000, was not the source of the employee=s general intestinal dysfunction and was an essentially incidental finding.  Dr. Wiig further opined it was more probable than not the employee=s general deteriorated condition, secondary to the effects of long-term rheumatoid arthritis and the required medications to treat it, had debilitated him to the point of his fragile condition at that time, and his overall debilitated condition resulted in the bowel shutdown and his demise.

 

Dr. Jed Downs, on the other hand, by letter dated November 10, 2000, stated he did not believe that the employee died as a result of complications of his rheumatoid arthritis or his treatment for rheumatoid arthritis.  The doctor observed the employee had a history of colon cancer with surgery (in 1969) and had a bowel obstruction which was the ultimate cause of his death secondary to an adhesion resulting from the surgery.  Dr. Downs further noted the employee was 79 years old, had a history of silicosis and a stroke, and all would have contributed to his inability to survive the insult of the bowel obstruction.  The doctor concluded that anything secondary to his rheumatoid arthritis would have been a minor cause.

 

In his deposition of August 9, 2002, Dr. Downs agreed it might be possible, but was not likely, that the employee=s medication use contributed to the ileus, stating the medications the employee was taking at the time of his hospitalization were not likely causes of an ileus. Rather, Dr. Downs maintained the partial small bowel obstruction, secondary to an adhesion, was the likely cause of the employee=s acute abdominal pain, dehydration and ultimate hospitalization, stating that dehydration and electrolyte imbalances can cause a paralytic bowel.

 

Dr. Patrick O=Reilly, a gastroenterologist, examined the employee=s medical records at the request of the self-insured employer.  Dr. O=Reilly testified his best opinion was that a reasonable scenario would be that the employee had a partial small bowel obstruction, perhaps from the adhesion, and that intermittently when he ate he would have problems with abdominal pain, nausea and vomiting, and as a result was not eating as much, lost weight, became malnourished and dehydrated, leading to electrolyte imbalances and other metabolic disturbances which can cause or contribute to an ileus.  Dr. O=Reilly further testified that, in his opinion, neither the employee=s rheumatoid arthritis nor the medications the employee took, including the NSAIDs and immuno-suppressants, were related to the employee=s bowel problems, the period of obstruction and pain and eventual ileus.

 

The compensation judge found the opinions of Dr. O=Reilly persuasive and accepted his opinion that the employee=s rheumatoid arthritis and the medications used to treat the rheumatoid arthritis were not a substantial contributing factor in the employee=s death.  While there is certainly medical expert opinion to the contrary, where there is a conflict in the opinions of medical experts, resolution of that conflict is the function of the compensation judge and will not be reversed by the court so long as there is adequate foundation for the expert=s opinion.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

The appellant argues, however, that any theory indicating the adhesion might have played a role in the employee=s eventual ileus lacks foundation given  Dr. Wiig=s opinion that the adhesion was an incidental finding. While Dr. Wiig=s characterization of the adhesion may go to the weight of their opinions, neither Dr. Downs= or Dr. O=Reilly=s opinions lack foundation, see Drews v. Kohl=s  55 W.C.D. 33 (W.C.C.A. 1996), and the compensation judge properly relied on their expert opinions.

 

The appellant also argues that Dr. O=Reilly opined only that malnutrition, weight loss and electrolyte imbalances lead to the poor function of the gastrointestinal tract and the eventual ileus, but that the doctor did not know what caused the ileus.  We disagree.  The substance of the testimony of an expert witness Adoes not turn on semantics or on the use by the witness of any particular term or phrase.@  Boldt v. Jostens, Inc., 261 N.W.2d 92, 94, 30 W.C.D. 178, 181-82 (Minn. 1977).  It is well established that the truth of the opinion need not be capable of demonstration and that an expert is not required to express absolute certainty in the matter which is its subject.  Id.  Dr. O=Reilly=s testimony, taken as a whole, clearly evidences his opinion that the employee=s ileus and death likely resulted from the employee=s bowel problems, and that the employee=s rheumatoid arthritis and medications were not a significant factor.

 

Finally, the appellant argues the compensation judge=s failure to specifically mention or discuss the 2004 reports of Dr. Wiig and Dr. Leff shows the compensation judge failed to conduct a thorough review of the evidence before her.  This court has repeatedly stated that a compensation judge is not required to refer to or comment upon every piece of evidence introduced at the hearing.^[3]  The record in this matter is extensive and the compensation judge=s findings discuss the medical evidence presented by both parties in some detail.  The fact the judge did not recite all of the evidence favoring the appellant=s position does not establish the evidence was overlooked.

 

While not unsympathetic to the appellant=s position, having thoroughly reviewed the record, we can only conclude there is substantial evidence in the record as a whole to support the compensation judge=s findings, and we must, accordingly, affirm.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. l984).

 

Date of Injury

 

The compensation judge found the employee stopped working on October 8, 1975, and was subsequently found permanently totally disabled as of that date, and concluded that disablement, and therefore the date of injury, occurred on October 8, 1975.  The self-insured employer appeals, asserting the date of injury was, and is, January 14, 1975.^[4]

 

In early November 1974, the employee was seen at the VA Hospital in Minneapolis, Minnesota, for an annual follow-up examination related to his colon cancer.  A routine chest x-ray revealed nodulation in both upper lung fields.  As a result, the employee underwent a lung biopsy and was hospitalized from November 10 through November 27, 1974.  When discharged, both the employee - - who worked as a control operator in the employer=s taconite plant - - and the employer were advised the employee should change occupations.   The employer asked the employee to submit to a physical at East Range Clinic, which he did.  A January 14, 1975, x-ray again confirmed the presence of nodulation in both upper lung fields.  About that same time, the employee was diagnosed with, and first received treatment for, rheumatoid arthritis.  The employee was readmitted to the VA Hospital as a result of his silicosis from March 11 through March 19, 1975.  At the 1976 hearing, the employee testified that in May or June 1975, the employer told him their doctors agreed he should not be working in the plant, and that they did not have another job for him.  The employee was offered a retirement program, but did not immediately accept because he wanted to talk to the union.  In August 1975, the employee was seen by Dr. Jerome Dougan, a rheumatologist.  By letter report dated September 24, 1975, Dr. Dougan stated the combination of rheumatoid arthritis and silicosis was ominous from a pulmonary standpoint, and the employee needed to be removed from the work environment.  The employee stopped working on October 8, 1975.

 

Procedurally, the employee=s initial claim petition alleged a date of injury of 1974 and March 1975.  In his Findings and Determination of May 25, 1976, Compensation Judge Parker found the employee contracted silicosis in November 1974, and that as a result of his silicosis he was temporarily and totally disabled from November 10 through November 27, 1974, and March 11 through March 19, 1975.  This court reversed the compensation judge=s determination that the employee=s rheumatoid arthritis was not work-related, finding the silicosis aggravated and/or accelerated the rheumatoid arthritis.  We affirmed, however, the finding of temporary total disability as a result of the silicosis.  The employer thereafter paid benefits and received reimbursement from the Special Compensation Fund based on a January 14, 1975, date of injury.  In subsequent proceedings, the parties and the courts referred to November 1974 or January 14, 1975, as the date of injury.  In a Findings and Order filed November 17, 1987, Compensation Judge Bonovetz found the employee contracted silicosis with disablement in November 1974, and held the employee had been permanently and totally disabled since April 14, 1976, not October 8, 1975, as found by the compensation judge in this proceeding.  There is no reference to October 8, 1975, as a date of injury until 1997.  The date of injury was not litigated, nor was it necessary to the decision in any of the proceedings in 1997 and 1998.  The claim petition for dependency benefits again recites January 14, 1975, as the date of injury.

 

The date of injury in an occupational disease case is the date of Adisablement,@ that is, the date on which the employee is first unable to earn full wages at the work in which he was employed.  Minn. Stat. ' 176.66, subd. 1; Abram v. Art Geobel Ford, 327 N.W.2d 88, 35 W.C.D. 495 (Minn. 1982).  There is nothing in the law that limits the date of disablement to the last day of  work.  See, e.g., Radermecher v. FMC Corp., 375 N.W.2d 809, 38 W.C.D. 195 (Minn. 1985).  In this case, the employee was found totally disabled from November 10 to November 27, 1974, when he was hospitalized as a result of the silicosis, and could not earn full wages at his work for the employer.  The 1976 determination of Judge Parker, awarding temporary total disability benefits for this period, was affirmed by this court.  Thereafter, the employee continued working while the employer investigated his claim, with a second period of temporary total disability in March 1975, again found compensable.  By May or June 1975, the employer informed the employee they did not have work for him.  It was apparent well before October 8, 1975, that the employee could not continue to work for the employer as a combined result of his silicosis and rheumatoid arthritis. Compare Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 36 W.C.D. 504 (Minn. 1984).

 

Because the aggravation of the rheumatoid arthritis was a consequence of the silicosis, it is the date of disablement as a result of the silicosis that is controlling.  We, therefore, reverse the compensation judge=s decision, and hold the date of  disablement, and therefore the date of injury, was November 1974.