KATHLEEN M. STROMBERG, f/k/a KATHLEEN M. KROETEN, f/k/a KATHLEEN M. MEYER,  Employee, v. HONEYWELL, INC., SELF-INSURED, adm=d by SEDGWICK CLAIMS MGMT., Employer/Appellant, and BLUE CROSS BLUE SHIELD OF MINN., LIFE INS. CO. OF NO. AM., MIDWEST INTERNAL MED., ORTHOPAEDIC PARTNERS, and MINNESOTA ORTHOPAEDIC SURGEONS, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 18, 2005

 

No. WC05-162

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee sustained a Gillette injury as a result of her work activities and that her surgeries were reasonable, necessary, and causally related to the work injury.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including the employee=s medical records, supported the compensation judge=s award of temporary total disability benefits.

 

REHABILITATION - CONSULTATION.  The issue of whether the employee is permanently precluded from returning to her pre-injury job, due to a work injury, is irrelevant to the question of whether the employee is entitled to a rehabilitation consultation.

 

Affirmed.

 

Determined by: Wilson, J. Rykken, J., and Pederson, J.

Compensation Judge: Paul D. Vallant

 

Attorneys: Eric R. Lee, Milavetz, Gallop & Milavetz, Coon Rapids, MN, for the Respondent.  Michael J. Patera, Michael J. Patera, Chartered, Buffalo, MN, for the Apellants.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the judge=s findings that the employee sustained a Gillette-type injury^[1] arising out of and in the course of her employment with the employer, that the employee was entitled to temporary total disability benefits for certain periods, that medical expenses were reasonable and necessary, and that the employee was entitled to a rehabilitation consultation.  We affirm.

 

BACKGROUND

 

The employee began employment with Honeywell, Inc. [the employer], in 1978, working primarily in assembly.  From 1991 to 1993, the employee worked for Alliant Tech, but she returned to the employer in 1994, again doing primarily assembly work.

 

The employee began working in the employer=s Atear down group@ in early 2002.  That work required the employee to use tweezers and an exacto knife on 200 small parts a day and to tighten 10 to 15 large bolts by hand, with a power driver and a large hand wrench,  on four to five canisters a day.  From January of 2002 until May of 2002, the employee would also fill in, as needed, in the Abuild area,@ the press, and other areas.

 

The employee began experiencing progressive weakness and numbness in both hands and arms, and pain in the lateral aspect of each elbow, by April of 2002.  She discontinued working on May 28, 2002, and advised Helen Sigmeth, the company nurse, on May 30, 2002, that her right arm was painful from scraping parts and doing the tear down job.

 

On May 31, 2002, the employee treated with her family physician, Dr. Anita Buckler, who indicated that the employee had reported a two-month history of bilateral hand numbness and  noted that the employee reported that work Adefinitely seems to aggravate her numbness@and that the employee was doing fine repetitive movements at her job.  Dr. Buckler=s diagnoses was bilateral lateral epicondylitis and possible early carpal tunnel syndrome.

 

On June 19, 2002, the employee was seen by orthopedist Dr. Philip Haley.  Dr. Haley diagnosed work-related bilateral lateral humeral epicondylitis and bilateral carpal tunnel syndrome and ordered an EMG, which he interpreted as being consistent with bilateral carpal tunnel syndrome.  He initially treated the employee with wrist splints, but, on October 8, 2002, performed a right carpal tunnel release and median nerve decompression.  On January 28, 2003, Dr. Haley performed the same procedure on the left.

 

Dr. Haley released the employee to return to work without restrictions effective May 5, 2003.  The employee then returned to work with the employer in the Autility job,@ running robots, using the dishwasher, doing an epoxy job, and putting objects in the ovens.    Dr. Buckler=s May 12, 2003, office note states that the employee=s return to work had been Asomewhat problematic with increasing left thumb pain.@  A month later, on June 11, 2003, the company nurse wrote that the employee was complaining of bilateral hand swelling and was having trouble lifting Abowl of alcohol and acetone and pouring them.@

 

The employee filed a claim petition on June 24, 2003, seeking temporary total disability benefits continuing from May 25, 2002, rehabilitation assistance, and medical expenses.

 

The employee returned to Dr. Buckler on July 1, 2003, at which point the employee had been off work for five days and had noted a decrease in her swelling and discomfort.  Dr. Buckler took the employee Aoff work with light duties advised.@  Dr. Haley saw the employee again on July 23, 2003, and recommended bilateral lateral epicondylar injections, which the employee opted to undergo.

 

On September 5, 2003, the employee was seen by Dr. Mark Holm regarding her hands and elbows.  He reported that the employee was working lighter duty for the employer at that time, and he diagnosed Astatus post bilateral carpal tunnel releases with residual paresthesias and bilateral tennis elbow.@  Treatment options for the elbow included another cortisone injection or, Asince she has had symptoms for 2 years, a tennis elbow repair surgery.@  On September 12, 2003, Dr. Buckler took the employee off work.  A cortisone injection into the left elbow was done by Dr. Holm on September 30, 2003.  The employee had seven days of excellent relief but, because her symptoms returned, Dr. Holm recommended a lateral epicondylectomy and a radial nerve decompression, which he performed on December 11, 2003.

 

In a narrative report dated April 12, 2004, Dr. Holm opined that the employee=s work activities at the employer Arepresented a significant aggravation and [have] contributed to the development of her medial problems.@  He opined that the employee had reached maximum medical improvement [MMI] from her carpal tunnel syndrome, but not from her elbow condition, and he restricted the employee to Aavoidance of heavy pinch grip and grasp with either hand with a 10-pound lift limit occasionally with both hands together.@

 

The employer had the employee examined by independent medical examiner Dr. Matthew Putnam on March 25, 2004.  Dr. Putnam diagnosed Apain syndrome involving the right and left upper extremities without specific diagnosis.@  It was his opinion that the pain syndrome was not related to the employee=s work with the employer.  He opined that the employee had reached MMI and that she did not require additional medical treatment.

 

The employee underwent right elbow surgery, performed by Dr. Holm, on November 19, 2004.

 

The claim petition came on for hearing on December 16, 2004.  Relevant issues at that time included the employee=s claim of a Gillette-type injury, in the nature of carpal tunnel syndrome and bilateral lateral epicondylitis, culminating on or about May 28, 2002; the employee=s entitlement to temporary total disability benefits from May 28, 2002, through May 4, 2003, and from July 1, 2003, to the present and continuing; and the employee=s entitlement to outstanding medical expenses and rehabilitation services.  In Findings and Order filed on March 22, 2005, the compensation judge found, in relevant part, that the employee had sustained a Gillette-type injury to her bilateral upper extremities, that the employee was temporarily totally disabled from May 28, 2002, to May 4, 2003, from July 1, 2003, to July 28, 2003, from September 12, 2003, to April 12, 2004, and from November 14, 2004, to the date of hearing; that the employee=s medical treatment was reasonable and necessary and related to the work injury; and that the employee was entitled to a rehabilitation consultation.  The employer appeals.

 

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

 

1.  Gillette Injury

 

The employer contends that the medical opinions supporting the employee=s claim lack foundation.  The employer further contends that only Dr. Putnam was aware of the different jobs that the employee performed for the employer.  We are not convinced that the compensation judge should be reversed.

 

The issue on appeal is whether substantial evidence supports the findings of the compensation judge.  A judge=s choice between expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

Two of the employee=s doctors specifically attributed her carpal tunnel syndrome and bilateral lateral humeral epicondylitis to her work activities.   In a report dated August 27, 2003, Dr. Haley stated that the employee Ahas worked in assembly which requires prolonged times of a repetitive pinch, grasp and rotation with the forearms.  It is my opinion that these activities are a contributing factor to her conditions and disability.@  The employee testified that she told Dr. Haley that she did repetitive work.  The employee also testified regarding her specific job activities in the months leading up to May of 2002.  Those activities could reasonably be viewed as repetitive.^[2]

 

In addition, in his narrative report dated April 12, 2004, Dr. Holm stated that he had reviewed the employee=s deposition, and he opined that

 

the patient=s work activities at Honeywell over the past 29 years have represented a significant aggravation and [have] contributed to the development of her medial problems.  In my opinion, her work activities over the years have involved significant gripping, grasping, twisting, and lifting to a degree that it would aggravate or accelerate [the employee=s lateral epicondylitis and carpal tunnel syndrome].

 

Dr. Holm also opined that the employee=s work activities on or immediately proceeding April 1, 2002, significantly aggravated the employee=s condition.  Again, the employee=s description of her work activities would support the doctor=s description of Asignificant gripping, grasping, twisting and lifting.@

 

Dr. Haley is an orthopedist.  He referenced the employee=s medical records in his August 27, 2003, letter, examined the employee on at least seven occasions, and performed surgeries on the employee=s left and right wrists.  Dr. Holm is a board certified orthopedic surgeon.  He examined the employee on at least six occasions and performed surgery on the employee=s elbows.  The doctor=s description of the employee=s work activities in his April 12, 2004, report, is consistent with the employee=s testimony at hearing.  As a general rule, this level of knowledge establishes adequate foundation to render an expert opinion.  See Grunst v. Immanual-St. Joseph Hosp., 424 N.W. 2d 66, 40 W.C.D. 1130 (Minn. 1988).  There being no facts assumed by the experts that are not supported by the evidence of record, we affirm the judge=s choice between expert opinions.

 

The employer also contends that the employee did not prove that her bilateral arm complaints began while working for the employer.^[3]  Again, we are not persuaded.

 

While the employee had hand and arm complaints in the late 1980's and early 1990's, there was no evidence that the employee lost any time from work or that her work duties had to be modified.  In addition, Dr. Holm specifically noted that the employee had previous hand, wrist, and arm complaints, but he went on to state that the employee=s work activities immediately preceding April 1, 2002, Asignificantly aggravated her condition to the point where she required surgery.@  When work activities substantially aggravate or accelerate a pre-existing condition, the resulting disability  is compensable.  Wallace v. Hanson Silo, 305 Minn. 395, 235 N.W. 2d 363, 28 W.C.D. 79 (1975).  The judge=s finding of a Gillette injury culminating on May 28, 2002, is therefore affirmed.

 

2.  Temporary Total Disability Benefits

 

The employer appears to contend that the employee is not entitled to temporary total disability benefits because Dr. Buckler took the employee off work based solely on the employee=s complaints and not on objective evidence of disability and because the employee removed herself from the workforce by moving two hours north of her job.  We are not persuaded.

 

During each of the periods for which the compensation judge awarded temporary total disability benefits, the employee had been taken off work by either Dr. Buckler, Dr. Haley, or Dr. Holm.  The record contains no medical opinion indicating that the employee was not temporarily totally disabled during those periods, except for Dr. Putnam=s testimony that, as of the time that he saw the employee on March 25, 2004, the employee was capable of work.  The judge was not required to accept Dr. Putnam=s opinion on this or any other issue.  The employee=s medical records reasonably support the judge=s finding as to temporary total disability.

 

The employer=s suggestion that the employee had relocated two hours north of her job A and had no intention of returning to work at Honeywell, Inc.@ is also not persuasive.  While the employee testified that she and her husband now live in Deer River, Minnesota, she also testified that it was her desire to return to work for the employer and that, if suitable work were offered, she would reside with her daughter in St. Louis Park.  There is no definitive evidence to the contrary.  Therefore, we affirm the judge=s award of temporary total disability benefits.

 

3.  Medical Expenses

 

The employer concedes in its brief that Acarpal tunnel syndrome surgery may have been appropriate and best left to doctors= discretion.@  The employer contends, however, that the compensation judge erred in awarding medical expenses related to the elbow surgeries, in that those surgeries were performed based on the employee=s subjective complaints and her desire to have surgery.  We are not convinced.

 

The employer contends that the compensation judge erred in failing to adopt the opinion of Dr. Putnam.  Dr. Putnam, however, opined that the employee suffered from pain syndrome, and not bilateral lateral epicondylitis, and that surgery for pain syndrome is Aa last resort.@  In his report of March 25, 2004, Dr. Putnam stated,

 

[w]hether or not I would have completed a radial tunnel release is unclear to me (left upper extremity surgery completed by Dr. Holm in conjunction with lateral epicondylar release).  I would not undertake a right elbow surgery at this time.  I do not believe the patient would be substantially benefitted by such a procedure in the form of improved ability to work or less discomfort at home.

 

In contrast, Dr. Holm noted pain, on examination, over the lateral epicondyles of both of the employee=s elbows and also noted a two-year history of such symptoms not helped by splints, anti-inflammatories, cortisone injection, therapy, or work restrictions.  He opined that surgery for chronic lateral epicondylitis and radial nerve compression was reasonable and necessary.  His operative report, dated December 11, 2003, includes, reference to the fact that, during surgery, the Aepicondyle was noted to have a very sharp ridge,@ which was removed during the operation.  When Dr. Putnam was asked whether he disagreed that such a procedure was necessary, he testified, AYou know, I wasn=t there.@  Dr. Holm=s operative report also details compression of the radial nerve.

 

Again, it is the function of the compensation judge to resolve disputes between medical experts.  Nord, 360 N.W.2d 337, 37 W.C.D. 364.  Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.  Redgate v. Sroga=s Standard Serv., 421 N.W. 2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  In this case, where there was adequate foundation for Dr. Holm=s opinion, we defer to the judge=s choice between expert opinions, and we affirm the finding that the medical treatment at issue was reasonable, necessary, and causally related to the employee=s work injury.

 

4.  Rehabilitation Consultation

 

The employer contends that a rehabilitation consultation is not appropriate because the employee is not precluded or likely to be precluded from engaging in her usual and customary pre-injury occupation.  However, the employer=s argument goes to whether the employee is entitled to statutory rehabilitation services, not to whether a rehabilitation consultation is appropriate.  In the present case, the employee is entitled to a rehabilitation consultation as a matter of law, pursuant to Minn. Stat. '176.102, subd. 4(a).  Accordingly, the award of a rehabilitation consultation is affirmed.