ANTHONY J. TIGGES, Employee/Appellant, v. UNITED PARCEL SERV. and LIBERTY MUT. INS. COS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 19, 2005

 

No. WC04-321

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s carpal tunnel syndrome was not work-related.

 

Affirmed.

 

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

Compensation Judge: Danny P. Kelly

 

Attorneys: Steven J. Drummond, Alexandria, MN, for the Appellant.  David J. Odlaug and Jason Schmickle, Hanson, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s decision that the employee=s work activities were not a substantial contributing cause of his carpal tunnel syndrome.  We affirm.

 

BACKGROUND

 

The employee is 51 years old and has worked for UPS [the employer] as a package driver for twenty-six years.  He has driven a variety of trucks over the years but began driving a 10,000 cubic-foot truck [10-cube truck] seven to nine years ago.  The 10-cube truck has power steering and a manual transmission.

 

The employee drives 50 miles a day, five days a week, making approximately 105 to 120 deliveries a day and handling approximately 300 packages.  He also makes approximately 20 pickups a day, handing 80 packages.  The packages weigh anywhere from a few ounces to 150 pounds.  He handles the majority of the packages with his left hand, because he wears and operates a DIAD device on his right hand.

 

At some point, the employee began to notice tingling and pain in his left hand and wrist.  He first talked to a doctor about these symptoms in October of 2002,^[1] and began wearing a brace on his left hand at night.  He eventually bought a brace for his right hand as well.

 

On May 19, 2003, the employee was examined by Dr. Steven M. Longbotham for a DOT physical.  The doctor noted that the employee reported numbness in his hands Awhen he rides his bike@ and that he had been wearing splints at night.  The employee passed the DOT exam with no restrictions.

 

On January 9, 2004, the employee underwent an EMG, which revealed moderately severe left carpal tunnel syndrome and mild right carpal tunnel syndrome.  The employee was examined by physician=s assistant Terry J. Kay, complaining of pain in his right shoulder and left hand.^[2]  In an office note, P.A. Kay stated, A[w]ith regards to the carpal tunnel, I do believe that it is directly related to his UPS work over the past 26 years.@  It was her impression that the employee would need surgical decompression as his symptoms had been present for quite some time.

 

The employee was examined by independent medical examiner Dr. William Call on February 25, 2004.  Dr. Call asked the employee to demonstrate the motions connected with his work activities, reviewed medical records, and examined the employee.  In his report of March 8, 2004, Dr. Call wrote that he needed to see the employee=s EMG but that, if the EMG  in fact demonstrated carpal tunnel syndrome, that condition would be considered developmental and not related to the employee=s work activities.

 

Dr. J.C. Brand, Jr., examined the employee on March 9, 2004, and noted that the employee had bilateral carpal tunnel syndrome documented on EMG.  His assessment was Arelatively severe left CTS in a young active 50 year old white male,@ and he stated, A[i]n my opinion, his hands are work related.@

 

On May 16, 2004, the employee filed a medical request, seeking authorization for a left carpal tunnel release.  The employer and insurer filed a medical response on May 27, 2004, refusing to pay for the surgery on grounds that the employee=s carpal tunnel syndrome did not arise out of and in the course of his employment.

 

Dr. Call issued a supplemental report on September 13, 2004, and his deposition was taken on September 22, 2004.  Before issuing the supplemental report, the doctor reviewed a written description of the employee=s work activities as well as additional medical records, including the report of the EMG conducted on January 9, 2004.  It was Dr. Call=s opinion that the kind of job activities that Aexacerbate, irritate or accelerate carpal tunnel syndrome are [activities involving] acute wrist flexion with grasp.@  In his deposition, he clarified that grasp was not necessary but that significant acute wrist flexion was.  He did not think that the employee=s day-to-day activities at UPS were a substantial contributing cause of the employee=s carpal tunnel syndrome.

 

The employee=s medical request came on for hearing on September 29, 2004.  At hearing, the employee described his work activities in detail and testified that, after the onset of his symptoms, the more he used his left hand, the more his symptoms increased.  In findings and order filed on October 21, 2004, the compensation judge found the opinions of Dr. Call to be persuasive, and he concluded that the employee=s left carpal tunnel syndrome was not work-related.  The employee 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

 

The employee contends that Dr. Call Ahad a preconception that the only job activity which would be causal or exacerbatory to carpal tunnel syndrome was acute wrist flexion supplemented with grasp, with flexion being the more significant motion.@  It is obvious from Dr. Call=s reports and deposition that this was his opinion.  The employee, however, failed to produce any expert opinion to the contrary.^[3]

 

Dr. Call testified that there was a theory, years ago, that repetitive work activities aggravated the synovium, which would cause swelling that would in turn impinge on the median nerve, causing carpal tunnel syndrome.  He also testified concerning a theory that keying or typing may Alead to increased amounts of carpal tunnel syndrome.@  Dr. Call went on, however, to cite to more recent studies that have discredited those earlier theories.  The employee offered no evidence to contradict Dr. Call=s testimony.

 

The employee also appears to contend, in the alternative, that, even if Dr. Call is correct in his theory that forceful flexion of the wrist is the only motion that contributes to carpal tunnel syndrome, the employee=s work in fact caused the employee  to use his left wrist in a forceful and flexed manner, while carrying packages with his left arm, raising the overhead door on the rear of the truck, and opening and closing the bulkhead door of the truck.  We are not persuaded.  During his examination of the employee, Dr. Call asked the employee to demonstrate his work activities, and the doctor later reviewed a written description of the employee=s work activities.  In his report and deposition, Dr. Call noted that the employee did not demonstrate using his left wrist in an acutely flexed manner.  In addition, the compensation judge had the opportunity to observe the employee at hearing as he demonstrated the hand and wrist motions associated with his work.

 

A judge=s choice between expert opinions whose testimony conflicts is usually 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).  In the present case, there are no grounds to overturn the judge=s decision to rely upon the opinion of Dr. Call.  Accordingly, we affirm the compensation judge=s decision in its entirety.