BETTY A. ZADROZNY, Employee, v. NORTHWEST AIRLINES, and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 26, 2006

 

No. WC06-154

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including medical opinions and the employee=s testimony, supports the compensation judge=s finding that the employee=s work activities for the employer caused her hearing loss.

 

GILLETTE INJURY - DATE OF INJURY; NOTICE OF INJURY - GILLETTE INJURY.  Substantial evidence supports the compensation judge=s finding that the employee=s Gillette injury culminated on March 12, 2003, the date on which the employee=s doctor imposed work restrictions resulting in modification of the employee=s work duties, and that the employee gave timely statutory notice on that date.

 

Affirmed

 

Determined by Johnson, C.J., Wilson, J., and Rykken, J.

Compensation Judge: Cheryl Le-Clair-Sommer

 

Attorneys: James A. Batchelor, Batchelor Law Firm, Minneapolis, MN, for the Respondent.  Robin D. Simpson and Brad M. Delger, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal from the compensation judge=s finding that the employee=s work activities caused a personal injury and from the finding that the employee gave timely notice of the injury.  We affirm.

 

BACKGROUND

 

Betty A. Zadrozny, the employee, commenced employment with Northwest Airlines, the employer, in 1990 as a reservation sales agent.  The employee generally worked eight hours a day, five days a week, answering telephone calls from customers.  The employee used an ear headset which required a plug inside her ear canal which she always put in her left ear.  The employee testified that during an eight-hour shift, she spent approximately 90 percent of her time engaged in telephone conversations with customers.

 

In 1991 or 1992, the employee testified she sought medical treatment for problems with her ears which she felt were plugged.  She sought treatment at an urgent care facility and received pills or drops which, after several weeks, resolved the problem.  The employee had no follow-up treatment.  No diagnostic studies of the employee=s hearing were done at that time.  The employee acknowledged she lost some time from work because of her ear problem.  The employee thought at the time her ear problem was related to her job but she made no report to the employer.

 

In February 1996, the employee saw a doctor at Consultants in Internal Medicine complaining of tenderness in her right ear after being on an airplane.  The doctor diagnosed a right inner ear disturbance and prescribed Sudafed.

 

In July 1997, the employee saw Dr. Paul Gotlieb complaining of left-sided hearing loss that gradually came on over the last seven years.  The employee asked the doctor for a note for work so she could be in a quieter place.  On examination, Dr. Gotlieb noted no tinnitus or pain and made a referral to an ears, nose and throat [ENT] specialist.  The employee returned to the clinic in September 2001, complaining that both her ears had been plugged for two weeks.  The doctor noted no tinnitus or significant hearing loss and diagnosed plugged ears likely due to eustachian tube dysfunction and prescribed Sudafed.

 

The employee saw Dr. Michael Murphy, an ENT specialist, in September 2002, on referral from Dr. Gotlieb.  The employee complained of left ear tinnitus, present since June, associated with a feeling of her left ear being plugged.  Dr. Murphy diagnosed unilateral left high-frequency sensorineural hearing loss as a likely source of the employee=s tinnitus.  The doctor opined the tinnitus was Aundoubtedly due to her high-frequency hearing loss which could be due to her long history of wearing an ear piece at work.@  (Pet. Ex. D.)

 

The employee saw Dr. Kevin Wall at Park Nicollet on March 12, 2003, complaining of left-sided hearing loss.  An audiogram showed significant hearing loss across all frequencies in the left ear.  The doctor stated this was a pattern not typically seen with high-frequency hearing loss but was more typically correlated with noise exposure.  Dr. Wall restricted the employee from using headsets and amplification in her left ear.  On March 12, 2003, the employee reported an injury to her employer and a First Report of Injury was prepared.  In response to Dr. Wall=s restrictions, the employer placed the employee in a limited-duty position.

 

In June 2003, Dr. Michael Tedford, an ENT specialist, examined the employee on referral from Dr. Wall.  An audiogram showed severe high-frequency sensorineural hearing loss in the left ear which the doctor concluded was noise related.  By letter dated July 2, 2003, Dr. Tedford stated the employee=s hearing loss was Alikely related to noise exposure at work and a background sound reduction headset will further reduce exposure.@  (Pet. Ex. K.)

 

Dr. Barry Kimberley, an otolaryngologist, examined the employee on July 21, 2003, at the request of the employer and insurer.  The doctor diagnosed a high-frequency sensorineural left-sided hearing loss.  By report dated July 21, 2003, the doctor stated, AMy personal view is that while it is possible that there is a connection between her telephone use and her seemingly progressive sensorineural hearing loss, it does seem improbable.  Specifically, I think there is less than a 50% likelihood that her hearing loss is in fact telephone related.@  Dr. Kimberley recommended hearing amplification and opined the employee had reached maximum medical improvement.  In a second report dated August 5, 2005, Dr. Kimberley opined that the cause of the employee=s condition was unknown but it was Anot likely related to her work exposure.@  (Resp. Ex. 2.)

 

By report dated October 26, 2005, Dr. Murphy stated the employee had a left high-frequency sensorineural hearing loss with subjective tinnitus.  The doctor stated this type of hearing loss has multiple etiologies and it was rare that a direct causal source could be identified.  However, the doctor noted the employee had a normal audiogram in 1997, so her hearing loss developed while she worked at Northwest Airlines and, by history, the hearing loss developed gradually.  Dr. Murphy opined the employee=s Ause of a left ear piece at work is a plausible explanation for hearing loss limited to this ear.@  The doctor recommended a hearing aid.  (Pet. Ex. B.)

 

The employee filed a claim petition seeking benefits resulting from a personal injury on September 16, 2002, and/or March 12, 2003.  Following a hearing, the compensation judge found the employee=s work activities for the employer were a substantial contributing cause of the employee=s hearing loss culminating in disability on March 12, 2003.  The compensation judge further found the employer received timely statutory notice and awarded payment of medical expenses.  The employer and insurer appeal.

 

DECISION

 

1.  Gillette Injury

 

The appellants contend the compensation judge=s finding that the employee=s work activities caused her hearing loss is unsupported by substantial evidence.  They assert the medical opinions of Dr. Murphy and Dr. Tedford are legally insufficient to support the compensation judge=s finding because they lack sufficient certainty that the employee=s work activities caused her condition.  Accordingly, the appellant asserts the compensation judge=s finding of a personal injury must be reversed.  We are not persuaded.

 

"To sustain a finding of causal relation it is not enough that there is medical testimony that the injury might have caused the subsequent condition or could have caused that condition but there must be medical testimony that the injury did cause that condition."  Holmlund v. Standard Constr. Co., 307 Minn. 383, 389, 240 N.W.2d 521, 525, 28 W.C.D. 317, 324 (1976) (emphasis in original).  However, to establish causation, it is not necessary to establish absolute medical certainty; a medical opinion is sufficient if it is probably true.  Pommeranz v. State, Dep't of Public Welfare, 261 N.W.2d 90, 91, 30 W.C.D. 174, 176-77 (Minn. 1977).  As this court has explained,

 

[W]ith regard to causation opinions, an expert=s opinion need be stated only in terms of a reasonable degree of medical probability, and A[r]easonable probability . . . is determinable by consideration of the substance of the [expert=s opinion] and does not turn on semantics or on the use by the witness of any particular term or phrase.@  Boldt v. Josten, Inc., 261 N.W.2nd 92, 94, 30 W.C.D. 178, 181 (Minn. 1997), quoting Insurance Co. of North America v. Myers 411 S.W.2d 710, 713 (Tex. 1966).  An expert witness is not required to speak with such confidence as to exclude all doubts in his mind but may qualify his opinion in expressions that fall short of absolute conviction, and such qualification affects merely the probative force of the testimony.  See Hiber v. City of St. Paul, 219 Minn. 87, 16 N.W.2d 878, 13 W.C.D. 302 (1944).

 

Trom v. Express Personnel, slip op. (W.C.C.A. Jan. 28, 2000).

 

In the present case, the compensation judge acknowledged the opinions of Dr. Murphy and Dr. Tedford were Asomewhat tenuous.@  Dr. Murphy stated the employee=s hearing loss had multiple causes and opined a direct causal source could rarely be identified.  But given the fact the employee had no family history of genetic hearing loss and, no identifiable organic cause for the hearing loss, together with her gradual hearing loss during her employment with Northwest Airlines, the doctor concluded the use of an ear piece at work was a plausible explanation for the hearing loss.  While this opinion is not unequivocal, it is consistent with the other evidence in the case and meets the standard of medical probability.  The judge also considered and credited the employee=s testimony of a gradual hearing loss over time.  This testimony, the judge concluded, was consistent with the opinions of Dr. Murphy and Dr. Tedford.  These medical opinions together with the employee=s testimony provide adequate evidentiary support for the compensation judge=s finding.  Accordingly, the decision of the compensation judge must be affirmed.

 

2.  Notice

 

The employer and insurer also appeal the compensation judge=s finding that the employee provided timely statutory notice of work-related hearing loss on March 12, 2003.  Citing Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 40 W.C.D. 270 (Minn. 1987), the appellants argue the employee should have given notice when it became reasonably apparent to her that the injury had resulted in a compensable disability.  The appellants argue the employee believed the use of a headset at work was causing her hearing problems when she sought medical attention in 1992, 1996, 1997, 2001 and 2002.  At the very latest, the appellants argue, the employee=s injury culminated in disability in 1997.  Since no notice was given until March 2003, the appellants assert the employee=s claim must be barred for lack of notice.  We do not agree.

 

There are two different issues involved in the appellant=s argument.  The first is the date of the employee=s Gillette injury.  Selection of the date on which a Gillette injury occurs or culminates is largely a question of fact for determination by the compensation judge.  See, e.g., Ellingson v. Thriftway, Inc., 42 W.C.D. 565, 574 (W.C.C.A. 1989).  As a general rule, Ainjuries resulting from repeated trauma or aggravation of a pre-existing condition [i.e., Gillette injuries] result in a compensable personal injury when their cumulative effect is sufficiently serious to disable the employee from further work.@  Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981).  The Minnesota Supreme Court further interpreted Carlson in Schnurrer v. Hoerner-Waldorf, Inc., 345 N.W.2d 230, 233, 36 W.C.D. 504, 508 (Minn. 1984), holding the date on which an employee is disabled from his or her normal work may be inferred from Aascertainable events@ other than the employee=s last day of work.  The court delineated a number of ascertainable events in Schnurrer including relieving the employee of his regular work duties to accommodate his physical restrictions.

 

Dr. Wall first imposed work limitations on March 12, 2003, restricting the employee from using headsets and amplification in her left ear.  The employer accommodated the employee=s physical restrictions, providing light-duty work.  Under Schnurrer, these were ascertainable events.  That there may have been other ascertainable events prior to March 12, 2003, is not the issue.  Rather, the issue before this court is whether substantial evidence supports the compensation judge=s decision.  The compensation judge reasonably found the employee=s injury culminated on March 12, 2003, consistent with the principles enunciated in Carlson and Schnurrer, and there is substantial evidence to support this finding.

 

The second issue is the question of whether the employee provided timely notice of injury.  Pursuant to Minn. Stat. ' 176.141, notice of work-related injury must be given by the employee to the employer Awithin 30 days from the occurrence of the injury.@  The appellants argue, citing Issacson, that the employee should have given notice much earlier when it became reasonably apparent to the employee that the injury was likely to result in a compensable disability.  In Issacson, the employee sustained an injury to her shoulder on January 20, 1982, but did not give notice to the employer until November 1982.  The issue in Issacson was whether the employee=s failure to give notice within 30 days of the injury was Atolled@or excused by the trivial or latent nature of the injury.  We need not reach that issue in this case.

 

We acknowledge application of the notice requirement is more difficult in a Gillette case.  By definition, a Gillette injury involves a progressive and gradual manifestation of an injury as a result of repeated, minute trauma.  A Gillette injury does not, therefore, necessarily culminate when the employee=s degenerative condition first manifests itself, but rather the date on which the cumulative and ongoing effect of the employee=s daily work activities is sufficient to disable the employee.  See, e.g., Carlson, id.

 

We have affirmed the compensation judge=s determination that the employee=s Gillette injury Aoccurred@ on March 12, 2003, when the cumulative effects of daily minute trauma to the ears was sufficiently serious to disable the employee from her normal job activities.  The sole question is whether the employee gave timely statutory notice of that injury and there is no dispute she did.  Accordingly, the compensation judge=s finding must be affirmed.