TAMMIE L. CARROLL, Employee, v. MINER’S, INC., d/b/a SUPER ONE FOODS, SELF-INSURED/BERKLEY RISK ADMR’S CO., Employer/Appellant, and NORTHERN MINN.-WIS. AREA RETAIL FOOD HEALTH/WELFARE FUND, ST. MARY’S DULUTH CLINIC HEALTH SYS., and TWIN CITY FLOOR COVERING INDUS. HEALTH/WELFARE FUND, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 7, 2008
No. WC07-255
HEADNOTES
GILLETTE INJURY - DATE OF INJURY. Substantial evidence supports the compensation judge’s finding that the employee’s Gillette injury to both arms culminated on June 16, 2006, the date the employee was first off work as a result of her right arm surgery.
NOTICE OF INJURY - GILLETTE INJURY. Where the employee filed a First Report of Injury in April 2005 and in May 2006, and the employer was aware the employee believed her work activities were causing her arm symptoms and was aware the employee was obtaining medical treatment for her condition, the employee satisfied the notice requirement of Minn. Stat. § 176.141.
MEDICAL TREATMENT & EXPENSE - SURGERY. Substantial evidence, including the well-founded testimony and opinion of the employee’s treating surgeon, supports the compensation judge’s award of medical expenses for the employee’s surgeries and post-surgical recovery.
Affirmed.
Determined by: Johnson, C. J., Wilson, J., and Stofferahn, J.
Compensation Judge: Jerome G. Arnold
Attorneys: James W. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Respondent. Joseph A. Mihalek and Daniel P. Bakken, Fryberger, Buchanan, Smith & Frederick, Duluth, MN, for the Appellant.
OPINION
THOMAS L. JOHNSON, Judge
The self-insured employer appeals the compensation judge’s finding that the employee sustained a Gillette-type[1] injury arising out of her employment which culminated on June 16, 2006, and appeals the judge’s award of medical expenses. We affirm.
BACKGROUND
Tammie L. Carroll, the employee, began working in the deli department of a Save More food store in 1985. In 1987, Save More was acquired by Miner’s, Inc., d/b/a Super One Foods, the self-insured employer.
On March 27, 2003, the employee saw Dr. Allen Hughes at the Duluth Clinic complaining of right forearm and elbow pain for the past week. The employee told the doctor she worked in a deli doing a lot of heavy lifting with her right arm and opined this was probably the cause of her problem. Dr. Hughes diagnosed right forearm and elbow bursitis and recommended Advil and a heating pad. The employee returned to the Duluth Clinic in December 2003, and was seen by Dr. Jean Hoyer. The employee complained of bilateral elbow pain, right worse than left, over the past year. The employee denied any specific injury, but thought the repetitive lifting at work might contribute to her pain. Dr. Hoyer diagnosed right medial epicondylitis with milder symptoms on the left and prescribed Indocin and physical therapy.
The employee saw Dr. Janus Butcher, an orthopedic surgeon, on January 8, 2004, on referral from Dr. Hoyer. The employee complained of bilateral elbow pain arising at work with repetitive lifting. The doctor diagnosed bilateral extensor carpi radialis brevis (ECRB) tendonitis,[2] and injected cortisone into each elbow. The employee returned to see Dr. Butcher in June 2004 for an unrelated problem, but reported the cortisone injections helped somewhat. The employee again saw Dr. Butcher in December 2004, complaining of recurring elbow pain. The diagnosis was bilateral lateral epicondylitis. Dr. Butcher discussed possible surgery with the employee and repeated the cortisone injections.
On May 23, 2005, the employee, referred by Dr. Butcher, saw Dr. Joseph Lemker at the Duluth Clinic. The doctor diagnosed right elbow lateral epicondylitis persistent since January 2004 and progressively worsening. An MRI scan of the right elbow in June 2005 was essentially unremarkable. After reviewing the MRI scan, Dr. Lemker recommended surgery. The employee next saw Dr. Lemker in May 2006. In his office note, the doctor reported the employee stated she cancelled the surgery because the employer’s insurer refused to approve it. The employee reported she now had bilateral elbow pain. Dr. Lemker diagnosed bilateral lateral epicondylitis, left slightly worse than right. The employee stated she was not ready for surgery, so the doctor injected cortisone in the employee’s left elbow, prescribed Naprosyn and recommended tennis elbow braces.
On May 3, 2006, the employee filed a First Report of Injury for left elbow pain, claiming a date of injury of May 2, 2006. The employee had previously submitted a First Report of Injury on April 13, 2005, claiming an injury on January 8, 2004, in the nature of bilateral tendonitis. On May 8, 2006, the self-insured employer denied primary liability for the claimed injury.
On June 16, 2006, Dr. Lemker performed a left lateral epicondylectomy at St. Mary’s Hospital. The employee saw Dr. Lemker in followup on September 19, 2006. The employee reported the onset of right elbow pain which Dr. Lemker treated with a cortisone injection. The doctor recommended she continue physical therapy and exercises for her left elbow. In January 2007, the employee told Dr. Lemker her left elbow was significantly improved, but her right elbow was worsening. Dr. Lemker diagnosed right elbow chronic lateral epicondylitis and recommended surgery.
Dr. William Call examined the employee on January 17, 2007, at the request of the self-insured employer. The doctor received a history of 22 years of part-time employment with the employer averaging 32 hours per week. The employee stated her symptoms began in 2004 on the right side and did not know when her left elbow symptoms began. Currently, the employee complained of bilateral elbow pain, right greater than left. Dr. Call opined the employee demonstrated a history, physical examination, and record review consistent with subjective discomfort bilaterally. The doctor stated he found no objective verification of lateral epicondylitis, and concluded the employee did not have an objectively supported work-related injury. The doctor opined the left lateral epicondylectomy performed by Dr. Lemker was neither reasonable nor necessary treatment because no MRI scan was done. Dr. Call stated the employee needed to have an MRI scan of the right elbow, and if it was negative for lateral epicondylitis then no surgery was necessary.
On March 5, 2007, Dr. Lemker performed a right lateral epicondylectomy. In July 2007, the doctor’s deposition was obtained. As a part of that deposition, the doctor was provided with a written hypothetical question prepared by the employee’s counsel describing the employee’s work activities. Dr. Lemker opined the employee’s work activities for the employer were a significant aggravating factor in causing her chronic bilateral lateral epicondylitis.
The employee filed a claim petition seeking wage loss and medical benefits from and after June 16, 2006. Following a hearing, the compensation judge found the employee sustained a Gillette-type injury to her left and right arms in the nature of bilateral epicondylitis caused, in substantial part, by her work activities for the employer, and that the injury culminated on June 16, 2006. The judge further found the employee’s June 16, 2006, and March 5, 2007, surgeries and post surgical recovery were reasonable and necessary and ordered payment of these medical expenses. Finally, the compensation judge found the employer had timely notice of the employee’s personal injuries. The self-insured employer appeals.[3]
DECISION
1. Date of Gillette injury
The appellant contends the judge’s finding that the employee sustained a Gillette-type injury on June 16, 2006, is manifestly contrary to the weight of the evidence as a whole. In deciding the date of injury, the appellant asserts, the compensation judge disregarded other significant ascertainable events that occurred prior to the June 2006 surgery. These events include the employee’s statements to her doctors that she believed her work activities were causing her symptoms, and the history of medical treatment for elbow complaints dating back to March 27, 2003. The appellant argues the judge’s selection of the date of surgery as the date of injury was unreasonable in light of the record as a whole and should be reversed. We are not persuaded.
As a general rule, a Gillette injury may be said to culminate when the cumulative effect of the repetitive trauma is sufficiently serious to disable the employee from further work. Carlson v. Flour City Brush Co., 305 N.W.2d 347, 33 W.C.D. 594 (Minn. 1981). The Carlson case does not, however, require an automatic determination that the employee’s Gillette injury culminates on the day the employee left work. Rather, in determining the date of a Gillette injury, the compensation judge may consider other “ascertainable events.” Schnurrer v. Hoerner-Waldorf, Inc. 345 N.W.2d 230, 36 W.C.D. 504 (Minn. 1984). Ascertainable events may include the initiation of medical treatment, the imposition of work restrictions and modification of work duties. In any particular case, there may be multiple dates that could be the date of culmination. A judge is not required to fix the injury date at the earliest ascertainable event. Rather, the issue must be decided based upon all the relevant evidence. See Simonson v. Zupanich Bros., slip op. (W.C.C.A. Jan. 27, 2000).
In March 2003, the employee reported to her doctor that she had bilateral elbow pain that she attributed to her work activities. In December 2003, the employee gave Dr. Hoyer a history of bilateral elbow pain for a year and stated she occasionally wore an elbow brace while at work. The employee was later referred to an orthopedic surgeon and received multiple cortisone injections as well as physical therapy for her elbow problems. While any of these treatment dates might be considered an ascertainable event for the purpose of determining the date of the Gillette injury, we cannot agree that the compensation judge’s adoption of June 16, 2006, as the date of injury constitutes reversible error.
Despite the employee’s complaints and treatment for bilateral epicondylitis, she continued to perform her regular job duties. The employee was not disabled from work until her surgery in June 2006. Disablement from employment is a significant and basic ascertainable event. Although the employee reported right arm pain and symptoms as early as March 2003, her work activities until June 2006 caused continuing repetitive minute trauma that contributed to her personal injury. Based upon these facts, we cannot conclude the compensation judge erred in selecting June 16, 2006, as the date of culmination for the employee’s Gillette injury. That finding is, therefore, affirmed.
2. Notice of injury
The time for giving notice of an injury under Minn Stat. § 176.141 begins to run when it becomes reasonably apparent to the employee that he or she sustained a personal injury that resulted in, or that is likely to cause, a compensable disability. Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 40 W.C.D. 270 (Minn.1987). In this case, the employee first gave notice on April 13, 2005, and again on May 3, 2006. The appellant contends there is overwhelming evidence the employee knew long before then that her bilateral elbow problems were caused by her work activities. Accordingly, the appellant contends the employee failed to give statutory notice and her claim must be barred. We disagree.
We have affirmed the compensation judge’s finding that the employee’s Gillette injury culminated on June 16, 2006. Prior to that date, the employee twice gave the employer notice that her work activities were causing her elbow symptoms and the employer was aware the employee was seeking medical treatment for this condition. Accordingly, the employee satisfied the notice requirement of Minn. Stat § 176.141.
3. Medical treatment and expense
The appellant contends the compensation judge’s award of medical expenses for the surgeries performed by Dr. Lemker is unsupported by substantial evidence. Rather, the appellant asserts, the credible evidence compels one finding only: that the surgeries were not reasonable or necessary. In support of this argument, the appellant relies on Dr. Call’s opinion that the surgeries were not reasonable and necessary because the employee did not have bilateral epicondylitis; multiple x-rays and an MRI scan were negative; the employee consistently had full range of motion in both arms and elbows; Dr. Lemker failed to obtain an MRI scan before the left elbow surgery; surgery was not warranted because all conservative measures had not been utilized; and the surgeries revealed no inflammation or organic abnormality which would have been present had the employee had epicondylitis. The appellant acknowledges the compensation judge accepted the contrary opinion of Dr. Lemker, but asserts his opinions were based on erroneous assumptions, inadequate foundation, and were contrary to acceptable medical standards. Accordingly, the appellant contends the award of medical expenses must be reversed.
Dr. Lemker first treated the employee on May 23, 2005, on referral from Dr. Butcher. The doctor took a history from the employee and performed a physical examination. We have on many occasions stated this level of experience with the subject matter at issue provides ample foundation for an expert opinion. Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A. 1996) (citing Reinhardt v. Colton, 337 N.W. 2d 88 (Minn. 1983)). Dr. Lemker’s deposition was taken on July 17, 2007, at which time the doctor was provided with a written hypothetical question outlining the employee’s work history. The doctor stated his diagnosis was on-going chronic lateral epicondylitis with a failure to improve with conservative measures. The doctor conceded that 90 to 95% of epicondylitis cases do not require surgery and may be successfully treated with conservative measures. However, Dr. Lemker testified all reasonable conservative measures had been undertaken to treat the employee’s condition before he proceeded with surgery. Further, Dr. Lemker testified his findings during surgery were consistent with his diagnosis and concluded surgery was appropriate medical care.
Although Dr. Call opined the surgeries were not reasonable or necessary, Dr. Lemker disagreed and his opinions were adequately founded. It is the function of the compensation judge to choose between conflicting expert opinions. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge’s award of medical expenses is supported by substantial evidence and must, therefore, be affirmed.
[1] Gillette v. Harold,Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
[2] The extensor carpi radialis brevis is a muscle in the lower arm. See Dorland’s Illustrated Medical Dictionary 1146 (29th ed. 2000).
[3] Although the self-insured employer listed the finding that the employee sustained a Gillette injury in its notice of appeal, the appellant did not address this issue in its brief. The issue is, therefore, waived. Minn. R. 9800,0900, subp. 1.