SUSAN K. SOLBERG, Employee, v. HONEYWELL INT=L, SELF-INSURED/SEDGEWICK CLAIMS MGMT. SERVS. INC., Employer/Appellant, and BLUE CROSS & BLUE SHIELD OF MINN., TWIN CITIES ORTHOPEDICS, and METROPOLITAN LIFE INS. CO., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 4, 2008

 

No. WC07-256

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee sustained a Gillette injury to her right and left wrists in the nature of carpal tunnel syndrome as a substantial result of her work activities.

 

WAGES - CALCULATION.  Where the employee was paid wages, vacation pay and holiday pay during the 26 weeks preceding her work injury, including overtime and double time pay, but where the employee received no pay during 2 of the 26 weeks, the compensation judge=s decision to base the employee=s average weekly wage calculations on the 24 weeks during which the employee was paid was supported by substantial evidence and was not clearly erroneous, especially in this case where the compensation judge=s wage calculation resulted in essentially the same rate as would have resulted from application of the statutory wage formula set forth in Minn. Stat.  ' 176.011, subds. 3 and 18.

 

Affirmed.

 

Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.

Compensation Judge: Harold W. Schultz, II

 

Attorneys: Kathryn Hipp Carlson, Miller & Carlson, Minneapolis, MN, for the Respondent.  Kristin M. Cajacob, Heacox, Hartman, Koshmrl, Cosgriff, & Johnson, St. Paul, MN, for the Appellant.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The self-insured employer appeals from the compensation judge=s determination that the employee sustained a personal injury in the nature of a bilateral carpal tunnel injury as a result of her work activities, culminating on or about September 26, 2005.  The employer also appeals from the compensation judge=s determination of the employee=s weekly wage on the date of injury.  We affirm.

 

BACKGROUND

 

Susan K. Solberg, the employee, began working for Honeywell International, the employer, in 1977.  In the course of her employment she has performed various assembly jobs, some of which involved fine motor skills and repetitive fine manipulation with her hands, use of power tools, or operation of machinery by foot pedal.  The employee provided detailed testimony concerning the nature and types of work she performed during her tenure with the employer.  She initially worked in the element fabrication department for approximately two years, welding machine parts. She next worked in hydraulics for 1 1/2 years, which involved inserting and removing parts from a machine.  In the early 1980's, she began working in the torpedo section, and worked there for 7-8 years, primarily making boards to be inserted into torpedoes.  She performed various duties, including fine manipulation work and the use of a soldering iron, pliers, wire cutters and tweezers.  Between 1990-2005, the employee worked in other departments, including a 12-year stint in test systems, building coaxial cables, as well as soldering and building machinery boards.  While working in that department, she soldered very small parts, and according to her testimony, worked with hundreds to thousands of parts each night.

 

In the summer of 2005, the employee began experiencing numbness in her fingers, wrists and arms, as well as shooting pains in her fingers and arms.  She initially felt these symptoms on a sporadic basis, but noticed them more while at work, where she used her hands constantly to perform her assigned projects.  By late 2005, her symptoms continued regardless of the type of tasks she performed. By approximately September 26, 2005, the employee advised her group leader that

her arms were hurting.  At that point, the employer reassigned her to different tasks, to avoid aggravation of her symptoms.

 

On September 26, 2005, the employee first sought medical treatment from Dr. Pamela Jaworski at North Clinic, reporting pain in her arms and wrists, with pain awakening her during the night.  Dr. Jaworski recommended an EMG, and assigned work restrictions.  That EMG, performed in November 2005, showed bilateral carpal tunnel syndrome.  Dr. Jaworski later referred the employee to Dr. Patrick Kraft, orthopedic surgeon; following his initial examination on December 1, 2005, Dr. Kraft diagnosed her with bilateral carpal tunnel syndrome.

 

On March 30, 2006, the employee also consulted Dr. Walter Dorman, at Arthritis and Rheumatology Consultants, reporting diffuse  pain.  He diagnosed her as having a sleep disorder and also concluded that she had tender points indicative of fibromyalgia.

 

The employee obtained follow-up treatment from Dr. Kraft.  Upon his recommendation, the employee underwent left carpal release surgery on April 11, 2006.  Dr. Kraft restricted the employee from work both before and after that surgery.  On February 16, 2007, Dr. Kraft performed right carpal tunnel release surgery.  By July 5, 2007, Dr. Kraft released the employee to return to work within restrictions.  The employer has not yet been able to accommodate those restrictions; the employee has not returned to work since November 2005, and has received short term and long term disability benefits since that time.

 

On February 3, 2006, at the employer=s request, Dr. David Falconer conducted an independent medical examination of the employee.  Based upon the results of his testing, an examination, and his review of the employee=s medical records, Dr. Falconer concluded that although it was possible that the employee=s work activities were causally related to her bilateral carpal tunnel syndrome, other medical factors could explain the onset of her wrist and hand symptoms.  He referred to the employee=s sudden onset of back and upper shoulder myalgias, a significant weight gain, and lower extremity pitting edema, and he expressed concern that the employee had not undergone a comprehensive medical evaluation or rheumatologic consultation.  He commented that the employee Ahad been doing basically the same job for 28 years and had only the sudden onset of symptoms in close association with her weight gain and peripheral edema.@  Dr. Falconer commented that,

 

While her job duties are the sort of activity where carpal tunnel conditions might on occasion be seen the fact that this occurred in coincidence with the significant pitting edema and weight gain makes me concerned that underlying medical etiology is to blame for this and, thus, I cannot categorically state that this is work-caused until complete and thorough work-up to exclude all reasonable medical explanations would be concluded.  I would strongly advise an internal medicine or ideally a rheumatologic consultation plus a program of managed weight loss as part of her overall medical management plus the specific treatment of any other identified medical disorders that are unearthed.

 

Dr. Falconer also recommended alternative treatment for the employee=s carpal tunnel symptoms, other than surgery, including protective splinting, rehabilitative physical therapy, and consideration of cortisone shots.  He felt that her nerve tests were extremely mild and were not strongly indicative of surgery as the only or significant primary recommendation for treatment until after a reasonable period of conservative treatment had been exhausted.

 

In his supplemental report of January 2, 2007, Dr. Falconer concluded that the employee had not sustained a work-related Gillette^[1] injury in the nature of bilateral carpal tunnel syndrome, because Ait is appears that she had insufficient work exposure due to her reduced hours  and other medical explanations for her manifestation of carpal tunnel condition.@  He confirmed that opinion in a deposition taken on July 31, 2007.  Dr. Falconer cited to various reasons supporting his opinion that the employee=s work activities did not substantially contribute to her Gillette injury:  the limited hours that she worked before the onset of her symptoms in September 2005; the potential causal relationship between the employee=s diagnosis and her weight gain or another medical condition that was manifested by the edema in her lower extremities; and her diagnosis of fibromyalgia that appeared to be disabling her from work, as opposed to her carpal tunnel condition.  Dr. Falconer did conclude, however, that the employee=s medical treatment, including her surgeries, was reasonable and necessary in an attempt to cure and relieve her from her symptoms, although he would have recommended conservative treatment before considering surgery, in view of the employee=s relatively mild findings on her November 2005 EMG.

 

Dr. Kraft, on the other hand, concluded that the employee=s bilateral carpal tunnel syndrome was substantially related to her work activities as an assembler for the employer, referring to the employee=s repetitive work activities.  He also found no relationship between the employee=s sudden weight gain and the development of her carpal tunnel syndrome.  He restricted the employee from repetitive use of her hands, including gripping, grasping, pulling, tugging, or lifting, and recommended strengthening exercises for her rehabilitation.  In a report dated July 5, 2007, Dr. Kraft advised that it would be reasonable for the employee to begin or commence a return to work through a work hardening situation, including a four-hour work day for the first two weeks, increasing to a five-hour work day thereafter.  It is not clear from the record whether the employee has participated in a strengthening or exercise program as recommended by Dr. Kraft.

 

The employee filed a claim petition on March 3, 2006, alleging a Gillette injury of September 26, 2005.  The employer denied primary liability for the claimed injury.  The matter was addressed at a hearing on August 14, 2007, at which time the employer maintained its denial of primary liability for the employee=s claimed injury.  The issues addressed at the hearing included whether the employee=s bilateral carpal tunnel syndrome was causally related to her work-related activities, and how the employee=s weekly wage should be calculated.  The parties disputed whether the employee=s gross earnings for the 26 weeks prior to her date of injury should be divided by 24, the number of weeks she actually worked, or 26, and also disputed whether overtime and double-time wages should be included.

 

In his findings and order served and filed October 12, 2007, the compensation judge concluded that the employee sustained a personal injury in the nature of a bilateral carpal tunnel injury as a result of her work activities, and that her injury culminated on or about September 26, 2005.  In his memorandum, the compensation judge acknowledged that this is a complicated medical situation, but that the employee had performed years of repetitive work for the employer, including some constant detailed work with her hands in the assembly process, and that she had provided credible testimony at the hearing regarding her work activities.  The compensation judge accepted the opinion of Dr. Kraft on the issue of casual relationship.  The compensation judge awarded  payment of temporary total disability benefits commencing November 17, 2005, with a corresponding reimbursement to the intervenors for short term and long term disability benefits already paid to the employee.  The judge also found that the medical treatment that had been rendered to the employee was reasonable and necessary in an attempt to cure and relieve the employee from the effects of her injury.  He also found that the employee had reached maximum medical improvement from the effects of her left carpal tunnel injury and surgery, with service of MMI performed on January 7, 2007.

 

The compensation judge also concluded that the employee=s weekly wage was $713.29 at the time of her injury.  The compensation judge concluded that the employee was entitled to a rehabilitation consultation to determine her eligibility for rehabilitation services.

 

The self-insured employer appeals from the compensation judge=s determination that the employee=s bilateral carpal tunnel syndrome was causally related to her work activities for the employer, and also appeals from the compensation judge=s determination of the employee=s weekly wage.

 

DECISION

 

Claimed Gillette Injury

 

The employer claims that substantial evidence does not support the compensation judge=s finding that the employee sustained a work-related bilateral carpal tunnel injury.  The compensation judge found that the employee sustained a work-related Gillette injury to both hands and wrists, culminating on or about September 26, 2005, as a result of her work activities with the employer.  A Gillette injury is an injury resulting from repeated trauma or aggravation of a preexisting medical condition.  Such a condition becomes compensable when the cumulative effect is sufficiently serious to disable an employee from further work.  Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W.2d 200, 205-06, 21 W.C.D. 105, 111-13 (1960); Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981).  A finding as to a Gillette injury is primarily dependent on the medical evidence.  See Marose v. Maislin Transp., 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987).

 

In the summer of 2005, the employee began experiencing numbness in her fingers, wrists and arms, as well as shooting pains in her fingers and arms, most noticeably while she was working.  The employee initially consulted Dr. Jaworski, reporting pain in her arms and wrists, with pain awakening her during the night.  The employee underwent an EMG which showed bilateral carpal tunnel syndrome.  Based on those EMG results, Dr. Kraft diagnosed bilateral carpal tunnel syndrome, and performed a left carpal tunnel release surgery in April 2006, and a right carpal tunnel release surgery in February 2007.  The employee has not returned to work since December 2005, due to her continued work restrictions.

 

The court was presented with opposing medical opinions as to whether the employee sustained a Gillette injury in 2006, and it is the responsibility of the compensation judge, as the trier of fact, to resolve such conflicts in expert testimony.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Dr.  Kraft concluded that the employee=s bilateral carpal tunnel syndrome was causally related to her work activities.  By contrast, Dr. Falconer, who examined the employee at the employer=s request, attributed the employee=s condition to other medical factors and not to her work with the employer.  The compensation judge adopted Dr. Kraft=s opinion and rejected that of Dr. Falconer.  In his memorandum, the compensation judge stated that

 

Dr. Falconer emphasizes the employee=s weight gain and possible undiagnosed medical problem(s) that resulted in lower extremity pitting edema.  His opinions are not convincing.  This compensation judge accepts the opinion of Dr. Kraft, who did have proper foundation, that the employee=s work activities were a substantial contributing factor to the development of carpal tunnel syndrom and that her weight gain is not a cause of that condition.

 

We acknowledge that the record contains a medical opinion that supports the position and defenses raised by the self-insured employer.  The issue on appeal, however, is whether there is adequate evidence in the record to support the compensation judge=s resolution of this factual issue.  This court must determine whether the findings of fact and the order are clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.  Minn. Stat. ' 176.421, subd. 1.  Substantial evidence supports the findings if, in the context of the entire record, Athey 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).  We conclude that, based on the medical evidence in the record documenting the employee=s symptoms and medical treatment, the compensation judge reasonably relied on Dr. Kraft=s causation opinion.  Substantial evidence supports the compensation judge=s finding that the employee sustained a work-related Gillette injury to her right and left hands and wrists on or about September 26, 2005, as a result of her work activities with the employer.  Accordingly, we affirm that finding and the corresponding awards of benefits.

 

Calculation of Weekly Wage

 

The employer appeals from the compensation judge=s determination of the employee=s weekly wage at the time of her injury, advocating for the use of a different calculation method than the one used by the compensation judge.  The employer argues that the employee=s weekly wage was $658.42, as opposed to the wage rate of $713.29, as calculated by the compensation judge.

 

During the 26 weeks preceding her injury, the employee received wages, vacation or holiday pay during 24 out of the 26 weeks.  She was off work entirely during the remaining two weeks, on an unpaid leave basis.  Because there were two weeks during this 26-week period when the employee received no pay, the compensation judge calculated her weekly wage by using an Aaveraging@ method; he divided the employee=s total earnings during the 26-week period by the 24 weeks during which she received wages, vacation or holiday pay, and arrived at a weekly wage of $713.29.

 

There is no dispute that the employee missed time from work for personal reasons in the 26 week period prior to her injury; she did not work and received no pay in two of the 26 weeks.  The employer argues that because the employee took time off work for various reasons throughout the year, all unrelated to her alleged work injury, the most fair wage calculation method would involve dividing her actual earnings over the 26-week pre-injury period by 26 weeks (as opposed to 24).

 

By contrast, the employee argues that since there were two weeks when she did not work and had no earnings, Ato factor unpaid weeks into the average weekly wage calculation would be an unfair approximation of her earning capacity.@  The employee argues that the compensation judge=s calculation of her weekly wage reached by dividing her earnings by 24 weeks was consistent with the court=s stated goal of arriving at Aa fair approximation of [the employee=s] probable future earning power which has been impaired or destroyed because of the injury.@  Bradley v. Vic=s Welding, 405 N.W.2d 243, 245-46, 39 W.C.D. 921, 924 (Minn. 1987), quoting Sawczuk v. Special School Dist. No. 1, 312 N.W.2d 435, 437-38, 34 W.C.D. 282, 287 (Minn. 1981).  See also Mathistad v. Caldwell Packing, slip op. (W.C.C.A. Nov. 1, 2006).

 

The sole wage dispute presented on appeal is whether to divide the employee=s total wages paid during the 26-week pre-injury period by 24 or 26 weeks.  Neither party, nor the compensation judge, calculated the wage based on the statutory formula utilized in situations where wages are irregular and difficult to determine.  Minn. Stat. ' 176.011, subd. 3 and 18.^[2]  We note that wage calculations using the statutory formula would result in a wage rate almost identical to that which was determined by the compensation judge.  A compensation judge may deviate from that statutory formula in calculating an average weekly wage, Aas long as that method reasonably reflects the employee=s injury related loss of earning power.@  Hansford v. Berger Transfer, 46 W.C.D. 303, 309-10 (W.C.C.A. 1991).

 

Based on the wage evidence in the record, we conclude that the evidence adequately supports the compensation judge=s determination of the employee=s wage rate.   We therefore affirm the compensation judge=s finding that the employee earned a weekly wage of $713.29 on September 26, 2005.  See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).