DAYTON STOLL, Employee/Appellant, v. HIGHLAND SANITATION and FARM BUREAU MUT. GROUP, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 21, 2008
No. WC07-233
HEADNOTES
CAUSATION - GILLETTE INJURY. Substantial evidence supports the compensation judge=s determination that the employee failed to establish that his work activities were a substantial contributing factor in his need for cervical fusion and his resulting disability.
Affirmed.
Determined by: Stofferahn, J., Wilson, J. And Pederson, J.
Compensation Judge: Danny P. Kelly
Attorneys: Duane E. Arndt, Arndt & Benton, Minneapolis, MN, for the Appellant. Charles E. Gillin, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Respondents.
OPINION
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s determination that the employee did not sustain a Gillette[1] injury to his neck and shoulder and from the compensation judge=s resulting denial of the employee=s claim for workers= compensation benefits. We affirm.
BACKGROUND
Dayton Stoll began working for Highland Sanitation in October 2004. Initially, he worked four days a week on a recycling route, picking up newspapers, glass and cans in a residential neighborhood. The material would be placed in appropriate bins by the driver and the bins would be emptied into the truck by a hydraulic lift. The parties disputed how physically strenuous this job was. On the fifth day of his work week, the employee would spend 1/2 day on a commercial garbage route and 1/2 day on a residential route. The employee worked this schedule until November 2005. During this time he had no injuries or physical symptoms from the work.
In November 2005, the employee started working full-time on a commercial garbage route. The employee would drive the truck to the customer=s premises, attach cables to the dumpster the customer was using, and then use the truck=s hydraulic system to lift and empty the dumpster into the truck. On occasion, there were items such as furniture which would have to be loaded by hand into the truck.
The parties disagreed as to how physically strenuous the job of commercial route driver was. The employee testified at the hearing that the job was physically demanding. He testified that he would have to drag the dumpsters into position so that they could be lined up with the truck. Loading furniture and other items by hand was also very heavy work. In addition to the employee=s testimony at the hearing, the employee also presented the testimony of his 15-year old nephew, Ivan Dennis. Mr. Dennis testified that he had ridden the route with his uncle in June 2006, and that he had helped pick up furniture that needed to be loaded.
The co-owner of the employer testified that there was no Adragging@ of dumpsters and that loading of extra items was not common. Drivers were expected to note extra items so that customers could be billed for the extra service and the only reference to extra items in the last two weeks of June 2006, was on one occasion when the employee had to load a mattress and box spring and another occasion when he loaded a couch and love seat or recliner and some extra bags of garbage.
The employee first sought medical care for his neck and shoulder on June 26, 2006, when he saw Dr. Tim Regan at Fridley Medical Center. The employee told Dr. Regan that he had a one week history of right shoulder pain which had gradually been getting worse. The chart notes state the employee, Adoes not recall an actual injury, but did play volleyball about 10 days ago. Is right-handed. Drives a commercial sanitation truck and does not really do any heavy lifting and there is no change there.@ Dr. Regan assessed subscapular bursitis and recommended various medications, physical therapy, and the use of ice or heat.
On June 28, the employee went to a chiropractor, Dr. John Sampson, for pain in the right side of his neck and shoulder. In the Patient Questionnaire completed for Dr. Sampson, the employee indicated that his symptoms were worse in the morning, did not increase during the day, and were better with movement or exercise. There was no indication in the questionnaire or in Dr. Sampson=s notes that the employee=s condition was work-related and Dr. Sampson did not provide a history of the origins of the employee=s symptoms.
Tammy Jo Anderson, a secretary at Highland Sanitation, testified at the hearing that the employee called her on July 1, 2006. He told her that he had hurt his shoulder changing the tire on his pickup and was going to a hospital near his home. The co-owner of Highland Sanitation, Susan Lynn Stewart, testified at the hearing that the employee left a message on her cell phone on July 2, advising her that he had hurt himself changing a tire and would not be at work on Monday. A co-worker, Donald Hacken, testified that he was told by the employee right after the Fourth of July holiday that he had injured his shoulder changing a tire on his pickup. Ms. Stewart also testified that when the employee came in for his paycheck on July 7, she asked him what had happened and he told her that he had a hard time loosening lug nuts while he was changing the tire and he thought he had injured his shoulder at that time.
On July 1, 2006, the employee went the Emergency Room at Unity Hospital with complaints of right shoulder pain. He stated he had constant pain for about a week with some radiation of pain down his right arm. He was discharged home with a prescription for pain medication, a recommendation to rest, ice and elevate his right arm and directions to see an orthopedist.
The employee consulted Dr Cyril L. Kruse at Orthopaedic Partners on July 5, 2006. The history provided was that, Athe patient recently had increased pain after he changed the tire on his car.@ Dr. Kruse=s assessment was, Adifferential diagnosis would include muscular contusion secondary to his physical activity changing a tire versus possible subtle radiculopathy.@ At Dr. Kruse=s direction, a cervical MRI was done on July 12, 2006, and was read showing a disc herniation at C6-7 with impingement on the C7 nerve root. Based on the MRI, Dr. Kruse recommended a cervical epidural injection and when the employee indicated that he did not want to do that, Dr. Kruse advised surgery.
The employee then saw Dr. Robert Wengler on July 20, 2006, at the referral of his attorney. The employee=s history was Ahe had been employed for the past two years as a commercial garbage collector and states that the work has been extremely strenuous. He noticed the onset of right arm pain over the past few months, but reports >he never said anything about it.= He had increased right arm pain in early July when he changed the tire on his pickup. He became acutely uncomfortable the following day and was seen in an Emergency Room where he was provided with Percocet.@ Dr. Wengler recommended anterior discectomy and interbody fusion. That surgery was performed by Dr. Wengler on August 22, 2006, at Hennepin County Medical Center.
The employee filed an application for no fault benefits on July 18, 2006, with his auto insurance carrier. He advised the carrier in his application that his injury had occurred at 3:00 P.M. on June 25, 2006, and was described as, Awas changing a tire on the truck and felt a pain in my right arm, shoulder, and right side of neck.@
The employee filed a claim petition on August 24, 2006, alleging that he had sustained a Gillette injury to his cervical spine as the result of his employment with Highland Sanitation and was entitled to temporary total disability benefits from June 23, 2006, as well as other workers= compensation benefits. The answer filed by the employer and insurer denied primary liability.
The employee was evaluated by Dr. Gary Wyard on November 30, 2006, at the request of the employer and insurer. Dr. Wyard reviewed the medical records, conducted an examination and took a history. Dr. Wyard concluded in his report that the employee=s work at Highland Sanitation did not cause the need for the cervical surgery. Dr. Wyard stated that the 2006 MRI showed long standing degenerative changes and, in his opinion, the acute onset of symptoms was related to the tire changing incident.
Dr. Wengler addressed the issue of causation in his report of June 4, 2007. He stated, Athere is no question but that the cervical disc pathology developed as the function of a Gillette injury sustained during the course of his employment as a sanitation collector. He had right arm pain for several months as the function of a developing deformity of the C6-7 disc. The extrusion may have occurred in early July while changing the tire, but his activities with the sanitation company were a substantial contributing factor in the development of this herniation.@
Dr. Wengler also provided deposition testimony for the hearing. In that deposition, Dr. Wengler was asked about the nature of the employee=s work at Highland Sanitation. He responded by stating, Ahe said it was strenuous work. He was lifting garbage containers into the dumpsters. It was a lot of overhead lifting. It was strenuous work.@ Dr. Wengler was also given a hypothetical question by the employee=s attorney and was asked to assume, in relevant part, that the employee began to develop symptoms of numbness and weakness in his right arm in May 2006 and that he had help in doing the route because he was having problems lifting materials. Dr. Wengler concluded that the employee had sustained a Gillette injury.
The employee=s claim petition was heard by Compensation Judge Danny P. Kelly on June 26, 2007. The record closed on July 9, 2007, to allow for the filing of trial briefs and the Findings and Order were issued September 7, 2007. The compensation judge determined that the commercial route driver position was not Avery heavy and strenuous work.@ The compensation judge concluded that the employee had not established a Gillette injury to the neck and right shoulder. He adopted the opinion of Dr. Wyard and determined that Dr. Wengler lacked foundation for his opinion. The employee appeals.
DECISION
On appeal, the employee contests the findings that the employee=s work as a driver was not strenuous, that Dr. Wengler=s Gillette opinion lacked foundation and that Dr. Wyard=s opinion was adopted. The employee argues that on each of these findings, the compensation judge=s conclusions were not supported by substantial evidence in the record. We disagree.
The employee contends that the evidence is uncontroverted that his work as a commercial route driver was extremely strenuous. While it is true that the employee testified to that effect at the hearing, as the compensation judge noted, there was also evidence that the bulk of the employee=s work was to drive a truck, use cable to connect a dumpster to the truck, and Asometimes to pick up extras.@ The compensation judge could reasonably conclude that this was an accurate statement about the employee=s work activity and that this activity was not strenuous. The employee=s characterization of his work at the hearing was also controverted by his own statement to Dr. Regan on June 26, 2006, that he Adoes not really do any heavy lifting.@ We conclude substantial evidence exists to support the compensation judge=s decision on this finding.
We also note that even if the compensation judge had concluded that the work was strenuous, the issue of causation would not necessarily be answered in the employee=s favor. The question in any Gillette injury claim is whether the work activity, whether strenuous or not, has led to disability. This is a question of fact for the compensation judge and depends in large part, on the medical evidence. Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994); Wacek v. Hy-Vee Food Stores, Inc., No. WC05-275 (W.C.C.A. June 5, 2006).
In considering the medical evidence in this case, the compensation judge rejected the opinion of Dr. Wengler. As noted previously, Dr. Wengler was of the belief that the employee manually lifted garbage containers into dumpsters and did a lot of overhead lifting. He was also asked to assume that the employee had symptoms of numbness and weakness in his arm for more than a month before he saw a doctor and that he had someone helping him on the route because he had difficulty lifting material throughout the day. We find no evidence in the record to support these assumptions. The employee did not provide testimony in support of these assumptions. There is also no indication that Dr. Wengler had available or had reviewed any of the employee=s prior medical records other than the MRI report and Dr. Kruse=s chart notes. We conclude that the compensation judge did not commit error in rejecting Dr. Wengler=s opinion.
The compensation judge adopted the opinion of Dr. Wyard and the employee argues on appeal that the compensation judge erred in doing so because Dr. Wyard=s opinion was contrary to the evidence. Dr. Wyard=s opinion was that the employee=s cervical fusion was the result of a long-standing degenerative condition which was aggravated by the tire changing incident. This opinion was based on Dr. Wyard=s review of the previous medical records, the history he obtained and his examination. His opinion had adequate foundation and the employee does not argue to the contrary. Dr. Wyard noted that the employee stated his work was strenuous, but he was not required to accept the employee=s statement as accurate or conclude a Gillette injury had occurred. We find no inconsistency in Dr. Wyard=s opinion and note that the inconsistencies in this matter appear to be in the employee=s statements.
It is not known when the tire changing incident happened. It is true, as the employee argues, that Dr. Regan and Dr. Sampson made no reference to tire changing, so it may be that the incident occurred after the employee treated with them. However, the employee also made no report of any connection between his employment and his condition. In fact, the information he provided to both Dr. Regan and Dr. Sampson would be contrary to any such connection. After seeing Dr. Regan and Dr. Sampson and learning of his cervical condition, he attributed his symptoms to changing a tire on his pickup and did not ever indicate to his physicians that he thought his condition was related to his work. At the hearing, for the first time, the employee presented a new history for the onset of symptoms, an incident where the employee=s truck hit a pothole and he was bounced in the cab and struck his head on the top of the cab. The compensation judge was not obligated to ignore these inconsistencies in deciding this case.
We find substantial evidence supports the compensation judge=s determination that the employee failed to establish his work activity was a substantial contributing factor in his need for a cervical fusion and the resulting disability. The compensation judge=s decision is affirmed.