The self-insured employer appeals from the compensation judge’s determination that the employee sustained a Gillette^[1] injury to his cervical spine and from the compensation judge’s finding as to the extent of permanent partial disability.  We affirm.

Robert Bassing began working for U.S. Steel at its Minntac facility in Mountain Iron, Minnesota, in 1976.  He has worked there since then and was still employed there at the time of the hearing.  Mr. Bassing has been a millwright throughout the time of his employment.

The employee had no history of cervical or neck pain before March 3, 1988.  At that time he reported to his employer that he had pain below the left shoulder blade and radiating into his neck after using a blow gun to blow dust off dust collector bags.  He went to the company dispensary the next day and was given a prescription for pain relievers.

The employee also sought chiropractic care with Dr. Arne Luoma in Virginia, Minnesota, on March 18, 1988.  Dr. Luoma obtained a history that the employee’s symptoms started after doing overhead work which involved twisting of his neck.  Pain was noted in the left shoulder blade and upper back.  The employee testified that he saw Dr. Luoma for a couple of years on an intermittent basis, but stopped treating when the pain became less severe and also after he saw a television program about possible risks of chiropractic adjustments to the neck.

The employee stated that he continued to have episodes of neck pain on an ongoing basis.  He referred to these episodes as “stingers,” and stated that they occurred after incidents such as hitting his hard hat on a beam or after working overhead with his neck in a twisted position.  He had pain in the left side of his neck that would sometimes radiate to the elbow in his left arm.  The pain would generally go away in a few hours or after a day.  The employee continued to work as a millwright during this time and testified at the hearing at some length about his job duties and the physical activity needed to perform those duties.

The employee did not seek medical care for cervical complaints again until July 2002 when he saw Dr. Paul Woods at the Duluth Clinic.  The employee explained the time between medical appointments as being due to his desire not to be known as a complainer at work.  Dr. Woods took a history from the employee that the neck pain had begun with a work injury in 1988 and that the employee had intermittent symptoms since then.  During cross-examination, the employee stated that the symptoms might have come on after he changed oil in his vehicle. The employee had difficulty sleeping and had numbness in the right index finger with some pain and weakness in his arm.  Dr. Woods assessed cervical radiculopathy on the basis of his history and a positive examination.  Dr. Woods recommended physical therapy and the use of Vioxx.

An MRI taken in July 2002 showed narrowing at the C6-7 disc space and degenerative changes which produced bilateral neural canal narrowing.  Possible muscle spasms were also noted from the lack of a normal curve in the upper spine.

The employee did not see Dr. Woods again until March 2006.  He told Dr. Woods he had been snowmobiling about two weeks previously.  The employee testified that he had been trail riding for two days, traveling about 80 miles each day.  He reported to Dr. Woods that he had intense pain in his neck, radiating down his arm into his right thumb.  He had weakness and tingling in his hand and was unable to sleep.  He had a positive examination and Dr. Woods diagnosed “acute neck pain with C6 radiculopathy.”

An MRI taken on March 23, 2006, was read as showing bulging discs at C3-4 and C4-5 which contacted the spinal cord.  There was a broad-based disc protrusion at C5-6 which contacted the spinal cord and an extruded disc at C6-7 which displaced the spinal cord.

The employee had a work injury to his cervical spine on May 19, 2006.  While he was talking on the telephone, the anchors holding the telephone to the wall came loose and it fell, striking him on the head.  The employee saw a doctor at the employer’s dispensary on the same day and saw Dr. Woods again on May 31.  The May 2006 work injury is not a substantial contributing factor in the employee’s ongoing cervical complaints.^[2]

Dr. Woods referred the employee to a neurosurgeon, Dr. Robert Donley, who saw the employee on July 20, 2006.  The employee’s primary pain complaints were in his right posterior neck and right arm with numbness in his fingers.  The MRI taken in June 2006 was interpreted as showing no significant changes compared with the March 2006 MRI.  But, the employee told Dr. Donley that since the May 2006 work incident, he had symptoms in the left side of his neck and shoulder.  Dr. Donley’s history also referenced the employee’s 1988 work injury, his work activities since then, and the “exacerbation” following the snowmobiling in March 2006.  Dr. Donley allowed the employee to continue to work without restrictions, but stated that at “some time” the employee would require fusion surgery at C6-7.  The employee told Dr. Donley he wanted to wait for surgery. The employee testified that he wanted to delay surgery so he could work and save money for expenses that would come after the surgery when he was laid up.

The employee returned to Dr. Donley in November of 2006 and surgery was discussed again.  Dr. Donley noted at that point with regard to the employee’s work that “when he uses the crane and looks up, he has trouble with his neck with some paresthesias affecting his left upper extremity, and he has some residual right thumb and index finger numbness that has not ever recovered.”  Surgery was still not scheduled.

A cervical MRI was done on March 6, 2007, at Dr. Donley’s direction.  It was interpreted as showing:

Surgery was done by Dr. Donley on April 23, 2007.  The employee continued to work his regular job until that date.  Dr. Donley performed anterior discectomy and fusion of C6-7 with decompression of the anterior cervical cord at exiting nerve roots.  The employee did well after the surgery and returned to work on June 19, 2007.

The employee filed a claim petition, alleging that he sustained a Gillette injury to his cervical spine from his employment at U.S. Steel culminating on April 23, 2007.  The employer denied the claim.

The employee was evaluated by Dr. Richard Galbraith on behalf of the employer on February 28, 2008.  Dr. Galbraith prepared a report of his evaluation and also provided deposition testimony.  Dr. Galbraith stated in his report, “in order for a Gillette injury to be measured or to be documented over of a course of 31 years, one has to have repetitive trauma that is measurable and changes documented over that period of time in order to bring this to a combination of a Gillette injury, work-related.”  Dr. Galbraith further commented “I therefore have to conclude that he did not have any evidence of a progressive microtrauma over periods of years that were measurable, that were documented, and that were changing over that period of time from work-related situations, which would have indicated a Gillette-type of work injury.”

Dr. Galbraith concluded that the employee had “natural progression of a degenerative condition” and that, while the non-work injuries in 2002 and 2006 were more significant in the development of the employee’s symptoms than was his work activity over 31 years at U.S. Steel, they were not causes of the employee’s cervical condition. Dr. Galbraith’s opinion was that, regardless of the cause, the employee had permanent partial disability from his cervical condition of 11.5%, rated under Minn. R. 5223.0370, subp. 4D, for 9%, and an additional 2.5% under 5223.0370, subp. 5.

The employee’s claim was supported by the opinion of Dr. Robert A. Wengler who saw the employee on October 4, 2007, at the request of the employee’s attorney.  Dr. Wengler also provided testimony for the hearing by deposition.  Dr. Wengler’s opinion was that the employee’s work as a millwright resulted in a Gillette injury to the cervical spine.  On the issue of permanent partial disability Dr. Wengler stated that the  “C5-6 disc is herniated and has not been surgically addressed.  He clearly has symptoms into the C5-6 distribution of the right upper extremity.”  Dr. Wengler assessed permanent partial disability of 23.5%, using 5223.0370, subp. 4D, for 9%, 5223.0370, subp. 4D(4), allowing 9% for a concurrent lesion, 5223.0370, subp. 4D(1), for persisting chronic pain for an additional 3%, and 2.5% for the fusion surgery under 5223.0370, subp. 5A.

The employee’s claim was set before Compensation Judge Jerome Arnold on November 19, 2008.  In his findings and Order of January 15, 2009, the compensation judge determined the employee had sustained a Gillette injury and awarded temporary total disability benefits, medical expenses, and 23.5% permanent partial disability benefits.  The employer appeals the finding of a Gillette injury and the award of 23.5% permanent partial disability benefits.

The employer contends that the compensation judge erred in concluding the employee established a Gillette injury.  In support of its position, the employer makes three arguments.  First, the employer claims the determination is not supported by substantial evidence.  Second, it is claimed that Dr. Wengler’s opinion lacked adequate foundation and should not have been relied upon by the compensation judge.  Finally, the employer argues that the compensation judge used an incorrect legal standard for determining whether a Gillette injury occurred.  We will consider these arguments in reverse order.

The employer points out that in Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994), the standard for establishing a Gillette injury, previously set out in Reese v. North Star Concrete, 38 W.C.D. 63 (W.C.C.A. 1985), was modified.  Reese was generally read as requiring evidence that specific work activity led to specific symptoms and disability.  The court in Steffen held that, while evidence of work activity may be helpful as a practical matter, the issue of a Gillette injury is primarily dependent on medical evidence.

The employer argues that the compensation judge in the present case went beyond the Steffen standard and failed to apply the correct legal standard.  According to the employer, the employee’s failure to report to the employer any physical difficulty in performing any of his duties and his failure to report any connection between his symptoms and his work activity should have been considered by the compensation judge as a factor in deciding whether a Gillette injury occurred.  The employer argues that the compensation judge interpreted Steffen so as to make any such evidence irrelevant.  In doing so, the employer argues, the compensation judge erred.

We find no evidence in the record to support this argument.  In its brief, the employer states that the compensation judge made no finding on the employee’s failure to report cervical problems at the “urging” of the employee’s attorney.  There is no cite to the record and we are unable to locate any argument or discussion in the transcript or exhibits about the relevance of this evidence. We note further that the employer’s counsel cross-examined the employee at some length on this point with no objection by the employee’s attorney and the employer’s attorney argued the effect of the employee’s lack of reporting in his opening statement and Dr. Galbraith made reference to this issue in his report.  In short, we find nothing in the record to support an argument that the compensation judge refused to consider this evidence and no basis for arguing that the compensation judge failed to follow the Steffen standard in determining this case.

The employer also challenges whether Dr. Wengler had foundation for an opinion on causation.  It is claimed that Dr. Wengler was not aware that the employee’s symptoms in March 2006 came on after snowmobiling, that he incorrectly assumed the neck symptoms persisted after 1988, and that he did not know the employee’s treatment in 2002 and 2006 followed non-work incidents.

The snowmobiling activity in March 2006 was mentioned in the hypothetical question presented to Dr. Wengler and it was also separately referred to and discussed in his direct and cross-examination testimony.  It was also referenced in the records reviewed by Dr. Wengler before his evaluation.  We find no basis for suggesting he was not aware of the snowmobiling.  As to the persistence of symptoms after 1988, the employee testified that he continued to have symptoms after that time and the compensation judge accepted his testimony. Dr. Wengler’s assumption was in agreement with this testimony. Finally, with regard to the treatment in 2002 and 2006, Dr. Wengler’s opinion was not dependent on whether or not any incidents before that treatment were or were not work-related. Further, the significance of this point is doubtful at best when Dr. Galbraith was of the opinion that the alleged non-work incidents in 2002 and 2006 were not substantial contributing factors in the employee’s cervical condition.

Dr. Wengler’s opinion was based on his review of the medical records, his examination of the employee, and the hypothetical question provided by the employee’s attorney.  This material provides adequate foundation for a medical opinion.  Cull v. Wal-Mart Stores, Inc., 64 W.C.D. 262 (W.C.C.A. 2004).

Finally, the employer raises the question of whether substantial evidence supports the compensation judge’s decision.  Part of the employer’s argument on this point is to restate the claim that Dr. Wengler’s opinion lacked foundation because he was unaware of the snowmobiling in 2006.  We have already found this assertion incorrect and need not discuss it further.  The other part of the argument is that the compensation judge improperly connected the 1988 work injury with the present claim even though the 1988 injury was not claimed by the employee to be a causative factor.

This latter argument is based on a misreading of the compensation judge’s findings.  In the findings referred to, the compensation judge was simply stating what the evidence showed, that the employee’s cervical symptoms began in 1988 and continued thereafter.  There is no finding or statement by the compensation judge that the 1988 injury was a causative factor in the employee’s condition in 2007.  The compensation judge found a Gillette injury based on the employee’s testimony and Dr. Wengler’s opinion.

The question of whether a Gillette injury occurred in this case was an issue of medical causation.  On that question, the compensation judge had before him Dr. Galbraith’s opinion that the cervical condition was the result of a degenerative condition and Dr. Wengler’s opinion that the cervical condition was the result of a Gillette injury.  The compensation judge stated in his memorandum that he adopted Dr. Wengler’s opinion because it was “most consistent with the most credible testimony of the employee as to his work activities and the on-going repeated trauma.”

As this court has stated on a number of occasions, we will generally affirm a compensation judge’s decision which is based upon a choice between competing medical opinions.  Dillon v. Pennco Constr., No. WC08-127 (W.C.C.A. Sept. 5, 2008).  The compensation judge’s decision on this issue is affirmed.

Both Dr. Galbraith and Dr. Wengler agreed that the employee had permanent partial disability of 9% under 5223.0370, subp. 4, for cervical redicular pain and an additional 2.5% from 5223.0370, subp. 5A, for fusion surgery at one level.^[3]  Dr. Wengler, in addition, also found 3% under 5223.0370, subp. 4D(1), for persistent radicular pain despite treatment and an additional 9% from 5223.0370, subp. 4D(4), for an additional concurrent lesion at another level.  The compensation judge adopted the opinion of Dr. Wengler.  The question here is whether substantial evidence supports that determination.

The employer argues that Dr. Wengler’s rating was based on his review of the March 2007 MRI which showed a disc herniation at C5-6.  The employer contends that the MRI does not support Dr. Wengler’s rating because it shows the C5-6 herniation to be on the left side when symptoms which would be referable to herniation at that level were on the employee’s right side.  This demonstrates, according to the employer, that Dr. Wengler’s rating was simply speculative.

The employee testified at the hearing that he had pain radiating down his left arm when he made a sudden extension of his head to the left.  Dr. Wengler’s opinion was that these symptoms supported the award of 3% for persistent radicular symptoms despite treatment.  It was also his opinion that the symptoms were the result of the herniations at both C5-6 and C6-7.  Dr. Wengler stated that trying to use dermatomal patterns to determine which disc level was involved was not completely accurate because of overlapping neural patterns.  Because the March 2007 MRI showed a disc herniation at C5-6 causing mild disc deformity and because Dr. Wengler testified that this finding was a factor in the continuing radicular complaints and was a basis for his opinion, the compensation judge’s award of permanent partial disability is supported by substantial evidence.

The compensation judge’s award of permanent partial disability is affirmed.