ELIAZAR O. VERDEJA, Employee, v. S.B. FOOT TANNING/RED WING SHOE CO., SELF-INSURED/GALLAGHER BASSETT SERVS., INC., Employer/Appellant, and TWIN CITIES SPINE CTR., NORAN NEUROLOGICAL CLINIC, FAIRVIEW RED WING HOSP., and CENTER FOR DIAGNOSTIC IMAGING, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 29, 2009
No. WC09-176
HEADNOTES
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee’s work activities substantially contributed to the employee’s neck condition and resulting disability.
Affirmed.
Determined by: Wilson, J., Johnson, C.J., and Rykken, J.
Compensation Judge: Gary P. Mesna
Attorneys: Russell G. Sundquist, Sundquist & Assocs., St. Paul, MN, for the Respondent. Brian J. Holly, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellant.
OPINION
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge’s decision that the employee’s work activities were a substantial contributing cause of his neck condition and related disability. We affirm.
BACKGROUND
The employee began working for S.B. Foot Tanning/Red Wing Shoe Company [the employer] in June of 2000. Throughout his employment there, he spent about half of his time operating a press and half of it working on a stand-up fork lift. The press work involved placing leather pieces, weighing five to thirty-five pounds, into a press and/or removing those pieces from the press and throwing them onto pallets. In his other assignment at the employer, the employee used a fork lift to unload pallets of leather hides from trucks on the loading dock and then placed those pallets, again using the fork lift, into a five-level rack system that extended upward to a height of 30 to 40 feet. The employee testified that loading the pallets onto the racks was difficult because the racks were not much wider than the pallets. To load the top two racks, the employee would maneuver the fork lift as close as possible to the rack system and then look straight up, through holes in a safety guard atop the fork lift, in order to guide the pallets onto the racks. If not set correctly, the pallets would fall, and placing a pallet sometimes took several attempts. The racking process was repeated multiple times per shift.
The employee testified that he began experiencing neck pain in 2004 or 2005 and that he associated his neck symptoms with driving a fork lift and “stacking loads” at work. He first sought treatment for these symptoms in the fall of 2005, and he was eventually diagnosed with cervical degenerative disease. By the summer of 2007, he was experiencing intermittent muscle spasms in his neck, which, he testified, increased in frequency until they occurred throughout his shift at work.
The employee testified that, on July 30, 2007, while looking upward through the top of the fork lift, he felt a very painful “pop” in his neck. Shortly thereafter, a coworker reported to a supervisor that the employee was operating the fork lift in an unsafe manner - - which, the employee explained, resulted from his inability to turn his head. The employee was called to the office and reassigned to work on the press. However, while in the office, the employee completed a disability claim form, relative to his neck condition, and, except for one brief trial of work several months later, his physicians kept him off work through the date of hearing in this matter.
After leaving work on July 30, 2007, the employee continued to receive treatment for worsening neck symptoms. Following a reported aggravation of his condition while trying to “throw hides” at work on November 5, 2007, the employee’s physician again restricted him from working.
On November 12, 2007, the employee was injured in an altercation with a man at his apartment complex. That man punched the employee in the jaw, threw him to the ground, and then punched him, again, repeatedly, in the face. The employee received treatment for numerous facial fractures resulting from the assault. He also subsequently received additional treatment for continuing neck pain.
By January of 2008, the employee was experiencing cervical muscle spasms, difficulty keeping his head elevated, and head and neck tremors. He has undergone numerous evaluations, by several physicians, related to this condition. Treatment has included injections, physical therapy, use of a cervical collar, and medication. Fusion surgery has also been considered.
The employee is apparently unable to hold his head in a normal position. Physicians have described the employee as exhibiting “chin on chest deformity” and a “cocked robin” appearance. The employee’s treating neurologist, Dr. Rupert Exconde, and the employer’s expert examiner, Dr. Terry Hood, agree that the employee is suffering from cervical dystonia. Their opinions differ, however, on the issue of causation. Dr. Exconde relates the employee’s neck condition to the employee’s work for the employer; Dr. Hood has indicated that the dystonia, or torticollis, is a disorder of the brain, and that the employee’s work activities could aggravate the employee’s symptoms only temporarily.
The employee claimed entitlement to benefits related to his neck condition, and the matter came on for hearing before a compensation judge on April 8, 2009. Issues included whether the employee had sustained a Gillette-type work injury,[1] whether the employer had timely notice or knowledge of that injury, and whether the employee’s subsequent assault was an intervening cause of the employee’s disability. Evidence included the employee’s testimony, his medical records, and a report by Dr. Hood. In a decision issued on April 27, 2009, the compensation judge resolved all issues in the employee’s favor, awarding the employee temporary total disability benefits, permanent partial disability benefits for a 10% whole body impairment, and a rehabilitation consultation. The employer appeals.
STANDARD OF REVIEW
On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1 (2008). Substantial evidence supports the findings if, in the context of the entire record, “they 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). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
DECISION
In a finding describing the nature of the employee’s neck condition, the compensation judge determined that the employee has degenerative joint disease of the cervical spine, as well as cervical dystonia secondary to the degenerative condition. In his findings regarding the claimed work injury, the judge concluded,
5. The employee sustained a gradual onset Gillette injury to his neck as a result of his work activities for the employer from 2000 to 2007, especially operation of the forklift. His work activities were a substantial precipitating, aggravating, and contributing cause of the employee’s neck condition.
6. The Gillette injury culminated in disability on July 30, 2007, when he was unable to continue working.
7. On about July 30, 2007, the employee felt a pop in his neck when he was looking up while putting a pallet on the top shelf with the forklift. He then had trouble moving his head and was taken off the forklift and reassigned to other work because of safety concerns.
In his memorandum, the compensation judge explained his decision on causation as follows:
Dr. [Kevin] Mullaney and Dr. Exconde both opined that the employee had a Gillette injury and that his work activity as a fork lift driver was a substantial contributing cause of the employee’s neck problems. Both doctors had adequate foundations for their opinions. Both were treating doctors and were familiar with the employee’s work activities. There is no contrary opinion. Dr. Hood, the self-insured employer’s physician, did not address the issue of whether there was a Gillette injury or whether the employee’s work activities aggravated or accelerated his preexisting neck condition. . . .
The closest that Dr. Hood came to discussing a possible Gillette injury is his statement that the employee’s work activities could certainly temporarily aggravate his symptoms resulting from cervical dystonia, but could not cause the condition. It is important to note that the employee has much more wrong with his cervical spine than just dystonia. He has significant degenerative joint disease. Dr. Exconde opined that the dystonia was secondary to the degenerative joint disease and not the result of a brain disorder. The court does not find Dr. Hood’s opinion to be persuasive because, by his own admission, he is not an expert in dystonia, he ignored the significant degenerative joint disease in the cervical spine, and he did not discuss whether the employee’s work activities could have been a substantial contributing cause of the employee’s cervical spine problems apart from the dystonia.
On appeal, the employer contends that the compensation judge erred in accepting the opinion of Dr. Exconde, because Dr. Exconde’s report did not mention either the employee’s specific work activities or the November 12, 2007, assault. The employer also argues that the judge’s Gillette injury finding is unsupported by substantial evidence because there is no notation in the employee’s medical records of a “pop” occurring in the employee’s neck on July 30, 2007, the judge’s designated date of injury. We are not persuaded by any of these arguments.
The employee testified that his neck symptoms increased when he worked on the fork lift and that he experienced a “pop” in his neck on July 30, 2007, while looking up through the top of the fork lift to load a pallet. However, the fact that no “pop” was noted in contemporaneous medical records has virtually no bearing on the question of whether the employee’s work activities, over time, substantially contributed to the employee’s disability. The judge found a Gillette injury, not a specific injury, on the date in question.
In addition, Dr. Exconde was clearly aware both of the employee’s work activities and of the November 12, 2007, assault[2] when he concluded, in his December 29, 2008, report, that
It is my impression that [the Employee] has cervical dystonia secondary to degenerative disc disease. His previous employment as a fork lift operator for the past six years is a substantial contributing factor in aggravating and accelerating this condition. I consider this to be a permanent Gillette-type injury. I do not have clinical evidence that this permanency pre-existed his employment as a fork lift operator.
That this particular report fails to mention the assault or specific work activities provides no basis to reverse the judge’s decision to rely on Dr. Exconde’s opinion. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The employer further contends that the compensation judge erred by concluding that the November 12, 2007, assault was not an intervening, superseding cause of the employee’s disability. This argument also lacks merit. Certainly the assault resulted in serious injuries, in the nature of multiple facial fractures. However, the evidence is conflicting as to whether the employee’s neck symptoms increased as a result of that incident. Moreover, a week prior to the assault, the employee’s symptoms had flared up, during a brief attempt to return to his job, and his physician took him back off work again right after that exacerbation. In other words, the employee was already totally disabled by his neck condition before the assault took place. Furthermore, no medical expert has indicated that the employee’s ongoing neck disability is related to the assault. Even Dr. Hood, the employer’s examiner, wrote that the assault “at most would have caused a temporary aggravation of [the employee’s] cervical dystonia.”
The employee is seriously disabled as a result of his neck condition. The medical evidence is extensive, complex, and susceptible to differing interpretations. However, because the record as a whole amply supports the compensation judge’s finding that the employee’s work activities substantially contributed to the employee’s neck condition, and because the record overwhelmingly supports the conclusion that the November 12, 2007, assault was not an intervening, superseding cause of the employee’s disability, we affirm the judge’s decision in its entirety.
[1] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
[2] In one record, Dr. Exconde noted that the employee was a “forklift operator and his job necessitates him to flex and extend his neck repetitively as he observes the forklift elevate [ ] and lower [ ].” The same record references the assault.