LOUANN MARCHESANI, Employee/Appellant, v. BUFFALO DRY CLEANERS & LAUNDERERS, INC., and ARGONAUT GREAT CENT. INS. CO., Employer-Insurer, and LANDIS PLASTIC SURGERY, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 24, 2014
No. WC13-5621
HEADNOTES
CAUSATION - GILLETTE INJURY. Substantial evidence, including medical records, lay testimony, and expert medical opinion, supports the compensation judge’s finding that the employee failed to prove that she had sustained a Gillette injury to her left thumb and wrist due to cumulative minute trauma in her job with the employer.
Affirmed.
Determined by: Stofferahn, J., Hall, J., and Milun, C.J.
Compensation Judge: Bradley J. Behr
Attorneys: Gary L. Manka, Katz & Manka, Minneapolis, MN, for the Appellant. Krista L. Hiner and Arlen R. Logan, Peterson, Logran & Kilbury, St. Paul, MN, for the Respondents.
OPINION
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s denial of her claim that she sustained a Gillette[1] injury to her left thumb and wrist. We affirm.
BACKGROUND
The employee claimed she sustained two specific injuries to her left thumb and wrist in June 2010 and a Gillette injury to her left thumb and wrist from her employment at Buffalo Dry Cleaners & Launderers that culminated on or about December 21, 2010.
Ms. Marchesani began working for the employer in 2001. Her initial job was doing touchup pressing on shirts, but not long after starting her employment, her usual job was as a press operator. As a silk press operator, the employee pressed silk garments as well as sweaters, ties, dresses, blouses, and sports jackets made of a variety of fabrics. The employee testified that when she was doing the silk press job, she started by retrieving a batch of about eight to ten garments. She would then arrange and position them on a press which was operated with a handle and foot pedals. Pressing a garment on the silk press could involve a variety of different movements, depending on the specific type of garment, and whether or not some portions of the garment needed touchup. The silk press operator occasionally used a hand-held iron or positioned parts of the garments on a stationary “puff press” to press areas of the garments that the silk press had not adequately pressed. The employee testified that the job required repetitive use of the thumbs and fingers of both hands to grasp and carry garments. The employee is right-hand dominant.
Ms. Marchesani’s work at the silk press was periodically interrupted by the need to walk across the work area to another location to retrieve the next batch of garments to work on, or to take a garment which was to be starched over to another area where it was sprayed with starch and hung to dry before taken back to the silk press for pressing. Pressing a garment could take several minutes, and there was testimony by the employer’s owner that the employee typically would press from 20 to 40 garments on the silk press in an eight-hour day.
In addition to working the silk press job, the employee was asked to fill in as needed on other stations from time to time. These assignments included cashier and check-in work, washing and pressing shirts, laundry work, bagging freshly cleaned items, and operating other types of presses. The employee’s assignment to such jobs would typically last anywhere from a few hours to several days. Ms. Marchesani testified in detail on the specific tasks involved in these other jobs, many of which also required various repetitive movements using both hands in carrying, smoothing, and positioning items of clothing being cleaned or pressed. Overall, the employee testified that at least 70 percent of her work for the employer was done in the silk press job, and that after about 2008, operating the silk press was about 90 percent of her work duties.
By 2008, business had slowed at Buffalo Dry Cleaners, and full-time work was no longer available there for the employee. She continued to work for the employer part time for about three days a week, and also found additional employment working as a cashier and stocker at a Family Dollar store.
On June 15, 2010, the employee tripped and fell over a box while she was at Buffalo Dry Cleaners, landing on her outstretched left hand. She did not report the fall and continued working without medical treatment. About two weeks later, the employee tripped and fell again, this time over a basket of sweaters, again landing on her left hand. The employee did not report either of these falls to the employer until January 25, 2011.
Ms. Marchesani testified that these falls resulted in pain and discomfort in her left wrist, hand, and thumb, and swelling in the left thumb, which never entirely resolved. However, she was able to continue working, and it was not until the pain became significantly worse several months later that she decided to seek medical care. She conceded in her testimony that, although she sought medical treatment at the Buffalo Allina Clinic for various medical complaints on at least nine occasions between July 8 and November 18, 2010, she did not report left hand or wrist symptoms to her physicians during any of these visits.
On December 21, 2010, the employee saw her family care practitioner at Allina Health Care, Susan Butz, PA, for aching, swelling, and soreness of the left thumb and wrist that had been present for approximately two weeks. The employee stated that she had injured her left thumb at work six months earlier but “didn’t have this pain at that time.” A wrist brace with thumb splint was prescribed and the employee was released to work without restrictions. She continued working at both of her employers as usual.
Ms. Marchesani was seen again at Allina on January 24, 2011, by Dr. Dana J. Harms, an orthopedic surgeon, for a consultation regarding her left thumb and left wrist pain. She again gave a history of two falls at work, three weeks apart, about six months previously. The employee had sharp pain at a 6/10 level with some swelling. The pain was worse with activity. X-rays taken in December were reviewed and were read as showing moderately severe degenerative changes in the left first carpal metacarpal (CMC) joint, and milder degenerative changes in the left first metacarpophalangeal joint and in the interphalangeal jointof the left thumb. There were no fractures or dislocations. Doctor Harms discussed treatment options with the employee, who elected to proceed with using a wrist brace.
Dr. Harms saw the employee again in follow up on February 22, 2011. The employee reported she was using the brace but had no change in her symptoms. Dr. Harms diagnosed osteoarthritis of the carpometacarpal joint of the left thumb. He discussed further treatment options including a possible CMC arthroplasty. The employee elected to continue conservative treatment and to undergo a steroid injection of her left thumb. On July 11, 2011, Ms. Marchesani returned to Dr. Harms in follow up. She reported that her pain was getting worse. The employee was given another steroid injection.
Over the next several months the employee’s symptoms continued, and, by February 2012, she had elected to undergo the surgery recommended by Dr. Harms. On April 3, 2012, the employee underwent a left thumb CMC arthroscopy. The employee was off work for the surgery, but was able to return to her job at employer Buffalo Dry Cleaners in July 2012 under restrictions. After the restrictions were lifted, she subsequently also returned to work at her other part-time job for Family Dollar stores.
The employee filed a claim petition in May 2012, alleging that, as a result of the falls in June 2010, she was entitled to various workers’ compensation benefits from Buffalo Dry Cleaners and its insurer. The answer of the employer and insurer denied primary liability.
The employee was seen for an independent medical evaluation by Dr. Lawrence T. Donovan, D.O., on December 6, 2012. Dr. Donovan’s report noted that the employee’s job involves pressing ties, jackets, and gowns. The employee described to the doctor the two falls she had sustained at work in the summer of 2010. She recalled that, at that time, she had some puffiness at the base of the left thumb. She stated that she was able to continue working and sought no medical treatment until about six months after the second injury. At the time of Dr. Donovan’s evaluation, the employee complained of intermittent left thumb pain on a less-than-daily basis, at about a 5 out of 10 pain level. She denied any associated locking, catching, swelling, or paresthesia. Dr. Donovan’s examination showed the employee to have normal strength in both hands.
Dr. Donovan diagnosed osteoarthritis at the left carpometacarpal joint, along with bilateral hand osteoarthritis, and bilateral Dupuytren’s disease. He considered the left thumb CMC osteoarthritis to be due to the same natural process that had resulted in osteoarthritis in both of the employee’s hands. Noting that no medical attention was sought for a period of approximately six months, Dr. Donovan concluded that the workplace falls in June 2010 were not significant injuries. He opined that, based on the history provided by the employee, the falls would at most have resulted in a minor contusion of the left thumb carpometacarpal joint which would have resolved before she sought medical treatment for her osteoarthritis symptoms in December 2010. He found no objective evidence to support a claim that the falls at work had aggravated her underlying osteoarthritis. Dr. Donovan agreed that the medical treatment rendered under the direction of Dr. Harms had been reasonable, but considered it unrelated to the claimed work injuries.
In a letter to the employee’s attorney dated January 3, 2013, Dr. Harms noted that the employee’s x-rays showed severe degenerative changes in the thumb CMC joint, which was the site of her pain. He stated that the employee had pre-existing osteoarthritis which was not caused by the falls at work, but that such a fall “certainly can exacerbate an already established condition.” He further concluded that repetitive trauma can also exacerbate an osteoarthritic condition of the type the employee exhibited.
Dr. Harms furnished a further letter report by fax to the employee’s attorney on February 20, 2013. In this report, Dr. Harms noted that when the employee was first seen at Allina on December 21, 2010, she had given a history of a fall at work six months previously. The employee had sought treatment after noticing increased soreness and swelling in the two previous weeks. She gave “a history at that time of working at the Buffalo Dry Cleaners, where she had worked for a considerable period of time doing pressing.” When seen again on January 24, 2011, she “gave a more extensive history of the injury.” Dr. Harms’ diagnosis was osteoarthritis of the carpometacarpal join of the left thumb. In his opinion, “although the falls she suffered while employed with Buffalo Dry Cleaners did not directly cause the severe degenerative changes found in her thumb and seen at the time of surgery, based on her history, the falls substantially aggravated, accelerated, or exacerbated the underlying condition, resulting in the need for medical care and treatment.” Further, “based upon her description of the activities she was required to perform on a day-in and day-out basis, these activities would have significantly accelerated, exacerbated, or precipitated her underlying condition such that it became symptomatic and ultimately required the treatment provided . . . thus it would constitute a Gillette injury that became apparent when she was required to seek medical attention for that condition.” Dr. Harms rated the employee’s permanent partial disability at 17 percent.
A hearing was held before a compensation judge of the Office of Administrative Hearings on May 24, 2013. Among the issues before the judge were whether or not the employee sustained personal injuries on or about June 15, 2010, and June 27, 2010, and, if so, the nature of these injuries, and whether the employee had sustained a Gillette injury as a result of repetitive trauma to her left thumb and wrist culminating on December 21, 2010. During the course of the hearing, the employer requested leave to take the post-hearing deposition of Dr. Donovan to elicit his opinions regarding the Gillette injury claim that the employee had made after receipt of the February 20, 2013, faxed report of Dr. Harms. The compensation judge granted this request, and held the hearing open pending the submission of Dr. Donavan’s deposition.
Dr. Donovan was deposed on June 6, 2013, and was asked for his opinion about the employee’s claim that her CMC joint condition was due to a repetitive use injury sustained as a result of repetitive gripping at work. Dr. Donovan conceded that hard, repetitive, forceful pinching “as you would see in someone who works in a production plant” or “who uses pneumatic instruments.” can cause the development of thumb joint problems. However, based on a description of the employee’s job provided by counsel for the employer and insurer, and on the job description he had previously gotten from the employee at the time of his examination, he concluded that the work performed by the employee did not involve forceful pinching motions and did not cause a Gillette injury or aggravation of her underlying osteoarthritis.
In his findings and order, the compensation judge found that the employee had moderately severe degenerative osteoarthritis of the left CMC joint before her first fall at work on or about June 15, 2010. He accepted the employee’s testimony that she had sustained the two falls onto her left hand, but found that these falls resulted in temporary injuries which had resolved before December 21, 2010, without aggravating, accelerating, or exacerbating the employee’s pre-existing left CMC joint osteoarthritis. The compensation judge also found that the employee had failed to prove a Gillette injury to her left thumb and wrist related to her job with the employer. Accordingly, the judge denied the employee’s claims for wage loss benefits, permanent partial disability, and reimbursement for medical expenses from and after December 21, 2010. The employee appeals from the denial of her Gillette injury claim.
To establish a Gillette injury, the employee must demonstrate “a causal connection between [the employee’s] ordinary work and ensuing disability.” Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). “The question of a Gillette injury primarily depends on medical evidence.” Marose v. Maislin Transport, 413 N.W.2d 507, 512, 40 W.C.D. 175, 182 (Minn. 1987).
The evidence in this case included testimony by the employee and by the employer’s owner, describing in detail all the physical activity involved in each of the job tasks the employee had performed for the employer, whether at her regular silk press job or during one of her temporary, short-term assignments. After reviewing this testimony and considering medical records and opinions, the compensation judge determined that the employee had “failed to demonstrate by a preponderance of the evidence that her job duties with the employer from 2001 through December 2010 required repetitive forceful gripping, grasping or pinching.” The compensation judge expressly adopted the opinion of Dr. Donovan, who had concluded that the employee’s job duties did not involve sufficiently forceful pinching, grasping, or gripping to have aggravated or accelerated her naturally-occurring CMC joint osteoarthritis.
The compensation judge stated in his memorandum that he had given less weight to the opinion of Dr. Harms, describing that physician’s report as “conclusory and lacking in both objective support and well-reasoned explanation.” In the context of the Gillette injury claim, the judge further noted that Dr. Harms’ office notes “contain only minimal information regarding the employee’s work injuries” and that “it is unclear which activities he causally related to the employee’s hand symptoms.” The judge stated that he had considered the employee’s testimony that Dr. Harms had asked her to describe the gripping and grasping required in her job, but was not persuaded that Dr. Harms understood the employee’s job duties.
It is the role of the compensation judge to resolve conflicts in expert medical testimony, and his or her choice of expert opinion is generally upheld on appeal unless the facts assumed by the expert in rendering his opinion are insufficient or not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The employee argues, however, that the compensation judge erred in the stated reasons for his rejection of Dr. Harms’ opinion. The employee claims that the compensation judge rejected Dr. Harms’ opinion because he “found the Employee’s medical expert’s opinion lacking in foundation.” Citing case law, the employee argues Dr. Harms had legally sufficient foundation for his opinion, and rejecting Dr. Harms’ opinion on that basis was error. Further, the employee contends that it was, in fact, Dr. Donovan’s opinion which was without adequate foundation, so that the judge’s reliance on that opinion was reversible error.
While we agree with the employee that Dr. Harms had sufficient foundation to render a medical opinion in the case, we find nothing in the compensation judge’s findings or memorandum which indicates that the decision was based on a conclusion that Dr. Harms’ opinion lacked foundation. Instead, the compensation judge found Dr. Harms’ opinion to be less persuasive than that of Dr. Donovan. The employee’s argument is from language in the compensation judge’s memorandum in which there was a citation to Chan v. C.F. Haglin & Sons, 55 W.C.D. 598 (W.C.C.A. 1996) and a statement that, to establish a Gillette injury, “a generalized statement that the doctor understood the employee’s duties, without more, is not necessarily sufficient.” In Chan, a compensation judge accepted the opinion of the employer and insurer’s medical expert, and rejected that of the employee’s treating physician, where the judge concluded that it was unclear what understanding the treating doctor actually had about the employee’s job duties. We affirmed the compensation judge’s finding that the employee had failed to prove a Gillette injury. However, as we recently noted in Hagen v. Great Northern Baking Co.,[2] our decision in Chan did not rest on a finding that the opinion of the employee’s physician lacked foundation; rather, it reflected recognition that the extent of a physician’s understanding of the employee’s work activity in a Gillette injury claim is a factor the compensation judge may consider in determining the weight to be provided to that physician’s opinion.
The compensation judge’s citation to Chan in his memorandum was relevant to the present case and does not indicate that he rejected Dr. Harm’s opinion on the basis of a lack of foundation; instead, the compensation judge gave less weight to Dr. Harms’ opinion because it was unclear from the record just what understanding Dr. Harms had about the employee’s job duties.
The employee also contends on appeal that Dr. Donovan’s opinions “are so glaringly lacking in foundation that the opinions cannot serve as a basis for the judge’s opinion.” Specifically, the employee argues that Dr. Donovan’s opinion had insufficient foundation because Dr. Donovan acknowledged that he had not measured and did not know the exact amount of force or pressure the employee exerted in performing each of her tasks. According to this argument, only the employee could know how much force she used in pinching and grasping, and Dr. Donovan never asked her to tell him the exact amount of force she used. In addition, Dr. Donovan discussed the silk pressing duties, which were the primary duties she performed near the date of injury, but failed to discuss any of the various other jobs she performed at the employer over the previous decade.
We note that Dr. Donovan was provided a detailed hypothetical at his deposition which set out at considerable length the employee’s testimony about her job duties. This hypothetical included short descriptions of most of the other tasks the employee had performed for the employer in addition to the silk press job. Dr. Donovan had also taken a history from the employee at the time of his examination during which he asked her about her job activities. We note, further, that Dr. Donovan defined the kind of repetitive forceful pinching and gripping that he considered necessary for a Gillette injury by analogy to other jobs, including jobs involving repetitive forceful grasping of pneumatic tools or hard pinching to repetitively pull membranes from cow or pig carcasses in a packing plant. The specific information Dr. Donovan had about the employee’s job duties was sufficient for him, and for the compensation judge, to evaluate whether these tasks were similar or dissimilar to these other kinds of forceful pinching and grasping, even without precise measurements by medical instruments.
Foundation for a medical opinion requires medical knowledge and experience with the subject at issue. Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A. 1996); Gardner v. Elbow Lake Co-op, No. WC07-180 (W.C.C.A. Jan. 10, 2008). There is no question but that Dr. Donovan had sufficient foundation to render an expert opinion on the employee’s Gillette injury claim. The arguments made by the employee go to the weight to be given his opinion. The compensation judge weighed the persuasiveness of two medical opinions and accepted Dr. Donovan’s opinion in denying the employee’s claim. The compensation judge did not clearly err in relying on that opinion, and we affirm his decision.
[1] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
[2] No. WC13-5635 (W.C.C.A. Feb. 18, 2014). See Hagen, slip op. at 5, discussing the holding in Chan and citing Kuehn v. Vickerman Constr., Inc., No. WC05-103 (W.C.C.A. Aug. 16, 2005) and Parker v. Teamvantage Molding, 72 W.C.D. 559 (W.C.C.A. 2012).