CAUSATION – GILLETTE INJURY. Substantial evidence, including expert medical opinion, medical records, and lay testimony, supports the compensation judge’s finding that the employee sustained a Gillette injury to the bilateral shoulders and neck culminating on or about November6, 2012.
Compensation Judge: Miriam P. Rykken
Attorneys: Frederick E. Kaiser and Evan W. Cordes, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., St. Paul, Minnesota, for the Employee Respondent. Christine L. Tuft and Alicia J. Smith, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for the Appellants. John Thul, Cousineau McGuire Chartered, Minneapolis, Minnesota, for the Employer-Insurer Respondents.
Affirmed in part and modified in part.
MANUEL J. CERVANTES, Judge
The employer Sylva Corporation (“Sylva”) and its insurer appeal from the compensation judge’s finding that the employee sustained a Gillette[1] injury to his bilateral shoulders and neck culminating on or about November 6, 2012, substantially resulting from his work for Sylva, from the awards of temporarily total and temporary partial disability for certain periods, and from the orders requiring them to contribute to or pay for various medical treatment and vocational rehabilitation. We affirm, in part, and modify, in part.
The employee, Robert Lindelof, started working for employer Lano Equipment (“Lano”) in 1999 as a mechanic. On June 19, 2002, he sustained an admitted injury to the neck, right shoulder and thoracic spine while he was attempting to loosen a large bolt using a wrench with a pipe attached for extra leverage. The pipe broke and the employee was thrown backwards, sustaining what he described as a whiplash injury. The employee underwent chiropractic treatment until the end of 2002.
The employee’s right shoulder pain was evaluated by an orthopedic surgeon, Dr. James Green, on January 7, 2003. The employee was diagnosed with impingement syndrome. He underwent a subacromial injection. After a period off work, he was released to work with restrictions for two months including limited overhead activities and no repetitive work.
Dr. David P. Kraker, a spine surgeon at Advanced Spine Associates, evaluated the employee’s neck pain on January 8, 2003. Dr. Kraker diagnosed cervical degenerative disc disease at the C5-6 level, right shoulder subacromial and subdeltoid bursitis, supra and infraspinatus tendinopathy and intraarticular biceps tendinosis, thoracic strain, and intermittent lower extremity paresthesias. Dr. Kraker referred the employee for a cervical MRI.
The employee returned to Dr. Kraker on January 31, 2003. Dr. Kraker thought the C5-6 disc herniation on the right was causing the majority of the employee’s right-sided neck and shoulder pain. He recommended an anterior cervical discectomy and fusion at C5-6.
The employee began treating with Dr. Mark C. Engasser, an orthopedic surgeon, on February 19, 2003. The employee complained of continued pain in the neck and right shoulder. The employee was diagnosed with tendinitis with impingement in the right shoulder. He was provided with conservative treatment including injections and exercise program for the right shoulder.
On April 2, 2003, the employee returned to Dr. Engasser with increased shoulder pain. Dr. Engasser recommended a right shoulder arthroscopy with subacromial decompression, which was performed on April 24, 2003.
On May 28, 2003, the employee was released to regular duty with a 60-pound lifting limitation. On October 29, 2003, he reported that he was performing his regular job without restrictions. He was frustrated because of ongoing pain in the right shoulder. He also reported some left shoulder discomfort. Dr. Engasser referred the employee for an MRI of the right shoulder to rule out a tear. The MRI, performed on November 7, 2003, showed moderate supraspinatus and subscapularis tendinopathies with small areas of partial-thickness tearing.
Dr. Engasser saw the employee again on November 12, 2003, to discuss the results of the MRI. The employee was diagnosed with cervical disc degeneration with herniation at right C5-6, as well as right shoulder rotator cuff tendinitis and impingement status post subacromial decompression with recurrence.
The employee treated with Dr. Engasser throughout 2003 and until at least April 2004. On April 21, 2004, Dr. Engasser concluded that the employee had reached maximum medical improvement. Dr. Engasser noted that the employee might need periodic injections in his right shoulder.
The employee was subsequently terminated by employer Lano. He briefly worked for some other companies until 2005, when he was hired by employer Sylva, performing servicing work on a variety of equipment including grinders, chippers, trailers and trucks, and performing mechanical service work in the Sylva plant building. The employee also worked as a welder and fabricator. The employee testified that when he started at Sylva his ongoing levels of neck and right shoulder pain were at 3 or 4 on a scale of 10.
On January 30, 2007, the employee sustained an admitted injury to his left shoulder, when he slipped off a bulldozer track and fell onto the ground with his left arm extended, injuring his left shoulder.
The employee returned to Dr. Engasser, who diagnosed left shoulder rotator cuff strain with tendinopathy and provided an epidural injection into the subacromial area of the employee’s left shoulder. There was also a suspicion that the employee might have a rotator cuff tear.
The employee continued working for Sylva and by April 11, 2007, when seen again by Dr. Engasser, the employee noted he was back to performing his regular job. He was authorized to continue performing his regular duties without restrictions.
The employee’s left shoulder pain recurred in October and Dr. Engasser referred the employee for an MRI of the left shoulder. The scan, performed on October 24, 2007, showed a small partial thickness intrasubstance tear of the distal anterior aspect of the supraspinatus tendon.
On December 27, 2007, the employee underwent left shoulder surgery performed by Dr. Engasser, consisting of arthroscopic debridement with anterior acromioplasty. The employee returned to work about one month following his shoulder surgery, and eventually was released to return to work without restrictions. He was to avoid activities that caused pain.
The employee experienced residual left shoulder symptoms including reduced range of motion and occasional pain.
On July 2, 2008, Dr. Engasser noted that the employee was doing quite well, with continued improvement in his left shoulder since surgery. The employee described only some mild soreness on extreme movement and with twisting movements of the shoulder. He showed full range of motion of the left shoulder without evidence of impingement. Dr. Engasser recommended that the employee increase activity as tolerated.
On July 18, 2008, Dr. Engasser opined that the employee had reached maximum medical improvement from his 2007 injury as of July 2, 2008. He rated the employee with a permanent partial disability rating of three (3%) percent to the left shoulder.
The employee’s work for Sylva, which involved welding and machinery repair, also required heavy lifting and pulling. The employee testified that while he was working for Sylva, he began noticing a worsening of his right shoulder and neck symptoms. By November 6, 2012, he noticed numbness in his right fingers and found himself dropping items he was holding.
On November 7, 2012, the employee returned to Dr. Engasser complaining of right shoulder and arm pain, with burning pain down his right arm to his hand. He had been avoiding overhead reaching and rotation. The employee denied any new injury. On examination, he had reduced range of motion of both shoulders, worse on the right than on the left. His cervical range of motion was also reduced. Dr. Engasser diagnosed bilateral rotator cuff tendinopathy and cervical radiculitis.
On November 28, 2012, the employee returned to Dr. Engasser. He had continued to perform his normal job but continued to avoid overhead reaching and rotation. He still had some burning pain in his right shoulder. The Employee was diagnosed with right C5-6 disc protrusion and status post bilateral rotator cuff tendinopathy with decompression. He was referred for an MRI of the neck. Dr. Engasser thought the employee’s current symptoms were related to his 2002 work injury.
From late December 2012 through January 2013, the employee’s neck was treated with epidural steroid injections from C4 through the upper thoracic levels. His right shoulder was treated by subacromial cortisone injections. He was diagnosed with cervical radiculitis, multi-level cervical degenerative disc disease with stenosis C5-6 centrally and foraminally at C6-7, and right shoulder rotator cuff tendinopathy.
As of August 21, 2013, Dr. Engasser diagnosed bilateral shoulder rotator cuff tendinopathy and impingement syndrome and cervical radiculitis.
The employee resigned from his position with Sylva on August 31, 2013, and began working for EJM Pipe Services. He testified that he chose to move to a new job with EJM both in anticipation of possible layoffs at Sylva and in order to work at a less physically-demanding job.
The employee later sought additional medical treatment for his right shoulder. In March 2014, he consulted Dr. Engasser again reporting a recent increase in his right shoulder pain.
On May 8, 2014, the employee began treatment for bilateral shoulder and neck symptoms with Dr. Michael Q. Freehill at Allina Health Sports & Orthopedic Specialists. The employee reported that he had experienced continued anterior left shoulder pain since his 2007 work injury, with only minimal relief after his December 2007 surgery. When seen by Dr. Freehill, he rated his pain at 4 out of 10 in the left shoulder. The employee was referred for an MRI of the right shoulder. Dr. Freehill also believed a left shoulder MRI was appropriate to evaluate the rotator cuff. The employee was released to work with a 20-pound lifting limit and no repetitive overhead or outstretched reaching.
An MRI of the right shoulder was done on May 19, 2014. The employee returned to Dr. Freehill on May 27, 2014. Dr. Freehill noted that the most recent MRI scan of the right shoulder showed a significant rotator cuff tear involving the supraspinatus tendon, not present before, and a partial tear of the subscapularis tendon and a biceps tendon tear which had been noted in November 2003. The Employee complained of sharp intermittent pain in the right shoulder and burning pain into the right elbow with intermittent numbness and tingling into the right hand. He reiterated a progressive increase in dropping tools out of his right hand. Dr. Freehill recommended rotator cuff repair of the right shoulder. The employee was given work restrictions of no lifting over 10 pounds, no repetitive use above shoulder, and no repetitive outstretched reaching with the elbow greater than four to six inches from the body.
On June 12, 2014, the employee consulted Dr. James D. Schwender at the Twin Cities Spine Center, reporting chronic neck pain with pain radiating into both upper extremities. A lump in the back of his neck was reproducible for some of his pain in his posterior neck. Dr. Schwender diagnosed cervical spondylosis most pronounced at C5-6, as well as a potential fracture of the T1 spinous process. A CT scan of the cervical spine to include the upper thoracic vertebral bodies was requested.
The employee also continued to treat at Allina Health Sports & Orthopaedic Specialists for his shoulder pain. He was provided with injections into the subacromial space. On July 3, 2014, it was noted that further treatment for the left shoulder would be postponed while the employee underwent right shoulder surgery.
Dr. H. William Park conducted an examination of the employee on July 7, 2014, at the request of the employee’s attorney. Dr. Park diagnosed a right shoulder rotator cuff tear with chronic tendinopathy, as well as a biceps tendon tear on the right shoulder. His diagnosis of the left shoulder was of chronic rotator cuff tendinopathy with a possible partial tear of the rotator cuff tendon, progressed since the last shoulder operation in 2007. Dr. Park also diagnosed multiple level degenerative disc disease in the cervical spine, specifically at C4-5, C5-6, and C6-7, with bulging discs which had progressed since the initial injury in 2002. Dr. Park felt that the right shoulder rotator cuff tendinopathy and rotator cuff tear was due to a combination of the 2002 work injury along with a Gillette injury process at Sylva from 2006 to 2013. Dr. Park opined that the employee’s cervical condition was similarly due to a combination of the 2002 injury and a Gillette process at Sylva from 2006 to 2013. He agreed that the employee required arthroscopic surgery for the right shoulder, as outlined by Dr. Freehill.
The employee was seen by Dr. Paul Wicklund on July 28, 2014, for an independent medical evaluation on behalf of employer Lano. Dr. Wicklund opined the employee’s initial right shoulder problem attributable to the 2002 work injury was a labral tear and impingement, with no significant glenohumeral arthritis or rotator cuff tears at that time. Dr. Wicklund opined the employee’s subsequent work at Sylva made his right shoulder worse. He apportioned responsibility for the right shoulder 50 percent to the 2002 injury and 50 percent to the employee’s work at Sylva. Dr. Wicklund felt that the employee needed further treatment for his right shoulder, including surgery, which he apportioned equally between employers Sylva and Lano. Dr. Wicklund opined that no apportionment was needed for the left shoulder, as the employee had no left shoulder problems due to any work for employer Lano. Dr. Wicklund opined that the employee’s degenerative disc disease of the cervical spine had progressed very slowly since his original injury. He opined that the employee had not sustained a permanent injury to his cervical spine during any of his employments. He offered work restrictions for both the right and left shoulders but felt the employee needed no specific restrictions for his cervical spine.
On September 3, 2014, the employee underwent right arthroscopic rotator cuff repair, subacromial decompression, AC resection, and extensive debridement of the glenohumeral joint with biceps transplantation.
Dr. Mark E. Friedland evaluated the employee for employer Sylva on November 3, 2014. Dr. Friedland opined that the employee sustained a permanent left shoulder injury as a result of the 2007 work injury. He opined that the employee did not sustain Gillette injuries to either of his shoulders or his cervical spine as a result of his work activities at Sylva. He attributed the employee’s right shoulder condition solely to the 2002 work injury. He indicated that the eventual MRI finding of a right shoulder full-thickness supraspinatus tendon tear was due to attrition of the rotator cuff tendons over the course of the years after the 2002 injury. Dr. Friedland opined that the 2002 injury at Lano was the sole substantial contributing cause with respect to the employee’s ongoing cervical symptomatology. He apportioned the employee’s left shoulder treatment after 2012 at 80 percent to the 2007 injury and 20 percent as a consequence to the 2002 right shoulder injury at Lano. Dr. Friedland opined that the employee was currently capable of working and required no restrictions for the left shoulder or cervical spine. For the right shoulder, due to the recent surgery, Dr. Friedland recommended restrictions of no lifting more than five pounds to waist level, no using the right hand above chest level, no using the right arm with the elbow extended away from the body, and no pushing or pulling more than five to ten pounds. He considered these restrictions solely due to the 2002 injury.
When the employee saw Dr. Schwender at Twin Cities Spine Center on January 8, 2015, it was noted that an injection into the pseudo articulation avulsion fracture at T1 had provided near complete relief of symptoms for approximately three days, after which the pain recurred. Dr. Schwender offered treatment options including Lidoderm patches, periodic injections, and surgical resection of the nonunion evulsion fracture at Tl.
Dr. Wicklund again evaluated the employee for an independent medical re-evaluation on May 18, 2015. Since the prior IME report, the employee had received an injection to the dorsal T1 spinous process which provided 50 percent relief of his pain. Dr. Schwender had suggested resection of a nonunion avulsion fracture of Tl. Dr. Wicklund opined the surgery proposed by Dr. Schwender seemed to be appropriate. However, he further opined that the avulsion fracture represented an old injury which pre-existed the 2002 work injury. He felt that the 2002 injury was not a substantial contributing, aggravating, or accelerating factor to the T1 pathology, and that the surgery proposed by Dr. Schwender was unrelated to the 2002 work injury.
Dr. Freehill, in a report dated June 22, 2015, opined that the Employee’s right shoulder condition was due to the combination of his work injury of 2002 at Lano with a Gillette injury he sustained from 2006 to 2013 while working for Sylva due to heavy lifting and other work activities which led to progressive rotator cuff degeneration as noted on the right shoulder MRI scans and operative reports. Regarding the employee’s ongoing left shoulder condition, Dr. Freehill opined that the 2007 work injury was a significant contributing factor and that ongoing employment activities with Sylva from 2006 to 2013 had caused recurrences in his left shoulder symptoms consistent with a Gillette injury. A functional capacities evaluation was recommended.
On August 7, 2015, a physician’s assistant at Sports & Orthopaedic Specialists offered permanent restrictions for the right shoulder. The employee could lift without restriction from floor to tabletop and from tabletop to shoulder, but had a three to five pound lifting restriction above the shoulder. He was not to do any repetitive overhead use. The employee’s right shoulder was considered to be at maximum medical improvement.
Dr. Schwender provided his opinion, in his report of August 20, 2015, that the employee’s nonunion avulsion fracture for which surgery was recommended was caused by the employee’s 2002 work injury. He concluded that the condition was consistent with the mechanism of the injury.
Pursuant to a Temporary Order issued on March 3, 2013, Lano and its insurer paid benefits and medical expenses subject to such reimbursement from Sylva as might subsequently be ordered.
The employee filed a Claim Petition in July 2014 seeking temporary total disability benefits from May 5, 2014, medical benefits, rehabilitation services, and attorney’s fees based on the 2002 and 2007 dates of injury as well as alleged Gillette injuries to the bilateral shoulders and neck on November 6, 2012, and/or August 31, 2013.
Lano answered admitting the 2002 work injury, but denying that the employee continued to suffer the effects of that injury. In its answer, Sylva admitted the 2007 left shoulder injury, but denied that the employee continued to suffer the effects of that injury. Sylva also denied that the employee had sustained the alleged Gillette injuries.
Lano filed a Petition for Contribution and/or Reimbursement against Sylva on January 28, 2015. Sylva disputed the petition and the matter was consolidated with the employee’s claim petition and other matters not at issue here. The employee filed a Medical Request on March 17, 2015, seeking spinal surgery as recommended by Dr. Schwender. This was also consolidated with the other matters for hearing.
Following the hearing, the compensation judge found that the employee had sustained a Gillette injury to his bilateral shoulders and neck culminating on or about November6, 2012, substantially resulting from his work for employer Sylva. The judge denied a Gillette injury on or about August 31, 2013. The judge found that the employee was temporarily totally disabled for certain periods between May 5, 2014, and the date of hearing, as a substantial result of the 2002, 2007, and 2012 injuries, apportioned at 50 percent to the 2002 work injury and 25 percent to each of the 2007 and 2012 injuries. Liability for temporary partial disability compensation was ordered entirely against Sylva, as the dates claimed were more than 450 weeks from the date of the 2002 injury and thus exceeded Lano’s liability under the relevant statutes.
The compensation judge apportioned liability for medical treatment to the right shoulder and neck at 75 percent to the 2002 injury and 25 percent to the 2012 injury. She apportioned liability for medical treatment to the left shoulder 75 percent to the 2007 injury and 25 percent to the 2012 injury. The thoracic surgery recommended by Dr. Schwender was found reasonable and necessary and was apportioned at 100 percent to the 2002 work injury.
The employer Sylva and its insurer appeal.
In reviewing cases 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. 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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229N.W.2d 521, 524 (1975). 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 the evidence or not reasonably supported by the evidence as a whole.” Id.
The appellants, Sylva Corporation and Acuity Mutual Insurance Company, argue on appeal that the compensation judge’s finding of a Gillette injury culminating on or about November 6, 2012, lacks substantial evidentiary support in the record.
To establish a Gillette injury, an employee must “prove a causal connection between [his or] her ordinary work and ensuing disability.” Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994); see also Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960); Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981) (a Gillette injury from repeated trauma results in a compensable injury when the cumulative effect is sufficiently serious to disable an employee from further work). While evidence of specific work activities causing specific symptoms leading to disability may be helpful, whether an employee has sustained a Gillette injury “primarily depends on medical evidence.” Id. This determination is not solely dependent on medical testimony, however, and the compensation judge should also consider the nature and extent of the employee’s work duties in determining legal causation. “Ultimately, it is the responsibility of the compensation judge to weigh all of the evidence in the case to decide whether the work activities caused the disability.” Aderman v. Care Free Living Retirement Home, slip op. at 6 (W.C.C.A. Apr. 27, 2000).
In finding the November 6, 2012, Gillette injury, the compensation judge relied on the employee’s testimony that his work activities at Silva caused the pain in his neck, right shoulder and left shoulder to increase, become more frequent and persistent, and that by November 2012 he noticed numbness in his fingers. The judge noted that it was also in November 2012 that the employee resumed medical treatment for his neck and shoulders with Dr. Engasser who had previously treated him for the work injuries in 2002 and 2007. The judge also expressly relied on the medical opinions of Dr. Park, Dr. Freehill, and Dr. Wicklund regarding the occurrence of a Gillette injury, and specifically rejected the opinion of Dr. Friedland.
As the trier of fact, it is the compensation judge’s responsibility to resolve conflicts in expert medical testimony, and where there is adequate foundation for the opinions adopted by the judge, this court will normally uphold the compensation judge’s choice among medical experts. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985). Moreover, it is not the role of this court to evaluate the credibility and probative value of witness testimony and choose different inferences from the evidence than the compensation judge. See e.g., Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 512-13, 43 W.C.D. 254, 260-61 (Minn. 1990).
The appellants, however, contend that the evidence the judge relied on was nonetheless insufficient in view of their review of the record as a whole. They first contend that the judge should have given greater weight to the medical records most contemporary to the alleged November 2012 Gillette injury, those of Dr. Engasser, which they argue contradict both the conclusions of the experts relied on by the judge and the judge’s determination of a Gillette injury. Specifically, they point out that Dr. Engasser’s chart note of November 7, 2012, recorded that the employee had continued to have problems with shoulder pain since his original surgeries. They further point out that the employee did not then specifically mention any new complaints related to the left shoulder or thoracic spine; nor did Dr. Engasser record that the employee attributed any new or worsened symptoms to his ongoing work activities. The appellants also point to Dr. Engasser’s chart note of November 28, 2012, in which Dr. Engasser wrote, “there has been no new injury or excessive activity” and that he believed the employee’s neck condition was related to “his original injury.” In light of these records, and a few other minor inconsistencies, the appellants suggest in their brief that it was inappropriate for the compensation judge to rely on the employee’s testimony of increased symptoms because, in their view, it was inconsistent with the contemporary medical records.
We do not find the inconsistencies between the medical records and the employee’s testimony significant enough to warrant overturning the judge’s finding that the employee was credible. Nor are we able to conclude that the judge erred in failing to adopt the appellants’ preferred weight for and interpretation of Dr. Engasser’s records. To the extent that Dr. Engasser’s opinion related the employee’s symptoms to the prior work injuries, the judge was no more required to choose that opinion from among the expert opinions in the case as she was any other.
The appellants next contend that the judge failed to adequately address the opinion of their examining physician, Dr. Friedland. They note that the compensation judge’s memorandum only briefly summarized Dr. Friedland’s opinions before going on to state that the judge had found the other experts’ opinions more persuasive. They argue that a more detailed analysis of Dr. Friedland’s views was required to meet the judge’s obligation to provide an adequate explanation of the basis of her decision. It is clear from the record that the judge considered this evidence. Moreover, the judge’s findings and memorandum clearly explain the basis for her decision. The judge was under no obligation to explain every aspect of Dr. Friedland’s opinion. Nor does the fact that the judge did not fully discuss Dr. Friedland’s opinion in detail establish that she overlooked that evidence as a judge is not required to specifically mention in a decision every piece of evidence or opinion that was part of the record. See, e.g., Weiland v. Tiedemann Farms, slip op. (W.C.C.A. Nov. 3, 2003).
The appellants contend that, if the expert opinions the judge relied on are disregarded, and the employee’s testimony is deemed to lack credibility, then the medical records taken as a whole would “establish” that the employee’s condition in November 2012 was simply a continuation of the effects of the 2002 work injury. They describe aspects of those records that they contend support that interpretation, and argue that a mere recurrence of symptoms while working does not establish a Gillette injury. We find this argument unconvincing. First, we do not think the treatment records, even by themselves, compel the rejection of a 2012 Gillette injury and “establish” that the employee’s right shoulder and neck symptoms were solely connected to the 2002 work injury. Second, and more importantly, we have concluded that there is no basis to overturn the compensation judge’s reliance either on the employee’s testimony, which she reasonably found credible, or on the expert opinions of Dr. Park, Dr. Freehill, and Dr. Wicklund.
Substantial evidence supports the judge’s finding that the employee sustained an injury to his neck and bilateral shoulders culminating on or about November 6, 2012. Accordingly, we affirm.
The appellants raise four additional issues on appeal. In three of these issues, the basis for the appeal is subordinate to the appeal from the 2012 Gillette injury. With respect to these issues, the appellants contend that, if this court reverses the finding of a Gillette injury, then the findings and orders apportioning part of the employee’s temporary total disability against them, awarding rehabilitation benefits against them, or requiring them to pay temporary partial disability compensation would require reversal. As we have affirmed the finding of a Gillette injury, we similarly affirm these findings and orders.
The appellants raise one further issue, the resolution of which is not directly subordinate to our affirmance of the 2012 Gillette injury. Specifically, the appellants point out that the compensation judge, in finding 37, found that the 2002 and 2012 work injuries were both substantial contributing causes of the employee’s continued need for medical treatment to his right shoulder and neck, “including the thoracic surgery recommended by Dr. Schwender.” In finding 43C, however, the judge apportioned the expenses of the same thoracic surgery at 100 percent to the 2002 work injury. The appellants argue that this represents an inconsistency that requires either a reversal of finding 37 or a remand.
The employee responds that there is no clear inconsistency, contending that on reading the two findings together, what is intended is that while the expenses of the surgery are attributable solely to the 2002 work injury, any further treatment relating to the T1 fracture following recovery from surgery is attributable to both the 2002 and 2012 work injuries. Employer Lano, however, agrees that the two findings are contradictory, and proposes that this court modify the last clause in finding 37 to read “but only the June 19, 2002, injury is a substantial contributing cause to the employee’s need for the thoracic surgery recommended by Dr. Schwender.”
In light of employer Lano’s admission of sole liability for the costs of the recommended thoracic surgery, and noting that this proposed modification does not conflict with the position taken by the other parties, we modify finding 37 in the manner suggested.
[1] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).