JULY 22, 2016 

No. WC15-5882

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including adequately founded expert medical opinion, supports the compensation judge’s finding that the employee did not sustain a Gillette injury to his right hip while working for the employer.

Determined by:
            Patricia J. Milun, Chief Judge
            David A. Stofferahn, Judge
            Gary M. Hall, Judge

Compensation Judge:  Gary P. Mesna

Attorneys:  Charles M. Cochrane, Cochrane Law Office, P.A., Roseville, Minnesota, for the Appellant.  Brian J. Holly, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Respondents.




The employee appeals the compensation judge’s denial of a claimed Gillette injury[1] to the employee’s right hip.  We affirm.


In 2000, John McGrath, the employee, began working as a route delivery driver for Kemps, LLC, the employer.  The employee delivered milk products to supermarkets, colleges, and schools four days per week, ten hours per day.  On December 5, 2005, the employee sustained a work-related injury to his low back and left hip when he pulled on a release lever for a dock plate and experienced an onset of severe low back pain.  He attempted to return to work after a few days off, but continued to have symptoms.  The employee treated with Dr. John Punderson on December 12, 2005, reporting pain in his right lower back and into his left groin and leg.  Dr. Punderson diagnosed a low back strain, prescribed medications, and restricted the employee from lifting over 25 pounds occasionally for several weeks.  In January 2006, Dr. Punderson ordered physical therapy.

In February 2006, the employee was referred to Dr. David Palmer at St. Croix Orthopedics.  He was diagnosed with coxarthrosis of the left hip and mild degenerative disc disease of the lumbar spine and treated with injections.  There was no mention of right hip pain.  Dr. Palmer noted that an x-ray showed 100 percent narrowing of the left hip joint with early cyst and spur formation and evidence of insufficient head/neck offset, and 50 percent narrowing of the right hip, indicating bilateral hip degenerative joint disease.  In April 2006, Dr. Palmer stated that the employee would eventually need a total left hip replacement.  The employer and insurer admitted liability for a temporary low back injury and a permanent left hip injury and paid various workers’ compensation benefits.

In December 2007, the employee returned to Dr. Punderson reporting right gluteus pain and left hip issues.  Dr. Punderson referred the employee to Dr. Jack Drogt at Summit Orthopedics, who referred him to Dr. Kristoffer Breien in January 2008.  Dr. Breien diagnosed bone-on-bone degenerative changes and end-stage arthritis of the left hip and recommended left total hip arthroplasty.

On January 14, 2008, the employee underwent a left total hip arthroplasty by Dr. Breien with good results.  The employee testified that he was also having right hip pain, but that it was not as severe as his left hip.  The employee was able to return to his regular job with the employer.  On September 20, 2010, the employee continued his follow-up care with Dr. Breien, reporting stiffness and low back issues.  On examination, Dr. Breien noted obvious stiffness and limited flexion on the right with some mild groin pain.

In October 2012, the employee was involved in a nonwork-related motor vehicle accident.  In November 2012, the employee treated for increasing left hip pain.  The earlier left hip surgery had involved an ASR socket component, which had been recalled and had failed.  On December 17, 2012, the employee underwent a revision left total hip arthroplasty by Dr. Breien.  He continued to have left leg pain after the surgery.  An MRI showed a large extruded left-sided disc herniation.  On February 27, 2013, the employee underwent an L3-4 left-sided laminectomy decompression surgery, which was considered to be caused by the motor vehicle accident.  The employee had significant relief of his left leg pain and was able to return to work after six weeks.

On August 15, 2013, the employee underwent an independent medical evaluation with Dr. Paul G. Dworak, who opined that the employee had pre-existing advanced osteoarthritis of the left hip and to a lesser degree, the right hip, before the December 5, 2005, work injury, but that the work injury caused aggravation/acceleration of the pre-existing osteoarthritis of the left hip which led to the left total hip arthroplasty in 2008.  Dr. Dworak concluded that the December 5, 2005, work injury was a substantial contributing factor of the left total hip arthroplasty and that the 2012 revision surgery was due to the recall of the component used in the earlier surgery.

In December 2013, the employee treated with Dr. Breien for right hip pain, stiffness, and weakness, and reported that his symptoms began gradually and occurred while he was at work, that walking exacerbated his symptoms, and that icing and lying down relieved the symptoms.  Dr. Breien noted that the employee’s left hip was doing very well, but that the employee’s right hip was now stiff and painful due to overuse while his left hip was painful, and that his ability to walk was limited.  Dr. Breien observed that that the employee walked with a slightly antalgic gait on the right, that the right hip flexion did not go past 90 degrees, and that on the right he had a fixed external rotation contracture of 5 degrees.  Hip x-rays indicated that the employee had bone-on-bone osteoarthritis on the right.  On January 29, 2014, the employee underwent a right total hip arthroplasty performed by Dr. Breien.  He also continued to be treated with pain medication.  The employee was released to work without restrictions as of March 11, 2014.

Dr. Dworak performed another independent medical evaluation of the employee on August 21, 2014.  He diagnosed the employee’s right hip condition as idiopathic advanced osteoarthritis of the right hip and opined that the need for the right total hip arthroplasty was caused by the genetic predisposition of osteoarthritis which was not related to his work for the employer.  Dr. Dworak stated that the employee’s medical records did not correlate with the employee’s claim that he also hurt his right hip in 2005, and noted that there was no mention of right hip symptomatology when the employee was treated in December 2005, nor at many later appointments with other providers.  While November 2012 records show advanced degenerative changes in the right hip joint, Dr. Dworak opined that the employee’s right hip did not become symptomatic until after September 2013.  He also concluded that the employee did not sustain a consequential injury to his right hip secondary to his left hip injury, noting that there was no reference to aggressive weight-bearing on his right hip or progressive right hip symptoms, no use of assistive devices, and no leg length discrepancy.

On March 23, 2015, the employee was evaluated by Dr. Robert Wengler, who opined that the employee had sustained Gillette injuries to both hips resulting from stresses associated with his work activities.  He also opined that the employee sustained a L3-4 disc injury on December 5, 2005, which led to the discectomy surgery on February 27, 2013.

On May 23, 2014, the employee filed a claim petition listing back, left hip, and consequential right hip injuries.  The employee claimed temporary total disability benefits, attorney fees, and medical expenses related to the right hip condition.  On July 17, 2015, the employee amended his claim petition to include claims for permanent partial disability benefits for both hips.  At the hearing on August 27, 2015, the employee added an alternate theory that he had sustained a Gillette injury to his right hip.  The compensation judge denied the employee’s claim in its entirety, finding that the employee did not directly injure his right hip on December 5, 2005, that the work injury was not a substantial aggravating, accelerating, or contributing cause of the right hip condition, that the employee did not sustain a Gillette injury to his right hip, and that the employee did not sustain a consequential injury to his right hip as a result of his left hip injury.  The employee appeals the compensation judge’s denial of the claimed right hip Gillette injury.


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.[2]  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.[3]  Findings of fact are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed.[4]  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.”[5]


The compensation judge accepted Dr. Dworak’s opinions over the opinions given by Dr. Breien or Dr. Wengler and determined that the employee did not sustain a Gillette injury or a consequential injury to his right hip while employed at Kemps.  The employee contends that Dr. Dworak’s opinion lacks foundation and should not have been relied upon by the compensation judge, asserting that he did not know the details of the employee’s job duties in 2013 and that his opinions are inconsistent with the known facts and medical evidence in this case.  The employee concludes that the judge erroneously relied on the unsupported medical opinion from Dr. Dworak in making his determination.  We are not persuaded by these arguments.

The compensation judge accepted Dr. Dworak’s opinion and, in his findings and order, the judge determined the evidence did not “establish that the employee sustained a Gillette injury to his right hip as a result of his work activities from 2000 to 2014.”[6]  In his memorandum, the compensation judge referenced the evidence he analyzed and considered to reach his ultimate determination.  The compensation judge noted the lack of support for the employee’s claim in the medical records in evidence.  The judge further noted the lack of specific and detailed testimony from the employee.

The question of whether a Gillette injury[7] has occurred primarily depends upon the medical evidence submitted in the record.[8]  Dr. Dworak was provided with the employee’s medical records through March 2014.  These records contain some limited information regarding the employee’s job duties as a route driver.  The employee had returned to his regular job duties before developing right hip symptoms.  In addition, Dr. Dworak also examined the employee before and after the January 2014 right hip surgery.  Generally, this level of knowledge establishes a doctor’s competence to render an expert opinion.[9]  The compensation judge did not err by relying on Dr. Dworak’s opinion.

The question of whether an employee has proven a Gillette injury is a question of fact for the compensation judge.[10]  In Steffen v. Target Stores,[11] the Minnesota Supreme Court held that the standard of proof for a Gillette injury is that an employee must prove a causal connection between the ordinary work duties and ensuing disability.  While evidence of specific work activities causing specific symptoms leading to disability “may be helpful as a practical matter,” determination of a Gillette injury “primarily depends on medical evidence.”[12]  This determination, however, is not solely dependent on medical testimony.  A compensation judge may also consider the nature and extent of the employee’s work duties in determining legal causation.  The employee points to the opinion of Dr. Wengler, who concluded that the deterioration of the articular cartilage of the hip joints resulted from stresses associated with the employee’s work activities at Kemps.  But as the judge noted, the conclusory statement by Dr. Wengler did not follow through to address what specific stresses associated with the work activities caused or contributed to the deterioration.  While the compensation judge did refer to a lack of showing of particular work activities that caused hip pain, he did not make his determination solely on that basis.  “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.”[13]

Considering all the evidence, the compensation judge determined that Dr. Dworak’s opinion, that the employee’s right hip condition and the need for the right hip replacement was not related to his employment at Kemps but was due to his genetic predisposition of osteoarthritis of his right hip, was more persuasive than the other medical opinions.  Where a compensation judge’s determination is based upon a choice of competing medical opinions, this court must affirm when the expert medical opinion relied upon by the compensation judge has adequate foundation.[14]  In addition, our court must affirm the compensation judge’s findings of fact unless they are “clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted . . . .”[15]  Substantial evidence is evidence that a reasonable mind might accept as adequate to support a determination.[16]  We conclude that the opinions of Dr. Dworak provide substantial evidence to support the compensation judge’s ultimate finding that the employee did not sustain a Gillette-type injury to his right hip while employed at Kemps.[17]  We affirm.

[1] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).

[2] Minn. Stat. § 176.421, subd. 1.

[3] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

[4] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

[5] Id.

[6] Finding 8.

[7] A Gillette injury is a result of repeated trauma or aggravation of a pre-existing condition which results in a compensable injury when the cumulative effect is sufficiently serous to disable the employee from further work.  See Gillette, 257 Minn. at 321, 101 N.W.2d at 206, 21 W.C.D. at 113.

[8] Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).

[9] See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130, 1132‑33 (Minn. 1988).

[10] Bonilla v. Dakota Premium Foods, 75 W.C.D. 629, 647 (W.C.C.A. 2015), summarily aff’d (Minn. Nov. 25, 2015); Johnson v. Diamond Tool and Horseshoe, 55 W.C.D. 104, 109 (W.C.C.A. 1996), summarily aff’d (Minn. Aug. 21, 1996).

[11] Steffen, 517 N.W.2d 579, 50 W.C.D. 464.

[12] Id. at 581, 50 W.C.D. at 467.

[13] Aderman v. Care Free Living Retirement Home, slip op. at 6 (W.C.C.A. Apr. 27, 2000).

[14] Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

[15] Minn. Stat. § 176.421, subd. 1(3).

[16] Pelowski v. K-Mart Corp., 627 N.W.2d 89, 92, 61 W.C.D. 276, 279 (Minn. 2001).

[17] See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).