KRISTOPHER R. TURNER, Employee/Respondent, v. JERRY’S ENTERS., INC., d/b/a CUB FOODS and SFM MUT. INS. CO., Employer-Insurer/Appellants, and N. MEM’L ASSOCS., MINNEAPOLIS RETAIL MEAT CUTTERS & FOOD HANDLERS HEALTH & WELFARE FUND, and ANESTHESIOLOGY, P.A., Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 25, 2016

No. WC16-5950

CAUSATION – GILLETTE INJURY. Substantial evidence supports the compensation judge’s determination that the employee sustained a Gillette injury to his left thumb that arose out of and in the course of his employment.

    Determined by:
  1. Manuel J. Cervantes, Judge
  2. Patricia J. Milun, Chief Judge
  3. Gary M. Hall, Judge

Compensation Judge: Stacy P. Bouman

Attorneys: Kari L. Quinn, Erickson, Bell, Beckman & Quinn, P.A., Roseville, Minnesota, for the Respondent. Steven T. Scharfenberg, Lynn, Scharfenberg & Hollick, Minneapolis, Minnesota, for the Appellants.

Affirmed.

OPINION

MANUEL J. CERVANTES, Judge

The employer and insurer appeal the compensation judge’s determination that the employee sustained a Gillette[1] injury to the left thumb on October 4, 2014, which arose out of and in the course and scope of his employment. We affirm.

BACKGROUND

The employee, Kristopher Turner, began working for the employer, Cub Foods, in 1999. Over the years of his employment at Cub Foods, the employee held positions in numerous departments. He testified that while working in the grocery department, he developed pain in his left thumb and wrist that would progressively worsen during a shift of stocking shelves. Though right-handed, the employee would stock shelves with his left hand. In approximately 2007, the employee requested a transfer to a different department due to this pain. After having transferred to the produce department where stocking product could be done with both hands, the employee’s left thumb and wrist symptoms decreased. The employee experienced an increase in symptoms while stocking after a transfer to the meat department in 2012, and then to the dairy department in 2013. In late 2013, the employee was transferred back to the grocery department where he again spent the majority of his shift stocking shelves.

In 2014, the employee spoke to his supervisor about his pain symptoms and his inability to meet his quotas for stocking shelves, and he again requested a transfer out of the grocery department. The employee’s request for a transfer was denied and it was suggested that he wear a wrist brace. In addition to wearing a wrist brace, the employee took over-the-counter pain relievers. He did not seek medical treatment, and in fact, testified that he was told by his supervisor in 2007 that any medical treatment would not be paid.

On October 4, 2014, the employee felt a pop and experienced numbness in his left thumb and wrist after having pulled the handle of a car door while attending a wedding reception. He presented at the CentraCare urgent care with tenderness, swelling, and a decreased range of motion. He was unable to abduct or extend his left thumb. He reported having experienced left wrist and thumb pain for a while at work. The employee was diagnosed with a ruptured extensor pollicis longus (EPL) tendon and was referred for a surgery evaluation. He was seen for evaluation at St. Cloud Orthopedic Associates two days later and a detailed history was taken of the employee’s work history and job duties at Cub Foods.

The employee was seen by Mark Fischer, M.D., of Twin Cities Orthopedics on November 3, 2014. Dr. Fischer noted the employee’s history of thumb and wrist pain and that the same was work-related. He recommended a tendon transfer procedure which was ultimately performed on November 12, 2014. Thereafter, the employee was restricted to one-handed work and participated in an occupational therapy program. He was released to return to work with no restrictions in April 2015.

Dr. Fischer issued a narrative report dated February 16, 2016. Therein, Dr. Fischer opined that the employee’s repetitive use of the left thumb and wrist at work constituted gradual trauma that weakened the EPL tendon and led to its eventual rupture. He further stated that even if the employee had a pre-existing condition or some undiagnosed abnormality, his work activities were of sufficient force and frequency that they would have accelerated his condition.

The employee was seen by William Call, M.D., for an independent medical examination. Dr. Call issued two reports so as to address the narrative report of Dr. Fischer. It was Dr. Call’s opinion that the employee’s EPL tendon rupture was idiopathic and developmental, and that it was not caused by the employee’s work activities.

This matter came on for hearing before a compensation judge on February 23, 2016. The judge found that the employee had sustained a Gillette injury to his left thumb culminating on October 4, 2014, and awarded his claims for temporary total disability benefits, reimbursement of out-of-pocket expenses, and reimbursement claims of the intervenors. The employer and insurer appeal.

STANDARD OF REVIEW

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. 358 N.W.2d 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 Products, Inc., 304 Minn. 196, 201, 229 N.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.

DECISION

It is the position of the employer and insurer on appeal that substantial evidence in the record does not support the compensation judge’s finding that the employee’s EPL tendon rupture arose out of and in the course of his employment. Specifically, they question the medical literature referred to by Dr. Fischer in his narrative report, the significance of the employee’s history of pre-existing wrist conditions, as well as the location of the employee’s symptomology at work as compared to the location of the tendon rupture. Further, the employer and insurer argue that because the rupture occurred during a personal activity, the injury is not compensable because it did not occur within the course of the employee’s employment. We disagree.

The compensation judge found that the employee had sustained a Gillette injury to his left thumb on October 4, 2014, in the nature of an EPL tendon rupture that was the result of a gradual breakdown of the tendon during his lengthy employment at Cub Foods where he engaged in repetitive grasping and twisting while stocking shelves. Repetitive use injuries may be compensable. Gillette v. Harold, 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960). Whether a Gillette injury has been sustained is primarily dependent on medical evidence. Marose v. Maislin Transport, 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987). In this case, the compensation judge relied upon the opinions of the employee’s treating physician, Dr. Fischer. This court is to defer to a judge’s choice of medical expert provided the expert’s opinion has adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). On appeal, the employer and insurer take issue with the medical literature referred to by Dr. Fischer in his narrative report. The employer and insurer submitted the medical literature into evidence and the same was reviewed by the judge. The judge weighed the literature along with all other medical evidence available. Her reliance on the opinions of Dr. Fischer was reasonable and this court accordingly defers to her choice of expert pursuant to Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73.

In addition to the opinions of Dr. Fischer, the testimony of the employee supports the compensation judge’s conclusion that the employee’s EPL tendon rupture was work-related. The employee credibly testified that he suffered pain symptoms that would progressively worsen during a shift, that he had requested multiple transfers to a different department so as to alter his work activities, that his pain symptoms would decrease with less stocking, and that his pain symptoms resulted in a decrease in production in terms of required stocking quotas. The repetitive minute trauma to the employee’s EPL tendon that led to the ultimate rupture arose out of and in the course of his employment. The judge’s conclusion that this constitutes a compensable Gillette injury is supported by substantial evidence in the record and her decision is affirmed.



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