LARRY D. NELSON, Employee/Respondent, v. SMURFIT STONE CONTAINER CORP. and ZURICH AM. INS. CO./BROADSPIRE, Employer-Insurer/Appellants, and FAIRVIEW HEALTH SERVS. and TWIN CITIES ORTHOPEDICS, Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 9, 2017

No. WC17-6053

CAUSATION – GILLETTE INJURY; GILLETTE INJURY – DATE OF INJURY. Where substantial evidence supports the compensation judge’s finding that the employee’s work-related activities contributed to his left shoulder condition, the fact that the employee did not seek medical treatment until after he was laid off does not negate that finding.

TEMPORARY TOTAL DISABILITY – RETIREMENT; TEMPORARY TOTAL DISABILITY – WITHDRAWAL FROM LABOR MARKET; JOB SEARCH. Where the employee was laid off from work before he planned to retire, conducted a short job search, and received social security benefits due to financial necessity, substantial evidence supports the compensation judge’s finding that the evidence failed to establish that the employee had retired or withdrawn from the labor market. In addition, where the employer’s vocational expert had opined that the employee could work at light machine operator and assembly jobs but the employee also had surgery and restrictions from a work-related injury after being laid off, the compensation judge did not err by awarding temporary total disability benefits for a time period after the surgery.

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

Compensation Judge: Jerome G. Arnold

Attorneys: James W. Balmer, Falsani, Balmer, Peterson, & Quinn, Duluth, Minnesota, for the Respondent. Matthew P. Bandt and Keith R. Czechowicz, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, Minnesota, for the Appellants.

Affirmed as modified.

OPINION

PATRICIA J. MILUN, Chief Judge

The employer and insurer appeal the compensation judge’s finding that the employee sustained a left shoulder Gillette injury and the award of temporary total disability benefits, and also assert that the compensation judge erred by not including the parties’ stipulation of the employee’s weekly wage. We affirm in part and modify in part.

BACKGROUND

Larry D. Nelson, the employee, began working for Smurfit Stone Container Corporation, the employer, in 1980. On February 12, 2009, the employee sustained a right shoulder injury while working as a machine operator for the employer. The employee underwent an arthroscopic rotator cuff repair on June 16, 2009, performed by Dr. Steven Meletiou. The employee was released to work with restrictions in October 2009 and without restrictions on December 1, 2009, but Dr. Meletiou recommended that he should be cautious of repetitive overhead activities at work. The employee experienced some left shoulder pain after his return to work which he attributed to compensating for his right shoulder after the surgery. The employee also testified that his supervisor would help him to accommodate any difficulties he had with his shoulders so he could do his job. When he would mention to the supervisor that his shoulders were a problem, he did not specify either shoulder individually, but said he was having problems with his shoulders.[1] In the fall of 2011, the employee was reassigned to a machine that required more arm movement.

On May 31, 2012, the employee was laid off when the plant where he was working closed. The employee testified that he had problems with his left shoulder when he was laid off.[2] The employee was asked to sign a document stating that he did not have a work-related injury at the time. The employee also had other medical conditions including diabetes since 2000, open heart surgery in 2003, and an angioplasty in 2006. Before the plant closed, the employee had planned to work until he turned age 66 in 2015. He looked for work for a few months after being laid off, then applied for and began receiving social security retirement benefits.

In December 2015, the employee began treating with Dr. Meletiou for left shoulder pain. An MRI scan was performed and Dr. Meletiou diagnosed a complete tear of the left rotator cuff, left shoulder impingement syndrome, and acromioclavicular joint arthritis. On January 19, 2016, the employee underwent left shoulder arthroscopic surgery which included rotator cuff repair, biceps tenodesis, subacromial decompression, and distal clavicle excision, performed by Dr. Meletiou. On March 1, 2016, the employee was released to work with restrictions of no lifting, pushing, or pulling over 5 pounds.

The employee was evaluated by Dr. Mark Gregerson in March 2016. Dr. Gregerson opined that the employee had sustained a left shoulder Gillette injury on May 31, 2012, which was secondary to repetitive trauma and stresses due to his work activities from 2009 through the day he was laid off. The employee underwent an independent medical examination with Dr. Stephen Barron on October 5, 2016. Dr. Barron opined that the employee’s work activity before he was laid off was not a substantial contributing factor to his left shoulder disability or need for restrictions. He stated that the employee required work restrictions of no lifting over 50 pounds and no overhead work above his left shoulder. Dr. Barron also opined that there was no evidence of a Gillette injury from work activity or from overcompensation for his right shoulder and that the employee had reached maximum medical improvement as of June 16, 2016, for the left shoulder. In a December 21, 2016, report, Dr. Meletiou opined that the employee’s repetitive work activity for the employer through May 31, 2012, was a substantial contributing factor to his left shoulder condition and that overcompensation for the right shoulder was not a cause of the employee’s left shoulder condition. He also opined that the employee had restrictions of no repetitive overhead use of the left arm, no lifting more than 10 pounds overhead, and no lifting more than 30 pounds floor to waist.

In a December 12, 2016, report, QRC Mark Steward gave the results of an independent vocational evaluation of the employee and a labor market survey. QRC Steward opined that the employee was employable for light machine operator and assembly work given Dr. Barron’s restrictions of no lifting over 50 pounds and no overhead work above his left shoulder. The employee had also been evaluated in July 2016 by rehabilitation counselor John Witzke, who opined that given the employee’s age, educational level, lack of transferable skills, and difficulties with his shoulders, he was not capable of gainful employment activity.

The employee claimed a Gillette injury to his left shoulder culminating on May 31, 2012, permanent total disability from and after May 31, 2012, and temporary total disability benefits from and after January 19, 2016. At the hearing, the parties stipulated that the employee’s weekly wage was $815.43 on May 31, 2012. The compensation judge found that the employee had sustained a Gillette injury to the employee’s left shoulder culminating on May 31, 2012, and that the injury was a substantial contributing factor to his left shoulder disability and need for work restrictions. The judge denied the employee’s claim for permanent total disability benefits for lack of a diligent job search but awarded temporary total disability benefits from the date of the left shoulder surgery on January 19, 2016, through the date of the hearing. 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.” 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.” Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed[3] 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.” 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.”[4] A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo[5]

DECISION

1.   Gillette injury

The compensation judge found that the employee had sustained a Gillette injury arising out of and in the course of his employment and culminating on his last day of work for the employer, May 31, 2012. The employer and insurer argue that this finding is not supported by substantial evidence, asserting that the causation opinions of Dr. Gregerson and Dr. Meletiou are not supported by the medical evidence, and pointing to the fact that the employee did not treat for his left shoulder until over three years after he stopped working for the employer, and that he had signed a document stating that he did not have any work injury when he was laid off.

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 serious to disable the employee from further work.[6] In order to establish a Gillette injury, an employee must "prove a causal connection between [his] ordinary work and ensuing disability."[7] 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."[8]

An injury from repeated trauma at work results in a compensable personal injury when the “cumulative effect is sufficiently serious to disable the employee from further work.”[9] Generally, the injury occurs when the employee experiences an “ultimate breakdown” from the minute trauma.[10] The date of injury may be different from the last day worked and should “be determined on all the evidence bearing on the issue,”[11] including other “ascertainable events” evidencing disability.[12] Ascertainable events include the date on which an employee’s job duties are changed to accommodate work restrictions, the date when an employee becomes unable to continue working, or the date on which an employee seeks medical attention.[13] Other medical treatment events, such as the date that an employee began to seek treatment on a regular and consistent basis, the date surgery was recommended, or the date of a medical causation opinion, may also be considered ascertainable events.[14]

The appellants argue that the employee was not disabled from working due to his left shoulder at the time he was laid off from the employer on May 31, 2012. However, this court has previously held that the date an employee was laid off for economic reasons may be an ascertainable event for a Gillette injury when an employee did not seek medical attention until after being laid off.[15] In such cases, the date of the employee’s layoff is the last day during which the employee’s work activity could have contributed to a Gillette injury.[16] In Wittstock v. McPhillips Bros. Roofing Co., this court noted that “it is not inconsistent with case law to conclude that the date of injury may be the date when the employee stops the employment, whether because of disability or layoff.”[17]

Determination of whether there has been a Gillette injury is primarily dependent on medical evidence.[18] The compensation judge was given conflicting medical opinions regarding the causation of the employee’s left shoulder condition. Dr. Barron opined that the employee’s work activity before he was laid off was not a substantial contributing factor to his left shoulder disability or need for restrictions. By contrast, Dr. Gregerson opined that the employee had sustained a left shoulder Gillette injury on May 31, 2012, due to the repetitive trauma and stresses of his work activities from 2009 through the day he was laid off. Dr. Meletiou similarly opined that the employee’s repetitive work activity for the employer through May 31, 2012, was a substantial contributing factor to his left shoulder condition. The compensation judge has the discretion as trier of fact to choose between conflicting medical opinions.[19] Where the compensation judge’s decision is based on a choice of expert opinions, it will generally be affirmed by this court as long as the opinion relied upon has adequate foundation.[20] The compensation judge specifically adopted Dr. Meletiou’s causation opinion over that of Dr. Barron in finding that the employee had sustained a work-related left shoulder Gillette injury as of May 31, 2012. We conclude that substantial evidence supports this finding.

As to the document signed by the employee at the time of his layoff which stated that the employee did not have a work-related injury, the judge noted that the document does not refer to the employee’s admitted right shoulder injury.[21] He concluded that the employee believed that this document did not refer to his shoulder conditions. This conclusion was consistent with the employee’s testimony which the compensation judge accepted as credible, and the judge’s conclusion was not unreasonable under the circumstances in this case.

While the employee was not subject to work restrictions and had not sought medical treatment for his left shoulder before he was laid off on May 31, 2012, that was the last date on which the employee’s work activity could have contributed to his disability. In fact, he had reported problems with both shoulders with some work activities, and his supervisor would assist him with adjusting those activities so he could continue working in the same position. Selection of the date of injury of a Gillette injury is not a medical decision, but a question of fact to be determined by the compensation judge.[22] Because the record supports the judge’s finding that the employee’s work-related activity contributed to his left shoulder condition, the fact that the employee did not seek medical treatment until after he was laid off does not negate that finding. Accordingly, we affirm the compensation judge’s finding that the employee had sustained a Gillette injury as of May 31, 2012.

2.   Temporary total disability

The compensation judge found that the employee was not at maximum medical improvement for his left shoulder condition and that he had been temporarily totally disabled from the date of the employee’s left shoulder surgery on January 19, 2016, through the date of the hearing, and therefore awarded temporary total disability benefits. The employer and insurer argue that the compensation judge erred by awarding temporary total disability benefits because the judge had found that the employee had not made a diligent job search or shown that such job search would be futile. The judge made the job search finding, however, in the context of his denial of the employee’s claim for permanent total disability benefits from and after May 31, 2012. The finding is not necessarily inconsistent with the judge’s award of temporary total disability from and after his left shoulder surgery in January 2016, as he was taken entirely off any work following the surgery.

Minn. Stat. § 176.101, subd. 1(g) provides that “[t]emporary total disability compensation shall cease if the total disability ends and the employee fails to diligently search for appropriate work within the employee’s physical restrictions.” The employee argues that his total disability had not ended because the judge found that he was temporarily totally disabled due to his left shoulder injury from the date of the surgery in January 2016 through the date of the hearing in December 2016, and that he had not reached maximum medical improvement. Dr. Meletiou opined in December 2016 that the employee had restrictions of no repetitive overhead use of the left arm, no lifting more than 10 pounds overhead, and no lifting more than 30 pounds floor to waist. While the compensation judge had accepted QRC Steward’s opinion that the employee was not prevented from obtaining gainful employment through a diligent job search in denying permanent total disability benefits, the compensation judge could reasonably conclude that after the surgery, the employee was not yet able to work in the type of jobs QRC Steward had considered, such as light machine operator and assembly work, and therefore such work was not appropriate for the employee with these restrictions.

The employer and insurer also claim that the compensation judge erred by awarding temporary total disability benefits because the employee had retired or removed himself from the labor market after he was laid off by the employer. Temporary total disability benefits cease at retirement under Minn. Stat. § 176.101, subd. 8, and upon removal from the labor market under Minn. Stat. § 176.101, subd. 1(f). Receipt of social security retirement benefits creates a presumption of retirement, and a statement by the employee denying retirement is not sufficient to rebut objective evidence of retirement.[23] The employer and insurer point out that the employee had stated that he planned to retire at age 66 and that he was over that age at the time of the left shoulder surgery.

The compensation judge did not accept the arguments that the employee had retired or removed himself from the labor market. The employee searched for work for two months after being laid off, then applied to receive social security retirement benefits when he was 63 years old. The employee testified that he only would have retired at age 66 if he had been able to continue working at the employer’s plant up to that age. Further, the compensation judge noted that the employee had looked for work and had begun drawing social security benefits because of financial need after the plant closed in May 2012. The compensation judge could reasonably conclude the employee had originally planned to retire at age 66, but his plans had changed because he was laid off. Substantial evidence supports the compensation judge’s determination that the evidence fails to establish that the employee had retired or had withdrawn from the labor market upon the closing of the employer’s plant on May 31, 2012.

We affirm the compensation judge’s award of temporary total disability from the date of the left shoulder surgery on January 19, 2016, through the date of the hearing.

3.   Weekly wage stipulation

The parties agree that the compensation judge erred by not including a stipulation made at the hearing that the employee’s weekly wage on May 31, 2012, was $815.43 in the Findings and Order. We modify the compensation judge’s Finding and Order to include this stipulation.



[1] T. 76, 78, and 108.

[2] T. 41.

[3] Minn. Stat. § 176.421, subd. 1(3); see also Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59-60, 37 W.C.D. 235, 239-40 (Minn. 1984).

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

[5] Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

[6] Gillette v. Harold, Inc., 257 Minn. 313, 321‑22, 101 N.W.2d 200, 205‑06, 21 W.C.D. 105, 112-13 (1960).

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

[8] Id.

[9] Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981).

[10] Id. at 350, 33 W.C.D. at 599.

[11] Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 233, 36 W.C.D. 504, 509 (Minn. 1984).

[12] Id. at 233, 36 W.C.D. at 508.

[13] See id. (change in work duties because of the employee’s physical condition); see also Giesbrecht v. Interplastics Corp., slip op. (W.C.C.A. Oct. 6, 2003) (medical evidence of worsening symptoms supported culmination date); Shaffer v. The Minnesota Orchestra, 53 W.C.D. 341, 346 (W.C.C.A. 1995) (ultimate breakdown occurred when medical treatment was required as a result of a repetitive use injury).

[14] See Cramer v. United Parcel Serv., Inc./UPS Freight, 72 W.C.D. 519, 528 (W.C.C.A. 2012); Neff v. Supervalu, Inc./Cub Foods, 71 W.C.D. 279, 288 (W.C.C.A. 2011); Reel v. Loftness Specialty Farm Equip., slip op. (W.C.C.A. Feb. 3, 2004).

[15] Yates v. Muller Logging, Inc., No. WC06-210 (W.C.C.A. Jan. 3, 2007); see also Dillon v. Pennco Constr., No. WC08-127 (W.C.C.A. Sept. 5, 2008).

[16] Yates, slip op, at 8.

[17] Wittstock v. McPhillips Bros. Roofing Co., 73 W.C.D. 1, 8 (W.C.C.A. 2013) (affirming a finding of a Gillette injury on the last day of employment before employee was laid off for economic reasons).

[18] Marose v. Maislin Transport, 413 N.W.2d 507, 512, 40 W.C.D. 175, 182 (Minn. 1987).

[19] Schuette v. City of Hutchinson, 843 N.W.2d 233, 237, 74 W.C.D. 169, 173 (Minn. 2014).

[20] Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985); Smith v. Quebecor, 63 W.C.D. 566, 573 (W.C.C.A. 2003), summarily aff’d (Minn. Aug. 15, 2003).

[21] Finding 16.

[22] See Ellingson v. Thriftway, Inc., 42 W.C.D. 565, 574 (W.C.C.A. 1989).

[23] Minn. Stat. § 176.101, subd. 8.