DEBRA PETERSON, Employee/Appellant, v. MIDWEST MACHINE TOOL SUPPLY, INC., and FEDERATED MUT. GROUP, Employer-Insurer/Respondents, and ANGELA HUNTER, QRC, Intervenor.

WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 07, 2017

No. WC16-6004

CAUSATION – GILLETTE INJURY. Substantial evidence, in the form of a well-founded medical opinion, supports the compensation judge’s determination that the employee did not sustain a Gillette injury.

    Determined by:
  1. David A. Stofferahn, Judge
  2. Patricia J. Milun, Chief Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge: James Kohl

Attorneys: Roger D. Poehls, Jr., and Luke Smith, Robert Wilson & Assocs., P.A., Minneapolis, Minnesota, for the Appellant. Ryan J. Courtney and Alejandro A. Trevino, Fitch, Johnson, Larson & Held, P.A., Minneapolis, Minnesota, for the Respondents.

Affirmed.

OPINION

DAVID A. STOFFERAHN, Judge

The employee appeals from the compensation judge’s determination that she did not sustain a Gillette injury to her low back.[1] We affirm.

BACKGROUND

Debra Peterson became employed by Midwest Machine Tool Supply (“Midwest”) in December 2003. Midwest sells machining tools to companies, and Ms. Peterson was hired to do inside sales, working at a desk and making telephone calls to customers. Orders were then entered into a computer. Ms. Peterson worked from 8:00 a.m. to 5:00 p.m. with a one hour lunch break. She testified that she spent 7½ hours a day sitting in a chair at her desk. On cross-examination, she stated that she also left her chair to do filing, to do photocopying, and to take bathroom breaks. The employee had a telephone headset that she used for her calls and she was able to stand when desired.

The employee testified that sometime in 2009 or 2010, she had a conversation with a co-worker about exchanging desk chairs. Ms. Peterson said the chair she had at that time was uncomfortable and had no lumbar support. The exchange was made but the employee stated that the new chair was not any more comfortable. Over time Ms. Peterson began experiencing low back and leg pain that she attributed to prolonged sitting in uncomfortable desk chairs. During the remainder of the time she worked for Midwest, the employee tried other chairs that were available at Midwest in an attempt to find one that was comfortable. She estimated she tried 15 chairs, including one used by the company president. She also brought in several chairs from used furniture stores or other sources as well as a number of cushions and stools. Nothing she tried was helpful and she continued to have low back and leg pain.

The employee saw her family doctor, Dr. Teresa Gray, on May 19, 2015, with a primary complaint of neck pain. She also advised the doctor she had pain in her buttocks and bilateral thighs that she attributed to prolonged sitting in uncomfortable chairs at work. Dr. Gray assessed a number of conditions including “pain in joint involving lower leg, right.” Dr. Gray concluded, “It is clear that the pain she is having in her bilateral legs is related to her work environment.” The employee reported Dr. Gray’s conclusions to her employer. Dr. Gray also referred the employee to the occupational medicine clinic but placed no restrictions on the employee.

Ms. Peterson saw Dr. Jennifer Huebner on July 29, 2015. The employee reported to Dr. Huebner that she “sits all day” at her job and that she had had complaints of back pain for a few years. The examination was normal except for tenderness in the paraspinous muscles in the lumbar spine. Dr. Huebner also noted the employee had kyphosis in the thoracic spine. Dr. Huebner concluded the employee had “left sided low back pain with sciatica,” prescribed physical therapy, and recommended an ergonomic evaluation.

The employee was terminated from her employment with Midwest on September 15, 2015, and had not returned to work as of the date of the hearing.

The employee returned to Dr. Huebner on September 23, 2015. She reported that she had been fired from her job and that her pain had not improved. The examination was normal other than pain-limited range of motion. Dr. Huebner assessed chronic back pain and sciatica. When the employee returned to see Dr. Huebner again on October 14, 2015, it was noted that the employee had had six sessions of therapy and that the therapist was concerned about lumbar instability and suggested “possible imaging for further evaluation.” Her “pain course” was recorded as “unchanged.” Dr. Huebner recommended an MRI scan.

The employee consulted with Dr. Donald Asmussen at TRIA Orthopaedic Center on March 8, 2016, with complaints of low back pain and radicular right leg and numbness. She advised him that her work had required prolonged sitting with a “poor ergonomics set up.” She also told Dr. Asmussen that there had been no improvement in her symptoms since being laid off work six months previously. There were no positive findings on examination. Dr. Asmussen thought an MRI was appropriate given the nature of the employee’s complaints. His opinion as to causation was that “the rationale behind this being work-related is very reasonable.” Dr. Asmussen added that prolonged sitting was a “risk factor for development of disk disease, disk bulging, etc.”

An MRI was done on May 12, 2016. It was read as showing:

  1.   Mild disc bulge eccentric to the left at the L5-S1 level causes flattening of the ventral thecal sac and mild narrowing of the proximal left L5-S1 neural foramen.
  2.   Minimal disc bulge flattens the ventral thecal sac at the L4-5 level.
  3.   Mild disc bulge effaces the ventral thecal sac eccentric to the right at L1-S2 level.
  4.   Mild lumbar scoliosis convex left centered at the L3-4 level.

Dr. Asmussen discussed the results of the MRI with the employee on the same day. He noted that “Debra does indeed have a small disk bulge at L5-S1. It is, however, eccentric to the left side where she really does not have much in the way of complaints.” Dr. Asmussen also placed work restrictions limiting the employee’s sitting and lifting.

At the request of the employer and insurer, the employee was evaluated by Dr. Richard Strand who issued his report on March 7, 2016. The employee reported pain in her low back and down her right leg that was constant and disturbed her sleep. She provided a history that she was “no better” despite not having worked for five months. On examination, Dr. Strand noted no spasm, tightness, or tenderness of the paralumbar muscles, negative straight leg raising, and no tenderness of the sacroiliac joints or notches. Dr. Strand observed kyphoscoliosis and decreased range of motion consistent with the scoliosis change.[2] Dr. Strand’s diagnosis after his examination and review of medical records was “subjective low back pain.” He also stated “in my opinion there is no evidence that sitting in a chair while working at Midwest Machine Tools Supply from December 2003 to September 14, 2015, is a substantial contributing cause of Ms. Peterson’s low back pain. Based on her examination, she has subjective complaints, which are not supported by objective findings.”

The employee claimed a Gillette injury to her low back culminating on May 19, 2015, when she first saw Dr. Gray for her condition. The employer and insurer reversed an earlier admission of the injury and denied liability. The employee’s claims were heard by compensation Judge James Kohl on July 16, 2016.

The compensation judge issued his findings and order on September 16, 2016. He denied the employee’s claim in its entirety. In his memorandum, the compensation judge stated he did not find the employee to be credible in testifying that her symptoms were brought about by prolonged sitting at work. The compensation judge also found the opinion of Dr. Strand to be more persuasive than those of the employee’s treating doctors. The compensation judge concluded that a preponderance of the evidence did not support the employee’s claim of a Gillette injury. The employee has appealed.

STANDARD OF REVIEW

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(3). 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, 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 evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

DECISION

At the outset of the hearing, the parties agreed that the first issue for the compensation judge to decide was whether the employee had sustained a work-related Gillette injury to the low back culminating on May 19, 2015. (T. at 8.) For the compensation judge, determining whether there had been a work injury required consideration of the employee’s testimony, medical records, and expert medical opinion. If a work injury was found, the next issue for the compensation judge was the nature and extent of that injury.

We have held in previous cases that establishing a Gillette injury depends primarily on medical evidence. Marose v. Maislin Transport, 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987); Polfliet v. Northern Lights Distrib., No. WC14-5691 (W.C.C.A. Aug. 7, 2014). In the present case, determining whether the employee sustained a Gillette injury to her low back from prolonged sitting required expert medical opinion. Dr. Strand provided his expert opinion on this issue. Dr. Strand, as an orthopedic surgeon, had the competency to render an opinion on this issue. He took a history from the employee, conducted an examination, and reviewed the medical records. This degree of knowledge is sufficient to establish foundation for an opinion in this particular case. Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1987); Thomley v. Ryt Way Indus., LLC, No. WC13 -5601 (W.C.C.A. Oct. 28, 2013).

The employee argues however that Dr. Strand did not have foundation for his opinion because he was not aware of the MRI scan that showed some disc bulges in the lumbar spine. The employee claims the MRI disproves Dr. Strand’s conclusion that the employee’s condition consisted only of subjective low back complaints. As a result, according to this argument, Dr. Strand was mistaken as to the employee’s diagnosis so his opinion was without foundation.

This argument misconstrues the significance of the MRI results. First, there is no medical opinion on behalf of the employee that the findings have anything to do with the employee’s symptoms or condition. Dr. Asmussen, one of the employee’s doctors, in reviewing the MRI, commented that the findings did not correlate to the employee’s symptoms.

More importantly, any findings in the MRI scan go to the diagnosis of the employee’s condition. Even if the MRI had diagnostic significance, it does not address the primary issue in this case: the origin of these findings. A positive MRI does not establish that the employee had a Gillette injury. To prevail in her claim the employee needed to present a medical opinion making a causal connection between the work activity and the employee’s low back complaints.

The employee’s doctors provided opinions making that causal connection. However, the employee’s treating doctors based their opinions primarily on the employee’s history that her symptoms were brought about by prolonged sitting at work. The compensation stated in his memorandum that “Based on a review of the record as a whole, this Compensation Judge does not find the employee’s testimony to be credible in this regard.” Further, none of those doctors provided an opinion after reviewing the MRI. Their conclusions were based on the same information used by Dr. Strand in reaching his conclusions. Based on his examination, his review of the records, and the history from the employee, Dr. Strand provided his opinion. Dr. Strand had adequate foundation for his opinion.

It is the function of the compensation judge to choose between competing medical opinions. See Nord v City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). A medical opinion with adequate foundation will support a compensation judge’s finding as to the existence of a Gillette injury. Kranz v. Coca-Cola Entrs., Inc., 73 W.C.D. 631 (W.C.C.A. 2013). The compensation judge here did not err in accepting and relying on Dr. Strand’s opinion.

The compensation judge’s decision is affirmed.



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

[2] Kyphoscoliosis is backward or lateral curvature of the spinal column. Dorland’s Illustrated Medical Dictionary, 951 (29th ed., 2000).