GILLETTE INJURY – SUBSTANTIAL EVIDENCE. Substantial evidence in the record, including adequately founded expert medical opinion and the employee’s credible testimony, supports the compensation judge’s finding that the employee sustained a Gillette injury to her right shoulder as a result of her work activities.
NOTICE OF INJURY – SUBSTANTIAL EVIDENCE. Substantial evidence in the record supports the compensation judge’s conclusion that the employee’s delay in providing notice of her injury to her employer was excusable due to ignorance of fact.
Compensation Judge: Miriam P. Rykken
Attorneys: Gerald S. Weinrich, Weinrich Law Office, Rochester, Minnesota, for the Respondent. Gregg A. Johnson and Amee Pham, Heacox, Hartman, Koshmrl, Cosgriff, Johnson, Lane & Feenstra, P.A., St. Paul, Minnesota, for the Appellants.
Affirmed in part, vacated and remanded in part.
SEAN M. QUINN, Judge
The employer and insurer appeal from the decision of the compensation judge on a number of grounds. We affirm in part, and vacate and remand in part.
In January 2015, the employee was hired by a temporary service agency to do assembly work at the employer. Soon, she was directly hired. She maintained essentially the same job from January 2015 until May 2016. Before she began working with the employer, the employee had no prior symptoms or medical treatment for her right shoulder.[1]
The employee worked on assembly lines involved in the manufacturing of safety harnesses, such as those worn by roofers to prevent falling. All employees would rotate, every one to two hours, between different stations within the assembly process. At hearing, the employee’s supervisor testified work station rotations were done for ergonomic reasons so employees could vary duties and the parts of their bodies being exerted. (T. 106.) He testified less than five percent of the work activities involved overhead reaching, and the work did not require more than 10 pounds of lifting. (T. 107; 110.) The physical demands of the employee’s job duties included pulling cables, slicing cables, reaching for parts, wrapping cable, operating a power screwdriver, and pushing and pulling. As the employee was right-hand dominant, she would use her right upper extremity to do the heavier pulling and holding. At times, her arm would be jerked by the pull of a cable. She would occasionally have to reach her hand above shoulder level to grab a part.
In late 2015, the employee began noticing symptoms in her right shoulder.[2] The symptoms were most prominent at the top of her shoulder and near her shoulder blades. Soreness would increase during the work day, and when at home she would relax, apply ice or heat, and/or take over-the-counter analgesic medicine. The symptoms would improve at night and eventually went away. The employee believed her shoulder pain was due to being busy at work, but given the symptoms went away on their own, she did not think much of it.
In early 2016, the employee again experienced achiness in her right shoulder. The pain was increasing and movement resulted in catching and clicking. Her home treatments did not resolve the symptoms, so on May 3, 2016, the employee went to see her family doctor, Dr. Thomas Ziebarth. Dr. Ziebarth noted the employee’s complaints of pain with lifting her arm overhead and feeling like her shoulder had popped out of place. The employee reported symptoms since the prior autumn that had worsened over the past weekend, though she could not recall a specific injury. Dr. Ziebarth also noted the employee’s report of pulling and moving things at work, as well as moving things at home for a yard sale. (Ex. G.) The employee testified she had been having symptoms long before the yard sale mentioned to Dr. Ziebarth. (T. 83-84.) Dr. Ziebarth ordered an MRI, which showed mild tendinosis of the supraspinatus and infraspinatus tendons, mild tendinosis of the distal subscapular tendon, mild degenerative arthritis of the AC joint, and mild tendinosis of the intraarticular portion of the long head of the bicep tendon in the GH joint. (Ex. D.)
Dr. Ziebarth issued light duty restrictions. After one week of light duty work, the employer was no longer able to accommodate her restrictions. She was taken off work and told to apply for short-term disability benefits.
Dr. Ziebarth also completed employer-provided attending physician statements. (Ex. 6, part 1.) He stated there was no specific injury and responded ‘no’ to a prompt as to whether the condition was work-related. He also stated the symptoms started the prior autumn, but in completing a disability leave form, he noted worsening during weekend of April 30. He told the employee he was not sure if there was a work injury. (T. 87.)
Although the employer was aware of the employee’s condition, treatment, and restrictions, the employee did not give notice to her employer that the injury was work-related. While she told Dr. Ziebarth she believed work was causing her symptoms, she did not report the injury as work-related because she was not sure what caused her pain and because of her experience with the denial of her right wrist claim the year prior. (T. 65; 82.) The employee’s supervisor and the employer’s human resources representative assumed the employee’s right shoulder condition was not work-related because of the paperwork completed by Dr. Ziebarth.
Throughout the summer of 2016, the employee continued to treat with Dr. Ziebarth. His examinations showed reduced range of motion and tenderness along the bicep tendon, trapezius, and scapula. She was told she had tendinitis and was recommended physical therapy and a cortisone injection. She underwent the injection, which provided one or two days of relief. She also attended physical therapy, which increased her pain. The physical therapist believed the employee was suffering from overuse syndrome and impingement of the subacromial space as well as tendinopathy of the rotator cuff and bursitis. (Ex. H.) Both Dr. Ziebarth and the physical therapist found slow improvement but no real resolution of the employee’s symptoms. The employee felt she was not improving. Dr. Ziebarth referred her to Dr. Matthew Eich, an orthopedic surgeon.
The employee first saw Dr. Eich on July 18, 2016. Dr. Eich noted right shoulder pain since April. He further noted the employee’s work duties included “a lot of handwork, lifting, pulling, sometimes yanking and jerking motions.”[3] (Ex. D.) Upon examination, he found tenderness over the AC joint and supraspinatus tendons and some crepitus with motion. He suggested a diagnostic arthroscopic examination, an acromioplasty for the AC joint arthritic condition, and a resection of the distal end of the clavicle.
After Dr. Eich’s surgical recommendation, the employee told her employer she had a work-related injury. (T. 65.) The employer completed a First Report of Injury on July 28, 2016, stating the employee had reported to work on May 3, 2016, with complaints and restrictions. The employer and insurer denied liability, citing Dr. Ziebarth’s statement that work was not a cause.
The employee underwent surgery on August 5, 2016. (Ex. 6, part 3.) During the surgery, Dr. Eich observed subacromial bursitis and performed a bursectomy. He performed the resection of the distal end of the clavicle, and noted the AC joint degenerative condition; no acromioplasty was performed. No tears or other injury to any of the tendons were seen, the rotator cuff was intact, and the shoulder otherwise had minimal damage. Following surgery, the employee was off work. The employee testified surgery helped, although she still has some symptoms including catching, popping, and clicking with motion. (T. 60.)
In his post-operative office note dated August 18, 2016, Dr. Eich again outlined the employee’s work duties, including “a lot of manipulation with her arms,” which the employee demonstrated to Dr. Eich. He opined that based upon the surgery and his review of all of the information, “it does appear to be a repetitive trauma injury and would be work related.” (Ex. D.) Through the end of 2016 and into 2017, the employee was given varying levels of work restrictions. At the employee’s request, Dr. Eich released the employee to work without restrictions on June 2, 2017, though he noted she should take a common sense approach and not perform work overhead.
In September 2016, the employee began school as a full-time student with the intent to become an office worker. She believed she could no longer work in the manufacturing industry given her shoulder symptoms. (T. 64.) The employee completed only two semesters and stopped attending due to financial reasons, but would like to complete her schooling.
Also in September 2016, the employee found a part-time job as a bartender and waitress. (T. 61-62; Ex. M.) She struggled to reach and clean tables. She quit after a few months because she could not continue to do the job given her pain level. After this job ended and while still attending school, she was looking for work. In June 2017, she began a new job doing assembly work. As of the date of the hearing, she continued to work in this position on a full-time basis.
On November 30, 2016, the employee was examined by Dr. Michael D’Amato at the request of the employer and insurer. Dr. D’Amato, relying on the treatment records and recorded history from Dr. Ziebarth, opined the employee’s condition was caused by a specific episode when she felt the shoulder snapped out of place, and rejected any claimed repetitive use work-related injury. Dr. D’Amato criticized Dr. Eich’s opinion, stating it was based on an inaccurate history including reference to a frozen shoulder, and his not being aware of the alleged specific snapping event occurring the weekend of April 30. Dr. D’Amato further opined the employee should have reasonably recovered from the specific snapping event and the surgery performed by Dr. Eich was not necessitated by the MRI findings. He believed the employee had reached maximum medical improvement (MMI), regardless of causation. Dr. D’Amato’s report, including his MMI opinion, was sent to the employee and her attorney, along with an MMI service letter, on December 1, 2016.
The employee’s claim was heard by a compensation judge on January 28, 2018, to determine whether the employee sustained a Gillette[4] injury to her right shoulder culminating on May 3, 2016, whether her condition was causally related to her work activities, entitlement to various periods of wage loss benefits and medical benefits, and whether she provided the employer with sufficient notice. By Findings and Order, the compensation judge found the employee did sustain a work-related Gillette injury, relying on the opinion of Dr. Eich over that of Dr. D’Amato. In doing so, the compensation judge found the employee credible regarding her complaints of right shoulder symptoms since the autumn of 2015, and recurring in 2016 when she treated with Dr. Ziebarth, and her denial of a specific snapping event. The judge awarded periods of temporary total disability (TTD) benefits as claimed, and found the employee’s notice to the employer was sufficient. The employer and insurer appeal.
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).
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. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
The employer and insurer appeal from the compensation judge’s finding that the employee sustained a Gillette injury to her right shoulder as a result of her work activities. They argue the compensation judge erred in relying on the opinions of Dr. Eich over those of Dr. D’Amato, and Dr. Eich’s opinions lack foundation because he relied on self-serving reports of the employee and because he was not aware of an alleged specific incident at a yard sale in April 2016, which the employee denied. Instead, the employer and insurer urge the opinions of its expert, Dr. D’Amato, should have been adopted by the compensation judge.
In concluding the employee sustained a Gillette injury to her right shoulder as a result of her work activities, the compensation judge adopted the opinions of Dr. Eich and relied upon the credible testimony of the employee. As a court of limited appellate review, it is not our role to reassess credibility of witnesses, reweigh the medical evidence, or question the compensation judge’s choice of medical expert where the accepted opinion is not based on speculation or conjecture. See Ruether v. State, 455 N.W.2d 475, 42 W.C.D. 1118 (Minn. 1990); Even v. Kraft, 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989); Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Wenner v. Gulf Oil Corp., 264 N.W.2d 374 (Minn. 1978). The compensation judge considered the treatment records of Dr. Eich, the description of the employee’s work activities contained therein, and the corroborating testimony she provided at hearing. The compensation judge also considered the opinion of Dr. D’Amato and his reliance on an alleged specific snapping incident at a yard sale, but concluded the employee’s denial of that incident to be credible. Substantial evidence supports the compensation judge’s findings on this point. Dr. Ziebarth, in his May 3, 2016, treatment note, outlined that the employee told him she does a lot of pulling at work and moving things at work, she had been moving things at home during a yard sale, she does not remember a specific injury that started her right shoulder symptoms, her symptoms had been bothering her since the previous autumn and had gotten particularly bad over the past weekend, and she felt as if her shoulder had snapped out of place. Dr. Ziebarth did not state, contrary to Dr. D’Amato’s assertions, the employee suffered a specific snapping event over the weekend during a yard sale. The employee testified she had snapping and clicking sensations, not a specific snapping event. The employee also reported to Dr. Eich she had clunking and catching sensations but was not aware of any specific incident causing her symptoms although she does a lot of lifting, pulling, yanking, and jerking motions while at work.[5]
The employer and insurer also argue Dr. Eich’s opinion was formed due to his inaccurate belief, learned from the employee, that she had frozen shoulder. The employee denied telling Dr. Eich she had frozen shoulder, but had stated that she had difficulty moving her shoulder. Regardless, Dr. Eich’s opinion of a Gillette injury was based upon his understanding of the employee’s work duties as well as his understanding of the mechanics of her shoulder, which he visualized during surgery, and any mention of frozen shoulder does not detract from his causation opinion.
Based upon our review of the record and the deference afforded to the compensation judge as the trier of fact, substantial evidence in the record supports the compensation judge’s credibility finding and choice between experts, and her conclusion the employee sustained a Gillette injury as a result of her work activities is affirmed.
The employer and insurer appeal from the compensation judge’s conclusion the employee gave adequate notice of her injury and her delay was excusable due to ignorance of fact and did not prejudice the employer.
Minn. Stat. § 176.141 provides that if notice of an injury is given after 30 days from an injury but within 180 days of the occurrence of the injury, compensation will be allowed only if the employee can show the failure to give earlier notice was due to mistake, inadvertence, ignorance of fact or law, inability, or fraud, misrepresentation, or deceit, and only so long as the employer is not prejudiced. Notice must be given when it becomes reasonably apparent to the employee an injury has resulted in, or is likely to cause, a compensable claim. Anderson v. Frontier Commc’ns, 819 N.W.2d 143, 72 W.C.D. 417 (Minn. 2012).
Here, the employee’s Gillette injury culminated on May 3, 2016. There was no dispute the employee gave notice of her injury within 180 days of May 3, 2016. The compensation judge found the employee’s delay was excusable for ignorance of fact based upon her credible testimony that she was not sure what caused her shoulder pain and her experience with the denial of a prior claim. Furthermore, the employee’s treating physician at that time had opined there was no work injury. It was not until Dr. Eich expressed the opinion that there was a work injury that the employee had a factual basis to report an injury to her employer. Substantial evidence in the record supports the compensation judge’s determination with regard to notice.[6]
The employer and insurer argue the compensation judge erred in awarding TTD benefits without making a finding as to whether and when the employee reached MMI, and when the employee received the written report under Minn. Stat. § 176.101, subd. 1(j).[7] Because this provision provides TTD benefits cease 90 days after the employee reaches MMI, and those 90 days commence after the employee receives a written medical report stating as such, an award of TTD benefits in this case requires specific findings with regard to MMI. The compensation judge’s award of TTD benefits for the stated time periods is vacated, and this matter is remanded for findings regarding MMI.
In light of our remand on the issue of MMI and its effect on TTD, we need not address whether the compensation judge adequately determined how much of the awarded benefits ought to be deducted and paid to two intervenors. Given that the parties did not do so at trial, on remand, we encourage the parties to submit proposed calculations to the compensation judge.
[1] Before the initial hiring by the temporary agency, the employee passed a pre-employment physical showing she was capable of doing all of her work duties.
[2] In August 2015, the employee suffered right wrist pain, which she related to her work activities. She received medical treatment and work restrictions. The employer denied the employee’s claim for workers’ compensation benefits. The employee did not pursue her claim further. She then worked without restrictions and did not receive additional recommended medical care. The condition eventually resolved.
[3] Dr. Eich also commented the employee had a “frozen shoulder.” The employee denied having used that term, but testified she told Dr. Eich she had trouble raising her arm overhead.
[4] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
[5] Although not mentioned by the compensation judge in her findings, we note the physical therapist, who suggested the employee had an overuse syndrome, appears to have believed work activities contributed to the employee’s symptoms.
[6] The employer and insurer did not appeal the compensation judge’s finding that it was not prejudiced by notice received later than 30 days from the date of the injury.
[7] The employer and insurer also allege the compensation judge’s award of TTD benefits was in error because the employee voluntarily withdrew from the labor market while attending school. See Minn. Stat. § 176.101, subd. 1(f). The employee credibly testified she was actively looking for work during that time, and she had at least one part-time job during that timeframe, as well. Further, the employee had no job placement or job search assistance, whether from a QRC or otherwise. The compensation judge concluded the employee’s efforts to secure employment, while also attending school, was reasonably sufficient under the totality of the circumstances, and we agree.