OCTOBER 31, 2018

No. WC18-6182

CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence, including medical records, lay testimony and expert medical opinion, supported the compensation judge’s findings denying the employee’s Gillette injury claims.

    Determined by:
  1. Deborah K. Sundquist, Judge
  2. David A. Stofferahn, Judge
  3. Gary M. Hall, Judge

Compensation Judge: Danny P. Kelly

Attorneys: Robert M. Maus, Baudler, Maus, Forman & King, LLP, Austin, Minnesota, for the Appellant. William G. Laak, McCollum, Crowley, Moschet, Miller & Laak, Bloomington, Minnesota, for the Respondents.




The employee appeals the compensation judge’s denial of wage loss, medical, and vocational rehabilitation benefits. Substantial evidence supports the compensation judge’s findings and we, therefore, affirm.


Baldomero Sanchez-Rivera arrived in Baltimore, Maryland from Guatemala in 2004 with limited proficiency in English, few vocational skills, and minimal education. After working in jobs installing siding and laying carpet, the employee moved to Minnesota and found a job in 2010 with Swift Pork Co./JBS, the employer. He passed a pre-employment physical and was hired. He had no history of upper extremity medical treatment or injury.

The employee worked primarily boxing meat. The job required him to assemble boxes of meat on a roller table which was waist high. Using tape and other materials, he made a box and placed a pound of ice in it. Meat was then machine loaded into the box. The employee placed another pound of ice over the meat and slid the box across the roller table to the scale. The employee would add meat to the box until the box weighed 63 pounds. He sealed the box with tape and carried it to a nearby pallet on which he stacked the 63-pound boxes to a lift height of 48 inches. Working a daily shift of between eight and nine hours, the employee handled 170 to 180 boxes each day.

On July 27, 2016, the employee claimed a cumulative trauma injury to his bilateral forearms, heels, and right shoulder while doing his regular job. There was no specific injury identified. The First Report of Injury indicates that the employee gave notice to the employer on the same day.

The employee sought treatment with Charles O. Dike, M.D. at Sanford Clinic on August 8, 2016, complaining of work-related right shoulder pain which began three weeks prior. Within a few weeks, the employee saw orthopedic surgeon Travis R. Liddell, M.D. and complained of bilateral shoulder and elbow pain. He saw Dr. Dike in a follow up appointment in September 2016 and received work restrictions limiting his use of the right arm above the shoulder for one month.

In November 2016, the employee underwent an MRI of the shoulders which showed, among other conditions, partial thickness tears of the supraspinatus tendon bilaterally, subacromial/subdeltoid bursitis, and a SLAP tear on the right. Following the MRI scan, Dr. Liddell ordered injections and physical therapy, but the employee did not improve. Dr. Liddell opined that the employee’s bilateral shoulder and elbow pain was due to the repetitive use of both shoulders and elbows as part of his job. He restricted the employee from overhead lifting and from lifting more than 10 pounds. He also recommended arthroscopic shoulder surgery.

The employer retained orthopedic surgeon Jeffrey Nipper, M.D. for an independent medical examination. Dr. Nipper saw the employee twice. Both times, Dr. Nipper reviewed multiple medical records, took a history from the employee, and examined him. In his report of January 25, 2017, Dr. Nipper addressed the claimed July 27, 2016, injury. He opined that the employee experienced only muscle fatigue due to work, which did not imply injury. Based on the MRI scans, he explained that the pathoanatomy in the shoulders represented a chronic, long standing, low grade, idiopathic process known as subacromial impingement syndrome. He concluded that the employee had reached maximum medical improvement and required no work restrictions or limitations relative to the alleged July 27, 2016, injury.

Following receipt of Dr. Nipper’s January 25, 2017, report, the employer offered the employee his pre-injury job and the employee accepted. Two months later, the employee returned to Dr. Liddell complaining of burning pain in the shoulders and elbows. Dr. Liddell opined that the injuries were due to the employee’s repetitive use of both shoulders and elbows in the job that he has been doing for seven years. He took the employee off work from March 23, 2017, to April 4, 2017. The employee returned to light duty work on April 5, 2017. On April 10, 2017, within five days after the employee’s return to work, he claimed a new injury to his wrists, hands, and thumbs.

The employee sought treatment with Scott McPherson, M.D. on April 10, 2017. Dr. McPherson diagnosed the employee’s bilateral conditions as forearm tendinitis and concomitant radial tunnel symptoms, improved; thumb stenosing tenosynovitis; and upper extremity global pain symptoms. He opined that this was a new Gillette[1] injury, separate from the shoulder injury, and that the employee should not return to his pre-injury job.

Dr. Nipper examined the employee for a second time on July 13, 2017, and issued a report dated August 1, 2017, discussing both the July 2016 injury and a new injury to the wrists and trigger thumbs of April 10, 2017. Dr. Nipper noted on examination that although the employee complained of diffuse pain “everywhere,” he had full active and passive range of motion in all upper extremity joints. Dr. Nipper observed no signs of effusion or instability. He recorded that the employee maintained normal strength. Dr. Nipper found it troubling that the employee had been on restrictions for some time, yet seemed to have developed new injuries and new symptoms. Dr. Nipper diagnosed intersection syndrome, but found no evidence of stenosing tenosynovitis or trigger thumb on either side. He explained that there was reason to consider deliberate misrepresentation or functional overlay on the part of the employee, but also considered a possible systemic cause of the employee’s multiple aches and pains.

A claim petition was filed and the matter came on for hearing on February 1, 2018. The issues included whether the employee sustained Gillette injuries to the bilateral upper extremities and shoulders on July 26, 2016, and to the bilateral hands, wrists and thumbs on April 10, 2017, and the employee’s claims for medical, vocational rehabilitation, and wage loss benefits. The compensation judge denied the employee’s claim, finding that the employee did not sustain his burden of proof in light of the mechanics of the job tasks and of the alleged injuries. Relying on the narrative reports of Dr. Nipper, the compensation judge found that the employee’s claimed Gillette injuries culminating on July 26, 2016, and April 10, 2016, were unrelated to his work. The employee appeals.


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 compensation judge found that the employee failed to prove by a preponderance of the evidence that he sustained a Gillette injury to his bilateral upper extremities, shoulders, elbows, wrists, and thumbs. The judge found that the employee’s description of the work activities did not “imply” work injuries. (Findings 24 & 25.) He adopted the expert opinion of Dr. Nipper that while the employee may have experienced muscle fatigue due to his work activities, he did not suffer an injury. (Id.) Furthermore, the judge found Dr. Nipper’s opinion persuasive that the employee’s bilateral shoulder problems were due to chronic idiopathic subacromial impingement unrelated to his work activities, and that the work performed by the employee was not the cause of an injury to his hands, wrists and thumbs.

The employee appeals the judge’s findings, arguing that Dr. Nipper’s opinion lacked foundation. Although the employee did not object to the foundation of Dr. Nipper’s opinion at trial, he argues on appeal that multiple factual discrepancies render Dr. Nipper’s opinion sufficiently unreliable such that it was error for the judge to adopt it.

It is a long-established principle that a trier of fact’s choice among conflicting expert opinions is to be upheld, unless that opinion lacked adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 342-43 (Minn. 1985). The opinion need only be based on “enough facts to form a reasonable opinion that is not based on speculation or conjecture.” Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802 (Minn. 2017). An expert opinion lacks adequate foundation when the opinion does not include facts or data upon which the expert relied in forming the opinion, does not explain the basis for the opinion, or the facts assumed are unsupported by the evidence. Hudson v. Trillium Staffing, 896 N.W.2d 536, 540 (Minn. 2017). Furthermore, any objection to foundation of an expert witness should be made at the hearing and cannot be raised for the first time on appeal. Gianotti, supra, 889 N.W.2d 796.

Here, the record as a whole is consistent with the factual basis assumed by Dr. Nipper in reaching his conclusions. Dr. Nipper examined the employee, reviewed multiple medical records, and took the employee’s history. On examination, Dr. Nipper observed that the results of traditional shoulder function tests were unreliable since every position in which the employee’s shoulders were moved was met with a response that he was in discomfort. Based on the imaging studies, Dr. Nipper described the condition as degenerative in nature. Dr. Nipper’s causation opinion was also supported by comments made by the employee’s treating doctors. Dr. McPherson observed that there seemed to be an element of disproportionate pain and dysfunction. He noted that the employee had not been working and despite that showed no signs of improvement. In December 2016, several months after the employee was restricted to light duty work, Dr. Liddell recorded that the employee’s pain was no better.

The employee also argues that the judge erred by discounting a causal connection between the employee’s work and shoulder and elbow conditions because the employee’s work was performed below shoulder level. He argues that the judge should have given greater weight to the employer’s job description, which characterized the work as heavy in nature and as requiring lifting to the shoulder and up. Similarly, the employee argues that the judge erred in focusing on the short time (five days) the employee had performed the light duty job when he began to exhibit intersection syndrome at the wrist and trigger thumbs. The employee argues that the judge should have given greater weight to the five years the employee worked in his regular job involving repetitive grasping and carrying of heavy boxes. We are not persuaded.

Weighing of evidence is within the sound discretion of the trier of fact. See, e.g. Trevino v. Granite Falls Municipal Hosp., 72 W.C.D. 481, 489 (W.C.C.A. 2012). 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).

Central to the analysis here is whether the physical nature of the meat boxing job was a substantial contributing factor to the development of the employee’s shoulder, elbow, wrist and thumb injuries. The employee testified that the job was at waist level, not at shoulder level, and that when the employee stacked the boxes, he lifted only to a height of 48 inches. The compensation judge reasonably gave significant weight to the fact that the job performed by the employee appeared to require no lifting work above the shoulders and was well within the restrictions outlined by the employee’s doctor, Dr. Liddell.

Likewise, it was reasonable for the compensation judge to conclude that the physical nature of the job beginning on April 5, 2017, which the employee worked for five days, did not appear to contribute to the employee’s wrist and trigger thumb symptoms on April 10, 2017. In this job, the employee used a stationary knife held in both hands to remove skin from fat. Dr. McPherson’s examination showed global pain from the elbow to the hand region and an element of disproportionate pain and dysfunction. When Dr. Nipper examined the employee’s thumbs and hands, he saw no evidence of stenosing tenosynovitis or trigger thumb on either side. He diagnosed the employee’s condition as intersection syndrome, but opined that it was not related to his work.

Because the judge’s findings are not manifestly contrary to the weight of the evidence and are reasonably supported by the evidence as a whole, we affirm.

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