ROSANNE G. THOMPSON, Employee/Respondent, v. TARGET CORP. OFFICE and SEDGWICK CLAIMS, Self-Insured Employer-Third Party Administrator/Appellants, and ALLINA MED. CTR., ABBOTT NW. HOSP., TWIN CITIES REHAB., INC., and UNIV. OF MINN. – HEALTH & SURGERY CTR., Intervenors.

The self-insured employer appeals the determination that the employee sustained a Gillette^[1] injury, substantially aggravating her underlying bilateral thumb joint arthritis.  We affirm.

The employee, Rosanne Thompson, worked for the employer, Target Corporation, as a sales and stock person.  She was hired in 2015 when she was 65 years old, working approximately 16-20 hours per week.  Although she was receiving Social Security Retirement Benefits when she began her employment, she testified that she was in good health and wanted to continue working to supplement her income.

Before she began working for the employer, in the 1990s, the employee injured her bilateral wrists while employed with Abbott Northwestern Hospital (Abbott) and underwent surgeries performed by Dr. Ann VanHeest.  During the surgery of the left wrist, the employee had an IV needle inserted at the top of her left hand near the thumb joint, which resulted in ongoing paresthesia and clicking.  She testified it felt like tendinitis on the top of her hand near the left thumb joint.

In 2011, the employee was treated for hand pain.  There was no evidence of ongoing medical treatment, however, for this complaint.

In 2012, while employed at the Minnesota State Bar Association (MSBA), the employee saw a doctor on one occasion for pain at the right thumb.  She was advised to use a different mouse at her workstation, to ice her thumb, and to wear a thumb splint.  The workers’ compensation insurer for the MSBA paid for this doctor visit but the employee made no further claims and required no follow-up care.

The employee testified that she took over-the-counter medications, sometimes used ice, and occasionally wore wrist braces to deal with her wrist and IV-related left thumb symptoms.  The employee is right-hand dominant.  At the time she began working for the employer she had no symptoms involving her thumbs, particularly the carpometacarpal (CMC) joints.

The employee was hired by the employer as a sales and stock person.  She described the work as fast-paced and testified that the employer was often short-staffed.  The employee described performing a variety of different activities at work, with almost all of them involving constant and repetitive use of her hands for gripping, grasping, or pinching.^[2]

One of the employee’s duties was to stock shelves.  This required that she open boxes, both by using a box cutter and by using her bare hands to tear open boxes which were glued shut.  After opening boxes, the employee would remove packing material and scan the items with a hand-held device.  Sometimes the employee used substantial force to squeeze the device.  The scanning device was approximately the size of a cellphone, although thicker, and she would use it by pushing buttons and scanning bar codes.  She typically held the device in her right hand, but when pushing buttons, she would hold it in her left hand so as to push the buttons with her dominant right hand.  She would also use her thumbs to push buttons on the side of the device.  She would also straighten products on the shelf using both her hands.

The items stocked included clothing, cookware, toiletries, and food, ranging from small to large in size and weight.  Varying grip force was needed to hold different items.  The employee testified that because her hands were small, she would have to squeeze tightly to be able to hold larger items, such as a bundle of toilet paper.

The employee also described her use of a larger and heavier scanner.  It was approximately one foot long and three to four inches wide, with a handle.  She would grip it tightly to use it.

The employee also printed shelf labels, which she would peel and place on the shelf before covering with a piece of plastic.

The employee also occasionally assisted cashiers.

About seven months after starting her employment, on March 2, 2016, the employee treated for pain in her thumbs, describing her symptoms coming from working, specifically lifting.  From the record, it is not clear which thumb or thumbs she complained of.  She was diagnosed with CMC joint arthritis, was told to wear braces, and was advised that if she failed to improve, she would be referred to orthopedics.  She wore thumb braces for approximately two weeks and her symptoms abated.  The employee did not return for follow up.

In early 2017, the employee’s thumb symptoms returned and worsened in July and August.  During the summer of 2017, the employee testified that there was remodeling going on at the store, which meant an increase in her hours and stocking activities.  She noticed symptoms of snapping pains and a new symptom of swelling in her thumbs and thumb joints while working.  This became consistent and chronic.  Her symptoms were greater on the right than on the left.  All the symptoms were at the CMC joint, located at the base of the thumb.  Her symptoms also impaired some activities at home, such as gardening.

Due to her worsening symptoms, the employee saw her family doctor, Dr. Angelene Mellick, on September 1, 2017.  Dr. Mellick diagnosed the employee as having right thumb pain, increasing with certain movements.  She advised the employee to use Advil and splints and referred the employee to physical therapy.  The employee underwent physical therapy and received custom splints at Courage Kenny Rehabilitation.

On September 14, 2017, Dr. Mellick restricted the employee to lifting no more than five pounds due to pain in her hands in order to reduce the thumb and wrist strain.  The employee testified that the employer usually accommodated the work restrictions, but that sometimes the work duties did not conform with the restrictions because the store was short-staffed.  She also testified that she could not wear her thumb splint while working because it prevented her from being able to lift, grip, pick up or otherwise use her hands for work activities.  On October 13, 2017, Dr. Mellick diagnosed the employee with CMC arthritis exacerbated by repetitive movements as a result of her work for the employer.

The employee returned to Dr. VanHeest, who had performed her previous wrist surgeries, on November 2, 2017.  The employee described her work duties and her increasing symptoms over the past eight months.  The employee also described her mild paresthesia on the top of her left hand from the prior IV, which continued to persist.  An x-ray revealed severe CMC osteoarthritis on the right, and mild to moderate CMC osteoarthritis on the left.  Dr. VanHeest recommended she continue bracing and discontinue physical therapy.  Dr. VanHeest also increased the employee’s work restrictions and administered a cortisone injection, which eased her symptoms.  On November 30, 2017, Dr. VanHeest diagnosed the employee with degenerative joint disease of the CMC joints bilaterally, substantially aggravated secondary to the employee’s work activities with the employer.

Dr. Mark Wilczynski examined the employee at the request of the self-insured employer.  He wrote a report dated March 5, 2018, describing bilateral CMC joint arthritis.  In his report, Dr. Wilczynski stated the employee’s work did not involve “the type of forceful and repetitive pinching activities which might be considered causative or aggravating to CMC osteoarthritis.”  He opined that the employee’s bilateral CMC arthritis was idiopathic and likely related to factors of gender and advancing age.  He stated that while pinching activities are known causes of aggravation or acceleration of CMC joint arthritis, the employee did not specifically mention any pinching activities.^[3]  Dr. Wilczynski also stated that although the employee undoubtedly experiences pain at the CMC joints while working, it is no more than that experienced while doing home activities.

On May 10, 2018, Dr. VanHeest administered another set of cortisone injections and completed a report of work ability describing the CMC joint arthritis as work related.

On August 30, 2018, the employee described to Dr. VanHeest increased pain in her CMC joints while working, with less symptoms while at rest.  Dr. VanHeest recommended bilateral trapezium arthroplasty of the CMC joints, treating the more symptomatic right thumb first, followed by the left.  The employee has expressed the wish to undergo this procedure.

On January 11, 2019, Dr. VanHeest wrote a report in which she described the employee’s duties as involving stocking, lifting, pushing, box cutting, and breaking down boxes.  Dr. VanHeest had been provided a “physical demands analysis” (Exhibit G), which was prepared by the employee at her attorney’s request.  Dr. VanHeest diagnosed CMC osteoarthritis bilaterally.  She wrote the “highly repetitive pinching activities” done by the employee for the employer substantially aggravated the employee’s CMC osteoarthritis.  She again recommended bilateral thumb surgery.

At the request of the self-insured employer’s attorney, Dr. Wilczynski was asked to assess whether the employee’s work duties at the MSBA might have led to her CMC joint arthritis aggravation.  In an April 15, 2019, report, Dr. Wilczynski opined that the employee had not sustained a Gillette injury while employed by MSBA.  Dr. Wilczynski was not asked to assess the employee’s work duties at Abbott as a potential causative factor of the employee’s CMC condition.

The employee filed a claim petition seeking approval of the surgery proposed by Dr. VanHeest, a right-sided trapezium arthroplasty and a possible left-sided procedure.  Various providers sought payment of medical bills.

On May 23, 2019, following a hearing, a compensation judge issued a Findings and Order, with an accompanying memorandum.  The compensation judge found the employee engaged in “frequent and repetitive use of her hands in a gripping, grasping or pinching manner.”  (Finding 8.)  In his memorandum, the compensation judge noted that (1) although there were prior thumb symptoms, the employee had no medical care from October 2012 through March 2016; (2) the employee had no thumb treatment or symptoms at the time she commenced her employment; (3) her CMC joint arthritis had not yet been diagnosed at the time she was hired; (4) the employee developed swelling, a new symptom, during the summer of 2017; (5) Dr. VanHeest had an adequate understanding of the broad scope of the employee’s work activities which provided sufficient foundation for her opinion; and (6) the employee credibly testified regarding the nature of her work activities, the development of increasing symptoms while working, and the intensive use of her hands and thumb joints while working.  The compensation judge concluded that the opinion of Dr. VanHeest was more persuasive than that of Dr. Wilczynski, thus finding the employee sustained a Gillette injury to her bilateral CMC joints.  He ordered payment of various medical bills, as well as the recommended bilateral thumb surgery.

The self-insured employer 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 self-insured employer appeals, urging that the compensation judge should have given more consideration to particular facts.  Those include the employee’s pre-existing arthritis, her age at the time she commenced her employment, and the prior medical care rendered to her CMC joints.  The self-insured employer asserts that the employee’s two prior judicially-established work injuries were to her CMC joints, and that those employers should be responsible for the employee’s current claims.  Finally, the self-insured employer argues that Dr. VanHeest’s opinion lacks foundation as there was insufficient evidence of repetitive pinching activities engaged in by the employee, and that such repetitive pinching is the only known cause of aggravating underlying CMC joint arthritis.  We are not persuaded by the self-insured employer’s arguments.

Employers take employees as they find them, together with all the infirmities that an employee may bring to a job.  In other words, employers assume the risk that an employee’s underlying nonwork-related, pre-existing condition could be aggravated by a work injury or by work activity.  Gillette, 101 N.W.2d at 207, 21 W.C.D. at 109.

The question of whether a claim related to a pre-existing condition is compensable depends on whether the employee’s job duties aggravate or accelerate her underlying condition.  See Fenton v. Murphy Motor Freight Lines, Inc., 297 N.W.2d 294, 296, 33 W.C.D. 194, 198 (Minn. 1980).  Contrary to the position taken by the self-insured employer, a pre-existing condition, prior medical care, or the age of the employee, do not alone compel denial of liability.  Instead, a compensation judge may consider the question of liability in light of all the evidence, taking into consideration such factors as the employee’s life history, her work duties, the chronology of the onset of symptoms, the timing and extent of the symptoms, her medical treatment, and her diagnosis.

The self-insured employer cites Rowan v. United States Steel, No. WC08-135 (W.C.C.A. Jul. 7, 2008), for the proposition that where future symptoms are inevitable from a prior medical condition, the finding of a work-related aggravation from a more recent work-related event is inappropriate.  In Rowan, the employee had a longstanding and significant diagnosis regarding his knee.  He had undergone previous treatment.  He was experiencing severe symptoms.  At work, the employee felt a pain in his knee while turning to his left.  We affirmed the compensation judge’s finding that the employee’s knee pain was a manifestation of his pre-existing bone-on-bone osteoarthritis, and that the work activity of a low-energy turning event was not enough to aggravate or accelerate the underlying condition.

This case presents substantially different circumstances.  There is no record of longstanding symptoms, treatment, or diagnoses related to the employee’s CMC joints prior to the commencement of her employment with the self-insured employer.  While the employee had previous bilateral wrist surgeries, there is no evidence the CMC joint was involved in her symptomology or care.  Unlike Rowan, where the compensation judge found that the alleged work injury was an insignificant event, here the compensation judge found that ongoing work activities over the course of two years had affected the employee’s CMC joints until she was symptomatic enough to commence care.  The compensation judge’s findings on this issue are supported by substantial evidence.

The self-insured employer also argues that the compensation judge should have found the employee’s prior employers to be primarily liable for the CMC joint complaints of the employee.  According to the self-insured employer, the employee’s two prior work injuries had established a Gillette injury in the nature of bilateral CMC joint arthritis, and this condition, therefore, cannot be the result of a subsequent Gillette injury pursuant to Michels v. Am. Hoist & Derrick Co., 269 N.W.2d 57, 31 W.C.D. 55 (Minn. 1978).

Yet, there is no medical opinion in the record to suggest that the employee’s work activity while at Abbott or at the MSBA contributed to her CMC joint arthritis or her need for care.  Despite the self-insured employer’s arguments to the contrary, there was never an established prior injury, Gillette or otherwise, to the employee’s CMC joints.  Moreover, Dr. Wilczynski, the self-insured employer’s own medical expert, specifically addressed the employee’s work at the MSBA and concluded that it played no role whatsoever in her CMC joint arthritis.

The self-insured employer then argues that it was incumbent on the employee or her counsel to obtain an opinion that the employee’s work at Abbott and the MSBA played a substantial contributing role in her CMC joint arthritis.  We reject this assertion.  An employee is entitled to pursue her theory of the case relying on available medical evidence, and if she so chooses, to seek out additional medical evidence to support her theory of recovery.  She is not required to pursue all theories nor to obtain evidence in support of other theories.

Finally, the self-insured employer contends that the compensation judge erred in adopting Dr. VanHeest’s opinion.  They argue that the medical evidence clearly establishes that only forceful repetitive pinching activities can cause, aggravate, or accelerate CMC joint arthritis, and that the employee did not engage in such activities while working.  According to the self-insured employer, absent evidence of these forceful repetitive pinching activities, the opinion of Dr. VanHeest fails for lack of foundation.  We are not persuaded.

Dr. Wilczynski wrote, in his first report, that the employee did not engage in the type of forceful and repetitive pinching activities that might cause or aggravate CMC joint arthritis.  Likewise, Dr. VanHeest wrote in her report that the employee engaged in “highly repetitive pinching activities” while working for the employer, which substantially aggravated her CMC joint arthritis.

The evidence in this case is not limited to those two sentences or two opinions.  Dr. VanHeest was provided with lengthy descriptions of the employee’s work activities.  The employee described repetitive consistent uses of her hands at work as including pinching, as well as gripping, grasping, tearing, and handling.  Dr. VanHeest was aware of these activities, discussed some of those activities in her report, and concluded that such activities substantially aggravated the employee’s underlying CMC joint arthritis to the point that is was symptomatic and necessitated surgery.  In the treatment notes from her first and second interactions with the employee, Dr. VanHeest stated that the employee’s CMC joint arthritis was substantially aggravated by her work activities.  Similarly, Dr. Mellick characterized the employee’s CMC joint arthritis as aggravated by work activities.  Even Dr. Wilczynski confirmed that the employee experienced CMC joint arthritis symptoms while engaged in her work activities, concluding that the employee’s job “is not accelerating her pre-existing osteoarthritic change any more than her housework does.”

After review of the medical records, the opinions contained therein, the employee’s testimony, and the narrative reports, we conclude substantial evidence supports the compensation judge’s findings and conclusions.

Because substantial evidence supports the compensation judge’s findings that the employee suffered a work-related Gillette injury to her bilateral CMC joints necessitating surgery, we affirm.