RICHARD G. HAMBLE, Employee/Respondent, v. ANDERSEN CORP. and OLD REPUBLIC INS. CO./LIBERTY MUT. INS. CO./HELMSMAN MGMT. SERVS., Employer-Insurer/Appellants.

The employer and insurer appeal from the compensation judge’s finding that the employee sustained a Gillette^[1] injury to his left knee culminating on October 26, 2017.  We affirm.

The employee, Richard Hamble, has worked for the employer, Andersen Corporation, for more than thirty years.  Since 1987, he has held a number of manufacturing positions, all of which were physical in nature to some degree.  The employee sustained multiple past work injuries, including injuries to his left shoulder and right knee.  At issue in this appeal is the employee’s claim of a Gillette injury to his left knee, culminating on October 26, 2017.

On October 26, 2017, the employee was working as a machine operator, responsible for two machines.  This position involves loading product into the machine, checking on the product while it is in the machine, and unloading product from the machine.  His constant checking of the product in the machine requires him to continuously walk the length of the machines, and repeatedly go up and down steps.  The employee testified that because he underwent total right knee replacements, he relied more on his left knee in using the steps.  While this position does not require heavy lifting, it does require that the employee be on his feet and moving for nearly his entire workday.

Prior to starting the machine operator position in 2012, the employee was a glass layer for approximately fifteen years, and prior to that, he worked as a bead roller for six to seven years.  These positions required the employee to be on his feet.  The employee testified to the physical requirements of these positions, including heavier lifting and significant twisting and bending.  While working in these positions, the employee sustained numerous work-related injuries and underwent multiple surgeries, including rotator cuff repair surgery to his left shoulder and repeat total right knee replacements.  This medical care was rendered by Dr. Nicholas Weiss of Twin Cities Orthopedics over the course of many years.  The employee testified that he had a long relationship with, and trusted, Dr. Weiss.

The employee could not recall when symptoms in his left knee began.  He testified to persistent pain in 2016, though he did not seek medical care or request work accommodations.  It was not until a May 15, 2017, medical record of occupational doctor, Elizabeth Alm, M.D., that complaints of left knee pain were noted.  Treatment to the left knee was not provided on that date because the primary focus of that visit was the employee’s left shoulder.  The employee testified that between May and October 2017, his left knee pain would come and go, that sometimes it would “settle down” and that other times it would not, but that he worked through the pain.^[2]

On October 26, 2017, while walking out of work, the employee’s left knee “gave out” and was “very painful.”^[3]  Two days later, the employee presented at the Westfields Clinic emergency room because his left knee pain was “throbbing” and “brutal,” and he could “barely walk.”^[4]  He then followed up with Dr. Alm.  In her treatment notes, Dr. Alm indicated that she thought it unlikely that the employee’s work contributed to his condition.

The employee saw Dr. Weiss for an orthopedic evaluation of his left knee condition on November 20, 2017.  An MRI was ordered and showed a degenerative tear of the medial meniscus.  On January 2, 2018, Dr. Weiss performed an arthroscopic partial medical meniscectomy.  The employee had a positive recovery from the surgery and has since returned to work with no physical limitations or restrictions.

On February 28, 2018, the employee underwent an independent medical evaluation (IME) by Dr. Michael D’Amato on behalf of the employer and insurer.  Dr. D’Amato reviewed medical records, reports, and films, interviewed the employee, and performed a physical examination, all of which were outlined in his March 9, 2018, report.  Dr. D’Amato explained that the employee’s meniscus tear was degenerative in nature and would not have resulted from an acute injury.  Among other conclusions, Dr. D’Amato opined that the employee’s work activities over the previous 32 years would not have resulted in any repetitive use injury to his left knee.

Dr. Weiss issued a narrative report dated September 24, 2018.  He indicated that he had reviewed a letter prepared by the employee’s counsel and the report of Dr. D’Amato.  With respect to the employee’s claim of a Gillette injury to his left knee, Dr. Weiss considered the employee’s many years of physical, “heavy type” work with the employer.^[5]  He opined that the employee’s condition was “more likely than not” a “Gillette type injury with cumulative injury over the years to his meniscus.”^[6]

Dr. D’Amato issued a supplemental report on October 8, 2018, upon review of the report of Dr. Weiss.  Dr. D’Amato questioned Dr. Weiss’s characterizations of the employee’s work with the employer, stating that the work duties did not qualify as heavy, and did not require significant repetitive bending, squatting, or twisting activities.  Dr. D’Amato also questioned whether the opinions of Dr. Weiss were expressed with an adequate level of medical certainty.

In early 2018, the employee filed a claim petition seeking various benefits arising out his claim of a Gillette injury to his left knee culminating on October 26, 2017.  The matter was heard by a compensation judge at the Office of Administrative Hearings on June 6, 2019.  The sole issue identified by the parties for the compensation judge’s resolution was whether the employee sustained a Gillette injury, as claimed.  By Findings and Order dated June 25, 2019, the compensation judge ruled in favor of the employee.  In awarding the employee’s claim, the compensation judge rejected the opinion of Dr. D’Amato and concluded that the opinion of Dr. Weiss, in addition to the employee’s credible testimony regarding the nature of his work duties and the progression of his symptoms, established causation between the employee’s work and his left knee condition.  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.”^[7]  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.”^[8]  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.^[9]  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.”^[10]  

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.^[11]

The employer and insurer appeal from the compensation judge’s finding that the employee sustained a Gillette injury to his left knee as a result of his work for Anderson Corporation.  They contend the judge’s reliance on the opinions of Dr. Weiss in finding the employee sustained a Gillette injury is legal error, asserting Dr. Weiss’s report lacks adequate foundation and was therefore insufficient support for a finding of a Gillette injury.  We are not persuaded by the employer and insurer’s argument.

The burden to establish a Gillette injury is on the employee to show “a causal connection between [his or] her ordinary work and ensuing disability.”^[12]  Establishing a Gillette injury depends primarily on medical evidence.^[13]  In addition, a compensation judge should consider the nature and extent of the employee’s specific work duties, and “weigh all of the evidence in the case to decide whether the work activities caused the disability.”^[14]

The employer and insurer assert that, contrary to the compensation judge’s determination and analysis in his memorandum, the medical opinion of Dr. Weiss lacks adequate foundation.^[15]  The employer and insurer contend Dr. Weiss’s opinion was essentially three separate opinions offered as alternative theories, none of which was expressed to a reasonable degree of medical certainty.  We disagree.

Dr. Weiss wrote his September 24, 2018, report to the employee’s attorney in direct response to the opinion of Dr. D’Amato.  Initially,  Dr. Weiss responded to Dr. D’Amato’s opinion that there was no acute injury on October 26, 2017, by stating, “it certainly is within the realm of possibility that he may have injured the knee that day, but [. . .] he may not have been aware of that injury [. . .] [until it] became more noticeable.”^[16]  Dr. Weiss did not say there was an acute injury on that date and the employee never claimed such.  Dr. Weiss responded to Dr. D’Amato’s opinion that there was no Gillette injury culminating on October 26, 2017.  He said, “it would be very unreasonable to suggest that in no way could this be a Gillette type injury.”^[17]  The employer and insurer on appeal characterize this as a “double negative” opinion, but taken in context, we read this as a direct reply to Dr. D’Amato’s opinion.  Finally, Dr. Weiss offered his own opinion that “it would be more likely than not that [the employee’s] noted pathology was a Gillette type injury with cumulative injury over the years to his meniscus.”^[18]  This expert opinion meets the requisite level of certainty on which the employee relied upon in making his claim.

In his report, Dr. Weiss opines that the employee’s left knee condition was a cumulative injury considering the effect of the employee’s many years of work for the employer involving heavy type work, bending, squatting, and twisting.  The employer and insurer take issue with Dr. Weiss’s description of the employee’s work duties, essentially stating that the doctor’s consideration of work duties should have been limited to only those work activities the employee engaged in as a machine operator in the last five to six years.  However, Dr. Weiss has treated the employee over a number of years.  At the time Dr. Weiss rendered treatment for the employee’s right knee, by one example, the employee was working as a glass layer.  In his testimony and during his interview with Dr. D’Amato, the employee described bending, kneeling, and twisting work activities in his prior positions with the company.  It was reasonable for Dr. Weiss to consider work activities engaged in prior to 2012 when the employee became a machine operator because his degenerative condition is cumulative and progressed over time.

As previously stated, Dr. Weiss has treated the employee over a number of years and for multiple work-related injuries.  Dr. Weiss performed the meniscus repair surgery in January 2018.  Furthermore, he reviewed the adequately founded opinion and thorough report submitted by Dr. D’Amato.^[19]  The opinion of Dr. Weiss as expressed in his September 24, 2018, report is adequately founded and not based upon speculation or conjecture.

In addition to Dr. Weiss’s opinion, the compensation judge considered other evidence in finding the employee sustained a Gillette injury to his left knee as a result of his work for the employer culminating on October 26, 2017.  He concluded that Dr. Weiss’s report, the medical records, and the employee’s credible testimony regarding the development and ongoing nature of his symptoms collectively established a causal connection.  Based upon the employee’s testimony, the judge specifically found the employee’s usual work activities of standing, walking, and stepping up and down two sets of two steps, were required of the employee to perform his job and were a factor in the cumulative event.  Because the opinion of Dr. Weiss was based upon adequate foundation, as was the opinion of Dr. D’Amato, our review of the compensation judge’s decision is limited to a review under the substantial evidence standard.  This court must affirm a compensation judge’s choice between competing expert opinions so long as the chosen opinion is based upon adequate foundation and is supported by substantial evidence in view of the whole record.^[20]  The compensation judge’s determination that the employee sustained a Gillette injury culminating on October 26, 2017, is affirmed.