MARA TELLEZ, Employee/Respondent, v. JBS USA, LLC, and SEDGWICK CLAIMS MGMT. SERVS., INC., Self-Insured Employer/Appellants, and SANFORD HEALTH, ORTHOPEDIC INST., and VOCATIONAL RESTORATION SERVS., INC., Intervenors.

The self-insured employer appeals from the findings that the employee sustained Gillette^[1] injuries to the right shoulder, left carpal tunnel, left trigger fingers, and recurrent right carpal tunnel, culminating in disability on July 23, 2019.  We affirm.

The employee, Maria Tellez, began working in the meat processing industry in 1986.  She is a resident of Worthington, Minnesota.

She started working for the employer, JBS USA, a Worthington meat processing firm, in January 2007 on the employer's "picnic line" trimming hog shoulders.  This job required her to use a vibrating "Whizard knife" to remove the skin from pork shoulders that came down a conveyor belt.  The job is described as very repetitive.  She held the knife in her right hand and grasped a hook in the left hand which was used to move and turn the shoulders as necessary to remove the skin.  The shoulders typically weighed from 25 to 30 pounds.  She testified that at times, as many as 2,500 shoulders could come down her line during a single shift.  The employee stood on an adjustable platform which raised and lowered as needed, but she testified that because she needed to work at the same level as a shorter co-worker to avoid injuries to one another, she rarely used this and generally worked in a slightly hunched forward position.  The employee testified that she used her arms extended in front of her through her full shift.  She normally worked forty hours a week Monday through Friday with occasional overtime.

The employee acknowledged that none of her repetitive work activities on the picnic line were above chest or at shoulder level.  However, when asked whether any of her work activities required her to reach above her head, she testified that sometimes the line would “get stuck and the shoulders [would] stop,” and she would need to “throw them up to unclog the line,” using her hands to lift them up.  (T. 64-65.)

The employee sustained an injury to her right hand and wrist on April 18, 2012, when she fell at work and landed on her right hand.  The compensation judge below found that this injury was temporary and resolved shortly after the incident.  No appeal has been taken from this finding.

On July 11, 2017, the employee saw Dr. Quentin Tanko at Sanford Health Services for numbness and tingling in her right hand.  She was diagnosed with carpal tunnel syndrome due to her repetitive work and was referred for an EMG.  The EMG showed findings consistent with right carpal tunnel.  On November 20, 2017, after reviewing the EMG results, Dr. Tanko reiterated his view that the employee's carpal tunnel was related to the use of vibrating tools at work.  He also diagnosed a cubital tunnel condition but considered it unrelated to the employee’s work activities. The self-insured employer accepted primary liability for the employee’s right carpal tunnel syndrome and she underwent right carpal tunnel release surgery on January 19, 2018.  On February 17, 2018, she returned to work with restrictions by Dr. Tanko.

The employee was seen again by Dr. Tanko on March 1, 2018.  She reported some continued pain in her right hand, but Dr. Tanko released her to return to work at her regular duties without restrictions.

Dr. Paul Cederberg performed an independent medical evaluation for the self-insured employer on September 21, 2018.  He also diagnosed the employee with carpal tunnel syndrome of the right wrist as a result of her use of vibratory tools at work.  He also noted a mild adhesive capsulitis of the right shoulder but opined that this would normally be expected to resolve without treatment within 12 to 18 months.

When seen by a certified nurse practitioner on October 19, 2018, the employee was sore over her incision site but denied any pain, numbness, tingling, or weakness in her right hand.  The nurse practitioner noted that the self-insured employer had denied recommended occupational therapy, such that the employee was at the end of her care.  She suggested the employee massage the area of her surgical scar.

The employee did not have any work restrictions until April 2019.  She continued to work in her regular job on the picnic line.  She testified that after returning to work on the picnic line her righthand symptoms eventually worsened.  She also began feeling that “something was pulling her” and experiencing increased pain in her shoulders.  (T. 50-52, 80-81.)

On April 23, 2019, the employee returned to Sanford Health Services where she was seen by Dr. Paul Reynen.  She reported that she was experiencing a shock sensation in her right arm and pain into the right shoulder.  Dr. Reynen diagnosed residual right carpal tunnel syndrome or median nerve issues, and a possible right shoulder injury.  He administered a right shoulder injection and imposed work restrictions which disallowed repetitive work or lifting with the right hand.

Thereafter, the self-insured employer provided the employee with job duties that did not require repetitive use of the right hand.  According to the employee’s testimony, she initially was tasked with using the left hand to hook meat so that another worker could trim it.  Some months later, she was given somewhat different work that involved throwing away pieces of fat.  She testified that this latter “light duty” job did involve work above shoulder level.  (T. 53, 65.)  While on light duty, the employee began to note cramping in her left hand and pain in her hand after work and through the night.

On May 14, 2019, the employee was seen by Dr. Reynen for follow up on her right shoulder.  The employee reported no significant relief from the right shoulder injection.  Dr. Reynen thought the right shoulder symptoms were the result of overuse.  He did not think surgery would be necessary and recommended physical therapy and a continuation of her light duty restrictions.

At physical therapy sessions in early June 2019, the employee reported her left arm was getting sore and numb from working all day.  She was at that time clipping shoulders using only the left arm.  She also reported pain in her right shoulder, upper arm, medial elbow and wrist, and an “electric current” pain down her arm with tingling in her hand and fingers, when using her arm overhead.

On June 11, 2019, the employee was seen in follow up by Dr. Reynen and reported significant right upper extremity pain.  Dr. Reynen noted that the employee continued to show impingement in her shoulder and referred her for an MRI of the right shoulder.  The scan was performed on June 13, 2019, and showed a partial tear involving the supraspinatus tendon (“PASTA tear”), posterior superior labral fraying without an acute tear, biceps tendinopathy with fraying or partial tear of the biceps tendon and mild tenosynovitis, AC joint arthritis, a prominent bone spur in the lateral under surface of the acromion, and bursitis.

On July 23, 2019, the employee was seen by a nurse practitioner at the Orthopedic Institute for right shoulder pain, left carpal tunnel symptoms, triggering of her left index finger and locking of her left ring finger.  An EMG was done on August 27, 2019.  It showed moderate carpal tunnel syndrome on the left and moderate recurrent carpal tunnel on the right.

The EMG report was reviewed by Dr. Jeffrey Kalo, who saw the employee in follow up on August 27, 2019.  Diagnostic signs for carpal tunnel syndrome were positive on examination at the left and right and the left wrist showed some wasting of the thenar musculature.  The employee was showing significant triggering of the left ring finger.  Dr. Kalo also documented right shoulder pain with symptoms of shoulder impingement and rotator cuff issues.  He recommended that the employee undergo left carpal tunnel and trigger finger release surgery, with her right wrist and right shoulder issues then to be addressed at a later date.

Dr. Cederberg performed a second independent medical evaluation of the employee on September 17, 2019.  He prepared a report dated October 14, 2019.  In it, Dr. Cederberg noted his examination findings that the employee showed normal active shoulder range of motion and negative impingement tests, and that he did not find any shoulder condition requiring further treatment.  He stated that he had not been provided any radiological studies to review.  He diagnosed a healed right carpal tunnel release with residual subjective symptoms unsupported by objective findings.  He did not believe the employee needed any further care for her shoulders or hands.

Dr. Kalo saw the employee again on December 10, 2019 and noted that the employee’s right shoulder examination was unchanged.  He also noted some symptoms present in the left shoulder which he speculated could also be the result of overuse.  The employee asked about a steroid injection, but Dr. Kalo declined that form of treatment because he felt that steroids could increase the risk that rotator cuff surgery would be unsuccessful.

The employee’s attorney sent a letter to Dr. Kalo on January 20, 2020, asking his opinion as the employee’s treating physician.  The attorney sent an identical letter to Dr. Robert Wengler, an independent medical examiner, from whom he also requested an examination and opinion.  The letter set out the employee’s medical history, enclosed her medical records and the IME reports of Dr. Cederberg.  It described the employee’s work activities in the picnic line as follows:

Dr. Wengler examined the employee on January 23, 2020.  He reviewed her medical records and Dr. Cederberg’s IME reports, and took a history from the employee regarding her work, symptoms, and medical treatment.  Dr. Wengler opined that the employee had a partial-thickness tear of the rotator cuff of the left shoulder which needed arthroscopic repair.  He also found bilateral carpal tunnel syndrome and triggering of the left index and left ring fingers.  He opined that the employee’s current orthopedic problems were the result of Gillette injuries related to her work activities for the self-insured employer.  Dr.  Wengler’s report briefly summarized his understanding of the employee’s work duties and medical history:

In his narrative report dated March 12, 2020, responding to the January 20, 2020, letter, Dr. Kalo diagnosed the employee with overuse problems and a high-grade partial-thickness rotator cuff tear in the form of a PASTA lesion.  He noted that she did not have a documented rotator cuff tear on the left.  In response to the question whether she had sustained a Gillette injury to her bilateral shoulders as a result of her work activities, Dr. Kalo stated:

Dr. Cederberg prepared a supplemental report dated March 18, 2020, after being provided with updated medical records as well as information regarding the employee’s MRI and EMG studies.   Dr. Cederberg noted that the employee’s recent EMG showed evidence of recurrent right carpal tunnel syndrome and acknowledged that “[o]ccasionally carpal tunnel syndrome recurs after surgery.”  He now considered the employee a candidate for right carpal tunnel surgery.  He agreed that she also showed left carpal tunnel syndrome which required surgery but did not consider this to be related to the employee’s work activities, “since she was right-handed and using the Whizard knife predominantly with her right hand.”  He felt that the employee would require surgery for the mechanical triggering in her left hand but viewed this as an idiopathic condition unrelated to her work activities.  After reviewing the MRI scan of the employee’s right shoulder, he agreed that the employee had a rotator cuff tear.  However, he opined that this condition was the result of an age-related degenerative process unrelated to her work activities.

A hearing was held before a compensation judge on April 3, 2020, on the employee’s claim for injuries to her bilateral hands, bilateral shoulders, and right upper extremity for dates of injury of April 18, 2012, November 21, 2017 (Gillette), January 19, 2018 (Gillette), and July 23, 2019 (Gillette).  At hearing the self-insured employer stipulated that it had approved the recommended revision right carpal tunnel surgery, so that the surgery for that condition was not in dispute.  Following the hearing, the compensation judge determined that the April 18, 2012, right wrist injury was temporary and that the preponderance of the evidence did not support a finding that the employee sustained a left shoulder Gillette injury.  These findings were not appealed.  The compensation judge further found that the employee sustained Gillette injuries to her right shoulder, left carpal tunnel, left trigger fingers, and recurrent right carpal tunnel, culminating in disability on July 23, 2019.  The self-insured employer appeals the compensation judge’s findings of Gillette injuries with respect to the right shoulder, left carpal tunnel, left trigger fingers, and recurrent right carpal tunnel.

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 from the compensation judge’s findings that the employee sustained Gillette injuries to her right shoulder, left carpal tunnel, left trigger fingers, and recurrent right carpal tunnel culminating in disability on July 23, 2019.

The employee’s claim was that of a Gillette injury.  A Gillette injury is a result of repeated trauma or aggravation of a pre-existing condition which results in a compensable injury when the cumulative effect is sufficiently serious to disable an employee from further work.  Gillette, 257 Minn. at 321-22, 101 N.W.2d at 205-06, 21 W.C.D. at 111-13; see also Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981).  In order to establish a Gillette injury, an employee must “prove a causal connection between [her] ordinary work and ensuing disability.”  Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).

In the present case, three physicians, Drs. Wengler, Kalo and Cederberg, offered expert opinions.  All three agreed that the employee had right shoulder, left carpal tunnel, left trigger finger, and recurrent right carpal tunnel conditions requiring surgical treatment, but disagreed as to the cause of these conditions.  Drs. Wengler and Kalo attributed all these conditions to the employee’s repetitive work for the self-insured employer, in the form of Gillette injuries.  By contrast, Dr. Cederberg considered the employee’s right shoulder and trigger finger conditions to be due to an idiopathic aging process.  Dr. Cederberg also did not find a work connection for her left carpal tunnel symptoms due to his expressed view that her repetitive work had involved only her right hand.  In his 2019 report, Dr. Cederberg offered the opinion that the employee’s right carpal tunnel condition had been healed by her carpal tunnel surgery in 2018, and that her claims of ongoing symptoms were unsupported by objective evidence, although his 2020 addendum acknowledged that there were now EMG findings supporting residual right carpal tunnel issues, and that surgery for those issues was appropriate.

The compensation judge accepted the opinions of Dr. Wengler and Dr. Kalo over those of Dr. Cederberg regarding these conditions, considering their opinions more consistent with the overall record.  It is the role of the compensation judge to determine whether contrary expert opinions have adequate foundation and, if both have adequate foundation, to decide which of them is more credible and persuasive.  See Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 803 (Minn. 2017).  As a general rule, this court must affirm a compensation judge’s choice between competing expert opinions “unless the facts assumed by the expert in rendering his or her opinion are not supported by the evidence.”  Pelowski v. K-Mart Corp., 627 N.W.2d 89, 93 (Minn. 2001) (citing Nord v. City of Cook, 360 N.W.2d 337, 342–43 (Minn. 1985)).

The self-insured employer argues that Dr. Kalo’s opinion as to causation for the employee’s right shoulder PASTA tear and overuse conditions was based on a mistaken view of her work duties that renders that opinion without foundation.  Specifically, the self-insured employer points to the language in Dr. Kalo’s narrative report dated March 12, 2020, in which he stated “many people at work in overhead would sustain this type of injury.”  (Ex. J.)  The employer contends that this language demonstrates that Dr. Kalo believed the employee did repetitive overhead work, which would be contrary to the evidence regarding her duties on the picnic line.

We do not find this quotation persuasive evidence that Dr. Kalo was basing his opinion about causation for the employee’s right shoulder condition on the view that she performed repetitive overhead work.  Dr. Kalo had been furnished with a letter accurately describing the employee’s job duties and had taken a history from the employee about her work activities and symptoms, both for the purposes of this letter report and generally as a treating physician.  In her hearing testimony, the employee was asked if she had described her job duties to Dr. Kalo and answered “yes”.  She also testified that Dr. Kalo expressed familiarity with the job tasks performed at the self-insured employer’s plant and had seen other patients with similar conditions that had been associated with various jobs at that plant.  (T. 53.)  This permits the compensation judge to reasonably interpret the doctor’s statement was intended generally, and not as a specific explanation for the employee’s symptoms as dependent on overhead work.  We note, also, that the employee did testify that she occasionally had to work with her arms raised when there were problems with the flow of pork shoulders along the line which caused it to stop.  Here, the compensation judge concluded in her memorandum that this statement was not fatal to the foundation to Dr. Kalo’s opinion.  We are not persuaded that the statement requires us to overrule the judge’s decision to accept Dr. Kalo’s opinion as adequately founded.

We note, also, that Dr. Wengler offered the opinion that the employee’s work activities were causally related to her right shoulder condition.  There is no language in Dr. Wengler’s report to suggest that he was of the opinion that the employee performed repetitive overhead work.  We conclude that Dr. Wengler had an accurate history of the nature of the employee’s job, and when the right shoulder symptoms began.  His opinion has adequate foundation.  Thus even if we were to accept the argument that Dr. Kalo’s opinion was insufficient on this issue, that argument does not apply to the opinion of Dr. Wengler, which itself provides sufficient support for the compensation judge’s finding on causation for the employee’s right shoulder condition.

A compensation judge may rely on an expert opinion if it has “an adequate factual foundation.”  Hudson v. Trillium Staffing, 896 N.W.2d 536, 540 (Minn. 2017) (citation omitted). The expert opinion “need only be based on ‘enough facts to form a reasonable opinion that is not based on speculation or conjecture.’”  Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 621 (Minn. 2017) (quoting Gianotti, 889 N.W.2d at 802).  The self-insured employer argues that neither doctor had a sufficient understanding of the employee’s job duties, as neither viewed a video of the picnic line in operation.  We do not think this demonstrates an insufficient understanding of the employee’s duties.  Both doctors were provided a letter describing the employee’s job duties in terms that are consistent with the employee’s testimony and the video evidence.  Both doctors had the opportunity to question the employee about her duties and symptoms.  Both provided a medical opinion based on their review of this information about the employee’s work duties, her medical records and history, and their examination findings.

The information relied upon by Drs. Kato and Wengler was sufficient to establish adequate foundation for their opinions.  See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978); Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003).

The employer cites Reese v. North Star Concrete, 38 W.C.D. 63, 65-6 (W.C.C.A. 1985), for the proposition that proof of a Gillette injury requires that an employee prove “in what specific manner . . . specific work activity caused specific symptoms which led cumulatively and ultimately to disability.”  The self-insured employer argues that neither Dr. Wengler nor Dr. Kalo discussed the employee’s job duties in sufficient detail or linked them to specific symptoms using this kind of analysis.  Accordingly, the self-insured employer argues, the employee failed to meet her burden of proof.  Pointing out that where an employee fails to meet her burden of proof, an employer has no obligation to present evidence that an injury did not occur, the self-insured employer in this case argues that substantial evidence fails to support the compensation judge’s findings.

We are not persuaded that the opinions of Dr. Wengler and Dr. Kalo were insufficient for want of this kind of analysis.  We note that the Reese standard was expressly overruled by the Minnesota Supreme Court in Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).  In that case, the court held that while evidence of specific work activity causing specific symptoms leading to a disability “may be helpful as a practical matter,” determination of a Gillette injury “primarily depends on medical evidence.”  See id. (citing Marose v. Maislin Transp., 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987)).  A “particularized analysis” was not required for the employee to meet her burden of proof.

The compensation judge’s findings are affirmed.