CAUSATION – GILLETTE INJURY. Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee had not sustained Gillette injuries to her low back or right hip while working for the employer.
EVIDENCE – EXPERT MEDICAL OPINION. The compensation judge was not required to accept the treating doctors’ diagnoses and impressions over the opinion of the employer’s medical expert.
Compensation Judge: Stephen R. Daly
Attorneys: Pro se appellant. Elyssa J. Weber, State of Minnesota, St. Paul, Minnesota, for the Respondent.
Affirmed.
GARY M. HALL, Judge
The pro se employee appeals from the compensation judge’s finding that the employee did not sustain work-related Gillette[1] injuries to her low back or right hip on June 14, 2017, or November 9, 2017, and from the denial of her claims for workers’ compensation benefits. We affirm.
BACKGROUND
Wendy L. Ruchti, the pro se employee, began working for the self-insured employer, Minnesota Department of Employment and Economic Development (DEED), on November 10, 2014. She was initially hired as a workforce development representative, which consisted primarily of clerical and desk-type work. Beginning in March 2017, the employee took on additional job responsibilities as an onsite hiring event coordinator. Along with her clerical responsibilities, once a week the employee was required to move approximately seven rectangular cafeteria-style tables from one room, down a hallway to another room, set them up, and return the tables at the end of the day. The employee also had to set out a fold-out plastic sandwich board at the end of the curb.
The record shows that the employee had a prior history of work-related injuries. On March 23, 1999, and September 26, 2000, while employed as a flight attendant, the employee sustained injuries to her low back. On December 28, 2000, the employee was seen by Dr. David Nerothin at Ridgeview Medical Center Pain Clinic complaining of low back, right hip, groin, and leg pain. She was diagnosed with a myofascial injury and/or discogenic versus nerve root irritation and subsequently underwent injections and physical therapy.
On May 15, 2001, the employee was seen by Dr. David Schultz at Medical Advanced Pain Specialists and underwent a lumbar discography which revealed a pain-generating disc at the L5-S1 level. She underwent an intradiscal electrothermal therapy procedure on July 20, 2001. On September 25, 2001, Dr. Schultz provided a narrative report regarding the September 26, 2000, injury. He opined the employee sustained an injury to the posterior annulus of the L5-S1 disc when she twisted her low back, which resulted in lumbar internal disc disruption at L5-S1 with chronic, disabling low back pain. He opined the employee sustained 7 percent permanent partial disability to her lumbar spine as a result of the work injury.
In February 2010, while working for Northwestern Health Sciences University, the employee began experiencing discomfort in her low back again, and to a lesser degree, in her right hip and leg. The employee treated with Dr. Fred Lux on March 11, 2010. She complained of low back, right hip, and leg pain. An MRI scan performed on March 12, 2010, and an EMG performed on March 18, 2010, were read as normal. On April 7, 2010, the employee underwent an independent medical examination by Dr. Thomas Raih on behalf of Northwestern Health Science University and its workers’ compensation insurer. Dr. Raih opined that the employee sustained a lumbar sprain/strain and a cervical sprain/strain as a result of the February 6, 2010, injury, both of which resolved. He also opined that the employee suffered from trochanteric bursitis of the right hip unrelated to the February 6, 2010, injury. The employee saw Dr. Lux again on June 19, 2012, to review MRI and EMG scan results. She had a small posterior central disc herniation at C5-6 with mild central stenosis without any neural foraminal impingement or cord compression. Physical therapy was recommended.
After the employee began working for the self-insured employer in 2014, the employee was seen by Dr. Joseph Nemanich at Twin Cities Orthopedics on November 9, 2017, for complaints of bilateral hip pain over the preceding year with no known mechanism of injury. (Ex. O.) She reported joint pain, joint stiffness, back pain, neck pain, and joint locking. Based upon a physical examination and x-rays of the employee’s pelvis and bilateral hips, Dr. Nemanich opined the employee’s right hip symptoms were worrisome for labral or impingement type pathology. He also recommended an MRI scan and a consultation with Dr. Jason Holm. The employee’s left hip symptoms were consistent with trochanteric bursitis and she was given a left hip injection.
The employee was evaluated by Dr. Holm at Twin Cities Orthopedics on November 21, 2017. She reported intermittent bilateral hip pain for approximately one year with no known injury. Dr. Holm reviewed the right hip MRI scan and diagnosed a right hip labral tear with possible associated femoroacetabular impingement (FAI) as well as associated greater trochanteric and deep gluteal pain. The employee was treated with a steroid injection and physical therapy.
The employee filled out an incident form on January 5, 2018, indicating she sustained injuries to her back and hips as a result of “pushing, pulling, tugging, and moving long cafeteria tables from one room to another” since March 2017. She also reported moving a “large awkward sandwich board sign.” (Ex. 7.)
The employee saw Dr. Jamie Birkelo at Twin Cities Orthopedics on January 8, 2018. She complained of bilateral hip pain and reported no significant improvement following the November 2017 hip injection. She reported that she experienced more low back pain as a result of physical therapy. At this appointment, the employee also indicated that her symptoms began with her work activities involving lifting and moving tables. A CT scan of her bilateral hips was unremarkable with no evidence of FAI. The employee returned for a follow up visit with Dr. Holm on January 16, 2018. Dr. Holm noted that her right hip MRI scan did not show obvious impingement, but he suspected some degree of impingement and recommended a hip arthroscopy with impingement correction and labral repair. The employee was also given work restrictions of no moving furniture, tables, or a sandwich board, allowing frequent change in position from sitting to standing, and an evaluation for an ergonomic chair and a standing desk, if possible.
The employee treated with Dr. Schultz again on January 19, 2018, and underwent a lumbar discography which showed two pressure sensitive discs at the L3-4 and L4-5 levels. Dr. Schultz recommended a biacuplasty procedure.
On March 20, 2018, Dr. Holm diagnosed the employee with a right hip labral tear with impingement. The employee was given updated work restrictions of intermittent change of positions and breaks as needed. Dr. Holm again recommended right hip surgery.
During this time, the employee had also been treating with her primary doctor, Dr. Jamie Dyer at Allina Health Clinic. On March 22, 2018, Dr. Dyer wrote a workability note taking the employee off work completely from March 16 through March 23, 2018.
On July 12, 2018, the employee underwent an independent medical examination (IME) conducted by Dr. Sarah Elert at the request of the self-insured employer. Dr. Elert simultaneously issued her initial report and an addendum report on July 31, 2018. Dr. Elert noted the employee’s work activities, once a week, included moving heavy cafeteria-style tables down a hallway to another room, moving a heavy sandwich board to the curb, and then moving these items back at the end of the shift. This equated to 20% of her work time each week. She opined the employee sustained lumbar and right hip strains as a result of her work activities on or around June 14, 2017, which most likely occurred during a lift, push, or pull of the heavy cafeteria-style tables or sandwich board and resolved within six weeks, at which point the employee reached maximum medical improvement. She also opined that the employee sustained no permanent partial disability for either her low back or right hip and there was no objective evidence of ongoing symptoms related to the lumbar and right hip strains. Dr. Elert determined the employee’s work activities were not substantial contributing factors to the alleged low back and right hip Gillette injuries based upon the employee’s work being primarily clerical and desk-based.
In addition, Dr. Elert opined that the recommended biacuplasty procedure was not reasonable or necessary medical treatment for the employee’s lumbar strain injury because the procedure would not address a soft tissue injury such as a lumbar strain and no additional treatment was necessary as the lumbar strain had resolved. Dr. Elert noted that the employee’s MRI scan from December 28, 2017, showed normal aging changes from the previous 2000 and 2010 MRI scans of her lumbar spine, that a CT scan of the employee’s bilateral hips was negative for FAI, and that the employee failed to receive any significant pain relief from the steroid injection to her right hip.
Finally, Dr. Elert raised a concern about inconsistencies in the employee’s reporting of the timeline of her symptoms, noting that during her initial visit with Dr. Nemanich on November 9, 2017, the employee reported ongoing symptoms “for about a year with no known mechanism of injury.” (Ex. O.) On November 21, 2017, she reported to Dr. Holm a similar history of ongoing pain for one year with no known injury for her bilateral hip pain. Dr. Elert pointed out that later documentation indicated the employee reported the onset of her low back and right hip symptoms began after repetitive work activities in March 2017 when she began her weekly set-up and tear down duties. Dr. Elert did not ascribe the employee’s current symptoms to early degenerative disease at L3-4 and L4-5 shown in the December 2017 lumbar spine MRI scan or to the right labral tear. She opined that the employee may be predisposed to impingement given an over covering of the femoral head as indicated on her right hip MRI scan, which is a risk factor for labral tearing independent of and unrelated to her work activities.
The employee claimed a Gillette low back injury culminating on or about June 14, 2017, and Gillette injuries to her low back and right hip culminating on or about November 9, 2017, as a result of her work activities. The self-insured employer denied primary liability. A hearing was held before a compensation judge on August 19, 2020. The employee was not represented by an attorney at the hearing.
In the Findings and Order served and filed on September 24, 2020, the compensation judge determined that the employee did not sustain Gillette injuries to her low back or right hip culminating on June 14 or November 9, 2017, and denied the employee’s claims for workers’ compensation benefits. The compensation judge found the opinion and conclusions of the employer’s medical expert, Dr. Elert, persuasive. The judge also found the employee had a history of significant prior low back and right hip pain before she started working for the self-insured employer, there was insufficient proof of a causal connection between the employee’s work activities and the onset of her symptoms, and the mechanism of the alleged Gillette injuries was not explained or proven.[2] The pro se employee appeals the decision of the compensation judge. [3]
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).
A compensable Gillette injury occurs when an employee “is injured gradually by reason of the duties of employment and eventually becomes disabled . . . .” Steffen v. Target Stores, 517 N.W.2d 579, 580, 50 W.C.D. 464, 466 (Minn. 1994). In order to establish a Gillette injury, an employee “must prove a causal connection between [the employee’s] ordinary work and ensuing disability.” Id. at 581, 50 W.C.D. at 467. Determination of a Gillette injury primarily depends upon medical evidence, but the nature and extent of the employee’s work activities should also be considered. Gunderson v. McNeilus Cos., 73 W.C.D. 401, 409 (W.C.C.A. 2013). The compensation judge adopted Dr. Elert’s medical opinion and found that the employee did not sustain Gillette injuries to her low back or right hip, noting that the employee did not submit a narrative report from her treating doctor in support of his recommendation that she undergo low back surgery. The judge also determined that the mechanism of the employee’s alleged Gillette injuries was not explained, that the employee had a history of significant prior low back and right hip pain, that initial onset dates of the injuries were not clear, and that the employee primarily worked at a desk.
The employee asserts that Dr. Elert’s opinion should not be considered because she was not her treating doctor. She also argues that Dr. Elert’s examination and knowledge of the employee’s condition was not as comprehensive as that of her treating doctors. In workers’ compensation cases involving medical causation issues, such as this case, the employer is allowed to have the employee examined by a doctor of its choice through an independent medical examination. See Minn. Stat. § 176.155, subd. 1. An IME doctor establishes competence to render an expert opinion based on an examination of the employee and a review of the employee’s medical records and medical history. Relying on this information, the IME doctor provides a medical opinion to the employer. See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130, 1132-33 (Minn. 1988). An employer’s attorney is allowed to refer to an IME doctor’s opinion and an employee’s medical records in defending against workers’ compensation claims.
Dr. Elert conducted such an examination of the employee as requested by the employer, and it was within the discretion of the compensation judge to find this opinion to be more persuasive than the evidence presented by the employee. Weighing conflicting medical evidence is generally within the compensation judge’s discretion, and when the opinion relied upon by the compensation judge has adequate factual support, this court will not reverse the compensation judge on that issue. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985); Smith v. Quebecor Printing, Inc., 63 W.C.D. 566, 573 (W.C.C.A. 2003), summarily aff’d (Minn. Aug. 15, 2003). The compensation judge was not required to accept the treating doctors’ diagnoses and impressions over Dr. Elert’s medical opinion, which was based on adequate foundation and provided substantial evidence for the compensation judge’s decision. See Carda v. State of Minn./Dep’t of Human Servs., 79 W.C.D. 649, 655 (W.C.C.A. 2019).
The employee also argues that the compensation judge erred by referring to her prior low back injuries as being similar to her injury in 2017, asserting that while her prior low back symptoms may have been similar to her current symptoms, they were in a different area of her back and had resolved years before the 2017 work injuries.[4] We acknowledge that the medical records in this case showed that the employee’s prior low back injuries involved the L5-S1 level, and the January 19, 2018, discography indicated annular degeneration at levels L3-4 and L4-5. However, Dr. Elert made no finding that the employee’s current condition was related to her prior work injuries in 1999, 2000, or 2010. Rather, she found the employee had sustained temporary strains, which had resolved, as a result of the work activities. In addition, while Dr. Dyer’s records include a reference to a work-related injury, he did not identify it as a Gillette injury, explain the mechanism of such an injury, or find a culmination date. Determination of whether the employee had sustained Gillette injuries was a question of fact for the compensation judge to decide. See Gunderson, 70 W.C.D. at 409; Felton v. Anton Chevrolet, 513 N.W.2d 457, 459, 50 W.C.D. 181, 184 (Minn. 1994). In workers’ compensation cases, the compensation judge decides a question of fact by a preponderance of the evidence, meaning “evidence produced in substantiation of a fact which, when weighed against the evidence opposing the fact, has more convincing force and greater probability of truth.” Minn. Stat. § 176.021, subd. 1a. Based upon Dr. Elert’s reports and the medical records provided, the compensation judge found there was insufficient evidence that the employee’s work activities caused Gillette injuries to her low back or right hip.
The issue for this court on appeal is whether the decision of the compensation judge is supported by substantial evidence when considering the entire record, not whether substantial evidence might support a conclusion contrary to that reached by the compensation judge.[5] See Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). Substantial evidence supports the compensation judge’s decision in this case, and we affirm.
[1] Gillette v. Harold, Inc., 101 N.W.2d 200, 21 W.C.D. 105 (Minn. 1960).
[2] The employee contends that the compensation judge was biased because he held pretrial conferences before the August 19, 2020, hearing and therefore had knowledge of disputed evidentiary matters before the hearing. Generally, compensation judges do not preside over contested hearings when they have acted as mediators in the same matter. The compensation judge did not mediate between the parties in this case. Pretrial conferences are generally held before the same compensation judge who presides over the hearing. See Minn. R. 1420.1900.
[3] In her appeal to this court, the employee also questioned why the intervenors remained on the caption for her appeal. The intervenors were parties at the hearing and were not dismissed by the compensation judge. Because the intervenors’ interests could be affected by an appeal to this court, they properly remain named parties in the matter.
[4] The employee also submitted exhibits to this court which were not included in the record below, including a narrative report from her treating physician which was obtained after the hearing. Because these exhibits were not available to the compensation judge, they are not subject to review by this court and will not be considered in this appeal. See Minn. Stat. § 176.421, subd. 1; see also Vagts v. Tromco Elec., 48 W.C.D. 622, 625 (W.C.C.A. 1993) (this court’s review is generally limited to the evidence submitted to the compensation judge), summarily aff’d (Minn. June 7, 1993).
[5] The employee had also argued at the hearing that any temporary total disability benefits paid should not be offset by short-term disability benefits paid by intervenor Hartford, that no attorney lien was applicable, and that Edquist fees were not applicable. While these issues were discussed at the hearing, given the judge’s denial of the employee’s claims, they were not decided by the judge. This court does not address issues which were not decided by the compensation judge. See Minn. Stat. § 176.421; Gollop v. Gollop, 389 N.W.2d 202, 203, 38 W.C.D. 757, 758 (Minn. 1986) (an appellate court may not consider matters not contained within the record before the compensation judge); Barnett v. Pillsbury Co., 34 W.C.D. 581, 583 (W.C.C.A. 1982). In the same manner, the employee’s arguments regarding the applicability and implementation of procedures under the Family and Medical Leave Act and the Americans with Disabilities Act and their possible effect on the employee’s workers’ compensation claims were not addressed by the compensation judge because he had found that the employee had not proven she had sustained the claimed Gillette injuries.