JENNIFER WILLIAMS, Employee/Appellant, v. DELTA AIR LINES, INC. and ACE USA, admin’d by SEDGWICK CLAIMS MGMT. SERVS., INC., Employer-Insurer/Respondents, and GRP. HEALTH PLAN d/b/a HEALTHPARTNERS, INC., PARK NICOLLET HEALTH SERVS., FAIRVIEW HEALTH SERVS., BLUE CROSS BLUE SHIELD OF MN & BLUE PLUS, REGIONS HOSP., and PREFERREDONE ADMIN. SERVS., Intervenors.

The employee appeals from the compensation judge’s denial of two claimed work injuries arising from direct contact with, or close proximity to, the employer’s mandatory work uniforms.  As the evidence in the record does not support the compensation judge’s conclusion that the employee failed to meet her burden of proof for either date of injury, we reverse and remand to the compensation judge for a determination of benefits for the November 12, 2019, work injury, and vacate and remand for determination of issues consistent with this opinion for the claimed January 29, 2020, work injury.

The employee, Jennifer Williams, has experienced a variety of symptoms arising from sensitivity to chemical irritants throughout her life.  She avoids scented products that aggravate her condition and is careful in selecting the laundry detergent used for her clothing and linens.  Despite this sensitivity, she was able to operate a cleaning business, using primarily biodegradable cleaning products, for a number of years.

Twenty-nine years ago, the employee began working as a flight attendant for Northwest Airlines.  Following the merger of Northwest Airlines with Delta Air Lines (Delta), the employee continued to work as a flight attendant for Delta, the employer.  The employer was insured for workers’ compensation liability through ACE USA, with claims administered by Sedgwick Claims Management Services, Inc.  As part of her duties in this position, the employee wears a mandatory uniform provided by the employer.  The employee wore a Midnight Blue uniform from that uniform’s introduction through most of 2018.  During this time, the employee experienced no sensitivity problems with her uniform.  In 2018, the employer introduced a replacement, the Passport Plum uniform, which the employee began wearing in May 2018.  In June 2018, the employee began experiencing skin rashes and hives.  The employee called in sick to the employer and began a course of prednisone prescribed by her dermatologist.^[1]

The employee returned to work for the employer in the fall of 2018.  She was scheduled for one-day trips, which left her with one or two days off between her work shifts.  In October 2018, the employee worked a three-day trip wearing the Passport Plum uniform.  The employee experienced itchiness and red splotches on her skin during this trip.  The itchiness ceased when she removed the Passport Plum uniform.  The employee began wearing additional undergarments to keep her skin from direct contact with the Passport Plum uniform.  She also used anti-allergy medication, applied a steroid cream to the affected areas, and took showers to reduce her symptoms.^[2]

The employee contacted her manager to address her symptoms arising from wearing the Passport Plum uniform.  Due to the volume of reported reactions from many employees wearing the Passport Plum uniform, the employer established a committee to address the problems and complaints attributed to the new uniform.  The manager connected the employee with Lands’ End (the Passport Plum uniform manufacturer) and a uniform committee member to find an appropriate alternative uniform.^[3]  The employer also conducted toxicity testing.  Following the toxicity testing, the lining of the employee’s Passport Plum uniform was replaced.  After wearing the altered Passport Plum uniform, the employee received comments from coworkers that she appeared to have been “out in the sun.”^[4]  The modified uniform did not relieve her symptoms.  The employee observed that her itching symptoms faded and disappeared when she removed the Passport Plum uniform.^[5]  In December 2018, the employee suffered an unrelated knee injury which kept her off from work for approximately 11 months.  Lands’ End provided various alternative pieces of the Passport Plum uniform, which the employee tried to wear, but her reactions continued.  Outside of this testing process, the employee’s symptoms subsided.^[6]

On November 6, 2019, the employee returned to work for the employer.  After working two consecutive three-day trips wearing the Passport Plum uniform, the employee noted significant rash symptoms that increased over the period she was working.  Upon the employee’s return home from this six-day period of wearing the Passport Plum uniform, her husband noted that her skin looked “burnt” and “really red.”^[7]  The employee’s skin condition was documented in photographs showing reddened skin on her upper chest and neck, and under her chin.^[8]  The employee and her husband observed that her symptoms intensified when she wore, or was in close proximity to, the Passport Plum uniform.  After she discontinued wearing the uniform, the symptoms abated.  On November 12, 2019, the employee reported her condition as a work-related injury to the employer.

On November 13, 2019, the employee sought medical care for her rash symptoms from Michael S. Steele, PA-C, of Edina Sports & Family Medicine.  The employee brought along her uniform and put it on during the examination.  PA-C Steele’s chart note of this visit states:

On January 29, 2020, the employee worked a two-and-a-half-day trip with a 24-hour layover in San Franciso.  The employee started having breathing issues while she was sitting in a crew van with other flight attendants, one of whom was wearing the Passport Plum uniform.^[13]  A coworker, who suffers from asthma, inquired as to the employee’s condition and offered her use of an albuterol inhaler.  The employee declined as she had never used an inhaler before.^[14]  Once the employee got off the crew van, she started feeling better and was able to breathe normally after getting fresh air.  The employee worked the next flight and experienced no difficulty breathing.^[15]  On the return flight, the employee sat next to a flight attendant wearing the Passport Plum uniform and the employee’s breathing symptoms returned.  When the employee moved away from her coworker, the symptoms subsided.^[16]  The employee filed a report on this incident with the employer.

On February 3, 2020, the employee returned to PA-C Steele, who conducted an examination and noted the employee had no current breathing problems.  PA-C Steele concluded that the employee’s difficulty breathing was in some way caused by the proximity to the Passport Plum uniform and prescribed an albuterol inhaler.^[17]

On March 17, 2020, the employee began treating with Zeke J. McKinney, M.D., to address her ongoing skin and breathing symptoms.  Through the following course of treatment by various physicians, the employee was ultimately diagnosed with irritant contact urticaria, vocal cord dysfunction, and chronic inflammatory rhinosinusitis.^[18]

In July 2020, the employee scheduled patch testing during her time off. The insurer cancelled the patch testing, and the employee did not proceed with her own tests for multiple reasons, including cost.^[19]

On August 20, 2020, Dr. Andrew R. Topliff, M.D., completed an independent record review of the employee’s medical condition on behalf of the employer.  Absent from Dr. Topliff’s list of records he reviewed was the November 13, 2019, examination by PA-C Steele.^[20]  Dr. Topliff referred to this examination as mentioned in other records but stated, “I did not see that in any of the notes.”^[21]  Regarding any connection between the Passport Plum uniform and the employee’s symptoms, Dr. Topliff wrote:

On May 11, 2021, Dr. Topliff conducted an independent medical examination (IME) of the employee after receiving an April 24, 2021, letter from counsel for the employer and insurer which included a summary of the employee’s recollection of the November 13, 2019, examination with PA-C Steele.  The actual chart note from that examination, however, was again not included in the list of records reviewed by Dr. Topliff for that IME.  The employee was fully dressed, and Dr. Topliff conducted no examination of the employee’s skin other than those portions already exposed.  Dr. Topliff did not express any reservation regarding the reasonableness and necessity of the medical care received by the employee but attributed the symptoms to some other allergen or exposure, stating “Again, none of Ms. Williams’ providers have presented any objective evidence of the uniforms being causal of her complaints.”^[24]

On May 2, 2022, the employee stopped using her black and white clothing when the employer introduced a gray uniform as a substitute for the Passport Plum uniform.  On December 8, 2022, the employee was examined by Dr. McKinney for complaints of itchy eyes and a rash at her elbows.  The employee suggested several possible causes for these symptoms, including hotel exposures and a reaction to the gray uniform.  The employee did not suffer sufficiently severe symptoms to prevent her from wearing the gray uniform and she did not indicate that she suffered any work injury from wearing that uniform.

On May 19, 2023, Dr. McKinney issued a narrative report regarding the employee’s condition and its relation to the Passport Plum uniform.  Relying on blood work performed when the employee was initially evaluated, Dr. McKinney opined, “These laboratory results likely indicate an inflammatory and/or immunologic response resulting from [the employee]’s use or proximity to the work uniforms.”^[25]  Dr. McKinney indicated that the employee’s ongoing need for treatment was conditional on continued exposure to the Passport Plum uniform, stating:

On January 24, 2024, Dr. Topliff conducted a second record review of the employee’s treatment history.  In his report, Dr. Topliff stated his opinions had not changed from his previous statements.  Despite other records from Edina Sports & Family Medicine being provided, the November 13, 2019, examination record of PA-C Steele was once again not included.  Regarding causation, Dr. Topliff wrote:

On December 23, 2020, the employee filed a claim petition against Delta asserting that multiple exposures to the Passport Plum uniforms resulted in a work-related occupational disease on November 12, 2019, and January 29, 2020.  On September 6, 2024, the claim petition and amended claim petitions came on for hearing before a compensation judge.  Both parties introduced evidence, including medical opinions, from a class action suit brought by Delta employees alleging negligence in the manufacture of the Passport Plum uniform.  The judge found that the employee’s testimony was “earnest,” but “not credible.”^[28]  Relying on the opinion of Dr. Topliff, the judge found that the employee did not suffer work injuries and denied the claim.  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).  When the findings are supported by substantial evidence, the Workers’ Compensation Court of Appeals must defer to the compensation judge. Lagasse v. Horton, 982 N.W.2d 189, 202 (Minn. 2022).  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); see also Smith v. Carver Cnty., 931 N.W.2d 390, 79 W.C.D. 495 (Minn. 2019).

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); see also Busch v. Advanced Maint., 659 N.W.2d 772, 778-79 (Minn. 2003).

On appeal, the employee raises four issues: (1) whether substantial evidence supports the compensation judge’s Findings 30, 52, and 68-75 and Orders 1-4; (2) whether Orders 1-4 conform with the statute; (3) whether the compensation judge committed errors of law; and (4) whether appellate review of the entire record submitted at hearing show “the findings of fact and orders are clearly erroneous and unsupported by substantial evidence.”^[29]  The employee argues that the compensation judge improperly applied the burden of proof necessary to meet the preponderance of the evidence standard on an occupational injury.  Additionally, the employee contends that the judge erred in relying on an unfounded expert medical opinion.  We agree with the employee on both points.

The compensation judge found, based on an expert opinion, that the employee’s workplace exposure did not substantially aggravate the employee’s condition and that she did not suffer a compensable work injury.  The medical expert who gave that opinion, however, had not reviewed evidence that objectively indicated a causal connection between the uniform and the employee’s medical condition, and his opinion therefore lacked foundation.  Further, the medical expert relied on facts contrary to those found by the compensation judge, also rendering the opinion improperly founded. Absent that medical opinion, the compensation judge’s factual findings indicate that the employee had met her burden to show she suffered an occupational injury that aggravated her preexisting medical condition through direct contact with the Passport Plum uniform.  As a result, we conclude that denying the claim for failure to meet the burden of proof is manifestly contrary to the weight of the evidence.  As the employee has met her burden of proof of an occupational injury on November 12, 2019, we therefore reverse and remand for determination of benefits consistent with this opinion.

As noted by the compensation judge, while claims regarding workplace exposures require an employee to prove an exposure to a hazard peculiar to employment, they do not require a demonstration of  a specific underlying mechanism peculiar to employment.^[30]  This standard has been applied in several cases of occupational diseases due to workplace exposure.^[31]  In addition, a longstanding principle of workers’ compensation law is “that employers must take their employees as they find them, with all the infirmities the employees bring to their employment.”^[32]  The issue here is not whether the employee had a preexisting sensitivity to irritants or whether there was a defect in the new uniform, but whether her contact or proximity to the Passport Plum uniform resulted in a substantial aggravation of her preexisting condition which required medical care and resulted in a loss of time from work.

In denying the employee’s claim, the compensation judge expressly relied on the opinion of Dr. Topliff as “the most persuasive and best aligned with the evidence.”^[33]  A compensation judge may rely on a well-founded^[34] medical opinion and the trier of fact’s choice between conflicting experts’ medical opinions is usually upheld.  As the Minnesota Supreme Court has stated, “that choice is not upheld where the facts assumed by the expert in rendering [the] opinion are not supported by the evidence.”^[35]  Here, Dr. Topliff expressly relied on his assumption that there was no objective evidence of a causal connection between the Passport Plum uniform and the employee’s skin reaction.  But Dr. Topliff stated that he did not review the November 13, 2019, chart note of PA-C Steele.^[36]  The first aspect of proper foundation is adequate review of the employee’s medical records.  The November 13, 2019, medical record is the employee’s first medical visit after reporting her work injury.  This record is the only instance where the employee brought her employer-issued uniform to an examination.  During that examination, PA-C Steele directly observed a skin reaction and puffiness around the employee’s eyes following direct contact with the uniform which visibly manifested over a very short period of time.^[37]  This is exactly the kind of objective evidence which Dr. Topliff maintained in his reports was lacking from the employee’s medical record.  Because Dr. Topliff predicated his opinion on the absence of any objective symptoms following contact with the Passport Plum uniform, his admission that he did not see the November 13, 2019, chart note constitutes a lack of foundation for his opinion.^[38]

Both parties submitted medical and toxicology reports from the class action lawsuit brought on behalf of Delta employees on a negligence theory which required proving a defect in the uniform.  This standard of proof is not required in a workers’ compensation claim.  None of the medical opinions or reports from the class action lawsuit specifically referenced the employee or considered her medical record in the context of her workers’ compensation claims.  As the application of those opinions to the employee’s situation would require speculation or conjecture, none of those opinions or reports are adequately founded to support a decision in this matter.^[39]

The second aspect of foundation for an expert’s opinion is whether the facts relied upon by the expert are consistent with the facts found by the compensation judge.  Where the assumed facts are consistent with those found, the opinion is well founded.  Where the assumed facts are contrary to the compensation judge’s findings, the opinion lacks foundation and cannot form the basis for the compensation judge’s decision.^[40]  Here, the compensation judge found that the employee experienced a skin reaction when in contact with the Passport Plum uniform for as little as fifteen minutes.^[41]  We will not speculate as to whether a properly founded expert opinion could provide some explanation as to why a skin reaction occurring immediately after direct contact with the work uniform was nevertheless not caused by the uniform,^[42] but we note that Dr. Topliff provided no such explanation.  Rather, Dr. Topliff stated that objective evidence of a connection between the Passport Plum uniform and the employee’s skin reactions did not exist.^[43]  As this position is irreconcilable with the evidence and facts as found by the compensation judge, her reliance on Dr. Topliff’s opinion constitutes reversible error.

The compensation judge’s unappealed factual findings include the following instances of the employee displaying objective symptoms of some form of skin reaction in conjunction with skin contact to the Passport Plum uniform as observed at various times by her spouse, coworkers, and treating provider, including “splotchy red rash” in October 2018, “noticeably rashy” on November 12, 2019, “‘burnt’ and ‘really red’” in November 2019, and “red inflammation on her upper chest and neck, as well as the employee’s face beginning to look puffy around her eyes” on November 13, 2019.^[44]

The compensation judge’s findings of fact establish a direct connection between contact with the Passport Plum uniform and skin reactions.  The compensation judge found that the “employee’s testimony with respect to the nature and cause of her injuries, though earnest, was not credible.”^[45]  Despite this finding, the compensation judge found as fact that the employee experienced objective symptoms of a skin reaction when in physical contact with the Passport Plum uniform.  The work injury alleged here is an occupational exposure claim and there is no dispute that the employee wore the Passport Plum uniform.  The employer does not dispute that the employee experienced skin reactions at the times when she wore the Passport Plum uniform, and the employee’s treating providers identified the Passport Plum uniform as the cause of the employee’s skin reactions.^[46]

Despite the compensation judge’s findings regarding the employee’s reactions, the judge concluded by a preponderance of the evidence, “the employee’s workplace and uniforms did not directly and proximately cause the employee’s allergic reactions within the meaning of Minn. Stat. § 176.011, subd. 15 (2024).”^[47]  This conclusion is contrary to first-hand observations from medical providers, testimony from witnesses other than the employee, photographs of the employee’s skin after contact with the Passport Plum uniform, and a narrative opinion of the employee’s treating physician.  The facts of the case, as found by the compensation judge and supported by the employee’s medical record, show that the employee met her burden to demonstrate that contact with her work uniform resulted in reactions causing a loss of time at work and requiring medical care.  As there is no evidence in the record that the employee’s condition was actually caused by something other than the work uniform, the compensation judge’s ultimate finding that the employee did not sustain the claimed November 12, 2019, work injury is manifestly contrary to the weight of the evidence.^[48]

The employee also claimed a work injury on January 29, 2020, resulting from her proximity to the Passport Plum uniform resulting in breathing difficulties.  Regarding the employee’s claim of difficulty breathing in the proximity of the Passport Plum uniform, the compensation judge made additional unappealed factual findings.  The judge found that in January 2020:

Unlike the November 12, 2019, work injury, the employee did not have her breathing reactions observed by a medical professional.  In the court’s review of the medical records, there is a lack of direct, affirmative statements indicating causation of the employee’s respiratory symptoms by the Passport Plum uniform.  As there is evidence in the record that supports the employee’s claimed January 29, 2020, work injury,^[51] the court vacates the denial of the claimed January 29, 2020, work injury.  On remand, the compensation judge is directed to review the existing record, applying the appropriate standard for a workplace exposure injury, and determine whether the employee has met her burden of proof for the claimed January 29, 2020, work injury.^[52]

Finally, the employee asserts that the compensation judge’s determination regarding her credibility is manifestly contrary to the evidence as a whole.  Generally, the determination of credibility is left to the discretion of the compensation judge, so long as the record supports the compensation judge’s decision.^[53]  Here, the compensation judge made an ultimate finding that the employee was not credible in regard to “the nature and cause of her injuries”^[54]

Despite the finding on credibility, the compensation judge’s unappealed factual findings are drawn largely from the testimony of the employee and match the employee’s description of events surrounding the wearing of, and proximity to, the Passport Plum uniform.  Thus, we conclude that the compensation judge was limiting the credibility finding to the employee’s assertion of causation.  We find no persuasive argument from the employee which compels us to reverse the compensation judge’s credibility determination.  Moreover, the employee’s claim does not rely on the employee’s testimony concerning the nature and cause of her injuries, and therefore our decision does not rely upon this limited credibility determination.

In conclusion, the only medical evidence specific to the employee supporting the compensation judge’s conclusion regarding causation of the employee’s condition is the unfounded opinion of Dr. Topliff.  Adoption of this opinion is plain error by the compensation judge.  The medical record, the narrative opinion of the treating physician, and the facts found by the compensation judge meet the standard for the employee suffering a work injury on November 12, 2019, in the nature of skin reactions and no well-founded contrary evidence is present in the record.  The compensation judge’s determination on that injury is reversed and the matter remanded for award of benefits.  The determination on the claimed January 29, 2020, work injury is vacated and the case remanded to the compensation judge for determination from the existing record of whether the employee has demonstrated a work injury and, if so, award appropriate benefits.