Biros v. Hollenback & Nelson, 010600 MNWC,

• Case Date: January 06, 2000
• Court: Minnesota

DAVID J. BIROS, Employee/Appellant, v. HOLLENBACK & NELSON and FARMERS INS. CO., Employer-Insurer, and TWIN CITIES BRICKLAYERS HEALTH & WELFARE FUND, Intervenor. Minnesota Workers Compensation Workers' Compensation Court of Appeals January 6, 2000          HEADNOTES          CAUSATION - GILLETTE INJURY. Where the employee testified to 34 years of extremely hard work as a brick and block layer and described the stress placed on his low back by frequent bending and lifting, where his treating physician specifically linked his work with his low back condition and where no expert opinion was to the contrary, the compensation judge was clearly erroneous in finding that the employee had failed to prove the existence of a Gillette injury to his lumbar spine.          CAUSATION - GILLETTE INJURY. Where the medical opinion relied on by the employee to establish a Gillette injury did not specifically identify specific conditions and these conditions did not become materially obvious until after the date of the opinion, the compensation judge was not clearly erroneous in determining that there was inadequate evidence to support a causation finding for those conditions.          Affirmed in part, and reversed and remanded in part.           Determined by: Wheeler, C.J., Wilson, J., and Johnson, J.           Compensation Judge: Carol A. Eckersen           OPINION           STEVEN D. WHEELER, Judge          The employee appeals from the compensation judge's determination that he failed in his burden of establishing a causal relationship between the injuries to his lumbar and cervical spine, to his wrist and to his left femoral cutaneous nerve.          BACKGROUND          The employee, David J. Biros, was hired by Hollenback & Nelson Construction Company, the employer, in January 1995. Early in his career as a bricklayer the employee had worked for Loeffel-Engstrand Construction for approximately 30 years, from 1964 to August 1993. Immediately prior to joining the employer, he worked for three other contractors.1 At all times the employee worked as a block layer or bricklayer. The employee testified that while block laying he was required to frequently bend and to repetitively lift and carry 60-pound blocks for seven to eight hours per day. Bricklaying required constant bending and laying of 700 to 800 bricks per day, each brick weighing approximately eight pounds. The employee presented a videotape exhibit which accurately demonstrated the work performed by him as a bricklayer. (Pet. Ex. L.)          The employee testified that as a result of his bricklaying activities he first noticed some significant pain in his low back and neck in approximately 1993 and 1994. (T. 35-36.) He did not seek medical treatment for his low back and shoulder symptoms, however, until August 1995. The employee also indicated that he may have had these symptoms on a less frequent basis in the early 1990's, but they were not significant and he simply ignored them. (T. 37.) Dr. Ryan's office notes, from the employee's initial visit on October 6, 1995, the physical therapy notes and the January 30, 1996 report of Dr. Zanich indicate that the employee reported that he had experienced some low back pain associated with his work activities for 10-15 years.  (Pet. Ex. B.)          The employee started working as a bricklayer/block layer for Hollenback in January 1995. The employee stated that the bricklaying/block laying work performed there was the same as he had performed for his previous employers. On August 14, 1995, the employee was examined by Dr. Charles H. Moser, an orthopedic specialist at the St. Anthony Orthopaedic Clinic. Dr. Moser indicated that x-rays of the employee's left shoulder "reveal some mild AC degenerative change," and that x-rays of the lumbar spine "show diffuse degenerative changes in the lower lumbar interspaces." He diagnosed impingement syndrome of the left shoulder and a degenerative lumbar disc. The employee was again seen by Dr. Moser on September 19, 1995. At that time the employee continued to complain of symptoms in his lower back but was not having any significant radicular problems. (Pet. Ex. F.)          On September 24, 1995, Dr. Moser referred the employee to Dr. Karen Ryan, M.D., a physical medicine specialist. The employee was first seen by Dr. Ryan on October 6, 1995. Dr. Ryan's office notes from that date contain the following comments:

He reports a gradually progressive history of back pain over the past 14-15 years, with pain, predominately with lifting. He complains of a "toothache" pain in the low back when he stands upright with some discomfort into the L buttocks and in the R lateral lumbar muscles. Getting into his truck at the end of the day and even walking up the hill at his home can be very painful. 

He reports his symptoms progress from the morning to the end of the day, with lifting in the midline and are especially bad when he lays block above the 6th or 7th course (42"-56"). He reports that sometimes his back "locks up." The patient denies radiation of pain into the arms or legs, LE numbness or tingling, focal weakness of the arms or legs, problems of balance, incoordination, loss of bowel or bladder control, and urinary retention. He does report that his L arm falls asleep at night or if held in a flexed position. Sitting does not increase his pain and he is able to drive up to a 100 miles without having pain.

He reports that Dr. Moser recently completed back x-rays, with finding of DJD and he was instructed for exercises including pelvic tilts, abdominal strengthening, bridges, side bends and crouching, with no particular improvement. He finds that use of an elastic corset helps decrease his pain when laying brick, but has found nothing to prevent the pain when he lays block. He has been taking Ibuprofen, 800 mg TID, which does decrease his work related shoulder pain, but is unsure of its effect on his back.

         Dr. Ryan prescribed a course of physical therapy and an aerobic swimming program.           The employee returned to see Dr. Ryan on November 3, 1995. The employee indicated that the physical therapy program and home exercises had been in effect for approximately two weeks. The employee continued to report that his symptoms became worse at the end of his work day. The employee reported no particular improvement in function or change in his back pain. The employee again saw Dr. Ryan on December 15, 1995. At that time the employee made the following report to Dr. Ryan:

He reports that his pain has increased again and associates it with the fact he has been laying block for the past 2 weeks. He is reporting difficulty with work above the 4th course (32"), and complains of stiffness and clumsiness in his legs, stumbling and a sensation that his legs "won't work." He is having increased discomfort in his shoulders, back and at his knees. He reports the symptoms still progress from the morning to the end of the day and that getting out of his truck at the end of the day is particularly painful. The lumbar cushion did not help. Static standing also increases his back pain.

He denies any neck pain, radiation of pain into the arms or legs, focal weakness or numbness of the arms or legs, loss of bowel or bladder control, and urinary retention. His symptoms do not change much with overhead activity. Neck rotation does not affect his symptoms.

         Dr. Ryan made the following assessment concerning the employee's condition:

Mr. Biros' back pain has again increased with the resumption of heavier duties at work. The interventions aimed at the T-L junction and the anti-inflammatory have had no apparent effect. His prior x-rays have shown low lumbar DJD, and despite the fact that he does not show long tract or clear radicular signs, MRI of the spine, from the T6-low lumbar region is warranted to better access the soft tissue components, to access for a disc herniation, a central canal stenosis or other bony pathology. 

         An MRI of the employee's thoraco lumbar back from T6 to L4 was completed on December 20, 1995. The conclusion of the radiologist from this MRI was as follows:

1. Multilevel Schmorl's nodes and disc dehydration compatible with thoracolumbar Scheuermann's and/or juvenile discogenic disease.

2. Circumferential annular bulging is seen at L4-5 with minor spondylolisthesis also apparent and mild contact with exiting left L4 nerve root within the intervertebral nerve root canal.

3. There is a mild annular redundancy at several levels in the thoracic spine and mid and upper thoracic levels, most predominately on the right side at T6-7 where there is mild

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