DAVID A. SIMEK, Employee,
v.
CUB FOODS and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants,
and
MINNEAPOLIS RETAIL MEATCUTTERS H&W FUND and FAIRVIEW HOSP. and HEALTHCARE SERVS., Intervenors.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
January 4, 1999
HEADNOTES
CAUSATION
- GILLETTE INJURY. Where the judge referenced
the opinions of two medical experts in immediate follow-up to
her reference to the employee's testimony as to the
rigorousness of his work activities, it was clear that the
compensation judge was mindful of the requirement that a
finding of a Gillette injury depends primarily on
medical evidence, and the judge's finding of a
Gillette injury was not contrary to law for
misapplication of Steffen v. Target Stores, 517
N.W.2d 579, 50 W.C.D. 464 (Minn. 1994).
EVIDENCE
- EXPERT MEDICAL OPINION; CAUSATION - SUBSTANTIAL
EVIDENCE. Where the judge's decision was supported
by expert medical opinion based on hypothetical facts
ultimately credited by the compensation judge, the medical
opinions, coupled with the employee's work history,
treatment history, and other testimony as to symptom
development, quite reasonably constituted evidence sufficient
to support a finding of a Gillette injury, and the
compensation judge's finding of such an injury was not
clearly erroneous and unsupported by substantial evidence.
Affirmed.
Determined by Pederson, J., Wilson, J. and Hefte, J.
Compensation Judge: Jennifer Patterson.
OPINION
WILLIAM R. PEDERSON, Judge
The
employer and insurer appeal from the compensation judge's
finding of primary liability for a Gillette-type
injury. We affirm.
BACKGROUND
Prior
to 1993, David Simek [the employee] worked for five years in
factory jobs and for seven years in landscaping and tree
nursery jobs. His avocations have included vegetable and
flower gardening, which he does on two acres of land that he
rents as a hobby farm, and shrub and tree trimming, which he
does both on his own property and occasionally for neighbors
and other friends. The employee has evidently
experienced some apparently minor back pain for most of his
adult life, for one episode of which he received a brief
course of chiropractic care in the early or mid 1980s.
In July
of 1993, the employee became employed by Cub Foods [the
employer], first as a janitorial worker and subsequently as
primarily a produce stocker. In the latter job, the
employee normally worked about thirty to thirty-two hours a
week stocking produce and three to six hours a week as a
customer service representative. The employee's work
as a stocker apparently entailed first unloading boxes and
other packages of produce from trucks and transporting them
into the employer's cooler, usually with the assistance
of a motorized pallet jack; then restacking the products by
hand, either onto shelves in the cooler or onto manual pallet
jacks or carts; and then transporting the products out onto
the employer's sales floor on those hand jacks or carts
and restacking them onto display counters. The original
stacks of produce packages on the trucks were evidently up to
six feet high, the packages were restacked up to about four
feet off the floor on the manual jacks and carts, and the
shelves in the cooler and on the sales floor were sometimes
up to about six feet off the floor.
In
April of 1996, the employee assisted a sister of his in
moving all of her furnishings out of her home and into a
storage facility. This work occupied the employee for
about four or five hours a day on each of three days spread
over a three-week period. About this same time, April of
1996, the employee began to experience an increase in his low
back pain, but he was able to continue working for the
employer for about two more months without seeking medical
help. Near the end of June 1996, however, noting that
his low back pain was beginning to cause him to limp, the
employee sought treatment from chiropractor Dr. Laurie
Reiner, who treated him on June 28 and July 1,
1996. This was the employee's first formal treatment
for any low back symptoms since his chiropractic treatments
in the mid 1980s. Dr. Reiner's records report a
history of low back pain and scoliosis, with an onset of
progress in that pain in April 1996. Under "known
aggravating factors" in her records Dr. Reiner lists
"lifts all day long." Dr. Reiner's records
indicate also that the employee's low back pain had
recently increased and was currently sharp, tingling,
frequent, increasing during the day, and "down into left
leg." They indicate also that the employee
attributed his pain to lifting one hundred pounds "many
times" in a "[b]ent forward" and
"[t]wisted" position and that his physical activity
at work included "[r]epeated motion." The
employee's treatment with Dr. Reiner was apparently
unsuccessful, and on July 4, 1996, the employee requested and
was refused permission from his supervisor to go home early
from work.1 The following day, July 5, 1996,
the employee and a friend took a seven-hour trip by car to
Lincoln, Nebraska. Three days later, on July 8, 1996,
while walking in a park in Lincoln, the employee experienced
a sharp onset of pain that now radiated suddenly all the way
from his low back down into his toes. The pain was so
severe that it caused the employee to vomit. The
employee rode back home to Minnesota lying down in the back
seat of the car.
Upon
his return to Minnesota, the employee immediately sought
treatment and was referred to orthopedic surgeon Dr. Peter
Strand. When he saw Dr. Strand on July 17, 1996, the
employee informed Dr. Strand that he "began having
problem[s] in...