Simek v. Cub Foods, 010499 MNWC,

Case DateJanuary 04, 1999
CourtMinnesota
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...

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