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Rubertus v. Schwan's, Inc.: WC - affirmance without comment

JASON R. RUBERTUS, Employee/Cross-Appellant, v. SCHWAN'S, INC., and LIBERTY MUT. INS. CO., Employer-Insurer/Cross-Appellants, and D&G EXCAVATING and SFM MUT. INS. CO., Employer-Insurer/Appellants, and BUCHHOLTZ CONSTR., INC., and ACUITY MUT. INS. CO., Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF MINN., and LINCOLN, LYON, and MURRAY COUNTY HUMAN SERVS., and MN DEP=T OF HUMAN SERVS., Intervenors.


JULY 2, 2008

No. WC07-250


PRACTICE & PROCEDURE - MATTERS AT ISSUE. Where a Gillette injury was neither pleaded by the employee nor litigated by the parties, where there was no appeal from the judge=s finding that there was no notice of the specific injury that had been pleaded, but where the judge made no finding as to whether a specific injury had occurred, the compensation judge=s finding of a Gillette injury on the date of the employee=s first treatment of the injury, by analogy with Gillette injury protocol, was vacated, and the matter was remanded to the judge for a finding as to whether the employee had sustained a specific injury.

CAUSATION - GILLETTE INJURY. Where there was evidence that an acute change in the employee=s symptomology occurred fully a month after he was laid off from the employer at issue, and where the judge=s decision was supported by properly founded expert medical opinion, the compensation judge=s conclusion that the employee did not sustain a Gillette-type injury while employed with the employer at issue was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the majority of expert medical opinions would have supported a contrary conclusion.

PERMANENT PARTIAL DISABILITY; PRACTICE & PROCEDURE - REMAND. Where there was evidence in the record to support the employee=s claim for additional permanency under an additional section of the rules, where a rating under that section was supported by expert medical opinion and no medical expert had specifically opined that the rule did not apply, but where the judge=s detailed finding on permanent partial disability made no reference to the employee=s claim under the rule, the employee=s claim under the rule was remanded for determination by the judge.

Affirmed in part, vacated in part, and remanded.

Determined by: Pederson, J., Stofferahn, J., and Wilson, J.

Compensation Judge: William R. Johnson

Attorneys: Luke M. Seifert, Quinlivan & Hughes, St. Cloud, MN, for the Cross-Appellant Employee. Andrew W. Lynn, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Appellants. Robin D. Simpson and Michael Gregerson, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for Cross-Appellants Schwan=s/Liberty Mutual. Thomas L. Cummings, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Respondents.



D & G Excavating, Inc., and SFM Mutual Insurance Company appeal from the compensation judge=s finding of a Gillette[1] injury on June 19, 2000, and from his consequent award of compensation. The employee cross-appeals from the judge=s denial of benefits for a Gillette injury culminating on or about February 2, 2006, while the employee was working for Buchholtz Construction, Inc., and from the judge=s failure to award benefits for an additional 3% permanent partial disability for chronic radicular pain. Schwan=s, Inc., and Liberty Mutual Insurance Company cross-appeal from the judge=s failure to find a Gillette injury on or about February 2, 2006, from the judge=s award of temporary total disability benefits, and from the judge=s equitable apportionment of permanent partial disability benefits.[2] We vacate the finding of a Gillette injury on June 19, 2000, and the consequent award of benefits against D & G Excavating, Inc., we remand for consideration the issue of whether the employee sustained a specific injury at D & G Excavating, Inc., we remand for reconsideration the judge=s award and apportionment of the employee=s compensation in light of the judge=s impending finding on the alleged 2000 injury, we affirm the judge=s denial of a Gillette injury occurring on or about February 2, 2006, and we remand for additional findings the employee=s claim for compensation for an additional 3% permanent partial disability.[3]


Jason Rubertus [the employee] was born in 1973 and began working for Schwan=s, Inc. [Schwan=s], in 1992 or 1993. He was employed as a puller/unloader in Schwan=s= transportation department, and his position required him to load and unload pallets filled with food products weighing between two and fifty pounds. On November 29, 1994, the employee sustained a work-related injury when he was pulling on a pallet and experienced severe pain on the left side of his back that radiated down his left leg. He reported the injury to his supervisor and sought medical treatment that same day at Affiliated Medical Center in Marshall, Minnesota. The employee was seen there by Dr. William Kremer, who diagnosed a mild back strain and recommended that the employee apply ice packs and take Motrin for the next week or so and return to the clinic if he continued to have problems.

On January 26, 1995, the employee returned to Dr. Kremer complaining of continuing pain on the left side of his low back and shooting pain down his left leg. At a visit four days later, Dr. Kremer assessed acute low back strain with radicular symptoms. Noting his changing neurologic status, Dr. Kremer placed the employee on strict bed rest, prescribed additional medication, and made a referral for an MRI scan of the employee=s lower back. The MRI scan was performed on February 3, 1995, and was read as showing a left lateral herniated disc at the L5-S1 level. The employee remained symptomatic following the scan and, after consultation with orthopedist Dr. Gail Benson, elected to proceed with an L5-S1 microdiscectomy on April 5, 1995.

Following his surgery, the employee continued to experience symptoms, and Dr. Benson ordered lumbar CT scans on June 15 and August 4, 1995. The scans showed a small left paracentral disc protrusion at L4-5 and moderate soft tissue density at L5-S1 that extended into the medial half of the left L5-S1 foramen. Dr. Benson concluded that these findings did not indicate a need for surgical repair, and he released the employee to light duty work on August 7, 1995. The employee returned to work for Schwan=s, but he evidently stayed only through August 16, 1995, at which time he either quit or was terminated.

On January 26, 1996, the employee returned to Dr. Benson for a final disability evaluation relative to his November 29, 1994, injury. Noting that, although the employee complained of persistent discomfort in his low back, Amost of his pain in his back and leg has abated,@ Dr. Benson rated the employee=s permanent impairment at 11% of the whole body under Minnesota Rules 5223.0390, subp. 4D and 4D(2).

After leaving Schwan=s, the employee worked at jobs building pole barns, doing landscaping, truck driving, and cleaning tanker trucks. He sustained no further injuries at these jobs, did not return to the doctor for back or leg symptoms, and was able to work without restrictions. In April or May of 1998, he began working for D & G Excavating, Inc. [D & G]. His work at D & G was physical and included considerable shoveling, loading and unloading equipment, operating packing machines, and essentially performing work associated with digging basements and backfilling around houses and garages. The employee worked at this job without restrictions and without medical treatment for back or leg pain until June 19, 2000. On that date, he reported to Affiliated Medical Center with the following history:

About 10-12 days ago he began to have recurrence of back pain. He states that in 1995 he underwent a laminectomy for herniated disc at L5-S1 on the left side. After this initial pain 10-12 days ago, his pain got better for a couple of days. It didn=t go away. Now in the last 2-3 days has become significantly worse. He says it is very reminiscent of the pain he had when he had surgery. This is described as searing, sharp, left buttock pain with tingling and numbness down into his lower extremities and a sense of numbness there.

The attending physician=s assistant noted that straight leg raising tests were positive for severe back pain and diagnosed recurrent left lumbar pain with a history of a previously herniated disc. The employee was given medications, and an MRI was obtained that showed a herniated disc at the L4-5 level, central in location, and a small focal herniation at L5-S1.

The employee returned to see Dr. Benson on July 12, 2000. He advised the doctor that he had been doing well following his 1995 surgery Auntil two months ago after he lifted a packer at work.@ The employee reported that he had developed low back pain and then pain radiating down his left leg and tingling in his left foot. Dr. Benson concluded that the employee=s L4-5 disc was causing most of the problem, but he recommended observation and restriction from heavy lifting for two months.

The employee evidently completed the 2000 construction season with D & G and returned to see Dr. Benson while on seasonal layoff on February 15, 2001. An MRI scan on February 21, 2001, revealed minimal improvement of the central disc herniation at L4-5 and a progression of the disc herniation at L5-S1, with encroachment on the left S1 nerve root. The radiologist noted also that there was considerable enhancing epidural fibrosis at the L5-S1 level on the left. The employee again elected to undergo surgery, and a second microdiscectomy at L5-S1 was performed on February 26, 2001. When she saw him in follow-up on March 13, 2001, Dr. Benson noted that the employee was doing well with his back, and she released him to return to work activities at six weeks post op on April 16, 2001. The employee evidently returned to work for D & G for a period of time and then found work with Lawrence Rogge Construction, where he did essentially the same type of work that he had performed at D & G.

The employee began working for Buchholtz Construction [Buchholtz] in the fall of 2004. Buchholtz is a concrete contractor, and its work primarily involved putting in curb and gutter, sidewalks, and driveways. The employee worked as a laborer, and his work included setting up and stripping down forms, pouring concrete, and associated cement work. He worked through the end of the 2004 construction season and then worked the entire 2005 construction season before being laid off on December 3, 2005.

On February 2, 2006, the employee was seen again at Affiliated Medical Center for evaluation of pain down the left side of his back, which he reported to Dr. Steven Meister as being similar to that he had experienced around the time of his previous two surgeries. The employee told the doctor that his pain had started about a week and a half earlier. Dr. Meister diagnosed sciatica and administered a trigger point injection. The employee=s pain persisted, however, and Dr. Meister obtained an MRI of the employee=s lumbar spine on February 21, 2006. The radiologist reported post-operative changes, with a large recurrent herniation at L5-S1 and a degenerative bulge at L4-5.

On February 23, 2006, the employee was seen by orthopedist Dr. Walter Carlson in Sioux Falls, South Dakota. Dr. Carlson obtained a history of the employee=s previous surgeries, noting that the employee

denies any recent injury which may have caused his pain, but appears to have had an aggravation due to the prior back injury which was work related. He complains of pain in the left lower back posterolateral through the left leg to the foot. He does complain of some numbness and tingling in the foot and lateral toes. This has been ongoing for about a month.

Dr. Carlson reviewed the employee=s recent MRI and recommended an L5-S1 discectomy and probable fusion. He recommended also a discogram at the L3-4 and L4-5 levels, to determine if an extension of the fusion to the L4-5 level would be necessary. The discogram, performed on March 7, 2006, was normal at the L3-4 level, but it demonstrated abnormal morphology with concordant pain at L4-5. On April 6, 2006, the employee underwent anterior and posterior fusions at the L4-5 and L5-S1 levels with plate and screw fixation.

On June 5, 2006, the employee filed a claim petition, alleging that he had sustained work-related injuries at Schwan=s on November 29, 1994, at D & G on June 14, 2000, and at Buchholtz on February 2, 2006. Schwan=s admitted that the employee had sustained a work-related injury in 1994, but D & G and Buchholtz denied liability and statutory notice for the alleged 2000 and 2006 injuries. D & G also asserted that the employee=s claim against it was barred by the statute of limitations.

Each of the parties arranged for independent medical examinations with experts of their choosing. The employee was examined by Dr. Robert Wengler at the request of the employee=s attorney on June 26, 2006; by Dr. Mark Engasser at the request of D & G on September 5, 2006; by Dr. Terry Hood on behalf of Schwan=s on September 22, 2006; and by Dr. Mark Friedland on behalf of Buchholtz on September 27, 2006.

Drs. Wengler, Engasser, and Hood each found that the employee had sustained work-related injuries in 1994, 2000, and 2006. Each had obtained a history from the employee indicating that he had sustained the 2000 injury at D & G while working on a machine known as a jumping jack packer. Dr. Hood noted specifically that A[t]he machine got stuck in soft clay, and he pulled his back while trying to pull the tool out of the clay.@ Dr. Friedland, who did not find that the employee had sustained an injury in 2006, did relate the employee=s disability to the employee=s alleged 1994 and 2000 injuries. With respect to the 2000 injury, Dr. Friedland reported the following history:

In 2000 Mr. Rubertus states that he was injured while working at D & G Excavating when he had to jerk and Aheave ho@ a jumping jack packer that was stuck in the clay. At that time he noted immediate low back pain radiating into the left lower extremity. He states the pain was in the same distribution and of the same severity that he experienced at the time of his original injury in 1994.

Dr. Wengler did not specifically apportion liability for the employee=s wage loss and medical expenses following the claimed injuries in 2000 and 2006. He did, however, rating the employee=s total permanent partial disability at 44% of the whole body,[4] apportion 14% of the employee=s permanency to the 1994 injury, 11% to the alleged 2000 injury, and 19% to the alleged 2006 injury.

In a report of September 5, 2006, Dr. Engasser apportioned the employee=s time off from work, permanent partial disability, and need for medical treatment following the alleged 2000 and 2006 injuries. Dr. Engasser opined that, after the employee=s 1994 injury and surgery, the employee was entitled to compensation for an 11% impairment of the body as a whole. He assessed an additional 2% impairment of the body as a whole due to the employee=s second surgery. Dr. Engasser attributed 40% responsibility for the second surgery to the alleged injury in 2000 and 60% to the 1994 injury. He believed that all three injuries contributed to the employee=s need for fusion surgery, assessed an additional 10 % whole body impairment for the fusion, and apportioned liability for benefits following the 2006 injury on a basis of 40% to the 1994 injury, 20% to the alleged 2000 injury, and 40% to the alleged 2006 injury.

In a report issued September 22, 2006, Dr. Hood also apportioned liability for the employee=s disability and need for medical care following the alleged 2000 and 2006 injuries. He attributed 85% of the responsibility for the employee=s alleged 2000 injury to that injury, and 15% to the 1994 injury. Following the alleged 2006 injury, Dr. Hood=s equitable apportionment was 25% to the 1994 injury, 25% to the alleged 2000 injury, and 50% to the employee=s claimed Gillette injury in 2006. He rated the employee=s permanent partial disability at 24% of the whole body without indicating how he apportioned the rating.[5]

Dr. Friedland did not believe that the employee had sustained a Gillette injury culminating in February 2006, but found the 1994 and 2000 injuries to be equally responsible for the employee=s wage loss, for his permanent partial disability (which Dr. Friedland rated at 32%), and for his medical treatment after February 2, 2006. Regarding the employee=s alleged Gillette injury in 2006, Dr. Friedland stated:

There is no evidence in the contemporaneous medical records that Mr. Rubertus in fact sustained a Gillette injury as a consequence of his work activities at Buchholtz Construction in 2005 and/or culminating on 02/02/06. In fact when seen by Dr. Meister on 02/02/06 and by Dr. Carlson on 02/23/06 he denied any recent history of injury or work-related causation of his low back and left lower extremity symptomatology. It is also of note that although the patient admits that he was laid off from his job at Buchholtz Construction by at least early December 2005, the contemporaneous medical records in February 2006 would indicate onset of his symptomatology sometime in the latter part of January 2006 when he was no longer working due to his seasonal layoff. There is therefore no causal relationship to the patient=s need for care or treatment and/or any symptomatology documented from and after 02/02/06 as a consequence of Mr. Rubertus= work activities at Buchholtz Construction in 2005.

The employee=s claim for benefits came on for hearing before a compensation judge on June 21, 2007, and the record closed on August 2, 2007. According to the judge=s eventual findings and order, issues presented at trial included the following: (1) whether the employee sustained a Gillette-type injury arising out of his employment at D & G on June 19, 2000; (2) whether the employee sustained a Gillette-type injury arising out of and in the course of his employment at Buchholtz culminating on or about February 2, 2006; (3) whether the employee was temporarily totally disabled from February 2006 to July 31, 2006, and, if so, how liability for that period of benefits should be apportioned; (4) whether the employee was temporarily partially disabled continuing from August 11, 2006, and, if so, how that period of benefits should be apportioned; and (5) the extent of the employee=s permanent partial disability and how that permanency should be apportioned.

Evidence submitted at hearing included testimony from the employee, from John Otto, one of the employee=s supervisors at Buchholtz, and from Kristin Gruhot, CEO at D & G. Post-trial depositions were taken of Kevin Gruhot, a past employee of D & G, and of Dr. Mark Friedland.

The employee testified that he had no problems with his low back or left leg before his 1994 injury at Schwan=s and that since that injury he has not been without back or leg pain for any extended period of time. The employee stated that, in either May or June of 2000, he was not sure whether it was May or June, he was operating a jumping jack packer to pack clay around a new home located on Patricia Court in Marshall, Minnesota. The packer got stuck in some soft clay and drove itself further into the clay. He stated that, as he attempted to pull the packer out of the clay, he felt a sharp shooting pain down his left leg. He described the pain as the same type of pain that he had experienced in 1994. He testified that co-worker Kevin Gruhot helped him pull the packer out of the clay. The employee testified that he did not report the injury to his employer and could give no good reason as to why he Ajust let it go.@ As to his employment at Buchholtz, the employee testified that owner Harvey Buchholtz and his supervisor John Otto were aware of his history of back problems when he was hired. He testified that he continued to have back and leg symptoms, as he had had after his first surgery, but that they did not prevent him from doing his job or cause him to voice any complaints at work. He testified that, in 2005, he noticed that his back was sore by the end of the work week and that he would always be Aready for the weekend.@ He was laid off by Buchholtz during the first week of December 2005. He testified that he returned to the doctor in February 2006 because his back again felt as though someone had stabbed himBthe same symptoms as those that he had experienced before his first and second injuries.

Kristin Gruhot, D & G=s CEO, testified that she first became aware of the employee=s alleged 2000 injury when she received the employee=s claim petition in 2006. As the employee had testified that he had worked with Kevin Gruhot at a house on Patricia Court, Ms. Gruhot testified that she had reviewed all of the time cards for dates when the employee and Kevin Gruhot had worked together at that job and that the only date she was able to find was May 16, 2000.

Kevin Gruhot testified at a post-trial deposition that he did not recall any injury to the employee or being told of any injury by the employee. He did not recall the use of a jumping jack packer at the house on Patricia Court. In fact, because of the construction of the house, he did not believe that the use of such a machine would have been necessary.

John Otto worked with the employee at Buchholtz on a daily basis. He testified that he was aware that the employee had had back injuries before coming to work at Buchholtz but did not recall the employee complaining of his back on the job. Mr. Otto testified that no special precautions were taken for the employee=s back because it was not apparent that precautions were necessary. He recalled that the employee did tell him of a recurrence of his back problems during a conversation in January 2006, at which time the employee appeared to be in considerable pain, but, according to Mr. Otto, the employee had not exhibited any such pain behavior while he was working in 2005.

In a findings and order issued October 2, 2007, the compensation judge found that the employee did not sustain a Gillette- type injury as a result of his work activities at Buchholtz but that the employee did sustain a Gillette-type injury culminating on June 19, 2000, as a result of his work activities at D & G. Although the judge did not expressly determine whether the employee sustained a specific injury at D & G, he did find that the employee failed to provide statutory notice of any such injury. The judge found also that the employee had sustained a total impairment of 32% of the whole body and that the 1994 and 2000 injuries contributed equally to the employee=s entitlement to temporary total, temporary partial, and permanent partial disability benefits, as well as to payment of his medical expenses. D & G, Schwan=s, and the employee all appeal.


On appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, subp. 1 (2008). Substantial evidence supports the findings if, in the context of the entire record, Athey 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, Aunless 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).


1. The Alleged D & G Injury

We find no basis in the record for the judge=s finding of a Gillette injury culminating on June 19, 2000. Specifically, a Gillette injury was neither pleaded by the employee nor litigated by the parties. At no time prior to trial, nor in his opening statement to the court, did the employee ever contend that his injury at D & G in 2000 was the result of cumulative trauma. The sole claim made by the employee throughout this litigation was that he had injured his back at D & G while attempting to remove a jumping jack packer from the mud. He testified that when he pulled on the packer he experienced the same back and leg symptoms that he had following his 1994 injury. Because he could not establish a date for the event, however, the employee claimed that his date of injury was June 19, 2000, his first date of medical treatment.[6] In other words, by analogy, the employee sought to apply case law referencing an Aascertainable event@ in a Gillette injury context to a case involving a specific injury where the date of injury is unknown. Whatever merit there may be to the employee=s analogy, the use of such an analogy does not convert what clearly is a specific injury claim into a Gillette-type injury claim. Because we believe that the judge misconstrued the employee=s reference to the Aprotocol of a Gillette injury,@ and because an issue of whether the employee sustained a Gillette injury in 2000 was not submitted to the judge, we vacate the judge=s finding of a Gillette injury on June 19, 2000, and his consequent award of benefits against D & G.

Although we have vacated the judge=s finding of a Gillette injury on June 19, 2000, the issue of whether the employee sustained a specific injury at D & G remains important in determining the employee=s benefit entitlement. It is undisputed that the employee failed to provide timely notice of any specific injury while employed by D & G. The judge, however, made no express decision as to whether the employee had in fact sustained a specific injury in 2000 due to an incident with a jumping jack packer as alleged. Such a determination becomes necessary in order to determine the employee=s entitlement to benefits under the Act.

Schwan=s has contended that, if the court finds that D & G=s liability for an injury in 2000 is barred by the employee=s failure to provide due statutory notice, Schwan=s= liability for workers= compensation benefits is controlled by the supreme court=s decision in Pearson v. Foot Transfer Co. In Pearson, A[t]he only issue [was] whether the employee=s failure to give notice of a second injury, sustained while working for a subsequent employer, impose[d] liability on the first employer for the benefits the second employer would otherwise have been obligated to pay.@ Pearson v. Foot Transfer Co., 301 Minn. 489, 490, 221 N.W.2d 710, 711, 27 W.C.D. 535, 535-36 (1974). The court concluded that Aon no theory can the first employer be held liable for total disability if half of it was caused by a later accident.@ Id. at 491, 221 N.W.2d at 711, 27 W.C.D. at 537.

In the present case, because the judge has not made a finding on whether a specific injury occurred at D & G,[7] the applicability of Pearson cannot be determined. Therefore, the issue of whether or not the employee sustained a specific injury at D & G is remanded to the compensation judge for appropriate findings. After a determination on that issue has been made, the judge may reconsider his award of benefits to the employee in light of Pearson=s applicability.[8]

2. The Alleged Buchholtz Injury

The compensation judge concluded that the employee failed to sustain his burden of proving that he sustained a Gillette-type injury culminating on or about February 2, 2006. He based his determination on the employee=s hearing testimony, the history provided to Dr. Meister on February 2, 2006, and to Dr. Carlson on February 23, 2006, the hearing testimony of John Otto, and the opinions offered by Dr. Friedland. The employee and Schwan=s argue that the facts relied upon by the judge do not constitute substantial evidence in the record as a whole in support of the judge=s finding. With the exception of Dr. Friedland, they argue, all of the examining physicians assigned significant liability for the employee=s condition to Buchholtz. Moreover, they contend, Dr. Friedland=s own history supports the conclusion that the employee developed low back pain and left lower extremity pain in the fall of 2005 while working for Buchholtz. They argue that the employee began full-time work at Buchholtz without restrictions in 2004, that after two seasons of heavy physical labor, during which he experienced increasing symptoms, he underwent a two-level fusion, and that therefore the judge=s decision denying a Gillette injury at Buchholtz must be reversed. We are not persuaded.

A Gillette injury is a personal injury caused not by a specific event but by the effects of minute trauma over time. That trauma results in a compensable injury when the cumulative effect is sufficiently serious to disable an employee from further work. Gillette v Harold, Inc., 257 Minn. 313, 318, 101 N.W.2d 200, 204-05, 21 W.C.D. 105, 110 (1960), citing Balow v. Kellogg Co-op Creamery Ass=n., 248 Minn. 20, 24, 78 N.W.2d 430, 433 (1956). In order to establish a Gillette injury, it is the employee=s burden to Aprove a causal connection between [his or her] ordinary work and ensuing disability.@ Steffen v. Target Stores, 517 N.W.2d 576, 581, 50 W.C.D. 464, 467 (Minn. 1994). A determination of a Gillette injury Aprimarily depends on medical evidence.@ Id.

Here, the compensation judge adopted the opinions of Dr. Friedland, that an acute change in the employee=s clinical symptomatology occurred more than a month after the employee was laid off for the season. Dr. Friedland concluded that the employee sustained a relatively spontaneous recurrent left-sided L5-S1 disc herniation, citing in support of his opinion the history given by the employee to Drs. Meister and Carlson in February of 2006. Dr. Friedland was fully aware of the employee=s work activities at Buchholtz, and he did not believe that the fact that the employee experienced symptoms at work necessarily meant that the work aggravated the employee=s condition. The compensation judge found Dr. Friedland=s opinion to be more persuasive than the opinions of the other examining physicians. Resolution of conflicting expert medical opinion is the responsibility of the compensation judge, and the trier of fact=s choice between medical experts is usually upheld so long as the accepted opinion is based on adequate factual foundation. See Nord v. City of Cook, 360 N.W. 2d 337, 37 W.C.D. 364 (Minn. 1985). We conclude that the opinions of Dr. Friedland are adequately founded and that the compensation judge did not err in relying on those opinions in concluding that the employee did not sustain a Gillette injury on or about February 2, 2006. We therefore affirm that finding of the judge.

3. The Radicular Leg Pain - PPD

Minnesota Rules 5223.0390, subpart 4D(1), provides for an additional 3% impairment rating Aif chronic radicular pain or radicular paresthesia persist despite treatment.@ The employee contends that the judge erred in failing to award permanency under this section, as the record supports the conclusion that the employee has had an ongoing problem with his left leg for over thirteen years. He argues that this additional award is supported by his testimony, by the medical records, and by the opinions of Drs. Wengler, Hood, and Friedland. We remand the issue to the compensation judge for a determination.

We acknowledge that there is evidence in the record to support the employee=s claim for permanency under this section of the permanency rules. Such a rating is supported by the opinions of Dr. Wengler, Dr. Hood, and arguably Dr. Friedland at his deposition.[9] Nor has any of the doctors indicated specifically that a rating under this rule does not apply to this case. Here, the judge=s detailed finding on permanent partial disability makes no reference to the employee=s claim under this rule. Given the record before us, we conclude that the issue should be remanded for a determination by the judge.

[1] See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).

[2] At oral argument on appeal, the court questioned the timeliness of Schwan=s, Inc./Liberty Mutual=s cross-appeal. Counsel for Schwan=s, Inc./Liberty Mutual subsequently submitted a letter brief, an affidavit, and other documentation in support of their position that their appeal was timely. No party has disputed the allegations of timeliness or the supporting documentation filed by Schwan=s, Inc./Liberty Mutual, nor has any party requested further proceedings on the issue. Therefore, on April 1, 2008, the court advised the parties that the cross-appeal of Schwan=s, Inc./Liberty Mutual would be accepted as timely and that the case would be decided as submitted.

[3] Additional findings and issues were listed in the notice of appeal filed by Schwan=s, Inc., but were not addressed in its brief. These issues are deemed waived and have not been addressed by the court. Minn. R. 9800.0900, subp 1.

[4] Dr. Wengler=s permanent partial disability rating included 3% for chronic radicular pain or radicular paresthesia pursuant to Minn. R. 5223.0390, subp. 4D(1).

[5] Dr. Hood=s report and 24% rating includes 3% for chronic radicular pain or radicular paresthesia under Minn. R. 5223.0390, subp. 4D(1).

[6] The employee cites Schnurrer v. Hoerner-Waldorf, Inc., 345 N.W.2d 230, 26 W.C.D. 504 (Minn., 1984), and other cases addressing the timing of a Gillette injury.

[7] At Finding 4, the compensation judge found:

The testimony by the employee was originally that he was working using a Ajumping jack packer@ at a jobsite working with a Kevin Gruhot. This was the jobsite referred to as the job on Patricia Court in Marshall, Minnesota. Kevin Gruhot testified by deposition and in his deposition he makes it clear that there was no packing work using a jumping jack packer on that jobsite. He explains why they would not have been doing compacting at that jobsite and states in part:

AQ: So you=re saying you don=t recall him using the jumping jack packer on this particular job on May 16th?@

A: No. It wouldn=t have been used. I talked to the concrete contractor, just to check with him, and he said, no, there wouldn=t have been any clay packed because he wouldn=t allow it, because he does want his concrete to settle.@

Respondent State Fund Exhibit #2, at p. 14. The problem with the employee=s credibility on this issue is that first he specifically indicated that the injury took place at this job on Patricia Court, and when that was clearly not the case he changed the date to a Gillette-type injury when he first sought medical treatment.

As we have interpreted the employee=s claim, we find no basis for concluding that the employee at any time changed his position on where and how his claimed injury in 2000 occurred. Whether the employee injured himself as claimed is a fact call for the judge, but we see no basis to question the employee=s credibility based on his lawyer=s theory of the date of injury.

[8] On remand, the judge must also revisit Finding 12. As of July 31, 2006, intervenor Minnesota Department of Human Services appears to have paid ,228.04 in subsistence benefits and only .68 in medical expenses, rather than ,318.72 in medical expenses as reported in the finding.

[9] See page 27 of the Friedland deposition.



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