JONATHAN H. NIELSEN, Employee/Appellant, v. WHEEL SERV. BRAKE & EQUIP. and ACUITY INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 20, 2012
EVIDENCE - EXPERT MEDICAL OPINION. The fact that a doctor was retained by the employer and insurer to render an expert opinion, the fact that the doctor may have spent only five minutes on an exam, and the fact that the doctor did not go over the medical records with the employee during the exam, provided no basis to overturn the compensation judge’s decision to accept the opinion of that physician.
Determined by: Wilson, J., Stofferahn, J., and Johnson, J.
Compensation Judge: James F. Cannon
Attorneys: Charles M .Cochrane, Cochrane Law Office, Roseville, MN, for the Appellant. Gregory R. Broos and Elizabeth Chambers-Brown, Brown & Carlson, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the judge’s findings that the employee is not disabled or in need of work restrictions due to his work-related injury. We affirm.
The employee sustained an admitted work-related injury to his back on August 9, 2010, while working for Wheel Service Brake & Equipment [the employer] as a mechanic. He sought no medical treatment for this injury until August 31, 2010, when he was seen at Allina Medical Clinic in Mora for complaints of low back pain with burning across the low back. He was diagnosed with a lumbar strain, was prescribed medications for pain and spasm, and was taken off work.
The employee returned to the Allina Clinic on September 7, 2010, with worsening low back pain. An MRI performed on September 14, 2010, revealed “mild discogenic degenerative change at L5-S1” but was otherwise “unremarkable.”
The employee was then seen by Dr. Scott Ahrenholz on October 5, 2010. Dr. Ahrenholz reviewed the MRI report and diagnosed low back pain/lumbar strain, noting too that the employee “also appears to have psychological component to some of his complaints, with history of depression and sleep issues.” Dr. Ahrenholz recommended that the employee observe work restrictions on standing, sitting, walking, kneeling/crouching, carrying, and pushing/pulling. The employer was unable to provide the employee with work within these restrictions.
The employee attended physical therapy on eight occasions between October 15 and November 9, 2010. On November 11, 2010, physical therapist Garrett Estenson indicated that “we have exhausted conservative treatment of his pain.”
On November 22, 2010, Dr. Ahrenholz recommended that the employee have a repeat MRI, which was performed later that day. That scan showed “moderate L5-S1 disc degeneration with mild narrowing of the neural foramina” but no other abnormal findings.
On December 1, 2010, the employee was seen again by Dr. Ahrenholz, still complaining of low back pain. The doctor noted that the “findings on MRI do not provide clear etiology for the pain he is describing.” Dr. Ahrenholz also noted, “I think he continues to have significant psych component to his pain issues.” It was decided that the employee would be referred to an occupational medicine doctor, with Dr. Ahrenholz noting “that would his third provider for this same complaint.” On that date, Dr. Ahrenholz continued the employee’s work restrictions, indicating that the employee was not at maximum medical improvement [MMI] from his work injury and that further physical therapy might be necessary.
The employee was examined by independent medical examiner Dr. Gary Wyard, at the request of the employer and insurer, on December 8, 2010. In his subsequent report, Dr. Wyard found that the employee had a normal back exam, normal MRI findings, and evidence of functional overlay. He concluded that the employee had “sustained at most a lumbar sprain/strain on August 9, 2010, which did not cause his preexisting conditions to accelerate beyond their normal progressions.” It was further his opinion that the employee had reached MMI and that there were no longer any objective findings that could be attributed to the work injury, that the employee required no specific work restrictions or limitations, and that he needed no additional treatment.
On December 16, 2010, the employer and insurer filed a notice of intention to discontinue benefits based on Dr. Wyard’s report. Temporary total disability benefits were paid through January 31, 2011.
The employee was examined by Dr. John Sandness, on referral from Dr. Ahrenholz, on February 16, 2011. At the time of that exam, the employee complained of stabbing and throbbing pain in the low back and neck, numbness in his right or left arm from the shoulders down, occurring once or twice a week and lasting 5 to 10 minutes, difficulty urinating, painful bowel movements, and constipation. Dr. Sandness diagnosed “subluxation of the pelvis with an up-slip of the left innominate at both the symphysis pubis and left sacroiliac joint,” as well as “sacral, lumbar, ribcage, upper extremity and lower extremity somatic dysfunctions and a severe deficiency of core stabilization, all secondary to the instability of the pelvic ring.” Dr. Sandness referred to three physical therapy notes that referenced treatment for “unstable pelvis.” He recommended various restrictions and outlined a treatment plan.
On March 1, 2011, the employee filed an objection to discontinuance, which proceeded to hearing on April 12, 2011. At the hearing, the employee introduced Dr. Sandness’ report into evidence. The employer and insurer objected, contending the employee had never provided them with that report. The compensation judge received the report into evidence but gave the employer and insurer two weeks to have Dr. Wyard review the report and issue a supplemental report of his own. Dr. Wyard’s report, dated April 21, 2011, was also received into evidence. In that report, Dr. Wyard indicated that there was “nothing to indicate that [the employee] has a pelvic issue” and that review of Dr. Sandness’ report did not alter his opinions.
In findings and order filed on April 28, 2011, the compensation judge found that the employee was no longer disabled or in need of work restrictions. The employee appeals.
STANDARD OF REVIEW
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 (2010). 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). 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, “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).
In denying the employee’s claim for temporary total disability benefits, the compensation judge expressly accepted the opinion of Dr. Wyard over those of Drs. Ahrenholz and Sandness. On appeal, the employee contends that the facts assumed by Dr. Wyard are not supported by the evidence, that Dr. Wyard is “a professional expert witness” hired by employers and insurers “to provide opinions that are used to oppose the claims of injured workers,” that the doctor examined the employee for only five minutes and did not review any of the employee’s medical records with him during that visit, and that that Dr. Wyard did not demonstrate more than a cursory knowledge of the facts of the August 9, 2010, work injury.
Nothing in the statutes or case law prohibits a doctor from rendering an opinion simply because he is an expert witness. Independent medical examiners are routinely used by both employer and insurers and employees. The fact that a physician is rendering an opinion solicited by one of the parties to a claim is for the compensation judge to weigh. There is also no requirement that an independent medical examination be of a specific duration or that the doctor review medical records with the employee during the exam. Both of his reports describe the medical records Dr. Wyard reviewed, which appear to be the same records introduced into evidence by the employee at the hearing. We would note here that the employee did not argue that Dr. Wyard was not provided with all of the employee’s records. We also reject the employee’s contention that Dr. Wyard had little knowledge of the facts pertinent to the injury. The history of injury contained in Dr. Wyard’s reports is almost identical to that of Dr. Sandness.
A judge’s choice between expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employee makes other arguments as to why the judge should not have accepted the opinions of Dr. Wyard over the treating doctors, but none of those arguments points to facts assumed by Dr. Wyard that were not supported by the evidence. The judge’s choice of expert opinion is therefore affirmed.
Finally, the employee argues that his treatment records provide substantial evidence to support his objection to discontinuance. The issue, however, is not whether the evidence would support a contrary finding but whether there is substantial evidence to support the findings that the compensation judge made. Minn. Stat. § 176.421. In this case, the opinion of Dr. Wyard, which was reasonably accepted by the judge, provides that substantial evidence. The judge’s findings are therefore affirmed.
 According to an unappealed finding.
 He concluded that the minimal underlying degenerative changes disclosed on the MRI scans were “consistent with and normal for his age.”
 This was apparently the date of an administrative conference.
 He also diagnosed thoracic outlet syndrome on the left.
 The physical therapist’s notes are difficult to read but, for October 15, 2010, they contain the words “pelvic rocking,” for October 29, 2010, the words “pelvis correction,” and for November 4, 2010, the words “unstable pelvis.”
 While arguing in his brief on appeal that Dr. Wyard’s opinions were lacking in foundation, the employee’s attorney admitted at hearing that Dr. Wyard did have the necessary qualifications for foundation.
 Dr. Wyard reported that the employee had “hurt his low back at work while hooking up a line. He was on his back reaching up and he felt a pop in his back.” Dr. Sandness reported, “he was laying on a creeper under a truck when he reached up to tighten some lines and felt something pop in his low back.”
 At oral argument, the employee contended that Dr. Sandness’s opinion was well reasoned and explained. However, we found no explanation in his report of how his diagnosis of pelvic instability was related to the admitted back injury.