DUSTIN BASTING, Employee/Appellant, v. METZ FRAMING, INC., and AUTO-OWNERS INS. GROUP, Employer-Insurer/Respondents, and NEUROLOGICAL ASSOCS. OF ST. PAUL, HEALTHPARTNERS, INC., TWIN CITIES HEADACHE AND NECK CLINIC, and SUMMIT ORTHOPEDICS, Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 05, 2017

No. WC16-5971

CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supported the compensation judge’s decision that the employee’s low back, mid back, right ankle, and right knee were temporary, rather than permanent, in nature and that the employee did not sustain SI joint or coccygeal injuries.

INTERVENORS. Upon intervention by a medical provider, an employee cannot assert a direct claim for benefits on behalf of that provider absent a demonstration that the employee or employee’s counsel is authorized to act on that provider’s behalf.

    Determined by:
  1. Gary M. Hall, Judge
  2. Patricia J. Milun, Chief Judge
  3. David A. Stofferahn, Judge

Compensation Judge: James F. Cannon

Attorneys: David W. Blaeser, Blaeser Law Office, Woodbury, Minnesota, for the Appellant. Jennifer M. Fitzgerald, Cousineau, Waldhauser & Kieselbach, Mendota Heights, Minnesota, for the Respondents.

Affirmed.

OPINION

GARY M. HALL, Judge

The employee appeals from the compensation judge’s findings that the employee’s low back, mid back, right ankle, and right knee were temporary, rather than permanent, in nature and that the employee did not sustain SI joint or coccygeal injuries. The employee further appeals the denial of reimbursement to various intervenors for certain periods of treatment. We affirm, as modified.

BACKGROUND

The employee, Dustin Basting, sustained an admitted work injury on January 22, 2014, while working for the employer, Metz Framing. The injury occurred when a bundle of triangular roof trusses which was being hoisted overhead broke loose and fell onto him. Fortunately, the employee was standing where the open portion of the triangle landed, and was not struck by the full weight of the trusses. Instead, he was struck along the back of the head by the inner surface of the trusses, which slid down the side of his body, knocking him down. He landed in a sitting position on the trusses with his left leg partly pinned under them.

The employee was seen that same day at Regions Hospital for evaluation of left knee pain, neck pain, and an ear laceration. He stated he had been struck on the back of the head but denied having lost consciousness. He was noted to have abrasions behind the right ear and on the left forehead. A CT scan of his head was unremarkable. He was placed in a left knee immobilizer and referred for orthopedic examination.

On January 28, 2014, the employee was seen at the Health Partners orthopedic clinic by Dr. Johnathan Cooper. He had swelling and stiffness in the left knee as well as left ankle pain. An MRI of the left knee was recommended. The MRI, performed on February 6, 2014, showed a probable meniscal capsular injury, a high grade tear of the medial collateral ligament, and a proximal femoral avulsion. The employee subsequently continued to treat for his left knee with Dr. Cooper.

The employee also began treating at the Schumacher Chiropractic Clinic on February 3, 2014, for cervical pain, mid back pain, right and left knee pain, and left ankle pain which he associated with the injury. He apparently also was treated for low back pain there. He treated at the Schumacher Clinic at least 26 times through May 16, 2014.

When next seen by Dr. Cooper for his left knee on February 20, 2014, the employee reported that he was also noticing right knee pain and discomfort in his low back. Dr. Cooper thought that the right knee and back pain were likely related to the employee compensating for his left knee. The employee was released for seated work using a knee brace. He was to return in one month to be assessed for possible left knee surgery.

On March 12, 2014, the employee was seen at Health Partners by Emily L. Bannister, M.D., an occupational medicine specialist, for multiple work-related injury conditions. Her diagnosis was of left knee pain with MCL, meniscal, and ACL tears; right knee pain; and a right ear laceration. She noted that the employee was seeing a chiropractor for low back. The employee also reported mid thoracic pain with neck flexion. Examination showed full ROM in both the thoracic and lumbar spine. Dr. Bannister recommended that the employee continue to follow up with Dr. Cooper for the left knee, while she followed up with the employee to manage his other symptoms from the work injury and to manage work restrictions. She authorized the employee to return to work with restrictions.

On April 14, 2014, the employee underwent anterior cruciate ligament reconstruction surgery by Dr. Cooper.

The employee started treating with Dr. John A. Dowdle at Summit Orthopedics for pain in the cervical neck and back on May 29, 2014. There was tenderness bilaterally in the thoracic paraspinal muscles and the upper trapezius muscles and midline along the cervical spine, but the employee had full functional cervical strength and range of motion. Dr. Dowdle requested MRI scans of the employee’s cervical and thoracic spine. The scans, performed on June 6, 2014, showed small disc bulges or herniations at T7-8, T4-5, and C6-7 without significant cord impingement.

Dr. Dowdle referred the employee to Scott Callaghan, D.O., for an EMG and a consultation. Dr. Callaghan saw the employee on June 30, 2014. The employee gave a description of the work incident and reported that since his work accident, he had cervalgia, neck pain and upper to mid thoracic pain as well as increasing lumbar pain without radiation into the legs. The employee was having intermittent numbness and tingling in both hands and forearms, left greater than right. Dr. Callaghan’s diagnoses included a probable mild concussion with mild memory difficulties, musculoskeletal cervicalgia and thoracic pain, and upper extremity sensory disturbance. He recommended an EMG of the upper extremities and a brain MRI.

The employee’s EMG, performed on July 14, 2014, was read as an abnormal study suggestive of a neuropathic process in the left C7 versus middle trunk of the brachioplexus distribution with mildly decreased recruitment in the left abductor pollicis brevis. Dr. Callaghan referred the employee for evaluation by Matthew Collins, D.C.

The employee was seen for evaluation by Dr. Collins on July 16, 2014. The employee was reporting pain in the back of the neck, upper and mid thoracic pain, pain in the left trapezius, and pain in the lumbar and sacral regions. Dr. Collins noted that the employee “confirms previous episodes of this [latter] condition. Prior episodes however were not due to injury and would be easily self-treated and resolve.” Dr. Collins recommended a short course of chiropractic care with a transition into a core strengthening program at Physician’s Neck and Back Clinic.

When the employee returned to Dr. Dowdle on July 22, 2014, the doctor noted that the employee had seen both Dr. Callaghan and Dr. Collins. He referred the employee for an exercise program, but deferred the inception of the program due to a pending IME examination. The employee was provided with a TENS unit.

The employee returned to Dr. Callaghan on August 14, 2014. Dr. Callaghan noted that the EMG suggested a neuropathic process in the left upper extremity with subtle changes, but that there was no correlate on the MRI. He also noted that the employee was continuing to see Dr.Collins for musculoskeletal pain.

On August 30, 2014, the employee was seen by Thomas Comfort, M.D., for an examination on behalf of the employer and insurer. The employee reported that his headaches, left ankle, and right knee pain had resolved. He was currently having only minimal pain with the left knee. The employee complained of daily cervical pain which was improving; of mid back pain, improving; of slowly improving low back pain localized in the region of the SI joint; and of left lower extremity numbness and tingling. Dr. Comfort opined that the employee was not yet at maximum medical improvement (MMI). He recommended that the employee complete physical therapy for his left knee. In his view, the employee’s cervical and thoracic injuries would improve with additional physical therapy. He considered the treatment the employee had received to be reasonable and necessary with the exception of chiropractic treatment from and after July 16, 2014.

The employee returned to Dr. Dowdle on September 9, 2014. He reported that his mid back and neck pain had improved and his pain was now more in the low portion of his back. He was tender to palpation along the midline of the lumbar spine. The employee had full range of motion and normal reflexes. He could walk on heels and toes and straight leg raising was full and pain free. A lumbar MRI was performed on September 30, 2014, and the employee returned to Dr.Dowdle for a review of the MRI findings on October 7, 2014. Dr. Dowdle noted that the scan showed mild degenerative changes including foraminal stenosis at L5-S1 on the right.

When the employee returned to Dr. Collins on October 8, 2014, he expressed concern to the doctor about the finding of degenerative changes in his back. Dr. Collins noted that he had “counseled him that the degeneration likely predates his injury.” Dr. Collins released the employee to treatment on a per need basis.

The employee subsequently started a physical rehabilitation program for his lumbar spine degenerative disc disease based on a referral from Dr. Dowdle.

When the employee was seen by Dr. Collins on December 22, 2014, he reported to the doctor that he felt improved overall. His neck pain had improved as had his lower back pain. However, he was having SI joint pain along with pain close to the tip of his sacrum near the coccygeal region. Dr. Collins opined that the coccyx pain was consistent with the fall the employee had during the work injury, combined with irritation to the region from recent low back and glute exercises at the rehab program.

The employee was discharged from his spinal conditioning exercise program on February 11, 2015, with a 70 percent perceived recovery, but with some continued complaints of mid back and tailbone pain.

On February 12, 2015, the employee saw Dr. Collins and expressed frustration with his coccyx pain. He was also continuing to experience SI joint pain. Dr. Collins was unsure whether the coccyx pain was referred pain due to a misalignment. He suggested that the employee might benefit from manual manipulation to the coccyx by another chiropractor, Dr. John Williams, or could consider an injection.

The employee had injections to the coccyx on March 3 and March 24, 2014, by Dr.Dowdle. Dr. Dowdle’s impression was of low back pain, degenerative disc disease of the lumbar spine, and mild coccyxdynea. At the latter visit, the employee was also experiencing neck pain which the doctor thought was apparently related to his work hardening program.

The employee had a functional capacities evaluation on April 1 and 2, 2015. He was determined to be capable of working full time at a medium level.

The employee continued to be seen by several physicians. On April 24, 2015, Dr.Collins prepared a report for the employee’s attorney responding to the IME report of Dr.Comfort from September 22, 2014. Dr. Collins agreed that, due to the work injury, the employee had sustained cervical and thoracic sprain/strain injuries, with late developing low back pain. However, he disagreed that the employee’s spinal injuries were temporary in nature, or that the employee required no treatment for the spine beyond a conditioning program. He considered that the chiropractic and physical therapy treatment provided to the employee had been reasonable and necessary.

The employee was again seen by Dr. Comfort for a second IME on May 2, 2015. The employee reported that he had recently taken a sales job with a new employer and was not on restrictions. His current complaints were a recurrence of headaches; left knee pain; occasional right knee pain; and daily low back pain. The employee considered his cervical spine pain and mid back pain improved and he felt that his low back pain was improving. Dr. Comfort concluded that the employee’s current complaints were unrelated to his work injury. He felt that the employee’s left knee had reached MMI with 7 percent permanency. Examination of the employee’s cervical spine exam showed objective resolution of his cervical sprain/strain. Dr. Comfort rated the employee with an additional 3.5 percent permanent partial disability for the cervical spine based on MRI evidence of a disc bulge together with the EMG results showing possible radiculopathy. He considered the employee’s thoracic sprain/strain objectively resolved without evidence of myelopathy or radiculopathy. He noted that the employee’s lumbar complaints were unaccompanied by any evidence of a radicular process. He noted that the employee had been diagnosed post-accident with a lumbar sprain/strain. In his opinion, this had since resolved. Dr. Comfort opined that the employee had reached MMI from all injuries and that no further medical, chiropractic or physical therapy treatment was reasonable or necessary.

On May 26, 2015, Dr. Dowdle reported that the employee had reached MMI for his back and neck conditions without permanent partial disability and was medically stable. On May26, 2015, Dr. Cooper pronounced the employee at MMI from his left knee surgery. He recommended an occupational medicine evaluation to rate the employee’s left knee permanency, but felt that no restrictions were needed for the left knee condition. On July 1, 2015, Dr. Bannister saw the employee for determination of his left knee permanency. She rated the left knee at 7 percent.

The employee returned to Dr. Collins on July 1, 2015, reporting that he was having a new episode of his previous conditions, with his chief complaints being lumbar pain, upper thoracic pain, and pain in the back of the neck. Dr. Collins felt that the employee’s situation was complicated by chronic pain and the severity of the initial injury episode. He expected the employee to make good progress and recovery with about one month of regular chiropractic treatment on a twice a week basis.

Two weeks later, on July 14, 2015, the employee was seen by Dr. Dowdle. The employee reported that his coccyx pain was now moderate in severity. Dr. Dowdle again noted that the employee was at MMI. He provided the employee with an injection for local pain over the coccyx. The employee returned to Dr. Dowdle on July 28, 2015, and was again given an injection to the coccyx. At that time, the employee asked Dr. Dowdle about his ongoing chiropractic care. Dr. Dowdle noted that he advised the employee that he believed chiropractic treatment should be given only “if medically necessary.”

The employee continued regular ongoing chiropractic treatment with Dr. Collins through September 16, 2015, for neck, mid back, and low back pain. On that date, the doctor discharged him from active treatment to return on a per need basis. At that time, the employee was “really noticing coccyx pain again” which the doctor considered to be mechanical in nature. Dr.Collins recommended a referral for chiropractic treatment to the coccyx rather than more injections.

The employee was seen by Dr. Dowdle on September 29, 2015, and again received an injection to the coccyx.

On September 30, 2015, Dr. Dowdle wrote a letter opinion in which he stated the opinion that the employee’s SI joint pain and sacrococcygeal pain were related to the initial work injury but had become more prominent over time.

Dr. Comfort prepared a report on November 19, 2015, providing his opinion on whether the employee’s work injury had resulted in injuries to the SI join and coccyx. Dr. Comfort noted that the medical records did not show these conditions for at least five months after the injury, that there was no evidence of any radicular or myelopathy processes into the employee’s lower extremities, that there was no evidence of range of motion limitations in the area of the lower spine. He did not find any objective evidence of a sacrococcygeal injury. In his view, the employee had not sustained either an SI joint or a sacrococcygeal injury.

On December 18, 2015, the employee returned to Dr. Collins with chronic and recurring neck, upper back, mid back, and low back pain complaints. He stated that he had experienced a new flare up of pain, and was particularly noticing his coccyx pain again. Dr. Collins felt that the employee would do well with another regular course of chiropractic treatment for at least the next month. On January 15, 2016, Dr. Collins noted improvement and continued the regular plan of treatment.

The employee was also seen again by Dr. Dowdle in March 2016 for coccyx pain, currently at a 1/10 pain level. Dr. Dowdle recommended he sit on a rubber ring to avoid pressure to the coccyx.

The employer and insurer initially paid for medical care and treatment but eventually stopped paying for care other than to the left knee based on the opinions of Dr. Comfort. They also filed a notice of intent to discontinue benefits. The employee filed medical and rehabilitation requests. Following various administrative conferences, the matter eventually came on for hearing before a compensation judge. The issues before the judge included the nature and extent of the employee’s work injury of January 22, 2014; whether certain medical treatment was reasonable, necessary and causally related to that injury; and whether certain intervenors were entitled to reimbursement of their intervention interests.

Following the hearing, the judge found that the employee had sustained permanent injuries to the left knee and neck, a permanent headache condition, and temporary injuries to the low back, mid back, right ankle, and right knee. The temporary injuries were found to have resolved by May 2, 2015. The judge also found that the employee’s work injury did not result in either an SI joint or coccyx injury. The judge denied the claims of intervenor Neurological Associates which had failed to appear by telephone for the hearing. The judge awarded those portions of the intervention claims which were for treatment of the permanent conditions or for the temporary conditions prior to the date found for their resolution, but denied those for treatment of the temporary conditions after the date of resolution. The employee appeals from the findings that certain conditions were temporary rather than permanent, and from the findings denying SI joint and coccyx injuries.

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(3). 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).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

DECISION

1.   Nature and Extent of Injuries.

In finding that the employee’s injuries to the low back, mid back, right ankle, and right knee were temporary rather than permanent in nature, and in finding that the employee did not sustain an SI joint injury or an injury to the coccyx, the compensation judge accepted the expert medical opinion of Dr. Comfort. The employee argues that the compensation judge should have accepted the opinion of Dr. Dowdle, whose opinion, he contends, is more reliable and reflects a careful consideration of the employee’s medical history. It is the role of the compensation judge to resolve conflicts in expert medical testimony, and his or her choice of expert opinion is generally upheld on appeal unless the facts assumed by the expert in rendering his opinion are insufficient or not supported by the evidence. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

The employee complains that, in his view, Dr. Comfort’s opinions reflect a “spin” or bias which he suggests typifies medical opinions offered by defense experts generally. In particular, he notes that Dr. Comfort chose to rely primarily on objective evidence of injury rather than to give significant weight to the employee’s subjective pain complaints. This is an argument that, at best, goes more to the weight of the opinion than to the foundation for the doctor’s opinion. Again, the compensation judge is given discretion to assess the weight and sufficiency of a medical expert’s opinion and to resolve any conflicting medical opinions. Nord, id., see also Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 477-48, 42 W.C.D. 1118, 1121-22 (Minn. 1990).

The employee suggests that Dr. Comfort’s opinions were ill-founded in that he erroneously assumed that the employee did not complain of low back symptoms until long after the January 22, 2014, work injury. However, this is not an accurate characterization of Dr. Comfort’s opinions. Dr. Comfort was aware of the low back component to the employee’s work injury. He did not deny a low back injury; instead, he simply opined that this injury was a low back strain/sprain which resolved by the date of his second IME examination. While it is true that Dr. Comfort did rely on the fact that there was no mention of any SI joint or coccygeal injury for many months following the work injury in denying that the employee sustained an SI joint or coccygeal injury from the work injury, it is clear that he considered these to constitute claimed injuries separate and distinct from a lumbar sprain/strain injury. Dr. Comfort is correct that the medical records contain no specific references to either SI joint pain or coccyx pain for several months following the injury.

The employee points to his testimony that he had been experiencing SI joint and tail bone pain since the date of injury, but that his left knee pain was initially so severe that it was only after his knee surgery that he began to focus on his other symptoms. He also argues that the compensation judge and Dr. Comfort should have interpreted the earliest references to low back pain in the medical records as referring not just to a lumbar spine condition but also to symptoms of the alleged SI joint and coccyx injuries. We note, however, that the compensation judge was not required to accept the employee’s testimony on these points, for which that testimony was the sole support. It is not the role of this court to evaluate the credibility and probative value of witness testimony and choose different inferences from the evidence than the compensation judge. See Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 512-13, 43 W.C.D. 254, 260-61 (Minn. 1990); Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).

In addition to the expert medical opinion of Dr. Comfort, the judge’s findings as to the nature and extent of the employee’s injury are reasonably supported by the employee’s medical records, viewed as a whole, including the timing and nature of the symptoms reported by the employee and the examination and testing findings listed. We therefore affirm.

2.   Reimbursement to Intervenors

The compensation judge denied some intervention claims by medical providers and awarded others. Specifically, the judge found that all of the medical and chiropractic treatment for the employee’s neck and headache conditions was reasonable, necessary, and causally related to the employee’s work injury. The judge also found that the chiropractic treatment provided by the Twin Cities Headache and Neck Clinic for his temporary injuries was reasonable and necessary up to the date these injuries were found to have resolved, May 2, 2015.[1] The judge accordingly denied a portion of the Twin Cities Headache and Neck Clinic charges and similarly denied a portion of the HealthPartners intervention claim, because part of those claims was for treatment to the temporary conditions following the date by which the judge found they had resolved. The judge entirely denied the intervention claim of Summit Orthopedics on the basis that it sought payment for treatment for the employee’s low back subsequent to the date that injury was found to have resolved, as well as payment for treatment to the tailbone/coccyx conditions which was found unrelated to the work injury. Finally, the judge denied in its entirety the intervention claim of Neurological Associates, which had requested leave to appear at the hearing telephonically but failed to do so.

The employee makes two arguments in his brief regarding his appeal from the findings determining the reimbursement to the intervenor medical providers. First, the employee notes that the denial of many charges was based on the findings that the SI joint and coccygeal conditions were unrelated to the work injury, and that injuries to the low back, mid back, right ankle, and right knee were temporary rather than permanent in nature. He argues that to the extent this court finds his appeal from those findings convincing, a reversal of the corresponding denials of reimbursement for the treatment of those conditions necessarily follows. We have affirmed the findings regarding the nature and extent of the employee’s injuries, and therefore similarly reject the appeal from the denial of reimbursement for treatment for non-work or resolved conditions.

The employee also asserts that the compensation judge erred in denying the intervention claims of Neurological Associates based on its failure to appear at the hearing. Neurological Associates filed a petition to intervene in this matter, and the employer and insurer filed a timely objection. The Minnesota Supreme Court has held that Minn. Stat. § 176.361, subd. 4, requires that an intervenor must make a personal appearance at all conferences and hearings unless a stipulation has been signed or the intervenor’s right to reimbursement has otherwise been established. Sumner v. Jim Lupient Infiniti, 865 N.W.2d 706, 75 W.C.D. 263 (Minn. 2015). Failure to make a personal appearance results in a mandatory denial of the intervenors claim. Sumner, 865 N.W.2d at 710, 75 W.C.D. at 269-70. It is undisputed that Neurological Associates did not appear at the hearing and, as a result, the judge properly denied its claim for reimbursement.

The employee argues, however, that the right of an injured worker to directly claim reimbursement for medical expenses incurred by the injured worker has not been affected by Sumner. However, in Fischer v. ISD 625, No. WC16-5955 (W.C.C.A. Nov. 16, 2016), we held that once a provider or other entity intervenes in a workers’ compensation case, it becomes a party, and that the employee’s attorney may then only present the claims of the intervenor if it is unequivocally established at the hearing that the attorney represents not only the employee but also represents the intervenor. No such claim was made by the employee’s attorney here. We accordingly affirm the denial of the intervention interest of Neurological Associates.

As a final matter, we note that the judge appears to have overlooked a compensable charge in the intervention claim of Summit Orthopedics. The judge’s stated basis for the denial of the charges of this intervenor was that all of the listed charges or treatment of the employee’s resolved temporary conditions were incurred after May 2, 2015, the date the judge found the temporary conditions had resolved. We note, however, that the first charge sought in the itemization of Summit’s intervention claim was for treatment rendered on June 10, 2014, with a charge of $486.75. As the denial of this single charge seems to have been an oversight on the part of the compensation judge, we modify Finding 26 and Order 1 to award reimbursement of the June 10, 2014, charge of Summit Orthopedics.



[1] In Finding 25, the compensation judge characterized Dr. Dowdle as the employee’s “primary treating physician” and noted that the employee was not referred to Dr. Collins by Dr. Dowdle. We note that the latter point is technically correct in that the record reflects that Dr. Dowdle referred the employee to Dr. Callaghan, who in turn referred the employee to Dr. Collins. The employee reads this language as an express finding that Dr. Collins is an unauthorized physician, and asks that we reverse it. We note that the issues listed by the compensation judge do not include whether Dr. Collins was or was not an authorized physician. We note, also, that the compensation judge ordered payment of those portions of the intervention claim of Twin Cities Headache and Neck Clinic, the clinic where Dr. Collins practices, to the extent that they were for treatment rendered prior to the resolution of the treated injuries. We conclude both that the language complained of was merely dicta, and that it does not represent a finding on whether Dr. Collins was an authorized treating physician. Accordingly, we need not address the employee’s argument for its reversal.