The employee appeals from the compensation judge’s determination that “the evidence shows that the employee on numerous occasions failed to comply with the activity restrictions of his treating health care providers, not merely on the one-day prior to the end of a six-week limitation against weight-bearing,” and her denial of the employee’s claim for a proposed left ankle surgery.  We affirm.

The employee, Jon Couette, was employed by the employer herein, Parsons Electric, LLC, on January 23, 2012.  On that date, the employee sustained a significant injury to his left ankle.  The employer and insurer admitted liability for the left ankle injury.  After his injury, the employee underwent two surgical procedures on his left ankle.  The current litigation concerns a request for a third ankle surgery, in the nature of a fusion procedure.

The employee’s injury was diagnosed as a left ankle Maisson-Neuve syndesmosis disruption.  The employee testified that his original treating physician, Dr. Devanshu Kansara, informed him that there was so much swelling that they had to wait a week to perform the first surgery.  Dr. Kansara then took the employee to surgery on January 30, 2012 for an ORIF left ankle syndesmosis.  The postoperative plan indicated that the employee was to remain non weight-bearing for six weeks.

The employee testified that following his first surgery on January 30, 2012, he understood that

On February 10, 2012, the employee was again told to remain off work and to continue non weight-bearing for six weeks, and his follow up with Dr. Kansara was set for the six-week mark after surgery.  A work ability report from TRIA dated February 10, 2012 also stated that the employee was to continue with no weight-bearing and no work activities through March 12, 2012.

On February 16, 2012, the employee underwent an initial evaluation at NovaCare Physical Therapy.  The note indicated that the employee arrived in a brace using crutches, and that he was “now weight bearing.”  However, the note also indicated that the employee was ambulating with crutches and non weight-bearing on the left lower extremity.  Records from February 28, 2012, March 1, 2012, March 8, 2012, March 14, 2012, and March 16, 2012 contained similar notations.

In the meantime, the employee followed up with Dr. Kansara on March 6, 2012.  Dr. Kansara indicated that the employee could discontinue the use of his brace and “begin weight bearing as tolerated.”  The employee was to remain off work for another two weeks and then return to work two hours per day, increasing as tolerated.  He was to do mostly sedentary work.

On cross-examination at hearing, the employee denied telling his physical therapists toward the end of February 2012 that he was “now weight bearing.”  The employee believed that was a typo.  He said he was still on crutches “a hundred percent.”  The employee said he was not weight-bearing at the time and was not telling his therapist he was doing anything in terms of activity.  He thought that the records toward the end of February should have said non-weight bearing, and he thought it was a typo.  The employee conceded that he never asked NovaCare to correct his medical records or change them.

The compensation judge addressed the NovaCare records and indicated that the apparent “internal discrepancy with the records is somewhat suspect.”  However, she also noted that on March 20, 2012, the NovaCare records indicate that the employee “began walking about 1 wks prior but continues to have severe antalgic pattern.”  Therefore, the compensation judge found that as of March 20, 2012, the records were clear that the employee had been weight-bearing for about a week.

In the March 20, 2012 record, the physical therapist also noted that the employee was reporting continued pain with weight bearing and difficulty performing weight-bearing tasks.  The physical therapist recommended that the employee return to crutches and gradually work into weight-bearing.

On March 27, 2012, the employee told his physical therapist that he had more pain across his ankle joint, but he had been on his feet quite a bit that morning.  As of March 29, 2012, the employee reported a decreased weight-bearing tolerance.

The employee followed up with Dr. Kansara on March 30, 2012.  The employee was indicating that with weight-bearing activities, he was continuing to have persistent ankle pain.  Dr. Kansara opined that the employee had significant medial joint space widening and lateral talar subluxation.  Dr Kansara recommended a revision surgery because of significant medial joint space widening and lateral talar subluxation, which suggested failure of the syndesmotic fixation.  Dr. Kansara continued to recommend working two hours a day and increasing it as tolerated, in a sedentary position.  The work ability form used by Dr. Kansara’s office described sedentary as lifting 10 pounds maximum and occasionally lifting small articles.  All duties were to be performed in a stationary/seated position.

The employee testified that as of March 30, 2012, he was still feeling pain.  The employee said his pain would reach and 8 or 9 out of 10 on a pain scale of 0 to 10, after he had been on his ankle for a while.  The employee would then take a break, and he would then be able to stand up and walk around again.  The employee said, “I feel like I was following, you know, his rules.”  The employee also said that on March 30, 2012, Dr. Kansara told the employee that he could continue walking and weight bearing as tolerated, and there was nothing the employee could do at that point to make his ankle any worse.

The employer and insurer obtained a significant amount of surveillance video of the employee during the course of this case.  Initial surveillance was taken on April 10, 2012 and April 11, 2012.  In discussing the surveillance evidence, the compensation judge found that as of March 30, 2012, Dr. Kansara was recommending that the employee perform only sedentary activities.  However, the compensation judge found that the April 10, 2012 and April 11, 2012 surveillance footage showed:

The employee testified that he had reviewed the surveillance videos.  He recalled the videos taken on April 10 and 11.  The employee said that he was working in the yard using a “skidster” machine.  The employee said he was simply driving around in the yard in that machine and moving dirt piles.  He said he was not walking, and he said he was in the skidster most of the time using the hand levers.

The compensation judge also noted that on April 11, 2012, the employee was shown arriving at NovaCare Physical Therapy on crutches.  The notes from the physical examination that day showed moderate to severe swelling and pitting, which followed prolonged weight-bearing.  On April 16, 2012, NovaCare records describe the employee as arriving on crutches but “now weight bearing” with moderate to severe swelling.  At that time, the employee was described as “unable to tolerate much standing activities.”  Physical therapy records from April 18, 2012 showed a history of arriving on crutches but performing weight-bearing with moderate to severe swelling and mild pitting.

The employee underwent a preoperative physical with Stewart Sahlberg through Allina Medical Clinic on April 20, 2012.  The employee reported decreased range of motion and increased pain with bending or flexing as well as “walking and standing.”

On April 25, 2012, the employee underwent a revision procedure due to failed syndesmotic fixation after ORIF left ankle.  This procedure included placement of two screws.  Excessive scar tissue was noted during the surgery.  Once again, Dr. Kansara indicated that the employee was to remain non weight-bearing for six weeks.  The employee’s general discharge instructions also indicated that he was to use crutches and to avoid any weight-bearing.  The compensation judge found that after the second surgery, “the employee was to use crutches with no weight bearing for six weeks and no work for six weeks through June 11, 2012.”

The employee testified that after his second surgery, he was told that he would follow the same procedure as the first surgery.  He said he understood that there would be another six-week recovery period.  The employee said Dr. Kansara did not have a problem with the employee “doing stuff with the yard work and whatnot.”  After the second surgery, the employee said that he was “looking at six weeks going forward and to move forward, you know, at that point in time.”

On May 24, 2012, the employee underwent removal of his sutures at TRIA.  He was given a physical therapy referral to start once a week at that point.  The note also indicates that the employee was to remain non-weight bearing through the rest of his six weeks.  The employee was also to remain off work for six weeks.  He was going to return to the clinic at the six-week mark to see Dr. Kansara.

Additional surveillance footage was taken on May 24, 2012, and May 25, 2012.  The compensation judge found that the surveillance on May 24, 2012 showed the employee at home and at Home Depot walking with crutches, driving, and unloading a piece of plywood in his garage with the assistance of another person.  However, the compensation judge indicated that it was “unclear whether the employee utilized his crutches while unloading the plywood in his garage.” The compensation judge found that on May 25, 2012, the employee was seen on video walking with crutches while barefoot, without his Cam boot, and driving and moving the left foot somewhat while ambulating.

The employee testified that the surveillance videos on May 24 and May 25 showed him “getting around good.”  The employee, however, said that he was still using his crutches and was not weight-bearing yet.  The employee said that he had his crutches everywhere he went in those videos.  He also said that he had learned to move around on one foot quite a bit, including hopping places.  He said that on May 24 and 25, he was not weight-bearing at all.

The compensation judge went on to address surveillance footage taken on June 5, 2012, which she noted was before the end of the six-week recommendation for no weight-bearing activities after the second surgery.  At that time, the employee was seen on video walking around the yard without crutches, weight-bearing on the left ankle, and at times with a noticeable limp.

The employee recalled the surveillance video taken June 5, 2012 as well.  He agreed that the video appeared to show him walking around his yard and going to a fast food restaurant, walking with a limp.  The employee said that he thought he was supposed to be weight-bearing at that point, and he thought he was at six weeks.  However, he conceded that “I was at five weeks and six days.”

The employee’s next follow-up visit with Dr. Kansara took place on June 8, 2012.  The employee was asked whether he recalled how he was doing and whether he had been weight-bearing for a week or so.  The employee said yes, and he said he was moving around and “felt good.”  During the visit on June 8, 2012, Dr. Kansara recommended that the employee “begin weight bearing” and work with physical therapy.  Dr. Kansara recommended that the employee continue with his current restrictions.  The employee was to remain off work through July 1, 2012.  Dr. Kansara also observed that, according to an x-ray, one of the employee’s screws had backed out while the other one remained intact.  The employee testified that Dr. Kansara told him that although one of his screws had backed out slightly, he did not feel that this was a “big deal,” and he told the employee to continue weight bearing.

Additional surveillance footage was taken on June 12, 2012.  The employee testified regarding the surveillance video from June 12, 2012.  He testified that it showed him walking around his residence, driving his vehicle, and woodworking in the garage.  The employee recalled doing those activities.  The employee said he was weight-bearing and doing what he was able to do.  He said he was waiting to go back to work, and he was working around the yard trying to prepare himself to go back to work.

The compensation judge found that in the June 12, 2012 footage, the employee was “seen from morning through late afternoon, walking on concrete, getting up and down from a seated position, walking around his residence, driving a vehicle, cutting wood products, applying paint or stain, and lifting and carrying lumber.”  The judge noted that the employee did perform some of these activities while seated.  However, the compensation judge found that

The employee conceded that he had never shown the surveillance videos to any of his doctors, and he was not aware of whether they had reviewed the videos or not.  However, the employee denied that there were any times outside of the video when he was not on his crutches.

The employee underwent an independent medical examination with Dr. Paul Wicklund on June 18, 2012.  Dr. Wicklund issued an initial report dated June 22, 2012.  The doctor reviewed medical records along with the surveillance videos.  Dr. Wicklund indicated that, based on the activities in the surveillance footage, the employee could walk without crutches and stand for up to 10 to 15 minutes at a time.  He could also sit and do work without limitations.  Therefore, Dr. Wicklund felt that the employee could return to work with limitations and restrictions in light-duty jobs.  He could perform some jobs standing, but he should not stand or walk for more than 15 minutes at a time without sitting down for 10 minutes.  Dr. Wicklund felt that the employee did not appear to be forthright with regard to his history of not stepping on his left leg.  His presentation on crutches and non weight-bearing on the left was inconsistent with the abilities depicted on the videos.

On July 10, 2012, Dr. Kansara recommended that the employee return to work with restrictions to walk/stand for 10 minutes and sit for 10 minutes, with a maximum lifting restriction of 20 pounds.  The doctor also suggested that the employee see Dr. Fernando Peña because of ongoing problems with the left ankle.

The employee recalled Dr. Kansara releasing him to return to work with restrictions as of July 10, 2012.  The employee was to start for two hours per day and work up to more time.  However, the employer indicated that they would provide him with a computer so he would not have to drive all the way to the work site.

The employee recalled that about a week after the visit with Dr. Wicklund, his physical therapist indicated that even though the doctor had released the employee to return to weight-bearing, the therapist wanted the employee to continue with crutches and ease into the weight-bearing process.

The employee saw Dr. Peña and underwent a CT scan of the left ankle on July 23, 2012.  The CT scan showed a widened failure of the second surgical fixation.  Dr. Peña gave the employee a workability form restricting any weight bearing on his left lower extremity.  The employee was allowed to do any desk or sitting job.  The recommended sedentary restrictions were continued on August 2, 2012, including sedentary employment with limited lifting of 10 pounds maximum and occasionally lifting small articles.  All duties were to be performed in a stationary/seated position.

Dr. Peña then recommended a third surgical procedure, including a left ankle fusion.  The employee admitted that by the time of the fusion recommendation, Dr. Peña had informed him that both screws had backed out, but Dr. Peña indicated to the employee that it was hard for them to tell what caused the surgery to come apart.

Dr. Wicklund issued a second report dated August 7, 2012.  Dr. Wicklund noted Dr. Peña’s determination that the syndesmosis was once again wider than normal since the second surgical procedure.  Dr. Wicklund reviewed the CT scan done July 27, 2012.  He opined that it showed the lateral plate and screws were no longer stabilizing the employee’s ankle, and the syndesmosis was again wide, measuring nine millimeters.  Dr. Wicklund agreed that the proposed ankle fusion was necessary because of the two failed attempts to repair the syndesmosis.  However, he felt that “this proposed surgical fusion is because of superseding, intervening events which lead to the widening of then ankle mortis.”  Dr. Wicklund opined that the employee did not follow recommendations to remain non weight-bearing, which led to the failure of the second surgical procedure.

On August 15, 2012, the employee’s attorney wrote to Dr. Peña at TRIA.  Dr. Peña was recommending left ankle arthrodesis after two failed reconstruction surgeries.  The letter to the doctor indicated that the workers’ compensation insurer agreed that the recommended surgery was reasonable and necessary, but they were denying responsibility, according to the employee’s attorney, because of “some very limited walking without crutches during the sixth week after the second reconstruction surgery was a violation of restrictions (Dr. Kansara’s operative note suggested he remain non-weight bearing for six weeks), and amounted to an ‘intervening superseding event’ which caused the need for ankle fusion.”  The employee’s attorney included a copy of Dr. Wicklund’s second report and asked Dr. Peña to discuss causation for the failure of the second ankle surgery and the need for the fusion.

Dr. Peña later provided a narrative report dated November 20, 2012.  Dr. Peña indicated that there was no definitive number in the literature with regard to the amount of weeks required for a patient to heal from an injury such as the employee’s.  Six weeks was usually chosen, but there were a variety of options and styles in terms of practice when deciding to allow a patient to become weight bearing.  Dr. Peña indicated that the scientific community was not sophisticated enough to understand some of the failures confronted during practice.  The employee had failed to maintain ankle syndesmosis stability twice, and it was not clear if that was related to the magnitude of the injury or the employee’s inability to reproduce enough scar tissue over the injured area.  Dr. Peña stated, “however, his level of compliance, even though can be taken into consideration, should not be on the top of the list for possible etiologies of his failure.”  Dr. Peña also indicated that he did believe the magnitude of the injury was only revealed by the CT scan later in the process.  No one was at fault due to the fact that at first glance, it looked as though the employee had a more regular and standard type of ankle fracture.

The case came on for hearing before Compensation Judge LeClair-Sommer on November 30, 2012.  The compensation judge received the medical records and surveillance videos discussed above into evidence.  She also heard testimony from the employee and his girlfriend, Ashley Loeffler.

The issues presented included whether the January 23, 2012 work injury was a substantial contributing factor to the proposed left ankle surgery and whether the employee’s conduct was unreasonable, negligent, and/or dangerous “to sever the connection between the work injury and the recommended surgery.”  The compensation judge was also asked whether the employee’s behavior was a superseding, intervening cause of his disability.

The employee’s girlfriend testified that as far as she knew, the employee had been totally compliant with his non-weight bearing restriction during the first six weeks after the first surgery.  In addition, the employee’s girlfriend denied that he had done any weight bearing prior to five weeks and six days after the second surgery.  She indicated that leading up to the second surgery, the doctor had indicated that the employee could continue to bear weight as long as he could tolerate it because his condition could not get any worse.  The employee’s girlfriend said that she had seen the employee hop around on one foot, as he had demonstrated at the hearing, and she indicated that the employee had used his crutches and had not moved around without the crutches, even in the videos in question.  However, the employee’s girlfriend conceded that when the employee was doing the yard work in April with the skidster, he was not using his crutches.  The employee’s girlfriend said that Dr. Kansara did not explain why the employee needed to avoid weight-bearing after his surgeries, but she conceded that it was clear the employee was to remain non weight-bearing for six weeks after the surgeries.

The employee confirmed that Dr. Kansara meant that the employee was supposed to continue non-weight bearing for six weeks.  The employee said, “I screwed up and was walking on it a day early.”  The employee understood it was the standard not to bear weight for six weeks after each surgery.  However, Dr. Kansara did not explain to the employee why he was not supposed to bear weight.

The compensation judge denied the employee’s claimed surgical procedure and indicated that the evidence showed that he had “on numerous occasions failed to comply with the activity restrictions of his treating health care providers, not merely on the one day prior to the end of a six-week limitation against weight bearing.”  Specifically, the compensation judge found the following conduct represented unreasonable and negligent behavior:

The compensation judge found that the opinion of Dr. Wicklund was more persuasive than the opinion of Dr. Peña.  The compensation judge noted that Dr. Wicklund had reviewed all of the medical records and surveillance videos to come to the conclusion that the fusion of the left ankle was necessary due to the two failed attempts to repair the syndesmosis, and that the employee’s failure to follow recommendations to remain non-weight bearing led to the failure of the second surgical procedure.  The compensation judge determined that Dr. Peña had not reviewed all the employee’s medical records and acknowledged that the employee’s level of compliance and the amount of weeks required to heal from the surgery may be a factor.  The compensation judge also found that Dr. Peña did not view the surveillance videos, nor did he have a complete understanding of the extent and duration of the employee’s functional activities.

Ultimately, the compensation judge determined that the employee’s conduct in failing to follow medical advice, including ambulation with weight bearing and ambulating for a substantial portion of the day without assistive devices even after the physicians had recommended that the employee “begin weight bearing,” as well as performing activities at home when no work was recommended and those activities were greater than any prior recommendation for sedentary activities “represents unreasonable and negligent behavior, which caused the widening of the ankle mortise, according to the opinion of Dr. Wicklund.”  As such, the compensation judge determined that the employee’s failure to follow the recommendations of his physicians and remain non weight-bearing had severed the causal connection between the employee’s work injury and the recommended left ankle fusion.

On appeal, the employee argues that the compensation judge applied an incorrect legal standard in determining that the employee’s actions represented “unreasonable and negligent behavior” and a superseding, intervening cause of his need for surgery.  Specifically, the employee argues that his behavior, even while performing various weight-bearing activities, was “normal and reasonable” behavior as contemplated in cases such as Eide v. Whirlpool Seeger Corp., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961) and Nelsen v. American Lutheran Church, 420 N.W.2d 588, 40 W.C.D. 849 (Minn. 1988).  We disagree.

Where a permanently weakened physical condition caused by a personal injury is aggravated by an employee’s subsequent normal physical activities to the extent of requiring additional medical treatment, such treatment is compensable, so long as it could be said that the additional care was “a natural consequence flowing from the primary injury” and not the result of “unreasonable, negligent, dangerous, or abnormal activity on the part of the employee.”  Eide, 260 Minn. at 101-02, 109 N.W.2d at 49-50, 21 W.C.D. at 441.  If a “subsequent aggravation of the initial injury arises from an independent intervening cause not attributable to the employee’s customary activity in light of the employee’s condition, then such additional medical care for the aggravation is not compensable.”  Nelsen, 420 N.W.2d at 590, 40 W.C.D. at 851 (emphasis added) (citing Rohr v. Knutson Constr. Co., 305 Minn. 26, 232 N.W.2d 233, 28 W.C.D. 23 (1975); Eide, 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437; Minn. Stat. § 176.135, subd. 1; and 1 A. Larson, The Law of Workmen's Compensation § 13.11 (1985) and (Supp. 1987)).

The determination of whether a subsequent incident or event is a superseding, intervening cause of disability or need for medical treatment is a question of fact for the compensation judge, and the employer and insurer have the burden of proof.  See Rohr, 305 Minn. at 29, 232 N.W.2d at 235, 28 W.C.D. at 25; Trettel v. Cambridge Reg’l Ctr., slip op. (W.C.C.A. Dec. 17, 2003).  “[W]hether a causal relationship exists is a fact finding by judge, and if there is medical support for a judge’s finding on that issue, this court must affirm.”  Smith v. Timberland, No. WC06-106 (W.C.C.A. Aug. 23, 2006) (citing Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235).

Here, the compensation judge determined that the employee was weight-bearing before he had been released to do so and that once he was released to “begin” weight-bearing, he was performing weight-bearing activities beyond the scope of his restrictions, which were intended to allow him to remain mostly sedentary and gradually increase weight-bearing.  As a result, she found that the employee’s injury was no longer causally related to his need for a third surgery.  Rather, she found that the employee’s weight-bearing activities broke the causal relationship and resulted in the need for the third surgery.

The employee argues that his activities were “normal activities,” such that the third surgery should have been awarded.  The employee argues that his case is similar to those in which “workers reinjured themselves through ‘normal activity’ which was in some tension with their work restrictions, but did not violate them directly.”  The employee relies on cases such as Eide, 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437, Nelsen, 420 N.W.2d 588, 40 W.C.D. 849, and Johnson v. Waseca ISD #829, slip op. (W.C.C.A. Aug 21, 2003).

In Eide, the employee sustained a work-related back injury, and later sustained a knee injury in a badminton game.  260 Minn. at 99-100, 109 N.W.2d at 48, 21 W.C.D. at 438.  While the knee was in a cast, the back condition became aggravated and needed more treatment, which was found to be compensable.  Id. at 101, 109 N.W.2d at 48, 21 W.C.D. at 439.  The Court held as follows:

In Nelsen, the employee sustained an injury to her low back, upper back, mid back, and neck.  Nelsen, 420 N.W.2d at 589-90, 40 W.C.D. at 849-50.  She primarily treated for her upper back and neck.  Id. at 590, 40 W.C.D. at 850.  More than a year after the injury, the employee began treating again for mid and low back pain after incidents where an elevator in which she was riding dropped several feet and where she was getting out of a bath tub.  Id.  The compensation judge denied that additional treatment was compensable, but the case was remanded for additional consideration as to whether the medical experts were fully aware of the initial injuries and the body parts involved.  Id., 40 W.C.D. at 850-51.

In deciding to remand the case, the Nelsen Court gave a detailed discussion of the standard involved with superseding, intervening incident cases, and “normal” activities.  The Court cited Larson’s treatise and Rohrto explain “the basic principle of law” as follows: “When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant's own intentional conduct.”  Id. at 590-91, 40 W.C.D. at 852 (citing 1 A. Larson, The Law of Workmen’s Compensation, § 13.00 (1985); Rohr, 305 Minn. 26, 232 N.W.2d 233, 28 W.C.D. 23).  The Court then cited Larson’s description of a Utah case in which the employee’s work-related back condition was aggravated by a sneeze, explaining as follows:

In Johnson, slip op., the employee sustained a work-related arm injury and underwent a number of surgical procedures.  She later injured her arm again while sliding a couch away from a wall to clean.  The compensation judge found that “the employee’s action was normal physical activity for taking care of a home and that while the weight of the entire couch may have been outside of her restrictions, the employee was not attempting to lift the couch with her left arm, but to move it away from the wall with both arms.”  This court affirmed, holding that there was sufficient evidence, including medical evidence, to support the compensation judge’s determination.

Ultimately, in cases involving superseding, intervening injuries, including Eide, Johnson, and Nelsen, the question for the compensation judge is whether there was an “independent intervening cause not attributable to the employee’s customary activity in light of the employee’s condition.”  Nelsen, 420 N.W.2d at 590, 40 W.C.D. at 851 (emphasis added).  While cases such as Eide, Johnson, and Nelsen do find the subsequent treatment compensable, the evidence in each of those cases supported a determination that the employee’s activities were still reasonable in light of the employee’s condition.  For example, as indicated in Eide, there was “nothing in the record to indicate that the employee had been instructed to abstain from engaging in activities of this kind or that if he did participate in them it would be at the risk of a recurrence of his back injury.”  260 Minn. at 102, 109 N.W.2d at 50, 21 W.C.D. at 441-42. (emphasis added).  Even in Johnson, there was evidence to support the compensation judge’s determination that although the couch weighed more than 50 pounds, sliding it with both arms was not outside of the employee’s reasonable, normal activities in cleaning her house, even in light of her condition.

Here, by contrast, the compensation judge determined that the employee, “on multiple occasions,” exceeded his restrictions either by weight-bearing or by overdoing his weight-bearing activities.  In other words, she determined that the employee’s actions were not reasonable in light of the employee’s condition.  See Nelsen, 420 N.W.2d at 590, 40 W.C.D. at 851.  We see nothing in the caselaw to indicate that weight-bearing in excess of restrictions on numerous occasions could not be considered a superseding, intervening cause, as the employee argues.  Therefore, as in any other case involving a question about the reasonableness or normalcy of an employee’s activities, it was not error for the compensation judge to determine that the employee’s weight-bearing activities could have severed the causal connection, provided that there is substantial evidentiary and medical support for the compensation judge’s determination.

Accordingly, we turn our attention to whether there is substantial evidence to support the compensation judge’s determination.  The employee argues that his behavior was not outside of his restrictions because he was being told to begin weight bearing as tolerated, and he argues that he was not restricted from accomplishing household activities as he was able.  Therefore, the employee argues that he was not in violation of his restrictions, even in the surveillance videos.

The employee testified at hearing that he felt he was complying with his restrictions and that he believed Dr. Kansara wanted the employee to increase weight-bearing as tolerated.  However, the compensation judge ultimately rejected that assertion.^[1]  She cited the fact that even when Dr. Kansara was releasing the employee to begin weight-bearing, he recommended that the employee not perform any activities greater than sedentary.  However, the compensation judge explained in her memorandum that the weight of the evidence, including the activities depicted in the surveillance footage and the medical records describing significant pain and swelling during the periods of time when the employee was performing significant functional activities, showed that the employee was performing physical activities that were beyond his physical limitations and had an effect on his condition.

The employee testified that after his second surgery, he understood that there would be another six-week recovery period.  The employee conceded, however, that he was weight-bearing and moving with a limp before the end of the six-week period in the video taken on June 5, 2012.  Dr. Kansara did not release the employee to “begin weight bearing” again until the follow-up visit on June 8, 2012.  In fact, at that visit, the employee was asked whether he had been weight bearing for a week or so, and he said yes.  X-rays revealed that one of the screws was backing out by the time of the June 8, 2012 visit.

On June 12, 2012, the employee was observed from morning through late afternoon weight bearing without crutches and walking on concrete, getting up and down from a seated position, walking around his residence, getting in and out of and driving a vehicle, cutting wood products, and lifting and carrying lumber.  Again, the compensation judge found that those activities were outside the restrictions given by Dr. Kansara and Courtney Scott, PA, for “no work” and merely to “begin weight bearing.”

The compensation judge also noted the employee’s activities during periods of time before the second surgery in considering his activity levels.  For example, the employee’s landscaping activities on April 10 and 11, 2012 included walking for a significant length of time on consecutive days, walking on uneven ground, raking, using his feet to push dirt and debris, stepping off a small landscaping wall, climbing up and down machinery, balancing while standing on top of the machinery bucket, and carrying a vessel with water.  These activities were not sedentary and were outside of the functional limitations Dr. Kansara issued on March 30, 2012, which included working two hours a day and increasing it as tolerated, in a sedentary position.  At that time, all duties were to be performed in a stationary/seated position.

The compensation judge reviewed the medical records and noted instances discussing the employee’s activity level.  For example, during the March 20, 2012 physical therapy visit, shortly after the employee had been cleared to begin gradually increasing weight-bearing, the therapist noted that the employee “began walking about 1 wks prior but continues to have severe antalgic pattern.”  The physical therapist recommended that the employee return to using his crutches and gradually work into weight bearing.

We conclude that the evidence discussed above supports the compensation judge’s determination that the employee failed on numerous occasions to follow his weight-bearing restrictions, and we affirm the findings in that regard.

The employee next argues that even if his activities were outside of his restrictions, there was no evidence that his “miscalculation” about the end of his six-week period of non-weight bearing caused his surgery to fail.  Primarily, the employee relies on Dr. Peña’s indication that although the employee’s level of compliance could be considered, it “should not be on the top of the list for possible etiologies of his failure.”  Rather, the scientific community is not advanced enough to determine the reason for some surgical failures.

The compensation judge, however, rejected Dr. Peña’s opinion and chose to credit Dr. Wicklund’s opinion that the employee’s weight-bearing activities had “caused the widening of the ankle mortise.”  The choice between the conflicting opinions of medical experts is generally left to the discretion of the compensation judge.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

The compensation judge determined that Dr. Wicklund’s opinion should be afforded greater weight than Dr. Peña’s for a number of other reasons, including the fact that Dr. Peña did not have access to the surveillance videos and likely did not understand the full extent of the employee’s activities.  The compensation judge also acknowledged the employee’s testimony that weight-bearing activities could not worsen his condition.  However, she rejected that statement, indicating that it was “not corroborated in the medical records and appeared to be contrary to the recommendation of his treating physicians for no weight bearing after the failure of the second surgery and pending the third surgical procedure.”

The employee challenges the compensation judge’s reliance on Dr. Wicklund’s report.  He argues that Dr. Wicklund’s first report indicated that the employee was able to return to work, and that he could work in some capacity, including standing for ten to 15 minutes at a time, and that he could do some jobs sitting and standing.  However, in his second report, Dr. Wicklund opined that weight-bearing activities led to the failure of the second surgery.  As such, the employee argues that Dr. Wicklund’s reports were contradictory, and it was error for the compensation judge to rely on his opinions.

Dr. Wicklund reviewed the medical records concerning the employee’s treatment, he reviewed the surveillance footage, he took a history from the employee, and he conducted a physical examination.  Therefore, he had sufficient information to establish foundation to form a medical opinion.  See Scott v. Southview Chevrolet, 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978).  The compensation judge reviewed the medical evidence provided, including both reports from Dr. Wicklund.  Provided there is sufficient foundation for a medical opinion, any alleged inconsistencies therein bear on the weight to be afforded to those opinions by the compensation judge and not on their admissibility.  See, e.g., Boney v. NEI Bottling Co., slip op. (W.C.C.A. Feb. 27, 2003); Sawyer v. Sheehy Constr. slip op. (W.C.C.A. Aug. 7 2001).  Also, a compensation judge is free to accept all or part of an expert’s opinion.  See Klasen v. American Linen, 52 W.C.D. 284, 292 (W.C.C.A. 1994), summarily aff’d (Minn. Mar. 16, 1995); see also Johnson v. L.S. Black Constr., Inc., slip op. (W.C.C.A. Aug. 18, 1994) (citing City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980)).

The compensation judge found that Dr. Wicklund’s opinion that the employee’s non-sedentary activities “led to the failure of the second surgery,” was more consistent with the medical records, including the x-rays and CT scan that revealed the widening of the ankle mortise and the ultimate “backing out” of the screws.  There was sufficient foundation for Dr. Wicklund’s opinion, and it was not error for the compensation judge to rely on that opinion in reaching her decision.

The employee sustained a significant injury to his left ankle.  However, the compensation judge found that despite receiving instructions from his medical providers, after both the first and second surgery, to avoid weight-bearing activities for six weeks and then gradually begin weight-bearing activities, the employee engaged in weight-bearing activities “on a number of occasions,” which caused the need for the third surgery.  As discussed above, there is substantial factual and medical evidence to support the compensation judge’s decision that the employee’s weight-bearing activities constituted an independent, intervening cause not attributable to the employee’s customary activity in light of his condition, and we affirm.