The pro se employee appeals the compensation judge’s denial of his claim that he sustained a work-related injury while working for the employer.  We determine that this court has jurisdiction to review the Findings and Order.  We affirm the compensation judge’s denial of a Gillette-type injury in the form of headaches or head pain, head, neck, right shoulder, upper back and/or eye culminating on or about August 20, 2013.  We vacate finding number 3.  We remand for a determination of whether the preponderance of the evidence establishes that the employee sustained an allergic reaction to the work environment at Rochester Public Utilities.  The matter is further remanded to determine whether medical treatment for allergies immediately following the employee’s claim of an allergic reaction was reasonable and necessary.

The pro se employee, Alejandro Cruz, was born and raised in Mexico.  He arrived in the United States in 1999 and eventually became a citizen of the United States.  He obtained his graduate equivalent diploma.  In October 2010, he was hired by the employer, Express Services, Inc. (Express), an employment agency which contracted with Rochester Public Utilities (RPU) to provide individuals for work.  Express assigned the employee to work for RPU on November 4, 2010.  There he worked as a custodian cleaning the facilities including the boiler room and welding stations.  RPU burned coal to produce electricity during the employee’s assignment there.  The medical records document that the employee is a non-smoker, healthy and exercises.  The testimony of the employer witness established that he was also named employee of the month in 2011.  He had no work performance issues.  His initial hourly wage was $12.00 and increased to $18.25 within a 1½ year period.

Between 1999 and 2002, the employee saw a doctor twice for migraine-type headaches.  Between 2003 and 2010, there is no medical evidence of headache or allergy treatment.  After the employee began working for RPU, he sought treatment for headaches and allergies.  He first complained of allergies on September 26, 2011, and then again on August 28, 2012.  For the first time, he was prescribed medication for allergies on August 28, 2012.

On August 26, 2013, the employee sought treatment at Mayo Clinic giving a history of intermittent headaches and nausea following a deep cleaning of the boiler room in December 2012.  While washing boilers, he noticed significant ash and a strong odor.  He had been wearing a dust mask, which was not required to be worn, but which the employee requested.  He experienced ongoing headaches when exposed to similar working environments.

In February 2013, the employee’s symptoms worsened and by August 2013, his symptoms were of such severity that he sought medical treatment.  Following the examination, Jeremy Ronneberg, a certified nurse practitioner (CNP), noted that the employee suffered from posterior headaches, intermittent nausea and “chemical allergy or irritation, perhaps an airway irritation, from dust and soot at work.”  Mr. Ronneberg stated, “I do believe the patient may have some chemical irritation there related to ash or other environmental allergens at his workplace.”  Mr. Ronneberg restricted the employee from working in the boiler room until his mask was rechecked for proper fit and there were no high levels of carbon monoxide in the area where he worked.  The employee confirmed with the employer that the dust mask fit properly and the carbon monoxide test was negative.  There was no evidence of testing for work place allergens.  The employee returned to work on August 28, 2013, and his symptoms returned.  He sought medical treatment with Mr. Ronneberg who restricted him from work.

Besides the claimed headache pain and allergic reaction, the employee claimed an eye injury which was not supported by the medical records.  The employee also developed allergic conjunctivitis on August 30, 2013.  During treatment with Dr. Ryan Steiner and a consultation at Arcade Pain Center, the employee also claimed head pain, neck pain, shoulder pain, upper back pain, headache pain, and sleep disturbances.  Both Dr. Reiner and a physician’s assistant at Arcade Pain Center opined that these conditions were causally related to an “accident” or an “injury” of “8/20/2013.”  Neither documented the nature of the alleged “accident” or “injury” of August 20, 2013, calling into question the validity of the employee’s claim for orthopedic-related injuries.

On September 4, 2013, RPU told Express that they planned to eliminate the employee’s contract job due to a proposed transition from a coal burning to a gas burning facility.  The employee’s contract job was eliminated.  The employee was terminated by Express.  Mr. Weinberger, a staffing consultant with Express was unable to specify the exact reason for termination.^[1]

On November 1, 2013, the employee sought treatment with Dr. Carrie E. Robertson, a neurologist at Mayo Clinic.  She diagnosed the condition as chronic daily headache with migrainous features in the absence of medication overuse and a reported persistent black spot in the left eye vision of unclear etiology.  She found that the etiology of the headaches was also unclear.  She recommended an MRI scan of the neck and head which was negative for any structural abnormalities.  An MRI scan of the neck revealed a broad-based disc bulge without nerve or spinal cord impingement.  At no point was the employee referred to an allergist or ENT specialist.

Mr. Ronneberg saw the employee on November 18, 2013 stating that since the last meeting, the allergy symptoms had abated, but the employee continued to experience headaches.  The employee continued to treat for ongoing headache pain.  In August 2014, Mr. Ronneberg wrote that while the employee’s headaches began during the time he worked at RPU around August 2013, he could not say that the employee’s current headaches were directly associated with the employee’s work at RPU.

The employee filed a claim petition on December 20, 2013, claiming payment of temporary total disability benefits and medical expenses and reserving retraining for a work-related injury to the head, neck, right shoulder, upper back, and eye.

The employer and insurer retained two medical experts - - Dr. Thomas E. Nelson, an orthopedic surgeon, and Dr. Ronald Vessey, an internist - - for the purpose of independent medical examinations.  Dr. Nelson’s report of April 3, 2014, diagnosed a history of headaches, and right shoulder pain consistent with mild right shoulder impingement.  He rejected any causal link between the neck and right shoulder, and could not comment on the association of the work to the headaches.  He also confirmed that the medical treatment provided by the Mayo Clinic was reasonable and necessary.

Dr. Vessey’s report of April 7, 2014, focused on internal organ system disease or dysfunction.  He ordered a pulmonary functions test which was within normal limits.  The employee’s cardiopulmonary function was within normal limits.  While the employee complained of neck and headache pain, there was no objective evidence that he had any objectively identifiable disease process.  There was no evidence that he sustained any carbon monoxide intoxication at the plant.  There was no evidence that he sustained any pulmonary disease or dysfunction secondary to the ash or dust he may have inhaled.  Dr. Vessey advised the employee to return to normal daily activities.  Dr. Vessey did not specifically address the issue of allergens causing an allergic reaction and need for medical treatment.  Nevertheless, Dr. Vessey opined that the Mayo Clinic treatment was reasonable and necessary.^[2]

The matter was heard before a compensation judge on September 12, 2014.  At the hearing, the issues were expanded to include a claim for a Gillette-type injury due to exposure to allergens at the RPU plant which caused medical issues.^[3]  During the employee’s testimony, the employee sought to introduce a photograph of the ash, soot and dust to which he was allegedly exposed.  The compensation judge did not rule on admission of the photograph into the record.  During closing argument, the employee again asked for its submission, but there was no final ruling on the photograph’s admission.  The compensation judge denied the employee’s claim in all respects.  She made findings regarding the employee’s allergic reaction to the work environment but there was no finding regarding the causal connection between the environment at RPU and the employee’s allergies.  She further denied the claims for intervention and payment of medical treatment including the Mayo Clinic and dismissed the employee’s claim petition in a findings and order filed on November 6, 2014.

The employee was represented by an attorney at the trial level, but the attorney withdrew his representation on November 24, 2014.  The pro se employee drafted a letter on December 4, 2014, filed it with the Office of Administrative Hearings (OAH) on December 5, 2014, and paid the $25 filing fee.  The filed letter stated simply, “I would like to appeal the descition [sic] took it [sic] in November 12 - 2014.”  Along with the letter, the employee filed with OAH a 9-page handwritten document specifying in Spanish the basis for the appeal.  While the pro se employee timely served the letter,^[4] he did not serve upon the employer and insurer, the 9-page written document specifying his reasons for the appeal.^[5]

The transcript was received and the briefing schedule began to run on January 16, 2015.  On February 5, 2015, the employer and insurer filed a motion to dismiss the appeal, arguing that the notice lacked a statement of issues, did not have proof of service, and was served two days late.  The employer and insurer claimed that this court lacked jurisdiction to hear the appeal.  On February 23, 2015, this court denied the motion to dismiss and granted a motion to extend the briefing period.^[6]  At the same time, this court sent a copy of the 9-page handwritten document to the employer and insurer’s attorney.  According to the employer and insurer’s brief, it was the first time they had received a copy of the 9-page document outlining the basis for appeal.

On March 6, 2015, the pro se employee filed a brief captioned as “Support to Continue the employee[’]s Appeal.”  He stated that he appealed “the decision that was clearly erroneous because it was not substantially enough evidence . . . to deny my case.”^[7]  He also requested an evaluation of his case and attached new medical notes to support his position.  These new medical notes were written in Spanish and were not available at the time of hearing.^[8]  In the 9-page document, the employee refers to the photograph of the work site showing the dust and soot.

The employer and insurer timely filed their respondent’s brief and renewed the argument that this court lacks jurisdiction to review this case due to the employee’s failure to file proof of service with the notice of appeal.  The employer and insurer also argue that the employee did not give adequate notice of the facts or issues being appealed.  Further, they argue that the compensation judge’s denial of the employee’s claim is supported by substantial evidence.  Finally, the employer and insurer argue that we should not consider any new evidence after the record is closed.

As a general rule, when construing a statute granting a right of appeal, courts seek to avoid a forfeiture of the right to appeal.^[9]  In order to perfect an appeal, the appellant must communicate the intent to appeal with two distinct bodies.  First, the appellant must file with the court a notice that he is appealing the decision from the trial judge.^[10]  And second, the appellant must notify the adverse parties by serving a copy of the notice upon them.^[11]  The performance of both the service of the notice of appeal and the filing thereof are jurisdictional requirements.^[12]  The employee timely filed with the court the notice of appeal with a 9-page document written in Spanish outlining the arguments against the findings of the compensation judge’s November 12, 2014 decision.  The employee also timely served the letter notifying the employer and insurer of his intent to appeal the decision.  However, the employee did not timely serve upon the employer and insurer a copy of the 9-page document written in Spanish.  When the appellant is acting pro se, he is usually accorded some leeway in attempting to comply with court rules.  He is, however, “not relieved of the burden of, at least, adequately communicating to the court what it is he wants accomplished and by whom.”^[13]  Although the employee neglected to timely serve a copy of the 9-page document upon the employer and insurer, he adequately communicated to this court what it was that he wanted to accomplish by timely filing the notice of appeal and 9-page document outlining his arguments.

In this case, the issue from which all other claims derived was the issue of primary liability.  There was no other issue.  The pro se employee adequately communicated to the employer and insurer that he was appealing the decision, the whole decision, of November 12, 2014.  Serving the employer and insurer with the notice of appeal letter, the employee writes, “I would like to appeal the descition [sic] took it in November 12 - 2014.”  While review by this court is limited to the issues raised by the parties in the notice of appeal,^[14] there is no requirement in the statute or this court’s rules that mandates a particular format or a listing of the findings or orders appealed by number.^[15]  The pro se employee’s notice of appeal served upon the employer and insurer is not easily deciphered, and not fully developed.  In this instance, where the issue at trial was primary liability, the notice of appeal alerting the employer and insurer of the appeal from the compensation judge’s decision was sufficient to confer jurisdiction.  The employee’s 9-page document and appellate brief adequately explain the specific findings appealed.^[16]

We conclude that the pro se employee’s notice of appeal is adequate to raise the issue presented in this case.  We therefore do not dismiss the employee’s appeal.

An issue at trial was whether the employee sustained a Gillette-type injury due to exposure to allegens at the RPU plant which caused medical issues.  The compensation judge focused on the employee’s claim of headache pain in her decision, but did not address whether the employee’s work exposed him to allergens resulting in the need for medical treatment.  The distinction between an allergic reaction and a headache was made in the medical treatment notes offered into evidence.  The evidence at the time of the initial medical complaints is uncontroverted.  Mr. Ronneberg stated that the employee may have some chemical irritation at his work place.  He reiterated that the employee works in a dusty environment and a large component of his symptoms is allergic.  On September 3, 2013, in a phone call to the Mayo Clinic, the employee stated that he feels better since not working.  On November 18, 2013, Mr. Ronneberg wrote that the employee says “overall his nose and throat irritation symptoms have improved after he quit working at the electrical plant where he had been exposed to some soot and ash over there.  Unfortunately, he still has this headache problem.”

The IME opinions do not contradict the employee’s initial allergy-like complaints and work restrictions.  Both IMEs determined that the initial Mayo Clinic treatment for the employee’s work-related complaints was reasonable and necessary.  Dr. Nelson had no opinion as to whether the headaches were environmentally caused.  But, he opined that the medical treatment provided to him by the Mayo Clinic was reasonable and necessary.  In describing the history of the claim, Dr. Vessey noted that the “plant obviously had a fair amount of dust” and had occasional water leaking from pipes and boilers.  Dr. Vessey determined that there was no objective evidence that he sustained any work-related organ system diseases or dysfunction of any sort on or about August 26, 2013.  Dr. Vessey opined that he cannot take any issue with the fact that he was seen at the primary care clinic at Mayo Clinic from and after August 26, 2013.   However, he noted that there is no evidence that the employee sustained any “objectively-identifiable disease or dysfunction in the course and scope of his work for Express Services.”  Dr. Vessey did not comment specifically about the initial reaction in August 2013.

It is well settled that if an employee’s work activities substantially aggravate or accelerate a preexisting condition, the resulting disability is compensable.  Vanda v. Minnesota Mining & Mfg. Co., 300 Minn. 515, 218 N.W.2d 458, 27 W.C.D. 379 (1974).  There is no requirement that the injury must be “an objectively identifiable disease” or “dysfunction.”  What is necessary is that work aggravated or accelerated the employee’s condition.  Here the employee had subjective complaints of nausea, eyes and throat discomfort, and headaches, which he believed were related to the dust at the plant.  The CNP, Mr. Ronneberg, agreed and medically asserted that the exposure to dust caused the symptoms.  One year after the alleged injury, on August 1, 2014,  Mr. Ronneberg wrote, “Although the patient’s headaches did start per patient history during the time he worked at Rochester Public Utilities, approximately around August 2013, I cannot make a certain statement that his headaches were directly associated.  I do recall patient stating that he was exposed to what he felt was an excessive amount of dust or soot in the area that he worked, however.  Whether or not this actually led to his currentheadache problem, again, is uncertain.”  Mr. Ronneberg’s statement refers to the employee’s past and current headaches one year post-injury, he does not refer to the allergic reaction.  The compensation judge bases her denial of all benefits, even those benefits immediately following the employee’s complaints on or around August 20, 2013, in part on this statement by Mr. Ronneberg.  She does not make a specific finding on whether the employee sustained a Gillette-type injury due to exposure to allergens at the RPU plant which caused medical issues.^[17]

The dissent relies heavily upon Ryan Weinberger’s testimony and records.  Mr. Weinberger did not work at the RPU plant.  He was a staffing consultant for Express, the employment agency who assigned the employee to RPU.  Mr. Weinberger visited the plant 10 days after the employee complained of a reaction.  The notes Mr. Weinberger took documenting his conversation with the employee start on July 23, 2013.  (Joint Exhibit 4.)  Notes from before that time were not part of the exhibit.  Contrary to the dissenting opinion, the notes admitted reflect that the employee was concerned about air quality at the plant.  The dissent also focuses on the employee’s testimony that he had no prior allergy issues.  The medical records offered into evidence fail to support the finding that the employee had significant pre-existing allergies.  The medical record between 2001 and 2010 documents cold and headache symptoms.  The first time a doctor prescribed allergy medication was on August 28, 2012, which is after the employee began working at the RPU plant.  We therefore vacate finding number 3.

Based on the medical reports of Mr. Ronneberg, Dr. Vessey and Dr. Nelson, substantial evidence supports the compensation judge’s decision denying the employee’s claims for headaches, head, neck, right shoulder, upper back and eye injuries.  The reports of Dr. Steiner and the records of the Arcade Pain Center do not adequately explain the nature of the “accident” or “injury” of August 20, 2013, as it relates to orthopedic injuries, calling into question the validity of their opinions.

We affirm the compensation judge’s findings denying the employee’s claims for head, neck, right shoulder, upper back and eye injuries.  We vacate finding number 3 as contrary to the evidence.  This matter is remanded to the compensation judge to make a factual determination as to whether the employee developed an allergic reaction from work place exposure to dust and soot and chemicals on or about August 20, 2013.  And if so, how long did the exacerbation last.  The matter is further remanded to determine whether medical treatment following the employee’s claim of a reaction to allergens in the work environment was reasonable and necessary.

I dissent on remanding this matter for another consideration of the employee’s claimed allergic reaction.  I would affirm the compensation judge.

On the issue of an alleged allergic reaction, the employee testified that he was exposed to ash and dust in the turbine room.  It was so dusty and sooty there that his nasal discharge was black when he blew his nose.  He testified that he spent four to five hours every day cleaning the turbine room.  Since December 2012, he had experienced headaches and nausea from the exposure.  He denied any history of previous allergy symptoms and treatment.  The employee claimed that his headaches had never gone away since August 2013 even though he had never gone back to work at the RPU facility since August 28, 2013.  The employee claimed entitlement to ongoing medical care and wage loss benefits from this exposure.

The employee’s testimony as to the dusty conditions at the plant was contradicted by the testimony of his supervisor, Ryan Weinberger.  Mr. Weinberger visited the plant on August 30, 2013, and accompanied a RPU manager who did air quality measurements.  Mr. Weinberger saw the results on the gauge being used to measure air quality and testified that readings were normal.  He further stated that standing in the turbine room, he saw no indication of ash, soot, or dust and he could feel fresh air movement on his face in the turbine room.  Mr. Weinberger was also advised by RPU staff that fresh air circulation was necessary for boiler operation.

The employee’s testimony that he spent more than four hours a day cleaning the turbine room was contradicted by Mr. Weinberger who provided the compensation judge with an itemization of the employee’s work duties and stated that generally one to two hours would be spent cleaning the turbine room.  The compensation judge specifically found the employee’s testimony on this point not credible.  (Finding 17.)

The employee’s testimony that he had no history of previous allergy symptoms was contradicted by his medical records that showed numerous appointments for allergy complaints between 2001 and 2011.  In none of those appointments did the employee raise the possibility that his symptoms were due to his job.  When asked about these records at the hearing, the employee stated that all of the records were wrong and that he had never had allergy problems.  The compensation judge found the employee’s testimony on this point not to be reliable. (Finding 9.)

The employee told CNP Ronneberg that he had experienced headaches and nausea on the job ever since December 2012 because of exposure to ash, dust or other chemicals.  During that same time the employee was in contact with Mr. Weinberger on numerous occasions to discuss the personal time off (PTO) available to him, questions concerning his work hours, and problems he said he was having with items being taken from his locker.  At no time did he ever tell Mr. Weinberger about bad air conditions at work or mention that he was having headaches or nausea.

There is no medical support for the employee’s claim.  The statements in the medical reports and records referred to in the majority opinion as to conditions at the plant obviously came from the employee since we can assume that none of the providers or consultants had first-hand knowledge as to whether or not the plant was very dusty.  The compensation judge did not accept the employee’s testimony as to work exposure.  Even with the history given to him by the employee, CNP Ronneberg was unable to provide any causal relationship between the employee’s headaches and nausea and his work at the RPU facility.  CNP Ronneberg said in an August 1, 2014, letter to the employee’s attorney, “I cannot make a certain statement that his headaches were directly associated.  I do recall patient stating that he was exposed to what he felt was an excessive amount of dust or soot in the area that he worked, however.  Whether or not that this actually led to his current headache problem, again, is uncertain.”

Given all of this evidence, the compensation judge specifically found that “the preponderance of the evidence fails to establish that the employee sustained a Gillette type injury in the form of headaches or head pain resulting in disability on or about August 20, 2013.”  (Finding 47.)  It should be emphasized that the allergy symptoms of which the employee complained were headaches and head pain.  The compensation judge dealt with the employee’s alleged orthopedic claims in Finding 46.  Finding 47 is meaningless if it is not read to be a finding on the allergy claim.

The majority states that the dissent relies on the testimony of Mr. Weinberger and provides reasons why that testimony was not persuasive.  Whether or not this court finds the employee’s testimony or Mr. Weinberger’s testimony to be the more persuasive is irrelevant.  The point here is that the employee’s testimony as to dust and soot at the plant was not uncontroverted.  There was a dispute in the testimony on this point and it is the job of the compensation judge, not the job of this court, to decide what evidence is persuasive.

The majority here is remanding this matter to see if there might have been a temporary allergic reaction.  The employee made no such claim at the hearing.  Instead he alleged an ongoing injury and it was for this claim that the employer and insurer prepared their defense.  The employer and insurer had no notice that they were expected to respond to a claim other than that made at the hearing.  The role of this court is not to develop claims for a party that were not made before the compensation judge but determine if the factual findings of the compensation judge are supported by substantial evidence.  Minn. Stat. § 176.421.  I conclude that the compensation judge’s decision on this issue is amply supported by substantial evidence and the decision of the compensation judge should be affirmed.