The pro se employee appeals from the compensation judge’s determination that the employee sustained a temporary cervical/thoracic injury on January 26, 2010, with no lumbar injury on that date; that the employee’s time off work after November 2011 was not causally related to the January 26, 2010, injury; that the employee was not entitled to temporary total disability benefits; and from various procedural determinations of the compensation judge.  We affirm.

The employee was a lead teacher in the pre-school room at New Horizon Academy in Chanhassen, working with 3 to 5 year olds.  On the morning of January 26, 2010, she was on the floor preparing for group reading time.  The employee was on her hands and knees reaching for a book on the shelf when several children piled on her back.

The employee reported the injury to her supervisor, Melissa (Missy) Wilmes, and an accident report was completed.  The employee was seen that day in the emergency room at Fairview Southdale Hospital complaining of neck and upper back pain after several 3 and 4 year-olds jumped on her back at work.  Muscle tenderness was noted in the cervical spine and upper thoracic spine on examination.  Musculoskeletal and neurological testing and x-rays were otherwise normal.  Dr. Aaron Holley diagnosed a cervical and thoracic strain, provided a prescription for Flexeril and Vicodin, and took the employee off work for two days.

After a day and a half, the employee resumed her regular duties with the employer.  On February 23, 2010, the employee transferred to the employer’s Shorewood location, working in the infant care room.

The employee had no medical care after January 26, 2010,  until April 22, 2010, when she was seen by Dr. Ronald Hewitt at Allina Quello Clinic for low back pain.  She reported an incident at work in January 2010 when some children jumped on her back.  The doctor noted good range of motion in the back with diffuse tenderness and some muscle spasm in the lumbar region.  Dr. Hewitt prescribed non-steroidal anti-inflammatory medication, referred the employee for physical therapy, and provided a 20-pound lifting restriction.  The employee returned to the clinic on July 8, 2010, reporting worsening low back pain.  Dr. Hewitt diagnosed “lumbago,”^[1] renewed the employee’s prescription, and again ordered physical therapy.

The employee did not return to the clinic until January 6, 2011, when she was seen by Dr. Priya Albert with complaints of ongoing mid to lower back pain.  The doctor ordered thoracic and lumbar MRI scans.  The January 13, 2011, thoracic scan was unremarkable; the lumbar spine scan was interpreted as showing a small to moderate sized protrusion at L5-S1 without stenosis.  On January 20th, Dr. Albert ordered physical therapy, prescribed Vicodin, and referred the employee for an orthopedic evaluation.

The employee continued to work for the employer until February 4, 2011.  Following her resignation from New Horizon, the employee began a full-time, in-home nanny position on February 7, 2011.  The employee cared for three children, ages 9 months, 2 years, and 4 years.  The employee remained in this position until November 10, 2011.  The employee’s wage exceeded that which she earned at New Horizon.

In the meantime, on April 6, 2011, the employee returned to Quello Clinic and was seen by Dr. Shazia Aslam.  The employee reported she was on unemployment, wanted to go back to work, and sought a work ability form with a restriction of no weight lifting.  The employee’s prescription for Vicodin was refilled and the employee was directed to follow-up with physical therapy.  There is no evidence of any work ability form or work restrictions on this date.

The employee was seen by Dr. John Sherman, an orthopedist, on April 21, 2011.  The employee reported progressively increasing low back pain.  She stated she had discontinued working in February and was currently unemployed.  Dr. Sherman’s impression was deconditioning with chronic low back pain.  The doctor found no major structural abnormalities in the lumbar spine, noted smokers have increased difficulties with their backs and encouraged the employee to quit smoking, and recommended a self-directed conditioning program.

The employee was seen by Dr. Aslam on June 17, 2011, for a refill of narcotic pain medication for her lumbago.  The doctor suggested referral to a back specialist.

On July 6, 2011, the employee was seen by Dr. David Spight, an orthopedist.  The doctor’s impressions were chronic low back pain with a disc bulge at L5-S1 without nerve root impingement, and probable lumbar facet joint low back pain.  The doctor recommended facet joint injections, received by the employee on August 30, 2011, and physical therapy.  The employee attended three therapy sessions in October and November 2011, then called and cancelled the remaining appointments.  The employee told Dr. Spight’s nurse practitioner that physical therapy had exacerbated her symptoms.  The doctor then recommended medial branch blocks followed by rhizotomy.

The employee returned to Dr. Aslam on December 5, 2011, stating she felt rhizotomy was an extreme procedure and she would like a second opinion.  Dr. Aslam referred the employee to a physical medicine and rehabilitation specialist.

The employee was seen by Dr. Jeffrey Dick on February 15, 2012, complaining of low back pain since an injury at work.  The employee reported she quit working on January 20, 2012, because of her back symptoms.  Dr. Dick’s impression was some tenderness in the upper lumbar spine and early degenerative disc disease at L5-S1.  The doctor provided epidural steroid injections in the upper lumbar spine, and concluded the majority of the employee’s symptoms were due to “kissing spine syndrome” in the upper back.  The employee was encouraged to quit smoking and do trunk stabilization exercises.

The employee was seen by Dr. Hewitt on March 23, 2012.  On examination, the doctor noted grossly normal range of motion and minimal tenderness of the low back.  The diagnosis remained lumbago.  The employee was given a 30 day supply of Vicodin and referred to a pain clinic.

The employee returned to Dr. Dick on May 2, 2012, requesting another injection.  The doctor refused stating the employee appeared to be doing quite well and, so long as she continued her exercise program, her symptoms would gradually improve.  When the employee called on June 1, 2012, requesting another injection, Dr. Dick referred the employee to Dr. Paul Biewen for ongoing conservative management of her symptoms.

The employee was seen by Dr. Biewen on June 26, 2012.  The employee reported she had not been working since February 2012, had restrictions of no lifting over 25 pounds, and was unable to perform her job within this restriction.  The employee reported pain across the lower back and an area of discomfort in the upper lumbar spine.  Dr. Biewen concluded the employee’s back pain was primarily secondary to deconditioning, but she was also likely getting some discogenic pain from the L5-S1 disc bulge.  The doctor recommended work hardening and discussed a rhizotomy.

On July 23, 2012, the employee went to Ridgeview Medical Center emergency room due to neck pain.  The employee reported the previous night she was leaning forward and reaching upward and felt a sudden, sharp, severe stabbing pain in the neck.  On examination there was tenderness with palpation of the lower cervical spine, tightness in the upper trapezius muscles, and decreased range of motion of the cervical spine.  The employee was given IV pain medication, diagnosed with a cervical sprain, and discharged with narcotic pain medication and a muscle relaxant.

The employee was examined by Dr. Robert Barnett on July 27, 2012, at the request of the employer and insurer.  The employee reported an injury to her low back on January 26, 2010, when some children jumped on her back while she was on the floor on her hands and knees.  Dr. Barnett reviewed medical records from Fairview Hospital, Quello Clinic, the 2011 MRI studies of the thoracic and lumbar spines, Dr. Sherman, Dr. Spight, Dr. Dick, and Dr. Biewen.  By report dated September 13, 2012, Dr. Barnett diagnosed axial low back pain with subjective symptoms unsupported by findings on physical examination and deconditioning syndrome.  The doctor opined that as a consequence of the January 26, 2010, incident, the employee sustained a contusion and sprain of the lumbar spine, but that the employee had achieved maximum medical improvement (MMI), was not in need of further medical treatment, and had no current objective evidence of physical impairment.

The employee was seen on August 7, 2012, by a nurse practitioner and Dr. David Nerothin at Medical Advanced Pain Specialists (MAPS).  The doctor diagnosed a history of chronic low back pain/lumbago, associated chronic mid back/thoracic area pain, and lumbar disc degenerative disease with lumbar spinal stenosis.  The employee was prescribed gabapentin and Norco for pain.  An epidural steroid injection was performed by Dr. Nerothin at L5-S1 with some improvement in pain.  The employee was seen by Dr. Aslam the following day.  She told Dr. Aslam that Dr. “Lorenthan” had suggested a standing MRI of the thoracic spine.  Dr. Aslam noted no acute tenderness in the spine, but a little swelling and tightness of the lower cervical and thoracic area muscles.  Dr. Aslam ordered MRI scans of the cervical and thoracic spines, but noted the employee’s chronic pain and medication would continue to be managed by the pain clinic.  In the cervical MRI scan of August 14, 2012, a mild, broad-based central posterior disc bulge was noted at C6-7, with normal facet joints and no foraminal neural impingement at any level.  There was mild disc degeneration at T10-11, T-12-L1, and L-12 without disc herniation, facet arthropathy, or stenosis.

The employee had a repeat L5-S1 epidural injection on August 27, 2012.  Future thoracolumbar, cervical, and/or thoracic injections were discussed, but Dr. Nerothin wanted verification from the workers’ compensation insurer regarding what would or would not be covered.  On September 5, 2012, the employee asked about work restrictions and was told by the nurse practitioner that she needed to do pool and land based physical therapy first, and then a functional capacity evaluation could be completed by MAPS.

The employee saw Dr. Karen Sedivy at Quello Clinic on September 7, 2012.  The employee reported intermittent shocks in the right hand and sought a referral to neurosurgery for follow-up of the cervical MRI scan.  She also requested a letter stating she did not have to do the job interviews mandated by her QRC.  Dr. Sedivy provided the neurosurgical referral, but advised the employee to get the letter from her primary care provider or chronic pain provider.

The employee was seen by neurologist Dr. Christopher Roarke on September 10, 2012.  The employee reported neck and low back pain for the past two years following an injury at work.  The doctor recommended an epidural injection at C6-7 that was performed on September 12, 2012.

Between September 17 and December 5, 2012, the employee attended 11 physical therapy sessions at MAPS.  Repeat lumbosacral epidural injections were performed by Dr. Nerothin on November 14 and December 10, 2012.  On December 3, 2012, Dr. Roarke recommended a cervical discectomy and fusion due to recurrent neck pain.  By letter dated December 20, 2012, the employee decided not to proceed with surgery.

On December 11, 2012, the employee called Quello Clinic seeking a letter from Dr. Hewitt stating that her cervical and lumbar discs were causally related to her workers’ compensation injury.  On December 19, 2012, Dr. Aslam provided a letter stating she had seen the employee for her neck and back pain at Quello Clinic, with care for  the neck and back starting at the clinic on July 8, 2010.  Dr. Aslam stated that, upon review of the employee’s Quello Clinic record, she had not found any record of back and neck pain before her reported injury on January 26, 2010, while employed at New Horizon Academy.

Throughout 2013, the employee continued to receive prescription refills for Flexeril from Quello Clinic and medication prescriptions, cervical and lower thoracic epidural steroid injections, and thoracolumbar trigger point injections at MAPS.

Dr. Dick, at the request of the employee’s then attorney, Steven Levine, reviewed his treatment records and the medical records of Dr. Sherman, Dr. Barnett, Dr. Spight, the employee’s MRI scans, Allina Quello Clinic, Ridgeview Medical Center, and MAPS.  By report dated April 22, 2013, the doctor diagnosed mild lumbar degenerative disc disease, chronic low back pain, and chronic pain syndrome.  Dr. Dick concluded there were no objective findings to support a permanent injury to the employee’s low back on January 26, 2010, and that the findings on her imaging studies were mild and degenerative, not traumatic, in nature.  The doctor opined the employee’s symptoms had been stable ever since the injury, had not been responsive to any treatment, and that MMI had been reached by at least February 15, 2012, when he first saw her.

On January 22, 2014, the employee called Quello Clinic seeking referral to a neurologist.  An appointment was scheduled with Dr. Sarah Benish on February 4, 2014.  EMGs of the upper and lower extremities were completed on February 5.  In follow-up on February 19, 2014, Dr. Benish reviewed the 2012 cervical MRI scan, concluding the C6-7 disc bulge did not appear to be causing any nerve root impingement or damage.  The doctor concluded the EMG of the right lower extremity appeared to show some chronic L5 or S1 radicular nerve root changes, possibly related to the disc disease shown in the 2011 MRI scan.  Dr. Benish concluded it appeared inactive and stable, and the employee did not need further neurological evaluation.

The employee was examined by Dr. Rick Davis, an orthopedic surgeon, on April 25, 2014, at the request of the employer and insurer.  The doctor took a history from the employee; reviewed the employee’s medical records including Quello Clinic, Dr. Barnett, Dr. Dick, the MRI scans, Dr. Sherman, Dr. Biewen, Dr. Spight, MAPS, and Ridgeview Medical Center; reviewed the employee’s April 27, 2012, deposition and the July 27, 2010, employee injury report, and conducted a physical examination.  The doctor diagnosed cervicalgia, a C6-7 disc protrusion, thoracic spine pain, lumbago, and an L5-S1 disc protrusion.  Dr. Davis opined the employee sustained a temporary cervical and thoracic strain as a result of the January 26, 2010, incident which had resolved within three weeks of the injury.  The doctor further concluded the employee’s medical treatment from February 2010 and continuing was not caused, permanently aggravated, or accelerated by the January 2010 work incident, but was due to her personal condition.

This case has a lengthy procedural history which underlies a significant portion of the employee’s arguments on appeal.

On March 1, 2012, the employee, represented by attorney Bosch, filed a Claim Petition alleging an injury to her “back” on January 26, 2010, and seeking temporary total disability benefits from and after January 21, 2011.^[2]  The employer and insurer served an Answer on March 19, 2012, admitting an injury to the low back on the alleged date, but affirmatively alleging the employee had been paid all benefits to which she was entitled and denying entitlement to temporary total disability.

The case was assigned to Judge Rieke on March 26, 2012, and a settlement conference was scheduled for August 20, 2012.  On August 15, 2012, the employer and insurer requested a continuance, as the employee had been unable to attend the initially scheduled independent medical examination (IME), and the employer and insurer wished to review the subsequent doctor’s report prior to settlement negotiations.  A continuance was granted, and on August 17, 2012, the settlement conference was reset for October 10, 2012.  On August 20, 2012, attorney Bosch requested the case be set for hearing at the first mutually available date, and on August 22, 2012, filed an Affidavit of Significant Financial Hardship and requested the matter be set for an immediate hearing or for a hardship pretrial.  The employer and insurer objected.  By notice dated August 23, 2012, a hearing on the claim petition was scheduled for January 10, 2013.

On September 20, 2012, attorney Bosch served a letter amending the claim petition asserting the nature of the injury was to the “entire back,” including the cervical, thoracic, and lumbar spines, and requesting a “sooner” hearing date.  On October 10, 2012, the employee notified the Office of Administrative Hearings (OAH) she was no longer represented by attorney Bosch and was acting pro se “until further notice.”  She additionally filed a formal Amendment to the Claim Petition, stating the same nature of the injury as attorney Bosch’s letter amendment.

The employee subsequently retained attorney Studer who, on December 6, 2012, sought a continuance of the January 10, 2013, hearing to review the file and prepare for the hearing.  Attorney Studer filed a withdrawal of representation effective December 11, 2012.

An order striking the case from the calendar and cancelling the hearing was served on December 20, 2012.  The order required the party seeking reinstatement to file a Certificate of Readiness and Pretrial Statement stating that the parties were ready to proceed to trial, that all necessary discovery had been completed, including all medical and vocational examinations, and attaching a calendar with dates the parties were available for hearing within six months following the motion to reinstate.

By letter to the insurer’s counsel, dated January 11, 2013, attorney Levine sought, on behalf of the employee, all documents and information in the insurer’s possession related to the employee’s claim, including any reports of injury, medical and rehabilitation records, benefits paid to the employee, and witness statements taken from any person.  Attorney Levine withdrew from representation of the employee effective May 24, 2013.

On July 10, 2013, the employer and insurer served on the employee a Demand for Discovery seeking updated information along with medical authorizations to allow the employer to review recent medical records.  On July 24, 2013, the employee, appearing pro se, filed a Certificate of Readiness in which she acknowledged that opposing counsel did not agree the case was ready for trial.  The employer and insurer objected, stating discovery was not complete and reserving the right to have an IME related to the cervical spine.  On August 1, 2013, notice of a pretrial conference on the claim petition was set for October 3, 2013, before Judge Rieke.

On September 16, 2013, the employee served a Demand for Discovery on the employer and insurer.  Among other things, the employee sought production of video surveillance of her classroom on the date of injury; copies of all exhibits the employer and insurer intended to introduce at hearing; the names and addresses of employees on duty on the day of the accident; a copy of the incident report of injury filled out by the employee the day of the injury; and the names and addresses of the children involved in the incident and that of their parents.

Following the pretrial on October 3, 2013, a settlement conference was scheduled for February 7, 2014, and a hearing was set before Judge Rieke on March 13, 2014.  On November 7, 2013, the employee filed a Motion to Compel Discovery.  The employee asserted the employer and insurer never answered the amended claim petition filed in September 2012, and that the court had never answered her financial hardship application and request for an early trial.  She stated the employer and insurer did not request any medical authorizations between September 2012 and September 2013, nor any IME examinations or depositions, and contended the employer and insurer’s discovery request was an attempt to delay the process.  Finally, she sought an order compelling production of the documents and information sought in her demand for discovery.

A telephone conference was held by Judge Rieke on December 31, 2013.  Orders on Motion to Compel Discovery was served and filed that same day.  The request to produce video surveillance was denied as none existed.  The request to have the names of the employees on duty was granted.  The request for the incident injury report was denied as it had already been sent to the employee.  The judge denied the request for the names and addresses of the children and their parents as unreasonable and not relevant to the employee’s claim.  Finally, the employee’s request for a default judgment against the employer and insurer was denied.

On January 8, 2014, the employee appealed from Judge Rieke’s order to the Workers’ Compensation Court of Appeals (WCCA), and on January 21, 2014, filed a petition for reassignment of Judge Rieke based on biased rulings and failure to respond to petitions filed by the employee.  The employee’s appeal was dismissed February 20, 2014, as a non-appealable interlocutory order, and on April 9, 2014, Assistant Deputy Chief Judge O’Malley issued an order denying the petition for reassignment, concluding the employee’s supporting facts fell short of demonstrating bias or prejudice on the part of Judge Rieke.

On March 11, 2014, the employee filed a second Affidavit of Significant Financial Hardship and requested an expedited hearing.  The employer and insurer objected to the request, stating the employee’s deposition was pending on April 9, 2014.  The employee also sought a order for a subpoena, asserting the employer and insurer had not provided the names and addresses of the employees on duty on the date of injury.  On April 11, 2014, a pretrial conference was set for July 11, 2014, a settlement conference on August 14, 2014, and the hearing on September 11, 2014.  Following a telephone conference on May 20, 2014, Judge Rieke ordered the employer and insurer to produce the requested names and addresses.

On June 2, 2014, the employee served and filed a Medical Request seeking reimbursement of medical expenses and approval of functional capacity testing.  The Department of Labor and Industry (DLI) scheduled an administrative conference on July 29, 2014.  In a Medical Response served June 19, 2014, the employer and insurer denied liability, asserting the employee had sustained temporary injuries on January 26, 2010.  They further noted the case was scheduled for a two day hearing at OAH on September 10-11, 2014, to address the nature and extent of the employee’s injury, and, to avoid potential inconsistent rulings, requested the medical request be consolidated with the pending pleadings.  Following the July 11, 2014, pretrial conference, Judge Rieke ordered consolidation of the medical request.

The matter was heard on September 10 and 11, 2014.  In a findings and order served and filed September 25, 2014, the compensation judge found (1) the employee sustained only a temporary cervical and thoracic injury on January 26, 2010, with no lumbar injury at that time; (2) that the employee ceased working in November 2011, and that any time off work thereafter was not caused by, or related to, the January 26, 2010, work injury; and (3) denied the employee’s claims for temporary total disability and medical expenses incurred after June 2012.  The employee appeals.

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.  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).

The compensation judge found the employee sustained a temporary cervical and thoracic injury on January 26, 2010, with no lumbar injury on that date.  The employee contends the judge’s finding is contrary to law and not supported by substantial evidence.

The employee first argues the employer and insurer, in their answer, admitted a low back injury on January 26, 2010, and the compensation judge judge was, accordingly, precluded from finding that she did not sustain a lumbar injury on that date.  We disagree.  A voluntary admission of an injury does not preclude an employer and insurer from changing its position and later asserting any defense the employer and insurer may have to the claim, including a denial of liability.  Rather, it remains the obligation of the employee to prove entitlement to benefits by a preponderance of the evidence.  Minn. Stat. § 176.021, subds. 1 and 1a; see, e.g., Parker v. Univ. of Minn., 66 W.C.D. 373 (W.C.C.A. 2006); Kingbird v. Anderson Fabrics, 63 W.C.D. 337 (W.C.C.A. 2002).

The employee next argues the compensation judge erroneously found she did not miss any time off following the January 26, 2010, injury.  The compensation judge found the employee was seen at Fairview Southdale Hospital on the day of the injury for cervical and upper back/thoracic pain, and was given two days off work.  (Finding 3.)  The judge also found there was no mention of a lumbar spine injury until three months after the work incident and the employee continued to work for the date-of-injury employer during that time without any time off.  (Finding 33.)  The records submitted at hearing indicate the employee resumed her regular duties at New Horizon after 1½ days off work following the injury.  She transferred to a different New Horizon location on February 23, 2010, working with infants, and continued to work for the employer until February 4, 2011.  The findings of the compensation judge are supported by the evidence in the record as a whole.

The employee states the compensation judge erroneously found the employee never went to physical therapy.  She asserts that was because the insurer did not authorize any medical treatment, and that she finally participated in physical therapy from October to December 2012 when her personal insurance company agreed to pay.  The compensation judge found the employee did not participate in physical therapy ordered by her physicians at Quello Clinic on multiple occasions based on the clinic records.  The judge also found the employee told her QRC in August 2011 that physical therapy had been ordered but was never authorized by the insurer.  (Finding 14.)  In October and November 2011, the employee went to three therapy sessions and then cancelled the remaining sessions.  (Finding 15.)  The employee did get alternating pool therapy and land therapy from late September through early December 2012 through MAPS.  (Finding 26.)  The compensation judge’s findings are consistent with the medical records submitted at the hearing.

The employee contends that she established the requisite causal connection through medical documents submitted at the hearing which show that she has been treated for neck and low back complaints from January 26, 2010, to the present time, including pain medications, physical therapy, epidural and facet injections, and pain management.  The compensation judge, however, found the employee failed to submit any physician statement causally connecting her cervical and lumbar spine treatment with the incident on January 26, 2010.  (Finding 33.)  The employee argues this conclusion is clearly erroneous.

The employee relies on a letter from Dr. Aslam dated December 19, 2012, and asserts the doctor relates the employee’s neck and back injuries to the January 26, 2010, incident.  The employee argues the compensation judge improperly disregarded Dr. Aslam’s causation opinion, erroneously concluding the doctor never treated or saw the employee for a neck-related injury.  The compensation judge found Dr. Aslam indicated she had seen the employee for neck and back pain beginning on July 8, 2010, but the clinic records do not show that Dr. Aslam ever saw the employee for neck pain, only for lumbar symptoms.  (Finding 27.)  The employee did not, in fact, see Dr. Aslam for the first time until April 6, 2011.  Dr. Aslam correctly stated the employee began treating “at the clinic” on July 8, 2010, the date on which the employee was seen by Dr. Hewitt complaining of low back pain.  All of the employee’s subsequent treatment at the clinic was for low back complaints, diagnosed as “lumbago.”

The employee asserts Dr. Aslam saw her for neck pain on August 8, 2012.  On that date the employee told the doctor that her physician at MAPS had suggested an MRI of the thoracic spine (there is no evidence of this in the MAPS records).  Dr. Aslam noted a little swelling and tightness in the lower cervical and thoracic area muscles, but did not provide any treatment on that day.  The diagnosis remained lumbago.  Dr. Aslam did order MRI scans of the cervical and thoracic spines, to be forwarded to the MAPS physician, and noted the employee’s chronic pain and medication would continue to be managed by the pain clinic.  The compensation judge could reasonably conclude that Dr. Aslam did not treat the employee for neck complaints.

Additionally, Dr. Aslam did not specifically state the employee’s neck and/or back complaints were causally related to the incident on January 26, 2010.  The doctor stated only that upon review of the employee’s Quello Clinic records, she had “not [found] any medical record of back and neck pain before [the employee’s] date of reported injury” on January 26, 2010, while employed at New Horizon Academy.  (Ee Ex. K.)

The employee also argues the compensation judge should have accepted Dr. Benish’s report and asserts that Dr. Benish stated the employee had a work-related injury.  The employee maintains the compensation judge never mentioned Dr. Benish’s report supporting EMG evidence of permanent injury to the right lower extremity.  We disagree.  The compensation judge did address Dr. Benish’s records and stated the doctor had found some neurogenic changes in the right lower extremity that could possibly be due to lumbar disc disease.  (Finding 30.)  Dr. Benish did not, however, provide a causation opinion.

Finally, the compensation judge found the employee not credible, concluding that the employee made numerous misrepresentations to her physicians during the four years of treatment, making it difficult to rely on the treatment records or the employee’s own testimony as reliable evidence in support of her claims.  (Finding 33.)  The employee asserts it is the medical records that are full of inaccuracies and misstatements, and that she consistently informed the employer and medical providers that she was hurt from the neck down to her tailbone.  Assessment of a witness’s credibility is the unique function of the trier of fact.  This court must give due weight to the compensation judge’s opportunity to judge the credibility of the witness.  Even v. Kraft, Inc., 445 N.W.2d 831, 834, 42 W.C.D. 220, 225 (Minn. 1989).  It is not the function of this court to re-evaluate the credibility and probative value of a witness’s testimony, Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734 (Minn. 1988).  On this record, we cannot say that the judge’s credibility finding is clearly erroneous and, accordingly, affirm.

The compensation judge adopted the opinion of the employer and insurer’s medical expert, Dr. Davis.  The doctor opined the employee sustained a temporary cervical and thoracic injury only on January 26, 2010, that resolved within three weeks of the incident, with no lumbar injury on that date.  (Finding 31.)  The judge found the lengthy over two-year period after the work incident during which the employee received no treatment for the cervical spine, her continued work in the same occupation for most of that time, the at-home incident on July 23, 2012, after which cervical treatment began, and the the fact that there is no mention of a lumbar spine injury in the medical records until three months after the work incident, supported the conclusion that any cervical injury on January 26, 2010, was brief and temporary and that only the employee’s non-credible representations supported a lumbar spine injury on that date.  (Finding 33.)  The compensation judge’s conclusions are neither clearly erroneous nor unsupported by substantial evidence in view of the record as a whole.

The employee argues that Dr. Davis’s IME report is incomplete and lacks adequate foundation.  Specifically, the employee asserts the employer and insurer purposely withheld Dr. Benish’s report from Dr. Davis, and that his conclusions and opinions are, accordingly, not supported by the medical evidence.  The employee additionally argues the opinions of Dr. Barnett and Dr. Dicks, as well as Dr. Davis, lack any reference to the permanent nerve damage found by Dr. Benish and are therefore unsupported.

The employee was initially seen by Dr. Benish on February 4, 2014.  EMGs were performed on February 5 and the employee was seen in follow-up on February 19, 2014.  The employee was subsequently examined by Dr. Davis on April 25, 2014.  The employee asserts she provided Dr. Benish’s medical reports to the employer and insurer in February 2014.  The employer and insurer maintain the first time they became aware of Dr. Benish was with service of the employee’s trial exhibits in August 2014.  (Resp. Brief p. 19.)

The question of foundation goes to an expert’s qualification to render an opinion.  The competency of a witness to provide expert medical testimony depends upon both the degree of the witness’s scientific knowledge and the extent of the witness’s practical experience with the matter which is the subject of the offered testimony.  Drews v. Kohl’s, 55 W.C.D. 33, 37 (W.C.C.A. 1996) (citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)).  Dr. Davis took a history from the employee, examined the employee, and reviewed relevant medical records and tests.  This level of knowledge affords adequate foundation for a doctor to render an expert medical opinion.  Id. at 38-39; see Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130. 1132-33 (Minn. 1988).  Moreover, certain facts may be unknown to a doctor without damaging foundation for the medical opinion as long as the omissions do not mislead the fact-finder.  See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 431 (Minn. 1978).  In this case, at the hearing both parties submitted Dr. Benish’s medical records.  (Ee Ex. L; Er-Insr Ex. 18.)  The compensation judge had the opportunity to review and consider these records and specifically referenced them in his findings.  (Finding 30.)  The employee’s concerns go to the persuasiveness or weight that may be accorded an opinion, but are are insufficient to establish lack of foundation.

The ultimate determination of medical causation is within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).  Where there is adequate foundation for the opinion adopted by the judge, this court must normally uphold the compensation judge’s choice among medical experts.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  The compensation judge did not err in adopting the adequately founded opinion of Dr. Davis, and we affirm.

The employee argues the compensation judge’s determination that the employee’s time off work after January 21, 2011,^[2] was not related to the January 26, 2010, work injury, and the judge’s denial of temporary total disability benefits, is clearly erroneous and not supported by substantial evidence.

The employee resumed work in her pre-injury job 1½ days after the incident.  She continued to work for the employer, full-time, through February 4, 2011, then began working in a full-time nanny position on February 7, 2011.  She remained in her job as a nanny, at a wage exceeding her wage at New Horizon, until November 10, 2011.  There was no evidence the employee terminated her employment as a nanny as a result of her work injury.

In addition, this court has affirmed the compensation judge’s conclusion that the employee’s January 26, 2010, work injury was a temporary cervicothoracic sprain that resolved within three weeks of the work incident.  We, therefore, affirm the denial of temporary total disability benefits.

The employee maintains that pursuant to Minn. Stat. § 176.321, the employer and insurer had 20 days in which to answer the amended claim petition, and that the respondents failed to do so.  She contends that under Minn. Stat. § 176.331, the employee was thereafter entitled to an expedited or immediate hearing, no further continuances should have been granted, the employee’s claim should have been deemed admitted, and the employer should not have been permitted to submit further evidence.^[4]

Minnesota Statutes § 176.291 provides that where there is a dispute in connection with a claim for compensation, a party may file a petition with the Department of Labor and Industry on a form prescribed by the commissioner.  The employee did so, filing a formal Claim Petition on March 1, 2012.  The employer and insurer filed an Answer within 20 days after service of the petition, denying and/or affirmatively defending against the claim for benefits presented in the petition.  The employee’s attorney amended the claim petition informally, by letter, on September 20, 2012, not on a form prescribed by the commissioner.  The employee’s subsequent Amended Claim Petition of October 10, 2012, restates the amendment previously made by her then attorney.  There is nothing in the workers’ compensation statute or rules that requires formal amendment of a claim petition or that a formal answer be filed in response to an amendment.  In this case, the employer and insurer already had, by answer, affirmatively denied any liability for workers’ compensation benefits.  Moreover, while each fact alleged by a claim petition or answer and not specifically denied by the answer is deemed admitted, “the failure to deny such a fact does not preclude the compensation judge from requiring proof of the fact.”  Minn. Stat. § 176.321, subd. 2.

As noted previously, in this case, the employer and insurer did timely serve and file an answer.  By the time the claim petition was amended, the case had already been referred to OAH, had been block assigned to Judge Rieke, and the claim petition had been scheduled for a hearing on January 10, 2013, in response to the employee’s attorney’s request that the matter be set for hearing at the first mutually available date.  Under these facts, we conclude the employer and insurer complied with the requirements of Minn. Stat. § 176.321, and the provisions of Minn. Stat. § 176.331 are not applicable.

The employee argues the compensation judge erred by denying the employee’s requests, after May 2013, for an immediate hearing, and by permitting the the employer and insurer to pursue additional discovery.  We disagree.

Following the withdrawal of the employee’s third attorney, the case was struck from the calendar and the hearing cancelled.  The December 20, 2012, order required the party seeking reinstatement to advise the court that all parties were ready to proceed to trial and that all necessary discovery, including all medical examinations, had been completed.  Shortly thereafter, the employee’s new attorney sought copies of all documents in the insurer’s possession relating to the claim.  On April 22, 2013, the attorney obtained a report from Dr. Dick concluding there were no objective findings to support a permanent injury to the employee’s low back.  The employee’s attorney withdrew effective May 24, 2013.  The employer and insurer then, on July 10, 2013, served a Demand for Discovery on the employee seeking medical authorizations and updated information from the employee, and sought an IME related to the cervical spine.

On July 24, 2013, the employee filed a Certificate of Readiness in which she acknowledged that opposing counsel did not agree the case was ready for trial.  On August 1, 2013, a pretrial conference was set for October 3, 2013.  Prior to the pretrial, on September 16, 2013, the employee served a Demand for Discovery on the employer and insurer.  The employer and insurer refused to produce certain information sought by the employee and on November 7, 2013, the employee filed a Motion to Compel Discovery.  Among other things the employee requested an early trial and objected to the employer and insurer’s discovery requests.

A telephone conference was held by Judge Rieke on December 31, 2013.  Orders on Motion to Compel Discovery was served and filed that same day in which the employee’s requests were denied in part and granted in part.  The employee’s request for a default judgment against the employer and insurer was denied.  Given these circumstances, the compensation judge could reasonably conclude that discovery, including that sought by both the employee and the employer and insurer, had not yet been completed before proceeding to trial.

The employee also argues that the employer and insurer withheld or destroyed an Employee Injury Report that she personally filled out on the day of the injury, replacing it with an injury report that was filled out by her supervisor, Missy Wilmes.  The employee testified that in the injury report she filled out, she stated she hurt her entire back “from my neck down to my tailbone.”  Ms. Wilmes listed a cervical injury only in the report she completed.  The employee contends the document was crucial to meeting her burden of proof, and that without it she was unable to counter the claim that she did not have low back problems until April 22, 2010.

The compensation judge reviewed the multiple reports of injury submitted at the hearing and heard the testimony of both the employee and Missy Wilmes.  (Findings 1, 2.)  The compensation judge, as discussed previously, found the employee’s testimony less than credible, and relied on the treatment and diagnoses reflected in the medical documents.

The employee also argues the compensation judge committed reversible error by denying the employee’s request for disclosure of the names and addresses of the children under the employee’s supervision on the day of the incident and that of their parents.  The judge denied the request as unreasonable and not relevant to the employee’s claim.  The children in the employee’s classroom were 3 to 5 year-olds at the time of the incident; the parents were not present.  The judge properly denied the request for their names and addresses as not material witnesses in the case.

The employee also asserts that the Medical Request filed by the employee on June 2, 2014, was improperly consolidated for hearing with the claim petition, cancelling the hearing scheduled at DLI on her request for a functional capacity evaluation.  The employer and insurer’s Medical Response, served on the employee on June 19, 2014, noted a two day hearing was scheduled in September 2014 at OAH to address the nature and extent of the employee’s injury, and requested consolidation of the medical request in the interest of judicial economy and to avoid potential inconsistent rulings.  Following a pretrial conference on July 11, 2014, the judge properly ordered consolidation of the medical request with the employee’s claim petition.

The employee asserts that, in every instance in which the employer and insurer sought hearings on their concerns, the compensation judge heard their petitions, granted continuances, struck the case from the calendar, overlooked the employee’s requests for an expedited hearing, and denied the employee’s requests for discovery.  She argues the compensation judge should have been removed from the case for inappropriate behavior, bias, and abuse of discretion, and that Assistant Deputy Chief O’Malley erred in denying her petition for reassignment.

As noted by Judge O’Malley, Minnesota courts have not regarded earlier adverse rulings by a judge, without more, as sufficient evidence of bias or impartiality with respect to subsequent proceedings.  It is presumed that judges will approach cases with a neutral and objective disposition.  To overcome this presumption the party alleging bias or prejudice must show evidence of deep-seated favoritism or antagonism that would make fair judgment impossible.  See, e.g. State v. Burrell, 743 N.W.2d 596, 603 (Minn. 2008).  We have carefully reviewed the case and considered the employee’s arguments and conclude the facts presented fall short of demonstrating bias or prejudice on the part of Judge Rieke sufficient to mandate reassignment of the case.

The employee argues the compensation judge violated the employee’s equal protection and due process rights in the conduct of the proceeding.  This court lacks jurisdiction to determine constitutional questions or fashion an equitable remedy outside the parameters of the workers’ compensation act.  Quam v. State, Minn. Zoological Gardens, 391 N.W.2d 803, 39 W.C.D. 32 (Minn. 1986).