JULY 29, 2016

No. WC16-5904

WAGES - CALCULATION. Where an employee is not working for a second employer at the time of the work injury and substantial evidence supports a finding that the employee would not be scheduled to work concurrently at the second employer with the date of injury employer, calculating the average weekly wage figure sequentially is appropriate.

Determined by:
            Gary M. Hall, Judge
            David A. Stofferahn, Judge
            Manuel J. Cervantes, Judge

Compensation Judge: Catherine A. Dallner

Cross-Appellant Employee Pro Se. Krista Hiner, Peterson, Logren & Kilbury, P.A., St. Paul, Minnesota, for the Appellant.

Affirmed in part and vacated in part.



The employer appealed the compensation judge’s award of temporary total disability arising out of knee surgery. The employee cross-appealed the compensation judge’s calculation of average weekly wage, the denial of requested medical care for her right shoulder, and admission of the report of the independent medical examiner into the record of this proceeding. The employer also appealed the description of the employer as insured by Meadowbrook Insurance Group and requested that the finding in that respect be vacated.

As the findings of the compensation judge are supported by substantial evidence and consistent with the law, we affirm. As there is no dispute that the employer is self-insured, the finding to the contrary is vacated.


Victoria Giles, the employee in this matter, is a Department of Transportation-certified commercial driver. First Student, Inc., offered the employee a guarantee of 20 hours per week at $15.50 per hour. The driving time available with First Student was, at most, 30 hours per week. The employee worked for First Student for two weeks totaling 12.37 hours. The employee was also paid $750.00 as a bonus for completing driver certification.[1]

Due to a lack of work over the summer months, the employee applied for work with Montu Staffing Solutions on June 27, 2014. Montu Staffing, the self-insured employer in this matter, hired the employee to perform truck driving jobs for other companies. From June 30, 2014, to the injury on July 10, 2014, the employee worked 58.3 hours. The employee was primarily paid $14.00 per hour, although some jobs had a higher hourly rate. The employee performed no work for First Student over this period.

On July 10, 2014, while working as a truck driver in the employ of Montu Staffing, the employee suffered a fall from the rear of her delivery vehicle. The employee was moving a box to be delivered when she lost control of it and she fell, striking her head, right knee, and right shoulder on pavement. The employee was transported by ambulance to Fairview University Hospital. Imaging performed at that time showed no fractures.

On July 21, 2014, the employee was examined by Douglas A. Becker, M.D., who noted that the employee was “extremely symptomatic” regarding all of her identified problems. Dr. Becker released the employee to work, but put in place a number of restrictions, including no use of the right arm, no stooping, no standing or walking, no squatting, kneeling, or stair-climbing, and no driving for work.[2]

On July 29, 2014, the employee underwent an EMG of her lower extremities and an MRI of her right knee. The MRI showed small to moderate joint effusion. The employee was diagnosed with a marked sprain of the right anterior cruciate ligament (ACL), mild strain of the right medial collateral ligament (MCL), and areas of contusion to the tibia. The employee was put in a right leg immobilizer, given crutches, and placed on medication for pain. The employee was taken off of work by Katrina Anne Leone, M.D., until July 21, 2014.[3]

On July 31, 2014, the employee underwent an MRI of her right shoulder. The MRI showed moderate supraspinatus and infraspinatus tendinopathy and some bursal inflammation. A longitudinal tear/split of the supraspinatus tendon was observed, but no labral tears. Some deep surface tendon fraying near the posterior supraspinatus was observed. A right knee MRI was conducted on the same date which showed marked sprain of the proximal ACL fibers.

On August 4, 2014, the employee was examined by Dr. Becker who observed tenderness and limited range of motion in the employee’s right shoulder. Dr. Becker interpreted the EMG and MRI scans as consistent with mild right L5-S1 radiculopathy, right ACL sprain with probable complete tearing, right MCL sprain, and right shoulder partial intrasubstance supraspinatus rotator cuff tear. Dr. Becker proposed surgical repair of the employee’s right knee with possible surgical repair of the right shoulder at some later time.

On August 21, 2014, the employee was examined by John Kearns, M.D., to provide a second opinion on the proposed surgical repair of the employee’s right knee. Dr. Kearns noted that the employee was experiencing instability of her right knee. Dr. Kearns observed minimal joint effusion with no obvious laxity in the knee other than anterior drawer laxity. Dr. Kearns agreed that the employee was a good candidate for ACL reconstruction surgery as proposed by Dr. Becker. Dr. Kearns took the employee off of work from August 21 to November 30, 2014, for the surgery. On August 27, 2014, Dr. Kearns performed ACL reconstruction using a patella tendon allograft.[4]

At a follow-up examination on September 22, 2014, Dr. Kearns indicated that the employee should begin weaning from the use of the knee immobilizer and begin physical therapy. On October 10, 2014, Dr. Kearns noted that the employee was recovering from her knee surgery “reasonably well.” Dr. Kearns administered a cortisone injection to the employee’s right shoulder to address her pain symptoms and observed limitation in ROM. Dr. Kearns took the employee off of work due to the condition of her shoulder from October 2 to December 2, 2014.

On October 22, 2014, the employee was examined by John Sherman, M.D., for an orthopedic consultation for her low back. Dr. Sherman noted negative Babinski signs and three positive Waddell’s signs. Dr. Sherman ordered an MRI scan be performed. The MRI results were consistent with mild age-related degenerative changes. No neural impingement or acute changes were observed.[5]

On December 26, 2014, Dr. Sherman conducted a follow-up examination regarding the employee’s low back. Dr. Sherman noted that there did not appear to be a cause for the employee’s complaints of pain and no further treatment was proposed for her low back. The employee was not attending some physical therapy sessions, which the employee ascribed to illness. The employee did attend some physical therapy sessions and maintained that she was performing home exercises.[6] On January 16, 2015, Dr. Kearns again took the employee off of work for her right knee pain until April 20, 2015.

On March 18, 19, and 21, 2015, the employee was observed traveling between her home and various locations, a surveillance video recorded the employee’s activities. The employee drove a personal vehicle on several of these occasions. The video shows the employee walking without a cane or visible knee brace. On several of the trips, the employee can be seen using her right arm, including reaching, grasping, and carrying, all without any visible discomfort.[7]

On March 30, 2015, Dr. Kearns modified his restrictions to allow the employee to drive in a 25-mile radius. Dr. Kearns continued to keep the employee off of work through July 1, 2015.

On April 16, 2015, the employer approved right shoulder surgery. The pre-operative physical was approved on April 29, 2015.[8] The employee did not go forward with the shoulder surgery at that time. The employee underwent a pre-operative assessment for right shoulder surgery on June 1, 2015. The proposed surgery was assessed as low risk. The employee did not undergo the surgery at that time due to gastrointestinal issues. The employee was reassessed for that surgery on July 30, 2015, and determined to be an intermediate risk.

On June 11, 2015, the employee underwent an independent medical examination (IME) conducted by Mark K. Thomas, M.D. According to the IME report, the encounter was contentious, with the employee seeking to audiotape the examination. The examination was abruptly ended by the employee, who objected to the passive manipulation of her right knee. Dr. Thomas opined that the employee had suffered a right knee ACL tear, right shoulder sprain, lumbar spine strain, and cervical spine strain, all secondary to the July 10, 2014, work injury. The shoulder and spine conditions were superimposed on preexisting conditions. Dr. Thomas indicated that the employee was demonstrating symptom magnification. He opined that the employee’s period of disability had been excessively prolonged and that she should be returned to work as soon as possible. Dr. Thomas considered the 25-mile driving restriction to be arbitrary and unnecessary. Dr. Thomas opined that no restrictions were reasonable for the employee’s right shoulder or spine conditions as they were minor, temporary, superimposed over preexisting conditions, and resolved. For the right knee, Dr. Thomas indicated that a return to full time work should be conditioned on the use of a hinged knee brace, 40-pound lifting limit (20-pounds from frequent lifting), and no kneeling, crouching, or crawling. Dr. Thomas noted that noncompliance with physical therapy could result in delaying functional recovery, prolonged weakness, and stiffness. As to prognosis, Dr. Thomas considered that dependent on the results of the scheduled MRI and if the graft had failed, the employee could benefit from repeat ACL reconstruction. Dr. Thomas opined that the employee was at maximum medical improvement (MMI) for her right shoulder and spine injuries and not at MMI for the right knee.[9]

On June 15, 2015, Dr. Kearns noted noise and patellofemoral crepitation with active knee extension. The employee described pain and weakness accompanying squatting and traversing stairs. Dr. Kearns directed that an MRI scan be performed. Dr. Kearns kept the employee off of work until September 26, 2015.

On September 2, 2015, the employee underwent an MRI which showed significant tearing of the medial meniscus and apparent destruction of the ACL graft.[10] On September 14, 2015, the employee underwent revision surgery performed by Dr. Kearns. The prior ACL graft was absent. The nubbins (where the graft had been attached at either end) were observed. Tearing of the lateral meniscus was observed and repaired. A new graft was attached in different locations from the prior graft for more secure fixation.[11] On October 9, 2015, Dr. Kearns directed that six physical therapy sessions be undertaken to strengthen the employee’s right knee and that progress reports be made back to Dr. Kearns. Dr. Kearns kept the employee off of work due to the condition of her right knee and right rotator cuff for three months. Dr. Kearns also referred the employee for an acupuncture evaluation.

Dr. Kearns provided narrative reports dated August 14, 2015, October 19, 2015, and October 29, 2015. Dr. Kearns opined that the employee’s knee surgeries were reasonable, necessary, and causally related to the employee’s July 10, 2014, work injury. Dr. Kearns indicated that the proposed shoulder surgery was likely to alleviate the employee’s shoulder pain and that condition was most likely caused by the work injury.[12]

On October 28, 2015, Dr. Thomas was deposed regarding his opinions on the employee’s knee, shoulder, and spine conditions. Dr. Thomas opined that poor rehabilitation could lead to a re-injury of the knee through tearing of the graft. Dr. Thomas also noted that acupuncture was not reasonable or necessary as it was not part of the rehabilitation protocol for ACL surgery. Dr. Thomas acknowledged that the employee’s medical record showed evidence that the right knee graft had failed.[13]

On September 9, 2015, the employer filed a Petition to Discontinue temporary total disability (TTD) benefit payments. On September 28, 2015, the employee filed a Medical Request seeking approval of right shoulder surgery. These claims were consolidated and came on for hearing before the compensation judge on November 3, 2015. The compensation judge issued a Findings and Order on December 10, 2015. As relevant to this proceeding, the compensation judge found that the employee’s average weekly wage (AWW) on the date of injury was $449.94, that the right shoulder condition as of June 1, 2015, was unrelated to the work injury, and that discontinuance of TTD was denied. The employer appealed and the employee cross-appealed.


The employee maintains that the compensation judge erred in calculating the AWW for determining benefits by failing to include lost wages from employment with First Student. The employee also contends that the denial of right shoulder surgery was erroneous and relied on the IME report of Dr. Thomas which should not been admitted into evidence. The employee also objects to the weight given to the IME report and the surveillance video introduced into the record. The employer contends that the compensation judge erred in denying discontinuance of TTD benefits by improperly relying on the opinion of Dr. Kearns.

1.   Average Weekly Wage

The employee maintains that she was regularly employed by two or more employers as of the date of the work injury and therefore a higher AWW of $610.00 is appropriate (citing Christensen v. Nokken Farms, No. WC06-257 (W.C.C.A. Feb. 8, 2007) and Hafner v. Glenwood Liberty Serv. Ctr., 42 W.C.D. 16 (W.C.C.A. 1989)). Under Hafner, an employee must have “regular” employment at a second job for that income to be included in the AWW calculation. The employee was not actually working for First Student over the period when she suffered the July 10, 2014, work injury. The record contains unequivocal testimony at trial from a supervisor that the employee would not have been able to work for both employers due to scheduling conflicts. There is substantial evidence in the record supporting the compensation judge’s determination of the employee’s AWW. The compensation judge’s determination of the employee’s AWW is affirmed.

2.   Right Shoulder

The employee maintained that the compensation judge’s determination regarding the nature and extent of the employee’s right shoulder injury is “clearly erroneous” and unsupported by substantial evidence. The employee relies on the medical record and notes of the treating physicians in support of this contention. The employer responded that the compensation judge relied on the opinion of the IME, which was well founded, as well as the surveillance video, in determining that the employee’s right shoulder condition did not arise from the July 10, 2014, work injury. The employee asserted that the IME report was not admissible due to bias, and the surveillance video should be given no weight.

            a. Admissibility of Expert Testimony

The employee contends that the IME opinion of Dr. Thomas should not have been admitted to the record due to bias. The employee cites Johnson v. Mainline Transp., Inc., No. WC14-5711 (W.C.C.A. Nov. 18, 2014), in support of this argument. The compensation judge found that Dr. Thomas had sufficient opportunity to render an opinion. Johnson stands for the proposition that the compensation judge makes the determination regarding issues of credibility. The law is well-established that a compensation judge may credit the opinion of an independent medical examiner over that of a treating doctor. Brustad v. Healtheast/St. Joseph’s Hosp., No. WC09-5030 (W.C.C.A. June 7, 2010)(citing Caven v. Ag-Chem Equip. Co., Inc., slip op. (W.C.C.A. Sept. 14, 1993) (finder of fact may, in appropriate circumstances choose to afford greater weight to the opinion of a treating physician, but the judge is not required to do so). The employee has not shown that the opinion of the independent medical examiner was motivated by or based on anything other than the examination conducted.

On appeal, the factual determinations of a compensation judge based on the choice between expert opinions is typically affirmed, “so long as the accepted opinion has adequate foundation.” Smith v. Quebecor Printing, Inc., 63 W.C.D. 566, 573 (W.C.C.A. 2003), summarily aff’d (Minn. Aug. 15, 2003) (citing Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985)). Proper foundation is a necessary element to accept a medical opinion. The Minnesota Supreme Court’s precedent in this area was summarized by this Court in Winkles v. Indep. Sch. Dist. #625, slip op. (W.C.C.A. Sept. 23, 1991), as follows:

If an employee fails to give a proper history to examining physicians, then their opinions lack proper factual foundation and must be disregarded. Benedict v. Service Systems, 36 W.C.D. 710, 711 (Minn. 1983) (citing with approval Klapperich v. Agape Halfway House, 281 N.W.2d 675, 31 W.C.D. 641 (Minn. 1981)). Additionally, a doctor's opinion regarding causation which is based on an inadequate factual foundation is of little evidentiary value. Welton v. Fireside Foster Inn, 426 N.W.2d 883 (Minn. 1988). “To sustain a finding of causal relation it is not enough that there is medical testimony that the injury might have caused the subsequent condition or could have caused that condition but there must be medical testimony that the injury did cause that condition.” Holmlund v. Standard Construction Co., 240 N.W.2d 521, 525 (Minn. 1976) (emphasis supplied).

Regarding the claims for the employee’s right shoulder, the compensation judge relied on the opinion of Dr. Thomas. The choice of an expert is not upheld where the facts assumed by the expert are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 342-3, (Minn. 1985)(citing Klapperich, 281 N.W.2d 675; McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff’d (Minn. July 13, 1990)). The employee maintains that the IME should have done more objective testing before disagreeing with treating physician’s diagnosis. There is no basis in current law to adopt some form of objective testing standard. Further, it would be impossible for this court to apply such a standard. Any claimed deficiency in the IME is properly brought before the compensation judge. Under Nord, the compensation judge’s choice of expert is undisturbed on appeal, absent a lack of foundation or overwhelming evidence. Dr. Thomas opined that the employee’s shoulder condition was the result of degenerative changes, not an acute injury as would be expected from the employee’s fall on July 10, 2014. That opinion was adopted by the compensation judge and has support in the record. The record contains substantial evidence to support the compensation judge’s choice of expert in this matter.

            b. Weight Afforded Surveillance Video

The employee contended that the compensation judge gave undue weight to the surveillance video showing the employee engaged in the use of her right arm and shoulder without apparent difficulty. The employee relies on Wittrock v. Dalco Roofing & Sheet Metal, No. WC05-105 (W.C.C.A. June 6, 2005), to maintain that surveillance video does not outweigh the employee’s medical records and the opinions of treating physicians. The holding in Wittrock does not compel a compensation judge to favor any particular evidence. In Wittrock, the surveillance evidence and medical opinion evidence did not outweigh the medical record and contrary medical opinions in that particular case. In this matter, the compensation judge determined that the weight of the evidence favored the self-insured employer’s position. There is substantial evidence supporting this conclusion and it is undisturbed on appeal.

            c. Legal Effect of Admitted Injury

The employee argues that, as the right shoulder injury was admitted, there is a burden on the employer to advance evidence that the employee’s right shoulder condition was not caused by the work injury.[14] To the extent that this assertion places the burden of proof on the employer, it is contrary to Minn. Stat. § 176.021, subd. 1. The employer introduced both expert opinion regarding causation and surveillance video to demonstrate that the employee’s claims regarding the need for shoulder surgery was unfounded. This is substantial evidence in the record that supports the compensation judge’s findings that the employee’s current right shoulder condition is not caused by the July 10, 2014, work injury. The employer’s admission that the employee suffered some form of injury does not alter the employee’s burden to show that any particular medical care is reasonable, necessary, and causally related to the work injury. The compensation judge’s denial of the employee’s Medical Request is AFFIRMED.

3.   Entitlement to TTD Benefits

The employer maintains that the discontinuance of TTD benefits is appropriate because the employee did not consistently attend PT sessions and, based on the opinion of Dr. Thomas, this lack of attendance resulted in the need for the subsequent surgery. The employer contends that the opinion of Dr. Kearns cannot be relied upon as the compensation judge adopted the contrary opinion of Dr. Thomas. The compensation judge relied upon the opinion of Dr. Thomas in assessing the condition of the employee’s right shoulder.

There is no requirement that the compensation judge credit or discount all of a medical opinion. Armstrong v. RJ Sport & Cycle, No. WC12-5520 (W.C.C.A. June 18, 2013); 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) (a factfinder generally “may accept all or only part of any witness’ testimony&rduo;)). In her memorandum, the compensation judge discussed the lack of factual foundation for Dr. Kearns to give an opinion regarding the employee’s right shoulder. There is no such foundation problem regarding the employee’s right knee.[15] More importantly, Dr. Kearns conducted the revision surgery on the employee’s right knee on September 14, 2015, and the total absence of the ACL graft was observed. Dr. Thomas indicated that inadequate PT could result in tearing of the ACL. In the employee’s case, the total failure of the graft rendered any inadequacy in her PT attendance irrelevant. There is substantial evidence in the record in the form of the September 2, 2015, MRI and September 14, 2015, operative report to conclude that the employee’s attendance at PT had no bearing on the need for revision surgery. As the employee’s TTD benefits were awarded based on the continued condition of her right knee, the compensation judge properly found that the employee remained entitled to those benefits. As the self-insured employer relied on noncompliance with PT prior to the September 14, 2015, revision surgery as the basis for the Petition to Discontinue, that Petition was properly denied. The compensation judge’s denial of the Petition to Discontinue is AFFIRMED.


Substantial evidence in the record supports the compensation judge’s determination of AWW, denial of the employee’s Medical Request, and denial of the employer’s Petition to Discontinue TTD. The compensation judge’s Findings and Order, served and filed December 10, 2015, is AFFIRMED. As the Findings and Order incorrectly identified an insurer and the parties do not dispute that the employer is self-insured, references to an insurer in the Findings and Order are VACATED.

[1] Employee’s Exhibit A; Transcript, at 22.

[2] Employee’s Exhibit E.

[3] Employee’s Exhibit B.

[4] Employee’s Exhibits G and I.

[5] Employee’s Exhibit G.

[6] Transcript, at 49-57.

[7] Employer’s Exhibit 6.

[8] Employee’s Exhibit G.

[9] Employer’s Exhibit 1.

[10] Employee’s Exhibit G.

[11] Employee’s Exhibit I.

[12] Employee’s Exhibit H.

[13] Employer’s Exhibit 2.

[14] The employee also advances an argument that by admitting that the right shoulder injury was a work injury, the employer was admitting to the nature and extent of the right shoulder injury as a rotator cuff tear. (Employee Reply Brief, at 3, footnote 2.) This argument is contrary to longstanding case law.

[15] While the compensation judge indicated in her memorandum that Dr. Kearns was mistaken regarding the employee’s noncompliance with PT, in his October 9, 2015, treatment record Dr. Kearns added a requirement that he receive PT progress reports. This suggests that Dr. Kearns was aware of the employee’s prior nonattendance at PT sessions.