MARIA E. GUTIERREZ SEPULVEDA, Employee/Appellant, v. AGGRESSIVE INDUS., INC., SELF-INSURED/MEADOWBROOK INS. GROUP, Employer/Respondent.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 12, 2016
No. WC15-5832
HEADNOTES
EVIDENCE - CREDIBILITY; EVIDENCE - EXPERT MEDICAL OPINION. There is adequate support for the compensation judge’s credibility determination. The compensation judge did not err in adopting the opinions of the self-insured employer’s independent medical examiners.
CAUSATION - TEMPORARY INJURY. Substantial evidence supports the compensation judge’s findings that the injuries sustained by the employee at work on September 17, 2012, were temporary and have resolved, and that the employee did not injure her low back or hip when she fell on September 17, 2012.
TEMPORARY PARTIAL DISABILITY - WORK RESTRICTIONS. Substantial evidence supports the compensation judge’s finding that the employee no longer needs work restrictions as a result of the September 17, 2012, injury, and the judge’s determination that the self-insured employer established reasonable grounds to discontinue temporary partial disability benefits.
APPEALS - SCOPE OF REVIEW. A medical record submitted with the employee’s letter brief reflects treatment provided after the hearing and after issuance of the compensation judge’s decision. This court may not consider new evidence on appeal, although it may provide a basis for a petition to vacate.
Compensation Judge: Sandra J. Grove
Determined by:
Manuel J. Cervantes, Judge
Patricia J. Milun, Chief Judgee
Gary M. Hall, Judge
Attorneys: Appellant employee pro se. Katie L. Godziek, Peterson, Logren & Kilbury, P.A., St. Paul, Minnesota, for the Respondents.
Affirmed.
OPINION
MANUEL J. CERVANTES, Judge
The employee appeals from the compensation judge’s determination that the self-insured employer was entitled to discontinue temporary partial disability benefits on the grounds that the injuries resulting from a fall at work on September 17, 2012, were temporary in nature and had resolved, and the employee was no longer in need of work restrictions. We affirm.
BACKGROUND
On September 17, 2012, while working for the self-insured employer, the employee tripped on a pallet, turned her right ankle, fell sideways onto her right knee, and collapsed to the floor. The employee was seen the next day by Dr. Kara Pettigrew at Multicare Associates with pain in the knee, pain and swelling of the right ankle, and lateral pain going from the ankle to the knee. The doctor diagnosed a mild right lateral ankle sprain and right knee sprain and ordered physical therapy. The employee returned to work with restrictions of occasional standing and walking, no squatting, kneeling or crawling, and occasional climbing of stairs, steps, or a ladder.[1]
The employee’s knee did not improve, and on October 2, 2012, she was seen by Dr. Orrin Mann, an occupational medicine specialist at Multicare Associates. Dr. Mann noted the employee’s primary pain was in the knee, shooting from the ankle to the lateral side of the knee. The doctor ordered an MRI scan of the right knee, performed on October 8, 2012, which was interpreted by the radiologist as showing at least a partial tear of the posterior cruciate ligament (PCL). On October 11, 2012, Dr. Mann referred the employee for an orthopedic consultation and imposed work restrictions, including occasional lifting up to 20 pounds; standing and walking occasionally; no squatting, kneeling or crawling; and no climbing stairs, steps, or ladders.
On October 16, 2012, the employee was seen by Dr. Aimee Klapach at Sports and Orthopedic Specialists. On examination of the right knee, Dr. Klapach noted mild swelling of the posterior knee, mild tenderness over the lateral joint line, and a positive grade 2 posterior drawer. Review of the October 8 MRI scan revealed a partial-thickness PCL tear. The doctor diagnosed right knee pain with a grade 2 PCL sprain, and advised the employee she was not a candidate for surgery. She prescribed six weeks of physical therapy to work on normalization of gait and to improve range of motion, stability, strength, and function of the knee.
The employee returned for follow-up on January 29, 2013. She reported that physical therapy had not benefited her knee. Dr. Klapach noted the knee had improved since the previous visit with decreased pain and swelling and explained that a partial PCL tear can take six months or more to heal. When seen on March 12, 2013, the employee had discontinued physical therapy on her own and stated she had had no improvement since the fall. Dr. Klapach noted the employee ambulated with an antalgic gait, but there was no swelling or effusion, and the posterior drawer test was negative. The doctor noted iliotibial (IT) band[2] tenderness and, given the employee’s lack of improvement, ordered a repeat MRI scan. New work restrictions were provided limiting the employee to an 8 hour work day, 2 days per week, with at least one day in between work days; no lifting over 15 pounds; no squatting, kneeling, or twisting; and no repetitive stair climbing.
The March 20, 2013, MRI scan revealed an intact PCL. The employee was seen by April Olson, PA-C, at Sports and Orthopedic Specialists on April 8, 2013. The employee complained of constant knee pain and a sense of instability in the knee. She expressed a desire to have surgery sooner rather than later. On examination, extreme tenderness to palpation was noted along the right greater trochanter through the IT band. The diagnosis was right knee grade 1 PCL strain, persistent knee pain, and right IT band syndrome with incomplete rehabilitation. The employee was referred to a different physical therapist and her work restrictions were continued. The employee was seen on June 13, 2013, was again advised to continue physical therapy, and was told that with an isolated PCL sprain and incomplete rehabilitation, she was not a surgical candidate.
On August 6, 2013, Dr. Klapach noted the employee was PCL deficient, grade 1, with persistent IT band syndrome and incomplete rehabilitation, despite lengthy conservative care. The employee was to continue a home exercise program and pool therapy independently, and her work restrictions were continued. Dr. Klapach offered a referral for a second opinion.
The employee was seen by Dr. Corey Wulf at Twin Cities Orthopedics on August 16, 2013. The doctor noted a mildly antalgic gait, tenderness over the lateral joint line, and no effusion about the knee. Dr. Wulf reviewed the March 2013 MRI scan and observed the ligaments were intact and there was no significant chondromalacia. The employee reported pain radiating up and down the right leg with numbness and tingling. She denied a history of back pain and stated her back had not been evaluated as a possible source of her symptoms. Dr. Wulf recommended an MRI scan of the lumbar spine and an EMG of the right leg.
On September 5, 2013, Dr. Klapach reported that Dr. Wulf did not believe PCL reconstruction surgery was warranted. The employee reported increasing pain to the right posterior hip extending down through her leg along with right knee pain. Dr. Klapach referred the employee back to Dr. Mann for evaluation and ordered an MRI scan of the lumbar spine.
The employee was seen by Dr. Mann on September 24, 2013. The doctor reported a pain infused, non-physiologic examination with dramatic limping on the right leg. His impression was chronic right leg pain with ill-defined etiology and psychosocial and legal factors impacting management.[3] Dr. Mann referred the employee back to Dr. Klapach for further treatment.
The lumbar spine MRI scan of September 20, 2013, showed mild disc degeneration and facet arthropathy at L5-S1; mild L5-S1 right foraminal stenosis; and mild facet hypertrophy at L4-5, with no disc herniation, central canal stenosis, or neural compression at any level. An EMG completed on October 9, 2013, was “suggestive” but not conclusive for “chronic” lumbosacral radiculopathy with possible right-sided nerve impingement at L5-S1. (Ex. H.)
The employee followed-up with Dr. Klapach on December 16, 2013. The doctor noted pain but no instability in the knee and stated the “knee itself feels very good;” “the knee is doing well.” (Ex. I.) The employee reported no back pain, but reported pain from the right posterior medial hip down the thigh with numbness and tingling down the leg. The doctor assessed lumbosacral radiculopathy at L5-S1, sciatic nerve pain, and right hip pain, and posited the employee’s fall may have irritated the nerve. Indicating the nerve was the primary concern, Dr. Klapach referred the employee to Dr. Seizert for assessment of the employee’s right hip and lower extremity pain.
The employee saw Dr. Barbara Seizert at Courage Kenny Rehabilitation Associates on February 12, 2014. The employee gave a history of injuries to the right buttock, lateral right hip, and lateral right knee in a fall at work on September 17, 2012. On examination, range of motion in the right hip was difficult and painful. Knee range of motion was normal but caused increased pain in the IT band. Dr. Seizert noted the right and left paraspinals were equally abnormal in the EMG, described the MRI scan as showing mild degenerative changes at L4-5 and L5-S1, and saw no evidence of any source of radiculopathy. Dr. Seizert concluded the main source of the employee’s pain might be hip bursitis and agreed the IT band was involved.
An MRI scan of the right hip on February 17, 2014, showed no evidence of trochanteric bursitis. In follow-up on February 25, Dr. Seizert concluded the hip was completely normal and the back was not pathologic enough to explain the employee’s symptoms. The doctor diagnosed IT band syndrome, prescribed medications to relieve pain, referred the employee for further physical therapy, and continued the employee’s work restrictions.
On April 22, 2014, the employee sought chiropractic care at Premier Health of South Minneapolis for right knee pain affecting her entire lower extremity and bilateral low back pain resulting from a fall on September 17, 2012. Regular chiropractic treatment ensued, and despite frequent sessions over a four month period at Premier Health, the employee reported no long-term relief.
On May 8, 2014, the employee was seen by Dr. David Ketroser and Dr. Stephen Kazi at Interventional Pain Center. The employee gave a history of work-related injuries to her lower back and right knee in a fall on September 17, 2012. She was not happy with her treatment at Sports and Orthopedic Specialists and wanted something for knee instability and to relieve her pain. Dr. Kazi diagnosed a right knee injury with probable PCL tear and early chondromalacia, and felt the lack of improvement warranted additional workup. The doctor ordered repeat MRI scans of the right knee and the lumbar spine. The right knee scan on May 14, 2014, showed a normal PCL, but showed a possible ACL sprain and some early osteoarthritic changes. On May 23, 2014, Dr. Ketroser indicated the employee did not really have low back pain, but instead SI joint regional pain and referral of that pain to her right knee. The doctor recommended physical therapy and referral for a second opinion.
The employee saw Dr. Seizert on May 27, 2014, having completed physical therapy. The employee reported persistent pain in the right hip, buttock, and right lateral knee. The doctor provided epidural steroid injections in the right hip and right knee, prescribed pain medication, and continued the employee’s work restrictions.
The employee returned to Dr. Klapach on July 24, 2014, for right knee pain. The doctor stated that when last seen on December 16, 2013, the employee’s grade 1 PCL sprain had resolved, but she continued to have pain, tightness, and weakness of the IT band. The doctor diagnosed right-sided IT band syndrome and recommended further physical therapy with intermittent injections. Dr. Klapach released the employee from her care stating she had no further treatment options for the right knee.
The employee was seen in follow-up by Dr. Seizert on July 31, 2014. The doctor noted only temporary right hip relief for 4 or 5 days following the injection. Dr. Seizert stated she was not able to improve the employee, provided a referral to the Intervention Pain Clinic for further care, and continued the employee’s work restrictions.[4]
The employee was seen by Dr. Suraj Muley, a neurologist, on October 25, 2014, at the request of the self-insured employer. By report dated November 12, 2014, Dr. Muley stated his findings on examination of the employee’s right knee and spine were essentially normal, except for subjective symptoms of pain with extension and flexion of the right knee. Neurological examination was normal other than inconsistent impaired sensation in the right lateral lower leg. The doctor opined the employee had chronic degenerative joint disease in the lumbosacral spine without evidence of active denervation, and that any L5-S1 nerve root damage was related to chronic wear and tear and not the work incident. Dr. Muley further opined the employee sustained a partial PCL tear to the right knee on September 17, 2012, and that the employee had reached maximum medical improvement (MMI) from the injuries. He declined to estimate the time it took to reach MMI for the knee, and recommended an opinion from an orthopedic surgeon. Finally, Dr. Muley stated that, from a neurological standpoint, the employee was capable of working full time and did not need work restrictions as a result of the injuries.
On December 10, 2014, Dr. Gary Wyard, an orthopedic surgeon, conducted a medical records review at the request of the self-insured employer. The doctor stated the employee had a normal right knee examination with an MRI scan on October 8, 2012, indicating a possible partial PCL tear that was not confirmed by a subsequent MRI scan on March 20, 2013. Dr. Wyard opined that, at most, the employee sustained a sprain/strain to the right knee as a result of the September 17, 2012, fall, and that the strain/sprain resolved within three months. In Dr. Wyard’s opinion the employee’s medical records revealed subjective complaints not supported by objective findings with nonorganic behaviors. The doctor further opined the employee needed no further treatment for her right knee, had reached MMI within three months from the date of the fall, and, from an orthopedic standpoint, was capable of working full time without work restrictions.
At the request of the employee’s attorney, Dr. Robert Wengler examined the employee on February 19, 2015. The employee gave a history of tripping and falling over a pallet at work on September 17, 2012, and landing on her right knee with immediate pain in the right knee, right ankle, and in the lower back. Dr. Wengler stated the October 8, 2012, MRI scan showed a tear of the PCL of the right knee and mild narrowing of the medial joint space. The doctor stated the September 20, 2013, lumbar spine MRI scan revealed an L5-S1 annular fissure and bulge which were believed to be the source of her back pain. On examination, Dr. Wengler noted a reverse 3/4 drawer sign on the right knee. The doctor concluded the employee had an unstable right knee in the form of laxity of the PCL. The lower extremity symptoms, Dr. Wengler maintained, were best explained by the “advanced” degenerative changes at L5-S1 shown on the September 2013 MRI scan. The doctor opined that both the right knee and low back conditions were related to the September 17, 2012, fall, and remained a substantial contributing factor to her current orthopedic impairment. Dr. Wengler further opined the injuries were permanent, that medical treatment to date had been reasonable and necessary, and recommended restrictions of no lifting over 10 pounds and work limited to 8 hour days two days a week.
Dr. Muley and Dr. Wyard provided supplemental reports in April 2015 after reviewing additional medical records, including Dr. Wengler’s report. Dr. Muley disagreed with Dr. Wengler’s assessment stating there was no evidence of radicular symptoms, and that “advanced degenerative changes” are a chronic condition related to chronic wear and tear rather than an acute injury to the back.
Dr. Wyard also disagreed with Dr. Wengler’s opinions noting the October 2013 EMG was suggestive for chronic radiculopathy, the September 2013 MRI scan of the lumbar spine was basically unremarkable except for mild degenerative changes at L4-5 and L5-S1, and repeat MRI scans of the knee were essentially normal with respect to the PCL. Dr. Wyard asserted the employee had no laxity of her right knee, although she may have had an initial partial tear that healed. He further opined the degenerative changes in her back were longstanding, preexisting, and unrelated to any specific injury. He again reiterated that, from an orthopedic standpoint, the employee did not need any restrictions or limitations on her activities.
On January 15, 2015, the self-insured employer filed a Petition to Discontinue benefits, asserting the employee was capable of working full-time without restrictions obviating the need for payment of temporary partial benefits. In a Findings and Order served and filed May 14, 2015, the compensation judge held the self-insured employer established reasonable grounds to discontinue temporary partial disability compensation. The pro se employee appeals.[5]
STANDARD OF REVIEW
In reviewing cases 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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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 the evidence or not reasonably supported by the evidence as a whole.” Id.
DECISION
At the hearing, the parties stipulated that on September 17, 2012, the employee sustained personal injuries to her right knee and right iliotibial band arising out of and in the course and scope of her employment. The parties also stipulated the employer had available to the employee 40 hours of work within the restrictions imposed by Dr. Seizert, specifically, no lifting over 15 pounds; no squatting, kneeling, or twisting; and no repetitive stair climbing. The parties did not agree on restrictions relative to the doctor’s limitation on the number of hours the employee could work and the rotational requirement of one day on work and one day off.
Following the hearing, the compensation judge found the employee sustained a right ankle strain, a posterior cruciate ligament sprain, and iliotibial band syndrome as a result of her fall on September 17, 2012. (Finding 3.) The judge further found the employee did not injure her low back or hip when she fell, and that the injuries sustained on September 17, 2012 were temporary and had resolved. (Findings 4, 5.) The judge concluded the employee no longer required work restrictions as a result of the September 17, 2012 injuries, and that the self-insured employer established reasonable grounds to discontinue temporary partial disability benefits. (Findings 6, 8.)
The employee asserts the decision of the judge is clearly erroneous. She argues she has had ongoing significant symptoms and pain in her right knee, hip, and low back since the fall, that although she saw a number of doctors, she was unable to obtain a cure for her injuries, and that she continues to need work restrictions to do her job.
1. Credibility (Finding 2)
The compensation judge found the employee’s testimony less than credible with respect to the nature and extent of her symptoms. The employee asserts that since September 2012, she has not been able to walk normally, and her low back and hip hurt. She explained how the accident changed her life, her work, and her family, and described all the pain she has had and the lack of surgery to cure her condition.
Assessment of a witness’s credibility is uniquely within the province of the compensation judge. Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839‑40, 41 W.C.D. 79, 82 (Minn. 1988). Upon review, this court must give due weight to the compensation judge's opportunity to observe the witness and judge her credibility. Even v. Kraft, Inc., 445 N.W.2d 831, 834, 42 W.C.D. 220, 225 (Minn. 1989). The employee was the sole witness in this case. The compensation judge was not persuaded by her testimony regarding her symptoms and conditions, but relied, instead, on the medical records and expert medical reports submitted at the hearing. Upon careful review of the evidence in the case, there is adequate support for the judge’s credibility determination.
2. Injury to Low Back or Hip (Finding 4)
The compensation judge found the employee did not injure her low back or hip when she fell on September 17, 2012. The employee maintains that she injured her right knee PCL in the September 2012 fall, and that as a consequence, the way she walks has been affected and it has contributed to pain in the hip and the lower back.
The employee did not report any injury to her low back until August 2013, nearly a year after the work injuries, when Dr. Wulf questioned whether her back had been evaluated as a possible source of her reported right leg symptoms. A lumbar spine MRI scan and an EMG of the lower extremities were performed.
In February 2014, Dr. Seizert concluded the hip was completely normal and, based on the September 2013 MRI scan and the October 2013 EMG, concluded the employee’s low back was not pathologic enough to explain her symptoms. Both Dr. Muley and Dr. Wyard were of the opinion that the employee had preexisting, chronic degenerative changes in the lumbosacral spine without evidence of denervation, and that any L5-S1 nerve root damage was unrelated to the work injuries.
Dr. Wengler, on the other hand, concluded the employee’s lower extremity symptoms were best explained by “advanced” degenerative changes at L5-S1 and that the changes were a substantial contributing factor to her current impairment. The doctor based his opinion, in part, on a history of immediate pain in the lower back at the time of the work injuries. The extensive medical history is devoid of any report of any low back pain contemporaneous with the fall at work or conditions treated at that time.
There is substantial evidence in the hearing record to support the judge’s determination that the employee did not injure her low back or hip on September 17, 2012.
3. Temporary Injury (Finding 5)
The compensation judge found the injuries sustained on September 17, 2012, were temporary and had resolved. The employee argues the injuries she sustained are still not resolved. She asserts she continues to suffer a lot of pain and that she has been from one doctor to another without resolution of her symptoms. The employee states that after Dr. Mann reviewed the first MRI scan of her knee, he said that therapy was not going to work and she would require surgery because her PCL was injured. But Dr. Klapach said she was not a candidate for surgery, even when her knee was not stable and she had difficulty walking. Although Dr. Klapach diagnosed a grade 2 PCL, the doctor would only prescribe therapy. The employee additionally asserts that Dr. Wulf based her conclusion that her PCL was alright only on x-rays of both knees. The employee argues that Dr. Klapach’s diagnosis was not correct because the PCL of her right knee was still injured and she still had pain in the right knee and the right lateral side of the leg and hip.
The crux of the employee’s argument is that she disagrees with Dr. Klapach’s assessment of her right knee condition and the position of Drs. Klapach and Wulf that the employee was not a candidate for PCL reconstruction surgery. Dr. Mann referred the employee to Dr. Klapach for an orthopedic consultation after the October 8, 2012, MRI scan showed a possible partial tear of the PCL. We note that Dr. Mann is an occupational medicine specialist and is not an orthopedic surgeon. Dr. Klapach, after examination of the knee and review of the MRI report advised the employee she was not a surgical candidate. At the follow-up visit on January 29, 2013, the doctor explained that a partial PCL tear can take six months or more to heal, and noted the knee had improved since the previous visit. A repeat scan on March 20, 2013, revealed an intact PCL. The employee, when seen on April 8, 2013, nevertheless complained of constant knee pain and a sense of instability in the knee and expressed a desire to have surgery sooner rather than later.
On August 6, 2013, Dr. Klapach offered a referral for a second opinion regarding knee surgery. The employee was seen by Dr. Wulf who reviewed the March 2013 MRI scan and concluded the right knee ligament was intact. She agreed with Dr. Klapach that surgery was not warranted. Dr. Klapach then referred the employee back to Dr. Mann for evaluation. Dr. Mann reported a pain infused, non-physiologic examination with dramatic limping on the right leg. His impression was chronic right leg pain with ill-defined etiology and psychosocial and legal factors impacting management. In other words, Dr. Mann concluded that he could not find physiological reasons to explain the employee’s ongoing pain symptoms.
On December 16, 2013, Dr. Klapach noted pain but no instability in the knee and stated the “knee itself feels very good” and was “doing well.” On July 24, 2014, the doctor stated that when last seen in December 2013, the employee’s grade 1 PCL sprain had resolved.
The compensation judge accepted the employee’s treating doctors’ diagnosis of IT band syndrome. The employee has, however, received no treatment for the condition since July 2014. Drs. Klapach and Seizert did not understand why the employee did not respond to physical therapy and other conservative treatment modalities and concluded there were no further treatment options.
In addition, Dr. Muley, a neurologist, opined the employee sustained a partial PCL tear to the right knee on September 17, 2012, and that the employee had reached maximum medical improvement (MMI) from the injury by at least October 2014. Dr. Wyard, an orthopedist, asserted the employee had no laxity of her right knee on any of the medical examinations, although she may have had an initial partial tear that resolved. He opined that, at most, the employee sustained a sprain/strain to the right knee as a result of the September 17, 2012, fall, and that the strain/sprain healed within three months.
The judge’s determination that the injuries sustained on September 17, 2012, were temporary and had resolved is substantially supported by the medical records submitted into evidence.
4. Work Restrictions (Finding 6)
The compensation judge found the employee no longer requires work restrictions as a result of the work injuries she sustained in September 2012. The employee argues that she continues to need restrictions because her work requires her to stand at all times, carry heavy objects, and, without restrictions, she is unable to work.
As to the extent of her symptoms, the judge found the employee’s testimony not credible. Rather, the judge accepted the opinions of Drs. Muley and Wyard that the employee was capable of working full time and did not need work restrictions as a result of her injuries. There is substantial evidence in the record to support the judge’s finding in this respect.
5. Medical Expert Opinion (Finding 7)
The compensation judge found the opinions of Drs. Muley and Wyard more persuasive than those of Dr. Wengler. The employee asserts that Dr. Wyard did a medical records review only and never examined her physically. She further contends that Dr. Wyard’s opinions are inconsistent in that he indicated both that the employee never had a PCL injury and that she did have a PCL injury that resolved. The employee asserts that both Dr. Muley and Dr. Wyard worked for the employer and its third-party administrator, Meadowbrook, but even Dr. Muley, who did examine the employee, stated she had right knee problems. The employee argues that Dr. Wengler did an “independent” medical evaluation, and found instability of the PCL.
Dr. Wyard reviewed the employee’s treatment records following the September 17, 2012, fall.[6] There is no requirement that a doctor must physically examine an employee to establish an adequate foundation for a medical expert opinion. See, e.g. Stately v. Red Lake Builders, 71 W.C.D. 123 (W.C.C.A. 2011). Nor is there anything in the law that requires a judge to give greater weight to an employee’s medical expert over that of a doctor providing an opinion on behalf of an employer or insurer. As an orthopedic surgeon, Dr. Wyard has sufficient education and experience to provide a medical opinion based on the medical record and, as noted above, he had sufficient information about the employee’s medical condition and treatment. It is the province of the judge, as the trier of fact, to resolve conflicts in expert testimony. A judge’s choice between medical experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The judge did not err in adopting the opinions of Drs. Muley and Wyard.
6. New Evidence
The employee asserts that her injuries were not properly treated until she had PCL reconstruction surgery of the right knee on June 19, 2015. A copy of an operative report by Dr. Jeffrey Macalena is attached to the employee’s letter brief. The surgery occurred after the March 11, 2015, hearing and after issuance of the compensation judge’s decision on May 14, 2015.
This court’s review on appeal from the findings and order of a compensation judge is limited to evidence submitted at the hearing. See Gollop v. Gollop, 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986). The medical record which the employee submitted with her brief reflects treatment provided after the hearing. This court cannot consider new evidence on appeal. See, e.g., Quijada v. Heikes Farm, Inc., No. WC10-5222 (W.C.C.A. May 4, 2011). If the employee has sufficient factual or legal grounds, she may petition to vacate and set aside the judge’s findings and order under Minn. Stat. § 176.461.
CONCLUSION
The compensation judge’s determination that the self-insured employer established reasonable grounds to discontinue temporary partial disability benefits to the employee is supported by substantial evidence in the record as a whole. 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. We, accordingly, affirm.
[1] The employee continued to work for the employer through the date of hearing subject to various doctors’ restrictions.
[2] The “iliotibial band” is a band of fibrous connective tissue on the lateral aspect of the knee, extending from the outside of the pelvis, over the hip and knee, and inserting just below the knee. See, e.g., Wikipedia.org, Iliotibial band syndrome, https://en.wikipedia.org/wiki/Iliotibial _band_syndrome (last visited Jan. 5, 2016).
[3] The Multicare Associates record for this visit is incomplete. (Ex. K.) This information comes from the IME reports of Drs. Muley and Wyard. (Exs. 1 and 2.)
[4] No further evidence of medical care for the right knee, right lower extremity, or low back was submitted at the hearing, other than Premier Health chiropractic care through August 28, 2014, and an emergency room visit on January 5, 2015, for right lateral hip pain.
[5] During the appellate briefing period, the employee filed her argument by letter. Attached thereto was a medical report, dated June 22, 2015, from Dr. Jeffrey Macalena describing a PCL reconstruction surgery of the right knee the employee underwent on June 19, 2015.
[6] These include the employee’s medical records from Multicare Associates, Sports and Orthopedic Specialists, all imaging reports, her physical therapy records, Courage Kenny Rehabilitation Associates, Premier Health of South Minneapolis, Interventional Pain Center, and the reports of Drs. Muley and Wengler.