MICHAEL P. MOEN, Employee/Appellant, v. NORTH METRO ASPHALT, LLC, and WEST BEND MUT. INS. CO., Employer-Insurer/Respondents, and TRUSTEES OF MINN. CEMENT MASONS, FIRST CHOICE OCCUPATIONAL MED., and BLUE HILLS REHAB & FITNESS STUDIO, LLC, Intervenors.

The employee appeals from the compensation judge’s finding that the employee failed to prove a cervical injury.  We affirm.

The employee is a journeyman cement finisher with a significant documented history of shoulder injuries and thoracic spine injuries beginning in 2000.  Following a work-related injury in Wisconsin in 2011, he underwent two right shoulder surgeries.  He also developed mononeuropathy of the long thoracic nerve around 2012.  He received a permanent partial disability rating of 12 percent.  Eventually, the employee was released to return to full duty and unrestricted work in April 2013.  He found a job with a Minnesota employer, North Metro Asphalt, in August 2013.  As a cement finisher for the employer, he was required to pour concrete out of a truck, finish concrete, make curbs and gutters and perform flat work.  He also spent time “striking off,” which meant he was on his hands and knees pulling concrete back and forth with an aluminum strike to achieve a smooth measured height.  The strike is 2” x 4” and 10 to 12 feet long and could weigh between 20 to 40 pounds.

On October 22, 2013, the employee and a co-worker were on their hands and knees repetitively lifting, rotating and pulling the aluminum strike back and forth to spread the cement.  The job became more difficult because the cement had already begun to harden.  It was “setting up” fast and was a little stiff.  Within a half hour, the employee developed pain in both shoulders and forearms, and numbness bilaterally in the 4th and 5th digits.

Two days later, on October 24, 2013, the employee sought treatment with Dr. Jane Stark.  Dr. Stark remarked that she was familiar with the employee’s history of shoulder problems, having previously treated him after the 2011 work injury and released him to work in April 2013.  The employee did not complain of neck pain at the time of the examination.  Dr. Stark noted that the employee’s symptoms were myofascial in nature.  She ordered physical therapy to work on anticipated myofascial release in the neck, upper back and shoulder-girdle region, as well as in the forearms.^[1]  She released the employee to light work with a 10- to 20-pound weight limit.

The initial physical therapy session occurred four days later.  The therapist listed a primary diagnosis of neck pain, thoracic spine pain, bilateral shoulder pain and bilateral upper extremity numbness.  Noting that there were “no hard neurological findings,” she assessed the condition as a recent work injury with restricted shoulder mobility greater than cervical mobility.

Dr. Stark saw the employee two more times in November 2013 which prompted her to order an MRI scan of the neck.  The employee had reported having pain in his neck which was aggravated by hammer drilling he was doing at work at the time.^[2]  On examination, the employee’s neck was stiff, but there were no radicular symptoms present.  The cervical MRI of November 20, 2013, showed spondylosis at C4-5 and C5-6 with encroachment upon the neuroforamina on the right side.  Dr. Stark had ordered the cervical MRI out of concern for the bilateral numbness, but concluded that the scan had not shown any significant compression pathology.  She referred the employee for a shoulder evaluation.

The employee saw Dr. Todd Schubkegel on December 5, 2013, for a shoulder evaluation.  Dr. Schubkegel diagnosed acute onset bilateral extremity parascapular axial spine pain with distal dysesthesia.  Finding no evidence to suggest a thoracic outlet syndrome or related intrinsic shoulder pathology, he thought the employee’s symptoms were more related to myofascial referred pain.  He recommended an EMG/NCV study.  The EMG findings were positive for right long thoracic nerve pathology, but there was no evidence of cervical radiculopathy.

Shortly after seeing Dr. Schubkegel, the employee began treating with Dr. Joseph Hebl, M.D., at First Choice Occupational Medicine.  Dr. Hebl drafted multiple narrative reports.  He opined that the employee’s work injury in 2011 in Wisconsin resulted principally in a right shoulder problem.  In his view,  the October 22, 2013, injury resulted in the following: a significant aggravation of the right shoulder condition, a chronic left shoulder condition, chronic neck pain, weakness and loss of motion, MRI findings of neuroforaminal narrowing at C4-5 and C5-6, chronic myofascial pain disorder of the thoracic spine, and bilateral hand and forearm paresthesias and dysthesias.  He diagnosed the employee with a chronic myofascial pain disorder of the cervical spine which he considered causally related to the October 22, 2013, work injury.  Assigning a 10 percent permanent partial rating, Dr. Hebl also found that the employee was permanently and totally disabled as a result of his injuries.  Dr. Hebl referred the employee to Dr. Jose Padilla for further evaluation.

Dr. Padilla saw the employee on February 27, 2014, and diagnosed continuing right shoulder pain with right long thoracic nerve palsy.  On examination, Dr. Padilla reported that the employee had neck pain with flexion.  He referred the employee to Dr. Jon Konzen for an evaluation of right long thoracic nerve palsy.  Dr. Padilla did not specifically address a causal connection between the work injury and neck symptoms.

 Dr. Konzen saw the employee on April 2, 2014.  The employee gave a history of scapular winging after his first right shoulder injury in 2011.  The employee further reported that in 2013, after returning to work, he was okay until an incident at work when he pulled concrete and developed burning pain under the right shoulder blade.  After reviewing the medical notes and sequential EMG studies along with the history and clinical exam, Dr. Konzen concluded that the employee “did and does have a right long thoracic nerve injury” which was “remote in occurrence.”  Dr. Konzon believed that the condition had stabilized and plateaued “given the time frame from injury to currently being greater than 2 years.”  Based on the studies completed, he found that “it also does not seem likely that the injury is due to a cervical radiculopathy or plexopathy.”

The employee saw Dr. Andrew Israel, an orthopedic specialist, on April 10, 2014.  Noting the complexity of the case, Dr. Israel diagnosed the employee with chronic right shoulder impingement, and myofascial pain syndrome of the neck and upper extremity.  Dr. Israel concluded that “more than likely the employee would have to get a different type of job where he is not abusing the shoulder,” but did not specifically tie the employee’s condition to his work activities on October 22, 2013.

The employer and insurer retained Dr. Mark Thomas to conduct an independent medical examination (IME).  Dr. Thomas issued three separate reports, which included two examinations and one records review.  Dr. Thomas concluded that a work injury did not actually occur on October 22, 2013.  He based his conclusions on a number of factors including: 1) the lack of documentation of a specific injury; 2) no objective findings on examination; 3) subjective complaints which were out of proportion to the lack of finding; 4) symptom magnification and vague and diffuse symptoms; 5) an MRI study of the right shoulder which showed only postsurgical changes and no evidence of a new shoulder injury; 6) an MRI study of the left shoulder which showed mild degenerative changes; 7) no findings consistent with an acute injury “that could be attributed to his 20 to 30 minutes of work activities on October 22, 2013; 8)  performance of normal work duties when he developed symptoms; 9) a report of neck pain a week after the injury; and 10) an absence of positive diagnostic evidence of a cervical injury.  With respect to the shoulders, long thoracic nerve, and neck, Dr. Thomas concluded that the employee’s work activities of October 22, 2013, did not aggravate or accelerate his pre-existing condition.

The matter was tried initially on May 1, 2014, before Compensation Judge Kirsten M. Tate on the issue of whether the employee injured his bilateral shoulders as a result of the October 22, 2013, injury.  The compensation judge found that the employee suffered a temporary aggravation of the pre-existing bilateral shoulder condition, which resolved no later than December 17, 2013.  The finding was not timely appealed before this court.

The employee filed a claim petition on June 24, 2014, and an amended claim petition on September 29, 2014, alleging neck (cervical spine), bilateral shoulders, and back injuries related to the October 22, 2013, event.  He later amended the claim to include only a neck and long thoracic nerve injury because these issues were not previously heard on May 1, 2014.  The matter advanced to a hearing on June 12, 2015, before Judge Tate.  She found that the employee did not prove by a preponderance of the evidence that he sustained either an injury to the cervical spine or a long thoracic nerve injury on October 22, 2013.  The employee appeals the denial of the neck (cervical spine) injury.

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 (2014).  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).

On appeal, the employee argues that the compensation judge erred in finding that the employee did not injure his cervical spine on October 22, 2013.^[3]  The employee argues that Dr. Thomas’ IME opinion lacked foundation because he reports that the employee did not sustain an injury on October 22, 2013.  He argues that the judge’s choice of experts should not be upheld where facts assumed by the expert are not supported by the evidence.  Citing Kelly v. C.M.I. Refrigeration, 231 N.W.2d 490, 27 W.C.D. 951 (Minn. 1975); and Pittman v. Pillsbury Flour Mills, Inc., 48 N.W.2d 735, 17 W.C.D. 15 (Minn. 1951), the employee argues that a strong inference of cause and effect is created where an employee who is asymptomatic prior to the date of injury begins to experience symptoms shortly afterwards.  His argument is based on the following facts: 1) the uncontroverted testimony and evidence shows that the employee had no neck symptoms or treatment before October 22, 2013; 2) the employee was engaged in physically strenuous work activity; 3) after doing this activity for 20-30 minutes, he had an onset of symptoms; 4) he reported the injury to his employer and two days later he saw a doctor; and 5) he had findings on MRI scan consistent with degenerative changes and complained of neck pain.  The employee argues that all of these facts establish that substantial evidence does not support the judge’s finding that the employee suffered no neck injury on October 22, 2013.

In response, the employer and insurer argue that the judge’s findings are well-supported by the opinion of Dr. Thomas, and that Dr. Konzen’s opinion further confirms that the employee’s long thoracic nerve injury is more than 2 years’ duration and also rules out cervical radiculopathy or plexopathy.  They further argue that the employee’s arguments fail to demonstrate that the findings are unsupported by substantial evidence or clearly erroneous.

This case contains a complex set of medical facts and significant pre-existing medical history.  It was decided primarily on the judge’s choice of medical experts’ opinions.  The compensation judge expressly accepted the medical opinion of Dr. Thomas, as supported by the medical records, over the views of the employee’s medical expert, Dr. Hebl, who offered the only medical causation opinion tying the work activities to the employee’s neck complaints.  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).  A compensation judge may rely on part of a medical expert’s opinion and is not obligated to accept either all or none of the expert’s opinions in order to rely on that doctor’s expertise.  See Johnson v. L. S. Black Constr. Co., 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”)).

Dr. Thomas’ three reports describe in detail the two examinations and the extensive medical records he reviewed to reach his conclusion.  We conclude that Dr. Thomas had adequate foundation upon which to base his opinions.

While there is adequate foundation, we nevertheless agree with the employee that substantial evidence fails to support Dr. Thomas’ conclusion that there was no injury in October 2013.  There was an injury.  Both the compensation judge’s previous findings of June 2, 2014, that there was a temporary aggravation to the shoulders, and the voluminous medical records support a myofascial component and temporary aggravation of pre-existing bilateral shoulder injuries.  However, while the compensation judge previously found a temporary aggravation of the bilateral shoulders, she found no injury to the cervical spine as a result of the employee’s work related duties.  The employee did not show by a preponderance of the evidence that he injured his cervical spine on October 22, 2013.  Substantial evidence exists to support this finding.  The employee did not initially complain of neck pain, which in and of itself is not dispositive.  The employee’s examination findings did not correspond with the MRI findings.  There was no neurological component.  Aside from Dr. Hebl’s causation opinion, there is no other doctor who found that the work injury was a substantial contributing factor to the employee’s myofascial neck symptoms.  Finally, significant neck pain complaints appeared to begin not in October 2013, but later, in November 2013, when the employee was at work hammer drilling after being released to work with significant restrictions.

In light of the foregoing evidence, we affirm the compensation judge’s findings that the employee did not prove by a preponderance of the evidence that he injured his neck (cervical spine) on October 22, 2013.