JUNE 6, 2016 

No. WC15-5887

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including medical records and expert medical opinion, supported the compensation judge’s finding that the employee’s work activities were not a substantial contributing cause of her right shoulder condition.

Determined by:
            Manuel J. Cervantes, Judge
            Gary M. Hall, Judge
            Deborah K. Sundquist, Judge

Compensation Judge:  Kathleen Behounek

Attorneys:  Lorrie L. Bescheinen, Fishman, Carp, Bescheinen & Van Berkom, Ltd., Plymouth, Minnesota, for the Appellant.  Thomas P. Kieselbach, Cousineau McGuire, Chartered, Minneapolis, Minnesota, for the Respondent.




The employee appeals from the compensation judge’s finding that the preponderance of the evidence failed to establish that her right shoulder partial thickness rotator cuff tear of October 25, 2014, is causally related to her work activities with Metro Transit or as a result of a specific injury on that date.  Accordingly, the judge also denied temporary total/partial disability and intervenor claims.  We affirm.


The employee began working for the employer, Metropolitan Transit Authority (Metro Transit), in 2012.  On October 25, 2014, the employee was assigned to drive a three line route between Minneapolis and St. Paul.  The employee testified that she first performed a pre-drive inspection and had no problems with her right shoulder at that time.  At some time while driving the bus, the employee began to experience an aching pain in her right shoulder while the bus was “going through the U up to Como, coming up Como.”  She testified that as she continued driving the pain started to get worse.  She indicated that what aggravated her shoulder the most was hitting potholes along Como Avenue.  By the time she finished the route, the pain was so bad that she was unable to extend or lift her right arm and drove using her left hand only.  She contacted Transit Control and reported that her arm was “hurting real bad.”  The employee believed that she had had a stroke. The employee’s supervisor came to meet her at the bus and she was taken to the emergency room at the Hennepin County Medical Center (HCMC).

When seen at the HCMC, the medical staff ruled out a stroke.  The employee was tender to palpation in the right shoulder, particularly with active or passive motion.  The pain seemed to localize at the rotator cuff.  The employee was taken off work and was advised to follow up with her personal care physician.  She was also given a referral to the HCMC Sports Medicine Clinic.

The employee was seen by a nurse practitioner at the Broadway Family Medicine Clinic on October 30, 2014.  She stated that her right arm began to hurt during a work shift as a Metro Transit driver, and got worse the more she moved the steering wheel.  She noted that she had not yet been seen in the sports medicine clinic but that the employer wanted her to return to work in a few days.  The employee’s right shoulder was noted to show full range of motion, with some pain, but without impingement signs.  The shoulder was tender to palpation and the employee reported radiation of her pain to the right scapular area and her neck.  She was given an off work note until seen at the sports medicine clinic.

The employer then sent the employee to Minnesota Occupational Health for a fitness for duty evaluation.  She was seen by Dr. John Kipp, who noted that there was focal palpation tenderness at the right shoulder AC junction, but that provocative testing for impingement and rotator cuff pathology were negative.  Internal rotation elicited pain in the AC joint of the right shoulder.  Dr. Kipp felt that the employee’s exam was suggestive more of an AC joint arthritis than of a rotator cuff problem.  He did not believe that her bus driving work had caused the AC joint arthrosis but conjectured that her bus driving may have made it more apparent to her.  He recommended that the employee be returned to modified duty with no lifting, pushing, carrying or pulling over 10 pounds, and no reaching above chest level with the right arm.

The employee was seen by Dr. Alex Smetana at the HCMC Sports Medicine Clinic on November 6, 2014.  She reported that her right shoulder pain started about a week and a half before while at work driving a city bus.  She had no particular traumatic insult, but while driving had experienced increasing aching pain in her right shoulder and upper arm which was exacerbated by shoulder adduction.  The employee stated that her pain had somewhat improved after two days and that she was taking ibuprofen and Flexeril with moderate relief.  She was hoping to return to work as soon as possible.  Dr. Smetana noted mild tenderness to palpation along the spine of the scapula and upper trapezoid.  There was full active and passive range of motion but mild pain with Hawkins’ maneuver.  Provocative tests were negative.  Dr. Smetana characterized the employee’s exam as benign other than for trapezoid tenderness to palpation consistent with a strain injury.  He noted low suspicion for a clinically significant rotator cuff injury.  The employee was authorized to return to work the next day as planned but with a restriction on overhead lifting.  She was also referred for physical therapy.

The employee returned to Broadway Family Medicine on November 14, 2014.  She reported that she had tried returning to work but had shoulder pain after 40 minutes of driving.  The nurse practitioner noted tenderness to palpation as well as spasm in the right shoulder.  The employee was referred to the Institute for Athletic Medicine and taken off work for two more weeks.

On November 21, 2014, the employee was evaluated by a physical therapist at the Institute for Athletic Medicine.  The employee had pain in her right shoulder joint and upper trapezius radiating to her upper arm.  Her symptoms were worse when using her arm overhead, at shoulder level or behind her back.  The employee reported that the symptoms had gradually been improving since their original onset.  Testing at the right shoulder was positive for impingement but negative for neural tension and rotator cuff tear.  On December 5, 2014, the therapist noted that the employee had not recently returned to therapy and that she was ready to be discharged from therapy and continue a home treatment program.

The employee was seen at Broadway Family Medicine by Dr. Elycia R. Matushin on December 9, 2014.  She told the doctor her shoulder was worsening.  Dr. Matushin thought that the employee’s examination findings supported bursitis, but the employee was concerned over a possible rotator cuff tear.  The doctor recommended an MRI scan, which was performed on December 17, 2014.  The MRI scan did not show a full thickness tear, but there was a partial thickness tear involving the joint surface of the anterolateral aspect of the supraspinatus portion of the rotator cuff.  There was tendinosis involving the subscapularis tendon.  There was also a small subacromial effusion consistent with bursitis.  Dr. Matushin recommended conservative therapy to include a steroid injection.

On February 11, 2015, Dr. Matushin provided a letter opinion in which she opined that the employee’s partial rotator cuff tear was consistent with a chronic use injury from the employee’s work, which the doctor characterized as involving “frequent repetitive motions of the left [sic] shoulder while driving.”  Dr. Matushin opined that this repetitive activity was a substantial contributing factor to the employee’s injury.

On April 6, 2015, the employee was seen by Dr. Hauck at Twin Cities Orthopedics on referral from Dr. Matushin.  Dr. Hauck recorded as history that the employee’s pain began while driving a bus on a tough route with many potholes; the employee “was trying to reach the fare machine when she could not move the shoulder.”  Examination notes indicate that the right shoulder had a normal appearance.  There was no tenderness on palpation.  Range of motion was full with normal motor strength.  Drop arm and lift off tests were negative.  Dr. Hauck noted that the MRI showed a low grade partial thickness tearing of the supraspinatus, with tendinosis of the subscapularis.  He recommended that the employee continue with home exercises.  He released the employee to return to work for two hours a day for two weeks, then at half days for two weeks, followed by six-hour days for two weeks, with a return to full time work after six weeks.

On May 4, 2015, the employee returned to see Dr. Hauck complaining of continued pain.  He treated her with an injection in her right shoulder subacromial bursa and referred her for physical therapy.  She was taken off any driving for two weeks.  Dr. Hauck noted that if the injection failed to help her symptoms, arthroscopic evaluation might be considered.

On May 6, 2015, the employee was seen for an examination on behalf of the self-insured employer by Dr. Paul T. Wicklund.  The employee reported that she had experienced right shoulder discomfort while driving a bus at work on October 26, 2014.  By the end of that run, she could not use her right arm.  The employee could not recall any non-work activities that might have been involved.  Dr. Wicklund asked how she drove a bus, and noted that she holds the wheel at the 5- and 7-o’clock positions with her palms up, turning the wheel without reaching over the top and keeping her hands below shoulder height.  He diagnosed a mild impingement of right shoulder with mild rotator cuff tendinitis.  In his view, turning the steering wheel would not have resulted in either the employee’s partial rotator cuff tear or in impingement, which he felt would have required use of the shoulder in an overhead activity above 90 degrees.  Dr. Wicklund felt that the employee was capable of working as long as she avoided repeated overhead work.  He opined that the work injury was a shoulder strain from which the employee was now at maximum medical improvement without permanency.  He found the employee’s care and treatment to have been reasonable but unrelated to the alleged work injury.

A worksite ergonomic evaluation of the work performed by Metro Transit bus drivers was performed on May 28, 2015, by physical therapist Mark A. Netzinger, American Ergonomics, Inc.  After reviewing the work activities of the job and the design of the workstation and its equipment, Mr. Netzinger placed the work of a Metro Transit bus driver in the sedentary classification.  He offered the opinion that none of the activities of the job could cause, contribute to, or exacerbate shoulder, elbow, wrist, or hand pain symptoms.

The ergonomic evaluation report was provided to Dr. Wicklund, who issued a supplemental report on July 31, 2015, stating that after reviewing the information about the physical demands of the employee’s job, he held the same opinion as expressed in his prior report of May 2015.

Following an evidentiary hearing, a compensation judge of the Office of Administrative Hearings found that the preponderance of the evidence failed to establish that the employee’s right shoulder condition was causally related to her work activities on October 25, 2014.  The employee appeals.


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.


The employee asserts that the evidence showed that the employee’s injury both arose out of and in the course and scope of the employment.  She contends that substantial evidence accordingly fails to support the compensation judge’s findings.  In support of her position, the employee points out that there was no evidence that the employee injured her right shoulder at any other time or place than while driving the bus on October 25, 2014.  Instead, the employee testified that she had no shoulder pain when she started the route, but had excruciating pain at the end of her route.  The employee further points out that the history given to the medical providers consistently associated the employee’s right shoulder pain to an injury sustained while driving the bus on the date of the alleged injury.  Finally, the employee points to the opinion of Dr. Matushin, who opined that the employee’s partial rotator cuff tear would be consistent with a chronic use injury from the employee’s work, which the doctor characterized as involving “frequent repetitive motions of the left [sic] shoulder while driving.”

The employer and insurer contend, in response, that there was overwhelming evidence to support the compensation judge’s findings.  Specifically, they point to largely unrebutted evidence as to the nature of the employee’s duties and the manner in which she performed them, to the ergonomic evaluation of physical therapist Netzinger, and to the expert medical opinion of Dr. Wicklund, who opined that there was no aspect of the employee’s job duties which could have caused or aggravated a rotator cuff tear.

This is a case that was decided primarily on the judge’s choice of expert medical opinion.  The compensation judge expressly accepted the medical opinion of Dr. Wicklund, as supported by the ergonomic analysis performed by Mr. Netzinger, over the views of the employee’s treating physician, Dr. Matushin.  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 sub-issue raised by the employee is whether the compensation judge erred in rejecting the expert opinion of Dr. Matushin.  The employee notes that the judge expressly rejected Dr. Matushin’s opinion because the judge considered it lacking in foundation.  Specifically, Dr. Matushin had opined that the employee’s partial rotator cuff tear was consistent with a chronic use injury from work involving frequent repetitive motions of the left shoulder while driving the bus.  The judge discounted this opinion based on the absence of evidence showing that the employee’s job in fact required frequent and repetitive motion of the employee’s right shoulder.  In addition, the judge rejected Dr. Matushin’s opinion as inconsistent with the employee’s testimony that the injury resulted from a specific injury, rather than a gradual process.  The employee contends that the judge erred in rejecting Dr. Matushin’s opinion.  We disagree.

First, we note that it does not appear that Dr. Matushin had Dr. Wicklund’s opinion or the results of the bus driver evaluation conducted by physical therapist Netzinger.  Dr. Matushin based her opinion on the examination of the employee, and her medical records to date, including an MRI.  The compensation judge, on the other hand, considered all the evidence, and adopted Dr. Wicklund’s view, bolstered by Netzinger’s ergonomic analysis that there was no mechanism by which the employee’s job duties could have caused the injury.  The judge’s choice of medical experts was not unreasonable or improper.  See Nord, id.

In conclusion, we find substantial evidence of record supports the compensation judge’s finding that the preponderance of the evidence failed to establish that employee’s right shoulder condition is causally related to her work activities with Metro Transit or as a result of a specific injury therewith.  We affirm.