MEE L. THAO, Employee/Appellant, v. SYNOVIS LIFE TECHS., INC., and TRAVELERS GROUP, Employer-Insurer/Respondents, and TWIN CITY ORTHOPEDICS, P.A., Intervenor.

The employee appeals from the compensation judge’s findings that her medical treatment for chronic tendonitis and carpal tunnel syndrome was not causally related to the employee’s January 1, 2008, work injury. The employer and insurer maintain that the compensation judge’s decision is supported by the employee’s medical record. We find the determination to be unsupported by substantial evidence when reviewing the record as a whole, and we reverse the compensation judge’s decision.

The employee, Mee Thao, began working for the employer in the mid-1980’s performing a variety of laboring duties. These duties included working with artificially-raised animal embryos. The employee repeatedly cut umbilical cords of the embryos and she developed upper extremity pain bilaterally beginning in 2004. Physical therapy was undertaken in February 2007. A November 2007 EMG showed results consistent with mild bilateral carpal tunnel syndrome.

In 2008, Robert O. Anderson, M.D., examined the employee, who described tingling and numbness in her fingers that had progressively worsened. The employee received injections of Kenalog (a corticosteroid) which provided some relief. Dr. Anderson recommended bilateral carpal tunnel release surgery, which was initially declined by the employee due to concerns over potential adverse outcomes. The employee underwent bilateral carpal tunnel release surgery in July 2008 (left) and January 2009 (right). The initial period after the surgery was marked by improvement in the employee’s condition and her treating physician, Laurie D. Koch, M.D., ordered physical therapy.

On July 1, 2009, the employee was examined by Edward W. Kelly, M.D., for bilateral shoulder pain. The employee had been kept off of work since her carpal tunnel release surgery. The employee’s March 24, 2008, MRI showed a SLAP lesion (left) and tendinopathy (bilateral). The employee rejected surgery and Dr. Kelly prescribed physical therapy.

On November 24, 2009, the employee underwent an electrodiagnostic study which was interpreted as consistent with nerve entrapment at the wrist. No evidence of cervical radiculopathy or brachial plexopathy was observed.

On February 1, 2010, Dr. Koch assessed the employee as being at MMI for her carpal tunnel condition and rated the employee at 3% PPD for her right wrist condition. On March 25, 2010, the employee was examined by Matthew Monsein, M.D., on referral from Dr. Koch. Dr. Monsein noted the employee’s primary complaints as bilateral arm pain; hand pain, tingling, stiffness, and cold sensation; and bilateral shoulder pain.

On June 10, 2010, the employee underwent an independent medical examination (IME) conducted by Paul Cederberg, M.D. Dr. Cederberg diagnosed the employee with idiopathic bilateral carpal tunnel syndrome post carpal tunnel releases, probable subacromial bursitis bilaterally with mild adhesive capsulitis and functional overlay, and possible depression or other mental health condition. Dr. Cederberg concluded that the employee was at MMI for the bilateral carpal tunnel syndrome with no ratable permanency. He also opined that there were no appropriate restrictions against the employee using her hands and wrists.

The parties stipulated that the employee suffered a repetitive trauma Gillette-type work injury, which was assigned a culmination date of January 1, 2008. The parties settled on a full, final, and complete basis, leaving open only medical expense benefits from the January 1, 2008, work injury. The employee was paid $95,000.00, less attorneys’ fees. The date of the settlement is unclear, but appears to have occurred in September 2010.^[1]

On May 5, 2011, the employee was examined by Dr. Monsein, who noted pain and swelling in the employee’s right proximal index finger and her left proximal thumb and wrist. On May 16, 2011, Dr. Koch examined the employee for complaints of right index finger pain and left wrist pain. The chart note describes these complaints as “two new problem[s].” The employee described the left wrist pain as dating from September 2010 and the index finger from December 2010. Dr. Koch conducted a physical examination of the employee and documented the details of the examination for both upper extremities. Dr. Koch diagnosed DeQuervain’s tenosynovitis and trigger finger [flexor synovitis] for the right index finger. Dr. Koch injected the right index finger with Kenalog.^[2]

The employee underwent conservative treatment for wrist, hand, and finger pain from November 2, 2011, onward. The employee used Lidocaine ointment and underwent a number of injections. Voltaren gel was added to the employee’s treatment regimen.^[3]

On January 14, 2016, Dr. Koch prepared a narrative report regarding the employee’s bilateral upper extremity complaints. The overall diagnosis was chronic tendonitis of the wrist and hand. Dr. Koch noted that the employee was most recently treated for DeQuervain’s tenosynovitis and flexor synovitis. Dr. Koch opined that the employee’s chronic tendonitis and carpal tunnel syndrome are the result of the employee’s work activities. Dr. Koch noted that the employee had described her work duties, specifically with regard to the manipulation required by the wrist and hand. Dr. Koch opined that the employee’s medical care to date was reasonable, necessary, and caused by the employee’s work activities.^[4]

The employee filed a Medical Request which was heard at DOLI. Thereafter, a Request for Formal Hearing was made which came before the compensation judge on January 27, 2016. The compensation judge heard testimony from the employee. The compensation judge made findings regarding the history of medical care received for the January 1, 2008, work injury, the nature of the employee’s medical care received from Dr. Anderson, particularly with respect to the references to chronic pain. The compensation judge found that “the disputed medical treatment was not causally related to the admitted work injuries.” The compensation judge denied the employee’s claim. The employee appealed.

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.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). 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.” Id. 358 N.W.2d at 60, 37 W.C.D. at 240. Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. 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 Products, 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. This court reviews questions of law under a de novo standard of review. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607 (W.C.C.A. 1993).

At hearing before the compensation judge, the disputed medical treatment was contested as not reasonable or necessary to cure or relieve the effects of the employee’s January 1, 2008, work injury. On appeal, the employee identified the issue for appeal as whether the compensation judge’s finding of no causal relation is supported by substantial evidence and is clearly erroneous.  The employer and insurer disagreed, maintaining that the finding was so supported and was not erroneous. The employer and insurer contend that the compensation judge correctly rejected Dr. Koch’s narrative opinion as lacking foundation.

Contrary to the employer and insurer’s contention, the compensation judge’s Findings and Order do not contain a finding that Dr. Koch’s January 14, 2016, narrative opinion lacks foundation. The memorandum describes the compensation judge’s reasons for rejecting the opinion of Dr. Koch. As the right trigger finger syndrome and left DeQuervain’s tenosynovitis were described as new conditions in September and December 2010, this was seen by the compensation judge as an “apparent contradiction” to the conclusion that these conditions arose out of the January 1, 2008, work injury.

Foundation for a medical opinion is met where “the doctors’ chart notes reflects an understanding of the employee's work activities that, in combination with their medical expertise and practical experience, is sufficient to provide adequate foundation for a medical opinion as to causation.” Tanner v. Park Nicollet Health Servs., No. WC06-121 (W.C.C.A. July 25, 2006) (citing Steffen v. Target Stores, 517N.W.2d 579, 50 W.C.D. 464 (Minn. 1994)). The standards for adequate foundation for Dr. Koch’s opinion are met in this matter. The employer and insurer’s contention that Dr. Koch’s opinion was rejected for lack of foundation is incorrect.

The employer and insurer did not submit any medical evidence relevant to the dispute over the employee’s claim. There was an independent medical examination performed by Dr. Cederberg at their request, but that opinion was offered prior to the first diagnosis of either the DeQuervain’s tenosynovitis or flexor synovitis which are the conditions at issue in this proceeding. The employee noted that a compensation judge may not ignore or disregard uncontroverted medical opinion, citing Flansburg v. Giza, 284 Minn. 199, 169 N.W.2d 744, 25 W.C.D. 3 (1969). The employer and insurer maintain that the employee’s medical record of treatment reveals no symptoms attributable to right trigger finger syndrome or left DeQuervain’s tenosynovitis prior to September 2010. The employer and insurer contend that the employee’s medical record contains substantial evidence supporting the conclusion that the employee’s DeQuervain’s tenosynovitis and flexor synovitis are not causally related to the January 1, 2008, work injury. We disagree.

There is nothing in the employee’s medical records that affirmatively states that the employee’s right trigger finger syndrome or left DeQuervain’s tenosynovitis are not caused by the employee’s January 1, 2008, work injury. There is no medical evidence of any sort in the record that either of these conditions cannot arise out of the admitted bilateral upper extremity conditions that the employee suffered due to her January 1, 2008, work injury. The only opposition to the employee’s medical record and the opinion of Dr. Koch is the argument of the employer and insurer’s counsel offered during the hearing. This consists of counsel for the employer and insurer describing the employee’s conditions and referring to the claims adjuster’s realization that they were “separate and apart from the admitted work injury.”^[5]

As argued by the employee, both before the compensation judge and on appeal, the general rule is that a compensation judge cannot disregard an unopposed medical opinion. See Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1122 (Minn. 1990) (citing Olson v. Midwest Printing Co., 347 N.W.2d 43, 46, 36 W.C.D. 623, 627 (Minn. 1984)); Flansburg, 169 N.W.2d 744, 25 W.C.D. 3; Clark v. Archer Daniels Midland, 50 W.C.D. 363, 369 (W.C.C.A. 1994), summarily aff’d (Minn. May 23, 1994); Tuomela v. Reserve Mining Co., 299 Minn. 203, 204, 216 N.W.2d 638, 639, 27 W.C.D. 312, 313 (1974). There is an exception where the employee’s medical record supports one position and an unopposed expert medical opinion holds a contrary position.^[6] But as discussed above, there is nothing in the employee’s medical record that supports a position contrary to Dr. Koch’s medical opinion.

There is no doubt that a medical professional could have examined the employee, reviewed the medical record, and arrived at the conclusion that the compensation judge did in his Findings and Order. But there is no such conclusion from a medical professional in the record of this matter. While the employer and insurer opposed the conclusion of Dr. Koch, no medical evidence other than the date of onset of the two conditions was cited to gainsay the opinion of Dr. Koch. While counsel may offer a description of a medical condition as argument, this does not constitute evidence in the record. Similarly, referencing in argument the opinion of a claims adjuster that was not put into evidence lacks any evidentiary weight whatsoever.

The compensation judge’s decision is not reasonably supported by the evidence as a whole and we reverse the compensation judge’s denial of payment for the employee’s medical treatment.