JULY 12, 2016 

No. WC16-5924

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence in the form of a well-founded medical opinion, the employee’s testimony, and the employee’s medical records supports the compensation judge’s determination that the employee’s injuries while employed by the employer were substantial contributing causes of the employee’s disability.

Determined By:
            David A. Stofferahn, Judge
            Patricia J. Milun, Chief Judge
            Manuel J. Cervantes, Judge

Compensation Judge:  Miriam P. Rykken

Attorneys:  Raymond R. Peterson, McCoy Peterson Jorstad, Ltd., Minneapolis, Minnesota, for the Respondent.  James A. Waldhauser, Cousineau McGuire Chartered, Minneapolis, Minnesota, for the Appellants.




The compensation judge found that the injuries sustained by the employee when he played professional football for the employer were substantial contributing causes of his disability.  The employer and insurers have appealed from this finding and from the award of temporary total disability.  We affirm.


Madieu Williams, the employee, was born in October 1981 and was 34 years old on the date of hearing.  He began playing football in the ninth grade and played through high school and college.  After college, he was drafted by the Cincinnati Bengals and began playing there in 2004.

The employee played for the Bengals from 2004 through 2007.  Throughout his career, Mr. Williams has been a defensive safety and was a starting player in that position during his time with the Bengals.  During his employment by the Bengals, the employee sustained a number of injuries and, as a result of one of those injuries, he had surgery on his left shoulder to repair a labral tear.  The employee testified that at the time he left the Bengals, his only ongoing physical problem from his injuries was low back pain.

In March 2008, the employee was hired to play for the Minnesota Vikings on the basis of a six-year contract.  Before beginning with the Vikings, Mr. Williams had an extensive physical examination done by the team’s physicians at Tria Orthopedics and was cleared for play.  Mr. Williams was a starting player and played through the 2010 season.  After that season, he was released from his contract by the team.  He played for the San Francisco 49ers in the 2011 season.  The employee testified that he was paid substantially less than what he had been making with the Vikings.  He played on special teams and did not play very much.  The employee then went to the Washington football team in 2012.  He testified this was one of his best years and he played all games as a starter.  No permanent injuries are reported as having occurred during his time with San Francisco or Washington.

Mr. Williams testified that by the end of the 2012 season, he decided that he could no longer continue to play football because of symptoms from the injuries he had sustained and because of his inability to recover during the off-season.  He did not play again.

Mr. Williams sustained a number of injuries as a player for the Vikings:

  1.  August 2, 2008.  A head on collision during a tackle in a practice scrimmage resulted in a C5 laminar fracture.  He was placed in a neck brace for more than two months and slept in a recliner until the fracture healed.  Thereafter, he was treated with Flexeril and oral cortisone but the employee has continued to have left arm weakness and pain as well as neck pain since that time.

  2.  October 2, 2008.  Mr. Williams fell directly on his right knee.  He was diagnosed by a team doctor as having patellar femoral chondromalacia.  He was able to play for the rest of the season by taking anti-inflammatory and pain medications, applying ice and heat, and using a compression sleeve during practice.  The employee had right knee surgery in January 2009 in the nature of an arthroscopy, limited patellofemoral synovectomy, limited chondroplasty of the trochlea, and medial patella facet chondrosis with debridement.

  3.  November 12, 2008.  The employee had a left shoulder injury in practice.  A Grade II acromioclavicular separation was diagnosed.  The employee treated for this injury with pain medication and injections provided by team trainers.

  4.  September 21, 2009.  The employee had a subluxation injury to his right shoulder.  A labral tear was noted in an MRI scan.  The right shoulder was treated non-operatively.  The employee testified that he knew the only way to repair a tear was with surgery but he was concerned about losing time from playing and instead received cortisone and novocaine shots each week.

  5.  December 21, 2010.  Mr. Williams suffered a concussion while playing which caused him to lose consciousness.  His initial symptoms were nausea and vomiting for several days.

On June 7, 2013, the employee was seen by an evaluator on behalf of the NFL for a “Neutral Evaluation for Line-of-Duty Disability Benefit.”  The evaluation consisted of a review of medical records related to his injuries with the NFL and a physical examination to determine permanent impairment based on the AMA guide for evaluation of impairment.  The report prepared by the evaluator concluded the employee had 31% impairment of the right arm, 29% of the left arm, 19% of the right leg, 22% of the left leg, and 19% impairment of the spine.  No disability rating was provided for the after effects of his concussion injury.  When converted to an impairment of the whole body, the result was an impairment of 55%.

In December 2014, the employee filed a claim petition alleging entitlement to various workers’ compensation benefits arising out of his injuries with the Minnesota Vikings.

The employee was evaluated on behalf of the employer and insurer by Dr. H. William Park.  Dr. Park issued a report on June 1, 2015, setting out his conclusions and opinions.  Dr. Park took a medical history from the employee, conducted an examination, and reviewed extensive medical records.  Dr. Park expressed the following opinions:

  1.  August 11, 2008, cervical injury.  “The injury has healed without any complication.”  His symptoms and decreased range of motion are due to a pre-existing degenerative disc disease.

  2.  October 4, 2008, right knee injury.  Mr. Williams had pre-existing patellar chondromalacia that was temporarily aggravated by the injury. His “mild, chronic knee pain” is the result of a pre-existing degenerative condition.

  3.  November 12, 2008, left shoulder.  The employee has post traumatic arthritis attributable to an injury he sustained in 2005 while playing for the Bengals.

  4.  September 20, 2009, right shoulder.  The employee had a right shoulder subluxation with a labral tear.  The employee’s continued symptoms are related to that injury and there is 5% permanent partial disability based on Minn. R. 5223.0450, subp. 4.A.(1)(c).

  5.  December 21, 2010, concussion.  Dr. Park deferred any diagnosis or conclusion with regard to the concussion injury and stated a neurologist should provide an opinion on the consequences of the injury.

Dr. Park did not attribute disability to any injuries sustained by the employee after his employment with the employer.  Dr. Park also stated that none of the injuries the employee had while playing for the Vikings were “career-ending injuries.”

Mr. Williams was referred by his attorney to Dr. Michael Franchetti at Premier Orthopedics in Maryland.[1]  Dr. Franchetti saw the employee on August 12, 2015.  Dr. Franchetti stated in his report that he “spent a total of 95 minutes reviewing the patient’s 4 volumes of medical records.”  He also took a history from Mr. Williams and conducted a physical examination.  In his report, Dr. Franchetti provided his opinions:

  1.  August 11, 2008, cervical injury.  Dr. Franchetti diagnosed post-complex fracture to the left C5 lamina with mild rotatory spondylothesis and small left sided posterolateral disc protrusion at C5-6 and C6-7.  Permanent partial disability of 12% pursuant to Minn. R. 5223.0370 was rated.

  2.  October 4, 2008, right knee injury.  A diagnosis was provided of “Grade 3 chondral injuries to the trochlea and medial patellar facet with symptomatic medial plica and hypertrophic medial patellofemoral synovium.  A rating of permanent partial disability of 5% pursuant to Minn. R. 5223.0510 was provided.

  3.  November 12, 2008, left shoulder injury.  Dr. Franchetti diagnosed “status post grade 3 acromioclavicular joint dislocation” and assessed a total of 14% permanent partial disability.

  4.  September 21, 2009, right shoulder.  A diagnosis of shoulder subluxation was given and a permanent partial disability of 17% was provided.

Dr. Franchetti did not discuss or provide an opinion or rating of permanent partial disability regarding the employee’s work-related concussion.

The employee’s claim petition was heard by Compensation Judge Miriam Rykken on November 20, 2015.  Before the hearing, the attorneys for the parties discussed the issues to be determined.  The attorney for the employer and insurer argued that the employee’s injuries while with the Vikings had not resulted in any lost playing time and were not of such severity as to result in the claimed total disability.  (T. 19-25.)  No other argument opposing the employee’s claims was made.  The compensation judge identified the issues for determination in her Findings and Order as:  1.  Were the injuries sustained by the employee in 2008, 2009, and 2010 a substantial contributing cause of the total disability beginning on January 1, 2013?  2.  Is the employee entitled to permanent partial disability for those injuries?

The compensation judge issued her Findings and Order on January 12, 2016.  She found that:

  1.  The 2008-2010 injuries sustained while playing for the Minnesota Vikings are a “substantial contributing cause to the employee’s overall disability beginning in January 2013.”  (Finding 24.)

  2.  The employee is entitled to 130 weeks of temporary total disability beginning in January 2013.  (Finding 25.)

  3.  The employee is entitled to permanent partial disability as rated by Dr. Franchetti “with some adjustments,” and the employee was awarded permanent partial disability of 12% for the cervical spine, 14% for the right knee, 14% for the right shoulder, and 14% for the left shoulder.  (Finding 26.)

The employer and insurer have appealed.


The employer and insurer argue on appeal that substantial evidence does not support the compensation judge’s finding that the employee’s injuries while employed by the Minnesota Vikings were substantial contributing causes of his total disability.  The appellants also claim that it was error to award temporary total disability benefits when the employee failed to present evidence of a diligent job search.  We consider these issues in turn.

On the first issue, the appellants rely in substantial part on the opinions of their IME, Dr. Park.  They also argue that since Mr. Williams was able to play for two more seasons after leaving the Vikings, his injuries with the Vikings were not of such severity so as to result in disability.

Dr. Park’s opinion may be fairly summarized as being that none of the employee’s ongoing symptoms, with the exception of his right shoulder problems, were related to his football career at all.  According to Dr. Park, the symptoms were the result of pre-existing degenerative arthritis.

The employee presented the opposing medical opinion of Dr. Franchetti to the compensation judge.  Dr. Franchetti also reviewed the employee’s extensive medical records, took a medical history, and performed an examination.  Dr. Franchetti concluded that the injuries sustained by Mr. Williams to his cervical spine in 2008, right knee in 2009, left shoulder in 2008, and right shoulder in 2009 continued to be factors in the employee’s condition.  Dr. Franchetti’s opinion was that those injuries had resulted in impairments that he rated pursuant to the permanent partial disability schedule.

Both Dr. Park and Dr. Franchetti had sufficient information to provide foundation for providing a medical opinion.  Scott v. Southview Chevrolet, 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978).  We have held previously that the choice between two competing and well-founded medical opinions is uniquely within the province of a compensation judge, generally citing to Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Arroyo v. Life Sciences, 73 W.C.D. 217 (W.C.C.A. 2012).  Further, a compensation judge’s decision based upon the choice of medical opinion will generally be affirmed by this court when the medical opinion relied upon has adequate medical foundation.  Smith v Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003); Winter v. Blackwoods Bar & Grill, No. WC15-5859 (W.C.C.A. Apr. 5, 2016).  On the issue of causation, Dr. Franchetti’s well-founded medical opinion provides substantial evidence to support the determination of the compensation judge.  In addition to Dr. Franchetti’s opinion, we find additional evidence which supports the compensation judge’s decision.

Neither Dr. Franchetti nor Dr. Park addressed the consequences of the employee’s concussion injury in 2010.  He has been treated for this injury by Dr. C. Debbie Lin, a neurologist in Maryland.  In his initial evaluation with Dr. Lin in September 2014, the employee reported that his primary problem was memory loss.  He stated he had “difficulty keeping track of a three-step request from his wife.”  The employee also told her that this problem “has been progressive over the last few years.”  Testing done by Dr. Lin showed “impairment in expressive reasoning, visual attention, naming, oral fluency and mental flexibility.”  He has been given prescriptions for Neurontin, Maxalt, and Adderall for this condition.

Mr. Williams has orthopedic care for his injuries in Maryland from Dr. Christopher Raffo.  In a to-whom-it-may-concern letter of October 10, 2014, Dr. Raffo referred to what he characterized as some improvement in the employee’s knees after being given “viscous supplementation injections.”  He stated, “[u]nfortunately, the arthritis in his shoulders is dramatically worse than the arthritis in his knees.  He would be a candidate for bilateral shoulder replacements if he were of normal retirement age (e.g. 65 years-old), rather than 32 years old.”  Cortisone injections for the shoulders had provided some improvement in symptoms but the “pain relief has not been sufficient, however.”

The evaluation of the employee done on behalf of the NFL in June 2013 is also relevant to this issue.  The evaluator listed 51 injuries to Mr. Williams during his football career.  While the employee had a left shoulder injury while playing for the Bengals, the vast majority of his injuries occurred while he was with the Vikings.  A number of contusions and sprain-type injuries were also noted for his employment after the Vikings but there is no medical opinion that these injuries are a factor in Mr. Williams’ current situation.

As to the second point raised on this issue by the appellants, it is correct that the employee played for two seasons after leaving the Vikings.  He even testified that his last season, in 2012 with Washington, was his best season professionally.  However, Mr. Williams also testified about the procedure he had to follow before each game so that he could play.  The employee would arrive at the locker room an hour earlier than required.  He was given oral pain medication for his neck and left arm pain.  Both knees were drained of fluid buildup and he would then receive injections of a lubricating agent such as Hyalgan.  He would also be given what he called a “numbing” shot in his shoulders.  Mr. Williams testified there were times he could not review games on television because the movement on the screen aggravated his concussion symptoms.

The employee testified that throughout his playing career, he minimized the extent of his injuries and always told his employers that he was physically able to play professional football.  Mr. Williams explained that he did so because it was well known among players that to complain of ongoing physical problems from injuries on the field would result in not being allowed to play, thereby endangering his career.  As it was, the multiyear contract the employee had with the Vikings was cancelled after the 2010 season with no explanation.  In his last two years playing football, he played on one-year contracts with a substantial reduction in his pay.  Mr. Williams stated that after his last season, it was apparent to him that he was just not recovering during the off-season as he had in previous years and he concluded he would not be able to continue to play.

Substantial evidence is evidence that a reasonable mind might accept as adequate to support a determination.  Pelowski v. K-Mart Corp., 627 N.W.2d 89, 92, 63 W.C.D. 276, 281 (Minn. 2001).  We conclude that the well-founded opinion of Dr. Franchetti, the employee’s extensive medical records, including but not limited to the records relating to the employee’s concussion, and the employee’s testimony provide substantial evidence to support the compensation judge’s finding that the employee’s injuries while he was a player for the Vikings were substantial contributing causes of his disability.  Having found substantial evidence in the record to support the compensation judge’s decision, we must affirm.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

Appellants have also argued that the award of temporary total disability was inappropriate because the employee failed to demonstrate that he engaged in a diligent job search.  We have reviewed the record carefully and find no indication that this issue was raised at the hearing.  It was not mentioned at any time by either of the attorneys, not raised in opening statements or closing arguments, and not identified by the compensation judge in the issues for her determination.  As noted by the compensation judge in her decision, the issue tried by the parties at the hearing was whether the work injuries sustained while the employee was employed by the Vikings were causative factors in his disability.  The question of job search was not argued or tried at the hearing and, as a result, was not considered by the compensation judge.  An issue not raised before the compensation judge will not be considered here.  Myers v. Minn. Vikings Football Club, Inc., 67 W.C.D. 389, 404 (W.C.C.A. 2007); Lowe v. Alexandria-Peterson, 75 W.C.D. 151 (W.C.C.A. 2015).

The decision of the compensation judge is affirmed.

[1] The employee resides in Maryland.