WILLIAM C. LITTLE, Employee/Respondent, v. MENARDS, INC. and PRAETORIAN INS. CO./GALLAGHER BASSETT SERVS., INC., Employer-Insurer/Appellants, and MEDICA HEALTH PLANS, Intervenor.

JULY 27, 2017

No. WC17-6036

CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION. Substantial evidence, including the adequately founded medical opinion of the employee’s treating physician, supports the compensation judge’s finding that the employee’s injury requiring rotator cuff repair arose from the employee’s work injury and not a preexisting shoulder condition.

PERMANENT PARTIAL DISABILITY - BACK. Substantial evidence, including the employee’s medical record, supports the compensation judge’s finding that the employee was entitled to a 3% PPD rating for paresthesia into his lower extremity even where the employee’s pain symptoms had largely resolved.

    Determined by:
  1. Gary M. Hall, Judge
  2. David A. Stofferahn, Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge: William J. Marshall

Attorneys: DeAnna M. McCashin, McCashin Law Firm, Alexandria, Minnesota, for the Respondent. Deborah L. Crowley, McCollum, Crowley, Moschet, Miller, & Laak, Ltd., Minneapolis, Minnesota, for the Appellants.




The employer and insurer appeal the compensation judge’s determination of causation of an injury and award of an additional 3% for permanent partial disability. Substantial evidence supports the judge’s factual findings and there was no error of law, therefore, we affirm.


The employee, William Little, experienced a sudden onset of right shoulder symptoms including pain and significant limitation of motion. This condition was unrelated to his employment. On December 28, 2011, about one month after the symptoms began, the employee was examined by David R. Jorgenson, M.D. An MRI scan showed full-thickness rotator cuff tear. Dr. Jorgenson diagnosed right shoulder rotator cuff tear. On January 13, 2012, the employee underwent arthroscopic right rotator cuff repair.

From July 30, 2012, through November 20, 2012, the employee received chiropractic care to his left shoulder to address pain and stiffness after a fall at home. The chiropractic records showed that the employee’s left shoulder condition improved steadily and resolved by November 20, 2012. The employee did not receive any treatment to his left shoulder after the conclusion of the chiropractic treatments, until July 2013.

On May 15, 2013, the employee was at work, lifting a box while standing on a ladder. The employee felt pain in his low back. The employer admitted this low back work injury. The May 15, 2013, work injury resulted in continuing lower left extremity pain. On June 8, 2013, the employee underwent a left L2-L3 microlumbar discectomy. Following this surgery, the employee experienced recurring left leg weakness and paresthesia, which was documented in the employee’s medical record, including a follow-up examination on July 8, 2013.

On July 23, 2013, the employee was on the stairs at his apartment building. He felt his left leg give out and found himself falling. The employee fell down 8 to 9 steps, striking his head, left shoulder, and left wrist. The employee was examined that day by Deborah L. Elliot-Pearson, M.D. and imaging was performed. The x-ray showed left acromioclavicular joint separation. Dr. Elliot-Pearson noted that the employee could not raise his left arm. Conservative care was ordered.

The employee’s left shoulder condition did not improve. The employee continued to receive care for his left shoulder from Dr. Jorgenson, who ordered an MRI. On October 28, 2013, the employee underwent an MRI which showed a partial insertional tear of the left rotator cuff, described as “likely posttraumatic contusion rather than reactive arthritic sequelae ….”[1] Dr. Jorgenson recommended surgical repair of the employee’s left shoulder.

On May 27, 2014, the employee underwent an independent medical examination (IME) conducted by Richard Strand, M.D. Dr. Strand noted right patellar reflex as normal and left patellar reflex to be absent. Bilateral rotator cuff tests were described as normal and no limitations on ROM were observed. The employee’s left shoulder showed mild impingement in mobility. Dr. Strand diagnosed left shoulder contusion, probable subacromial AC joint impingement with supraspinatus tendinosis (left). Dr. Strand attributed these conditions to the employee’s chronic shoulder impingement and not an acute injury. Dr. Strand also opined that the proposed surgery was not necessary. Dr. Strand based his conclusion that the employee’s left shoulder condition preexisted on the employee’s previous right shoulder rotator cuff tear. Dr. Strand opined that the employee was at MMI, had no work limitations, and no further treatment of any sort was necessary. On June 12, 2014, Dr. Strand provided a supplemental opinion that the employee did not sustain any permanent partial disability (PPD) arising out of the left shoulder injury. Dr. Strand noted that the employee was entitled to 11% PPD for his low back. The employer and insurer paid 11% PPD to the employee.

The employee filed claim petitions seeking approval of the proposed left shoulder surgery and an additional 3% PPD (citing Minn. Rule 5223.0390, subps. 4.D. (9%), subp. 4.D.(1) (3%), and subp. 4.D.(2) (2%)). The total of 14% is offset by the 11% paid, resulting in 3% being sought in this proceeding.

The matter was heard by Compensation Judge William Marshall. The compensation judge relied on the employee’s testimony, which was found to be credible, and the treatment record, to conclude that the employee’s left shoulder condition was a consequential work injury, suffered on July 23, 2013, arising out of the radicular symptoms experienced due to the May 15, 2013, work injury. The proposed left shoulder surgery was found to be necessary and reasonable. The judge found that the employee continued to experience left leg radicular symptoms which are permanent. The judge applied the treatment parameters and awarded the employee an additional 3% PPD. The employer and insurer appeal.


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(3). 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), summarily aff’d (Minn. June 3, 1993).


The employer and insurer maintain that the compensation judge erred by giving no weight to important medical evidence, specifically that the employee’s complaints of left leg radicular pain (post-surgery and prior to the July 23, 2013, fall) had resolved. According to the employer and insurer, this renders the award of 3% PPD for radicular pain to be without substantial evidentiary support. The employee responded that the medical records reflected ongoing radicular symptoms, including numbness, tingling, left leg weakness and soreness following aggressive physical therapy and these symptoms meet the rule standard for an additional 3% PPD. The employee also noted that the compensation judge found Dr. Jorgenson’s opinion to be more persuasive and this also favors upholding the award.

1.   Substantial Evidence of Causation

The compensation judge relied on the employee’s testimony to find that the July 23, 2013 fall was a consequence of the May 15, 2013, work injury. The employee thoroughly described the cause of his fall and that description plainly attributes the fall to the left leg paresthesia that he experienced after his May 15, 2013, work injury. The compensation judge found the employee’s testimony to be credible and such determinations are typically not disturbed on appeal. See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).

As to his left shoulder, the employee testified that he lost most of the use of his left arm and had continued pain from the time of the July 23, 2013, fall, onward. While the employee had received chiropractic care to that shoulder from July 30, 2012, through November 20, 2012, he described his condition after a few weeks of that treatment as “fine” and symptom-free.[2] The employee’s testimony is consistent with the contents of his medical records. A reasonable inference from this evidence is that any left shoulder condition prior to the employee’s fall was temporary and had resolved. This is substantial evidence supporting the compensation judge’s finding that the employee suffered a left shoulder injury on July 23, 2013, that arose out of the employee’s May 15, 2013, work injury.

2.   PPD Award

The compensation judge rejected the IME opinion on both the causation and PPD issues. The employer and insurer maintain that this constitutes an error, citing Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985), Northern States Power Co. v. Lyon Food Prods., Inc., 229 N.W.2d 521 (Minn. 1975), and Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54 (Minn. 1984). The employer and insurer maintain that this court should substitute its own findings for those made by the compensation judge.

The employer and insurer contend that insufficient weight was given to the chart notes indicating that the employee’s lower left extremity pain was resolving. Those same chart notes indicate that the employee’s lower left extremity numbness and tingling did not resolve and that the condition should be considered permanent.[3] The chart notes are consistent with the employee’s testimony that he was suffering those symptoms through the time of the hearing. Under Minn. Rule 5223.0390, subp. 4.D.(1), radicular paresthesia is properly rated at 3% PPD. The compensation judge’s choice between expert medical testimony is supported by the record and is undisturbed on appeal. See Nord v. City of Cook, 360 N.W.2d at 342-43; see also Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003). Because the compensation judge’s determination of an additional 3% PPD for employee’s left leg condition is supported by substantial evidence, the Findings and Order of Compensation Judge William J. Marshall, served and filed January 17, 2017, is AFFIRMED.

[1] Employee’s Ex. 8.

[2] Tr. at 44-45; Ex. 9.

[3] Ex. 6.