EINAR J. OTTERNESS, Employee/Appellant, v. ANDERSEN WINDOWS and OLD REPUBLIC INS. CO./HELMSMAN MGMT. SERVS., LLC, Employer-Insurer/Respondents, STAND UP MRI AM. MRI, ST. PAUL RADIOLOGY/MIDWEST PHYSICIANS, PHYSICIANS NECK & BACK, NORAN NEUROLOGICAL CLINIC, LAKEVIEW HOSP., INST. FOR LOW BACK & NECK CARE, HARTFORD LIFE, GENEX REHAB. SERVS., CONSULTING RADIOLOGISTS, U.S. DEP’T. OF VETERAN AFFAIRS, and STILLWATER MED. GROUP, Intervenors.

The employee appeals from the determination that he had not shown a Gillette^[1] injury and that the work injuries on January 12, 2012, and November 15, 2012, were temporary and had resolved. We affirm.

The employee, Einar Otterness, worked various jobs for Andersen Windows in the production and preparation of replacement windows beginning in 1998. The employee began receiving chiropractic treatment for low back pain from Dr. David Wieden, D.C., in March 1999. The employee described his low back pain as having existed for quite some time and noted that the condition might have arisen from work in concrete and block construction. The employee reported a work injury to his low back in 2002. Dr. Charles J. Hipp, M.D., directed a course of conservative treatment that resulted in a return to work without restrictions approximately six weeks after the injury. Dr. Hipp indicated that the employee was at maximum medical improvement (MMI) and rated the employee’s low back with a zero percent permanent partial disability.

The employee suffered another low back injury at work in 2003. An MRI was taken but showed no significant changes from the one performed in 2002. After a course of conservative treatment, Dr. Wieden opined that the employee had reached MMI from the 2003 work injury and again rated the employee with a zero percent permanency for his low back.

The employee received chiropractic care for low back pain on and off from 1999 through January 3, 2012.

On January 12, 2012, the employee was lifting a window when he experienced acute low back pain and right leg numbness. The employee subsequently treated with Dr. Hipp at the Stillwater Medical Clinic. An MRI in March 2012 showed mild facet arthropathy at L3-L4 and L5-S1, with no herniation or stenosis. The employee also underwent physical therapy at Physicians Neck & Back Care for about six months. He reported no pain at the end of the program. On July 24, 2012, Dr. Hipp assessed the employee as at MMI with no permanent partial disability, released him to work without restrictions, and directed him to continue a home exercise program.

A medical records review was performed by Dr. Barbara Pohlman, M.D., on September 12, 2012. She concluded that the work injury of January 12, 2012, was consistent with a mild overuse-type injury and represented a temporary aggravation of the employee’s pre-existing lumbar spine condition as documented on MRI.

In November 2012, the employee was working at the “mulling table,” where individual window units were unboxed, attached to each other, repackaged, and transferred to a dolly for shipping. His typical work task was attaching (“mulling”) two windows together, generally involving a maximum weight of approximately 160 pounds. Rarely, the employee would make up larger combinations weighing up to 350 pounds. The resulting combined windows were not lifted, but were slid along a table and tilted onto a dolly. On November 15, 2012, the employee experienced low back pain and right side numbness while performing this work. He returned to Dr. Hipp, who imposed work restrictions and ordered conservative treatment. An MRI was performed on January 8, 2013, which showed no significant changes from the employee’s March 2012 MRI. An EMG of the employee’s right leg on March 19, 2013, was interpreted as normal and read to show no objective abnormalities corresponding to the employee’s complaints. Following a program of treatment at Physicians Neck & Back Care, the employee’s pain was significantly reduced and he was discharged with a finding that he had reached MMI. The employee rated his pain at 3/10 when the Physicians Neck & Back Care program was concluded.

Between April 15, 2013, and November 15, 2013, the employee worked as a temporary team lead for the employer. In November 2013, the employee resumed working in the mull area.

On July 11, 2013, the employee underwent an examination on behalf of the employer and insurer conducted by Jeffrey C. Dick, M.D. Dr. Dick diagnosed the employee as having mild lumbar degenerative disc and facet degeneration, chronic low back pain, and right leg numbness of uncertain etiology. He considered the degree of low back pain to be consistent with the employee’s age and opined that it was not the result of any work injury. He considered both of the employee’s 2012 injuries to have been temporary aggravations of the employee’s preexisting lumbar condition. Dr. Dick recommended home exercise and walking as a reasonable ongoing treatment for the employee’s condition. He found the employee had reached MMI with zero percent permanent partial disability with respect to both temporary injuries. In his view, the employee had been capable of full-time work from January 17, 2012, until April 9, 2013, under the restrictions set by Dr. Hipp. Dr. Dick considered a permanent restriction against lifting over 75 pounds to be appropriate for the employee’s non-work lumbar disc condition.

The employee subsequently complained of increased back pain and returned to treat with Dr. Hipp at Physicians Neck & Back Clinic. In January 2014, the employee decided that his pain and restrictions were inconsistent with working at the mull table. The employer then provided him with modified, light duty work in its wash area. Dr. Hipp did not consider the employee a surgical candidate.

On January 24, 2014, at the referral of his chiropractor, the employee underwent a lumbar MRI which revealed disc dehydration and degenerative changes throughout the lumbar spine, including a broad-based herniation at L2-L3 and annular bulges at L3-S1.

The employee saw an orthopedic surgeon, Dr. Bruce J. Bartie, D.O., on February 6, 2014, for a surgical second opinion. The employee presented with complaints of low back and right leg symptoms continuing since 2012. After examining the employee and reviewing the three lumbar MRIs, Dr. Bartie found no evidence of active radiculopathy or myelopathy. Dr. Bartie told the employee that "this condition with degenerative disc disease is a lifelong one" that the employee would need to manage with exercise.

The employee transferred his care from Dr. Hipp to his family physician, Dr.Timothy Balder, M.D., who took the employee off work completely on March 3, 2014. On March 6, 2014, the employee began treating with Dr. Steven R. Sabers, M.D., of the Institute for Low Back and Neck Care (ILBNC). On April 8, 2014, the employee underwent an EMG which was negative for bilateral radiculopathy. Dr. Sabers performed facet injections at T12-L1 and L1-L2 on April 18 and 29, 2014. The employee was released to light duty work on May 2, 2014. Dr.Sabers conducted a discogram on June 11, 2014, which showed that the employee’s back pain arose from disc degenerative changes at L2-L3. A CT scan on that date showed annular bulging at L2-L4. Dr. Sabers concluded that the employee was not a candidate for surgery.

On May 29, 2014, Dr. Dick conducted a follow-up examination of the employee on behalf of the employer and insurer. Dr. Dick’s opinions remained unchanged. He opined that the employee had not suffered any additional injury since his prior examination. He considered the treatment received by the employee to have been reasonable and necessary for his non-work condition, except for facet injections, which he considered unsupported by any imaging and based solely on the employee’s subjective complaints of pain. Dr. Dick considered the employee to be capable of working under a permanent 50-pound lifting restriction related to his underlying non-work condition.

The employee subsequently underwent a three day functional capacity evaluation (FCE). He was assessed as capable of at least half-time work, under various lifting restrictions. On October 4, 2014, Dr. Sabers reviewed the FCE results with the employee and his QRC. Dr.Sabers noted that the employee was at MMI as of August 4, 2014, for the January 12, 2012, injury. He rated the permanency from the employee’s low back condition at 10 percent. In his notes, Dr. Sabers did not discuss the nature, extent, or causation of the injury.

On August 4, 2014, the employee’s chiropractor, Dr. Wieden, prepared a narrative report indicating that the employee “has apparently suffered a severe injury to more than one disc level in the lumbar spine...which has been documented as work related while under the employ of Andersen Corporation."

On January 14, 2015, Dr. Sabers issued a narrative report indicating that the employee “has a specific diagnosis of discogenic pain with some neural irritation that has been present since his 2012 work related injury.”

Dr. Dick was deposed on September 9, 2016. He characterized the work injuries of January 12, 2012, and November 15, 2012, as “minor incidents that I would not anticipate to have had any long-term effect on his low back.” Noting the employee’s normal exam findings, the normal EMG, and the lack of pathology on the MRI scans to evidence a chronic repetitive stress injury, Dr. Dick opined that the employee’s work for the employer did not result in a Gillette injury. Dr. Dick testified that the employee’s need for the restrictions was unrelated to the employee's work activities for the employer or any injuries the employee sustained while working for the employer. He stated that no ongoing medical treatment beyond continuing home exercises and using non-steroid anti-inflammatory medications was indicated.

The employee filed a claim petition on February 13, 2013, and an amended claim petition on June 6, 2016, seeking temporary total disability compensation from February 28, 2014, and continuing, payment of permanency for a ten percent disability, payment of medical expenses, and reimbursement to intervenors. On May 3, 2016, the employee filed a rehabilitation request seeking vocational rehabilitation in the form of retraining. The claim petitions and rehabilitation request were consolidated for hearing.

Prior to the matter proceeding to hearing, the employee’s attorney attempted to get the employee to confer with him in person over inadequacies in the medical evidence necessary to prove the claimed injuries and benefits; he recommended making a motion to strike the case from the active calendar while such medical evidence was obtained. The employee refused to meet with his attorney prior to the hearing. The employee’s attorney arranged for a mediation conference call with the employee and Compensation Judge Cheryl LeClair Sommer in order to go over the perceived problems with the employee’s case.

The hearing was set for September 29, 2016, before Compensation Judge Sandra Grove. On September 28, 2016, the employee’s case was stricken from the active calendar on motion of his attorney. The employee then wrote to the judge and requested reinstatement of the case on the active calendar. The matter was reinstated for hearing and reassigned, pursuant to notice, to Compensation Judge Adam Wolkoff.

On October 10, 2016, counsel for the employer and insurer communicated to Judge Wolkoff that there were concerns about the adequacy of the employee’s medical evidence and his readiness for trial. The employee wrote to Judge Grove to state that he was now representing himself. He identified his grievances against his former counsel, and requested that the matter remain before Judge Grove. In response to a second similar letter from the employee, Judge Wolkoff issued a Supplemental Prehearing Order which, among other things, prohibited ex parte communications with the court. On October 29, 2016, a scheduling conference was held between the employee, counsel, and Chief Judge Pust. Chief Judge Pust indicated that the matter would be placed on the active hearing calendar, and before Judge Grove, if possible. On November 21, 2016, the employee’s counsel formally withdrew from representation.

The matter came on for hearing before Compensation Judge Adam Wolkoff on January 18, 2017. The employee appeared pro se. The employee did not make any objection to Judge Wolkoff presiding over the case. The employee offered text messages between himself and his former counsel as a proposed exhibit. Because the conversations included settlement discussions, the compensation judge ruled that the exhibit was inadmissible. The employee did not object and did not make an offer of proof regarding the exhibit. The employee’s exhibits largely concerned matters irrelevant to the claims made under the workers’ compensation system, and concerned disputes over disability insurance, child support, and the employee’s wife’s medical condition, as well as documenting other issues the employee had raised with the Attorney General, Department of Commerce, Human Rights Department, the EEOC, and various political figures including President Barack Obama and First Lady Michelle Obama.

Following the hearing, the compensation judge expressly accepted the opinion of Dr. Dick and found that the employee had not sustained a Gillette injury, and that the work injuries on January 12, 2012, and November 15, 2012, were temporary and had resolved. The judge found that the employee’s work injuries had resolved prior to the period for which temporary total disability was claimed and denied TTD benefits. The judge also found that the employee was appropriately rated with a zero percent permanent partial disability from the two work injuries. Payment for the contested medical treatment was denied, and the judge found that the employee had not shown that his rehabilitation plan should be amended to explore retraining. The employee appeals.

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 employee’s submissions to this court provide a variety of arguments, chiefly contending that the interactions with his counsel prior to the hearing, with the employer and insurer, and with the compensation judge, rendered the process unfair and corrupt. The employer and insurer respond^[2] that the employee’s claims of ineffective assistance of counsel are beyond the jurisdiction of this court and that, in any event, the compensation judge’s determinations were supported by substantial evidence, including the IME reports and deposition testimony of Dr. Dick.

The employee bases much of the appeal on the perception that he received ineffective assistance of counsel which occurred prior to the hearing. As an initial matter, the employer and insurer contend that such an inquiry is outside of the jurisdiction of this court. We agree that we have no jurisdiction to determine whether any alleged actions by the employee’s attorney either violated the canons of professional responsibility or constituted an actionable tort. However, we note that the employee’s June 19, 2017, submission to this court, which we have treated as his brief in the appeal, specifically states that what he is asking for on appeal is “a fair, impartial, non-bias (sic) review of this case/claim.” Given the nature of our review authority, we have concluded to treat this as a request that we review whether the compensation judge’s findings and orders were either tainted by an error of law or were unsupported by substantial evidence.

Exhibit 11, as offered by the employee, is a collection of text messages between the employee and his attorney that occurred prior to the attorney’s withdrawal from representation. The compensation judge excluded the exhibit upon objection of the employer and insurer on the basis that the conversations included a description of the offer of settlement. The employee appears to contend that the exclusion of this exhibit resulted from obstruction or collusion and that, by implication, its exclusion affected the outcome of the hearing.

Evidentiary rulings are generally within the sound discretion of the compensation judge,^[3] and considerable latitude is given to the judge in conducting a workers’ compensation hearing. Minn. Stat. § 176.411, subd. 1, provides that:

Here, one of the reasons that the employee offered to justify the relevance of Exhibit 11 was “because it . . . mentioned . . . the possible settlement as far as they wanted to settle this workers’ compensation out of court.” See Transcript at 20. While the Minnesota Rules of Evidence are not binding on the compensation judge, they may be instructive in appropriate situations, and we note that those rules deem evidence regarding offers of settlement inadmissible to prove liability for a claim, although such evidence may be offered for another purpose.^[4] Here, after the judge explained that he would not consider evidence of settlement negotiations to be relevant to the employee’s workers’ compensation claims, the employee stated that “it would also indicate the nonprofessional (sic) of my past attorneys that I had representing me for this work comp.” The judge again declined to receive the exhibit, noting that a claim regarding attorney professionalism was not a matter within his jurisdiction at a workers’ compensation hearing.

We conclude that the compensation judge’s ruling denying admission of proposed Exhibit 11 was not an abuse of his discretion. Even were we to conclude that such evidence might be admissible to explain some failure in the employee’s case or a failure to comply with some procedural requirement in the matter, the contents of the exhibit demonstrate that the employee’s contention regarding his counsel has no merit. The proposed evidence shows that the employee’s attorney wanted to meet with the employee regarding a continuance to obtain sufficient medical opinion evidence to support the employee’s claimed Gillette injury, and to support a claim that the two 2012 work injuries still caused or substantially contributed to the employee’s current medical condition. Counsel’s assessment of the state of the case is in accord with both the evidence then available and the ultimate outcome before the compensation judge, as the employee’s medical evidence is strikingly silent on the cause of the employee’s lumbar spine problems and makes no mention of a Gillette injury.

We therefore conclude^[5] that even if the judge had erred in failing to admit the evidence, that failure was harmless. No remand is required under this circumstance.

On appeal, the employee has objected to a change in the compensation judge assigned to hear his case. There are three problems with the employee’s contention. First, the employee has not articulated how this process is in any way different from the normal approach taken by the Office of Administrative Hearings when a case is struck from the active calendar and then placed back on that calendar. Second, the employee has not shown how he was prejudiced by any of the prehearing procedural actions taken in this case. Third, we note that the employee failed to formally object to the assigned compensation judge at the time of the hearing. Generally, failing to object below constitutes a waiver of the objection on appeal. Graf v. Dresser/Rand Elec. Mach., slip op. (W.C.C.A. Apr. 7, 1994) (reassignment to compensation judge who did not preside over hearing not a sufficient basis for vacating findings and order). While the employee did submit ex parte communications below objecting to the reassignment of the case, he did not make a prehearing motion or raise an objection at the hearing. The reassignment was made in order to promptly schedule the case for hearing, as the employee had requested. In light of these factors, we cannot conclude that the procedure in this case was improper.

We have reviewed the evidence in this matter and conclude that the compensation judge’s findings and orders have substantial support in the record. The compensation judge was entitled to rely on the expert opinion of Dr. Dick; no foundational defects have been alleged by the employee with respect to that opinion, and we fail to discern any. The employee failed to offer any clear medical evidence to support his claims of either a Gillette injury or that his 2012 work injuries were ongoing in their effects. The compensation judge’s findings and orders are accordingly affirmed in their entirety.

Under the substantial evidence rule and in accordance with Hengemuhle, I concur with the result reached by the majority.