JULY 31, 2017

No. WC17-6043

CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence, including medical records, expert medical opinion, lay testimony, and video supported the compensation judge’s findings that the employee did not sustain either a work-related specific or Gillette injury on or about October 20, 2014.

    Determined by:
  1. Deborah K. Sundquist, Judge
  2. Patricia J. Milun, Chief Judge
  3. David A. Stofferahn, Judge

Compensation Judge: Kirsten M. Tate

Attorneys: Gary L. Manka, Katz & Manka, Ltd., Minneapolis, Minnesota, for the Appellant. William G. Laak, McCollum, Crowley, Moschet, Bloomington, Minnesota, for the Respondents.




The employee appeals the compensation judge’s finding that the employee did not sustain a work related right shoulder injury. Substantial evidence supports the judge’s finding. Affirmed.


Emmit Trotter is a bus driver for Metro Transit. At the time of the hearing, he was 70 years old. Standing at 5’ 5” tall, he is shorter than average. He had a history of right shoulder pain in 2004 which was attributed to overuse, and a history of bilateral shoulder pain in 2009 which he claimed was related to his job driving a bus.[1] A job description of the physical requirements of the bus driving job confirmed that the job required “constant” repetitive use and “frequent” reaching at below the shoulder level.[2]

Prior to October 20, 2014, the employee had already been diagnosed with right shoulder impingement and AC joint degenerative joint disease with an underlying subacromial bone spur.

While driving a bus on October 20, 2014, the employee reached his right arm toward the top of the steering wheel to begin a right turn. He claimed that as he was turning the steering wheel, he felt a pop in his right shoulder and developed immediate pain. He testified that he stretched and shook out his arm while at a stop, but he continued to drive the bus for the remainder of the day. An Employee’s Report of Injury was completed on October 24, 2014, which specified that the employee injured his right shoulder while making a right turn at approximately 8:37 a.m. on October 20, 2014.[3]

A video recorded on the bus the employee drove on October 20, 2014, shows the employee reaching with his right arm and grabbing the upper part of the steering wheel at 8:36:53 a.m. The employee reached with this right arm twice in the video to make a turn--once at 8:26:40 a.m. and once at 8:42:01 a.m. Due to the angle of the camera, the employee’s right arm comes into view intermittently and the camera shows only the top of the employee’s head, not his face.

Following the claimed injury, the employee underwent medical treatment. The medical records consistently describe an injury to the right shoulder while the employee was driving a bus at work.[4] Dr. Paul Biewen, an orthopedic surgeon, noted that the employee denied any unusual occurrence as he was turning the bus, a maneuver which does not involve a great deal of force, but does involve reaching.[5] A December 4, 2014, MRI of the right shoulder revealed the past diagnosed shoulder impingement and AC joint degenerative joint disease, but also showed a “long head biceps tendon tear.”[6] The employee treated conservatively. After he failed to improve, and continued to have difficulty doing his job, he ultimately underwent surgical repair by Dr. Ryan T. Morgan on December 7, 2015. In addition to other degenerative findings and partial tearing of the supra/infraspinatus, the operative report noted a “complete rupture” of the biceps.

The self-insured employer denied primary liability and argued that as there was no indication of any increased risk, the injury did not arise out of the employee’s employment, and was due to an “idiopathic event.”[7] The employer retained Ross Paskoff, M.D. to conduct an examination of the employee and issue a report. In all, Dr. Paskoff issued three narrative reports between February 25, 2015, and November 22, 2016. He reviewed the job description, the employee’s deposition transcript, video of the alleged injury, and medical records. He also examined the employee. He concluded that the right shoulder injury was not a work-related injury, explaining that the employee had an “insidious onset of right pain unrelated to any specific trauma or acute injury.”[8] After reviewing the video, he further concluded that he saw no evidence of an injury to his right shoulder at the intersection where the incident allegedly occurred.

Dr. Paskoff reviewed additional records in drafting the second narrative report. He concluded that bus driving was a low demand physical activity and therefore “there is no evidence to support this particular activity increases the risk of any specific shoulder injury.”[9] He explained that the employee was simply turning the wheel of the bus when pain subsequently developed. “There was no specific event that occurred which could be construed as an injury.”[10] He opined that the shoulder condition was ‘idiopathic” in nature and that a work-related injury was not sustained. Dr. Paskoff found no evidence that the employee ruptured the bicep tendon while driving the bus on October 20, 2014. He believed that when a biceps rupture occurs, there would be a specific incident followed by pain and bruising, which was not the case on October 20, 2014.

The employee’s medical expert was Dr. Morgan, the orthopedic surgeon who repaired the employee’s shoulder. Dr. Morgan’s May 24, 2016, narrative report gave a history of an acute injury on October 24, 2014,[11] when the employee was driving his bus, went to turn the bus, and felt a sharp pain in his shoulder. Dr. Morgan stated that as the employee was not having significant symptoms before the injury, the injury exacerbated his underlying condition and directly precipitated the need for surgical intervention. He concluded that the specific injury in October 2014, as well as the employee’s 14 years of driving the bus, were both significant contributing factors in the development of his pain and to the surgery he eventually underwent.

The employee filed a medical request on November 6, 2015, and a Claim Petition on December 3, 2015. The matter went to hearing before Compensation Judge Kirsten Tate on December 7, 2016. At the hearing, each party argued that the opposing party’s medical expert had inadequate foundation on which to base an opinion as to whether the employee’s work was a substantial contributing factor to his shoulder condition, in that the medical opinion did not take into consideration the nature of the employee’s job as a bus driver.

In the Findings and Order filed on January 20, 2017, the judge found that the employee did not sustain a work-related injury to the right shoulder on October 20, 2014. The compensation judge explained this finding in her memorandum. First, the judge noted that the employee’s medical history revealed pain and symptoms in his right shoulder, including signs of impingement, dating back to 2009. Next, the judge noted that “the employee alleges that he had a very sudden sharp onset of pain while reaching with his arms to turn the steering wheel on October 20, 2014.” The employee’s testimony that a sharp onset of pain caused him to shake his arm for at least five seconds was “simply not borne out by the surveillance video of the alleged incident.” Finally, the judge accepted “the opinion of Dr. Ross Paskoff.”

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 view of the entire record as submitted, “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).


On appeal, the employee argues that the video on which the judge relied was incompetent evidence. He also argues that the opinion of Dr. Paskoff was without foundation due to an insufficient understanding of the daily demands of the employment. Finally, the employee argues that Dr. Paskoff’s opinion was based on a misunderstanding of the law with regards to what is required for an injury to arise out of the employment.

1.   Video as Incompetent Evidence

The employee cites Schaefer v. Bio Life Plasma L.L.C.[12] for the proposition that denying benefits based on video evidence that does not plainly show what it purports to prove is an error. While Schaefer does not actually stand for this proposition, we agree with the employee’s point. The video tape is 30 minutes long and for the most part shows only the top right side of the employee’s head and right shoulder. The employee’s right arm is rarely fully in view. The judge concluded that the video evidence contradicted the employee’s testimony that he attempted to shake out his arm after he felt an onset of pain in his right shoulder, as this action was not apparent in the video. While we agree with the employee that there is very little apparent in the video except for the faces of people on the bus, none of whom are the employee, the video was offered by the employee in support of his claim. In noting that the video failed to substantiate the employee’s testimony, it is possible that the judge was not improperly using the incomplete visible aspects of the video to prove a negative, only commenting that it did not assist the employee in meeting his burden of proof.

Furthermore, the employee claims the video purports to show the exact moment when the employee claims he injured his right shoulder (as he reached to the top of the steering wheel to make the right turn he injured his right shoulder or ruptured a biceps tendon), but the video does not show any specific reaction to the injury claimed. The compensation judge could reasonably conclude the video does not aid the employee in meeting his burden of proof.

Aside from the reliance on the video, there are two other reasons cited by the judge for denying the employee’s claim--the opinion of Dr. Paskoff, and the pre-existing shoulder condition. The employee makes no argument regarding the pre-existing shoulder condition,[13] but argues that the judge erred when she adopted the IME opinion in denying the employee’s injury.

2.   Foundation for Dr. Paskoff’s (IME) Opinion

The employee makes two arguments with respect to Dr. Paskoff’s opinion. First, he argues that the IME lacked foundation because he was unaware of the daily demands of the employer, so that the opinion cannot serve as support for the conclusion reached by the compensation judge. Second, he argues that the IME misunderstood the law in concluding that the injury was not work related. Specifically, the employee references Dr. Paskoff’s conclusion that the employee’s injury could have also occurred while driving a car, and therefore the injury was not work related. Likewise, Dr. Paskoff concluded that because the employee “was simply turning the bus wheel when he noted an onset of sharp pain,” the injury was not work related.

With respect to the employee’s first argument, we are bound by the trier of fact’s choice of expert opinion unless the expert relied upon did not have adequate foundation, or unless the opinion was not supported by substantial evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn.1985). In Mattick v. Hy-Vee Foods Stores, __N.W.2d__, __ W.C.D.__ (Minn. July 12, 2017), the Minnesota Supreme Court outlined three elements that may establish lack of foundation. First, the opinion does not include the facts and/or data upon which the expert relied in forming the opinion; second, it does not explain the basis for the opinion; or third, the facts assumed by the expert in rendering an opinion are not supported by the evidence. Whether an expert’s opinion rests on adequate foundation is a decision within the discretion of the trial judge, subject to review for abuse of discretion.

In this case, Dr. Paskoff appears to have foundation on which to base a medical opinion. He indicated that he received a copy of the bus driving job description. He also had the deposition testimony available and viewed the video of the incident. He reviewed medical records. He conducted a physical examination of the employee. This is sufficient to establish foundation. While the IME may have been was unaware of all aspects of the employee’s job, that was unnecessary here. The opinion need only be based on “enough facts to form a reasonable opinion that is not based on speculation or conjecture.” Gianotti v. Indep. School. Dist. 152, 889 N.W.2d 796, 802 (Minn. 2017).

The employee also argues that Dr. Paskoff misunderstood the law[14] in concluding that the employee did not have a compensable work injury because “he was simply turning the bus wheel when he noted the onset of sharp pain. This could have occurred turning the wheel of his car, or doing any other everyday activity.”[15] The employee maintains that this represents a misunderstanding of the law, because while the activity could have occurred elsewhere, it did not, and, in fact, occurred while performing a necessary activity in the course and scope of his employment. He argues that the “could have occurred” statement, is meaningless and incorrect as a matter of law. The employee makes a valid argument. Understandably, a medical expert should not be asked to interpret law. That is the job of the trier of fact and reviewing courts. Compensation judges look to medical experts to assist in determining medical issues related to workers’ compensation litigation. The issues include: medical causation, apportionment among employers, reasonable and necessary medical treatment, restrictions, and permanent partial disability ratings.[16] While some of Dr. Paskoff’s narrative focuses on what appears to be an interpretation of the law, Dr. Paskoff ultimately based his opinion on the area in which he has expertise—medical causation. Dr. Paskoff’s review of the video showing no appearance of an injury, and his observation that there was no medical evidence establishing “pain and bruising” following the injury could be persuasive. Furthermore, his explanation that there was no Gillette injury as the employee already had significant degenerative findings and a history of prior right shoulder pain could be equally persuasive.

We are bound by the standard of review under Hengemuhle. Here, while there may be sufficient evidence to support the employee’s position,[17] the test is not the balancing of that evidence, but rather, whether substantial evidence exists in the record as a whole to support the compensation judge’s finding. Our review limits reversing a decision unless it is “manifestly contrary” to the weight of the evidence. Northern States Power Co. v. Lyon Food Prods., Inc., 229 N.W.2d 521, 524 (Minn. 1975).

The compensation judge determined that the employee’s pre-existing shoulder condition, along with the employee’s testimony, and Dr. Paskoff’s opinion, led her to the conclusion that the injury was not work-related. Reasonable minds might accept as adequate the evidence which supports this. The initial medical note on October 24, 2014 did not describe an injury that happened at work. There are three dates of injury, October 17, October 20, and October 24 which are used interchangeably in the medical notes, but the employee’s Report of Injury is very specific that on October 20, the employee injured his right shoulder at 8:37 a.m. The video offered by the employee does not clearly show that he sustained an injury during the time when he said it happened. Finally, the employee’s expert witness, Dr. Morgan, does not clearly explain the basis for his opinion on medical causation. Dr. Morgan states that the bus driving was a substantial contributing factor, but neglects to explain how driving a bus was a substantial contributing factor to the shoulder injury depriving the fact finder of a persuasive medical causation opinion to support the employee’s burden of proof. Because the judge’s finding is not manifestly contrary to the evidence, we affirm.

[1] Ex. 11, November 11, 2009.

[2] Ex. 19.

[3] Ex. S.

[4] Ex. H. The employee treated with an emergency room physician on October 24, 2014, and there is no specific mention of a work-related accident. Thereafter, the medical records describe an injury to the right shoulder while driving a bus.

[5] Ex. 15, January 13, 2015.

[6] Ex. 13.

[7] Transcript at 6, 7, and 25.

[8] Ex. 6.

[9] Ex. 3.

[10] Id.

[11] There are three separate dates of injury given over the course of medical treatment, October, 17, 20, and 24, 2014. The variation in dates was not an issue raised by the parties.

[12] Civ. No. 11-3468, 2013 WL 5275818 (D. Minn. Sept. 18, 2013).

[13] It is well settled that injuries are compensable if the employment is a substantial contributing factor not only to the cause of the condition, but also to the aggravation or acceleration of a preexisting condition. Vanda v. Minn. Mining & Mfg. Co., 27 W.C.D. 379, 218 N.W.2d 458 (Minn. 1974).

[14] The employee does not argue that the compensation judge erred as a matter of law in determining that the injury was “work related,” “compensable,” or one that arose out of the employee’s employment. Rather, the employee’s argument focuses on the IME’s misunderstanding of the law.

[15] Employee’s Reply Brief, page 2-3.

[16] Minn. Rule 1420.2800, subp. 3B provides: “If medical evidence is submitted in the form of written reports, rather than by oral testimony, under Minnesota Statute, section 176.155, subdivision 5, the reports should include: (1) the date of the examination; (2) the history of the injury; (3) the patient’s complaints; (4) the sores of all facts in the history and complaints; (5) findings on examination; (6) opinion as to the extent of disability and work limitations, if any; (7) the cause of the disability and, if applicable, whether the work injury was a substantial contributing factor toward the disability; (8) the medical treatment indicated; (9) if permanent disability is an issue, an opinion as to whether or not the permanent disability has resulted from the injury and whether or not the condition has stabilized. If stabilized, a description of the disability with a complete evaluation; (10) if permanent partial disability is a result of two or more injuries or occurrences, or part of the permanent disability is a result of a preexisting disability that arises from congenital condition, traumatic injury, or incident, whether or not compensable under Minnesota Statutes, chapter 176, the health care provider shall apportion the disability between the injuries, occurrences, or conditions; (11) if future medical care or treatment is anticipated, a statement of the nature and extent of treatment recommended and, if possible, the anticipated results; (12) the reason for each opinion; and (13) if applicable, a statement that the health care provider has read the rules concerning determination of permanent partial disability, understands them, and has applied those rules in making the determination.”

[17] Except for the initial visit, the medical record is consistent in how the injury occurred—while at work driving the bus. It is entirely possible that reaching to turn the wheel on the bus caused a biceps tendon to rupture which appeared to be a new diagnosis discovered after the employee underwent an MRI scan two months after the injury in December 2014. The employee worked the same job as a bus driver for 14 years. The job description of the bus operator described the requirements as constant repetitive use and frequent reaching. The IME doctor agreed that it was wear and tear that caused shoulder problems, which could have been equally interpreted as the minute repetitive trauma necessary to prove a Gillette injury.