MAY 12, 2017

No. WC16-6017

EVIDENCE – EXPERT MEDICAL OPINION. A medical expert’s concession that setting restrictions for a particular condition was not in her area of expertise did not disqualify her from issuing a competent, well-founded causation opinion upon which the compensation judge was able to rely.

CAUSATION – SUBSTANTIAL EVIDENCE. Evidence to show that a work injury remains a substantial contributing factor in an employee’s current condition beyond the mere fact that a permanent injury was sustained is necessary to establish an ongoing causal connection.

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

Compensation Judge: William J. Marshall

Attorneys: Jerry W. Sisk, Law Office of Thomas Mottaz, Coon Rapids, Minnesota, for the Appellant. Katie H. Storms, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota, for the Respondents.




The employee appeals from the compensation judge’s finding that a preponderance of the evidence fails to support the claim that the employee’s 1988 work injury is a substantial contributing factor in his current condition. We affirm.


Mark Younghans began working for Johnson Brothers Wholesale Liquor (“Johnson Brothers”) in 1979. His job was to fill orders, and to load and unload trucks. On March 30, 1988, Mr. Younghans attempted to lift a case of liquor that was glued to a pallet. As he pulled on the case, it broke and fell, causing him to feel a snap in his neck. He treated with Dr. Ensor Transfeldt, who performed an anterior cervical fusion and discectomy at the C5-6 level on August 3, 1989.

Following the surgery, the employee returned to work for Johnson Brothers, but required a light duty position and was subject to overhead lifting restrictions. He received medical treatment on an intermittent basis and Dr. Transfeldt noted that Mr. Younghans continued to do well. Dr. Transfeldt’s February 5, 1991, office note indicates that Mr. Younghans reported “intermittent episodes of neck pain with increased activity, but he is back to normal activities.” At the hearing, Mr. Younghans testified that he did have some problems with his neck, but that he was able to engage in his usual outside activities such as fishing, hunting, golfing and playing hockey. In 1991, Mr. Younghans was terminated from Johnson Brothers for reasons unrelated to his work injury. He then went to work for a new employer, doing residential and commercial HVAC work. Mr. Younghans recalled having been under permanent work restrictions from Dr. Transfeldt, but that he would perform tasks beyond those restrictions at his discretion.

On September 21, 1993, Mr. Younghans was involved in a non-work related motor vehicle accident in which the car he was driving was rear-ended by another vehicle. He sought chiropractic care that day, with complaints of neck pain, headaches, and mid and low back pain. On October 26, 1993, Dr. Transfeldt diagnosed a whiplash injury. Mr. Younghans continued to receive chiropractic care and treat with Dr. Transfeldt, and also began treating at Noran Neurological Clinic in 1994 for neck pain and headaches. A December 1996 MRI showed a solid C5-6 fusion with some mild degeneration above and below that level. In the years that followed, the employee’s symptoms increased and his ability to do activities such as golfing and fishing decreased. In 1998, the employee was prescribed pain medications to manage his symptoms. An October 1999 MRI was interpreted as being unchanged from the 1996 study, with the exception of a small bulge at C6-7 with no nerve root impingement. The employee testified that he never fully recovered from the 1993 motor vehicle accident.

In 1999, Mr. Younghans asserted a claim for payment of medical bills and reimbursement of out-of-pocket narcotic prescription expenses that he alleged were related to his March 30, 1988, work injury. By Findings and Order, a compensation judge denied the employee’s claims, concluding that his cervical spine condition was personal in nature and that the 1988 work injury was “not a substantial contributing factor to the medical condition for which the Employee [had] received care and treatment.” This Findings and Order was not appealed and remains the law of the case.

In 2001, Mr. Younghans began working for Midwest Maintenance & Mechanical (“Midwest”) as a service technician. He characterized this work as heavy most of the time, and involved overhead work. Mr. Younghans testified that his work aggravated his symptoms on a daily basis, and that modification of how he performed the work was necessary depending on his symptoms. He continued to seek chiropractic care and to use prescription medication to control his pain. By 2011, the employee was taking a number of prescription medications, including OxyContin, Oxycodone, Celebrex, and Ultram. That same year, he began physical therapy at Physician’s Neck and Back Clinic, which substantially improved his overall complaints of pain. Mr. Younghans resumed exercising, lifting weights, and coaching hockey. He eventually weaned off of his pain medication, but continued to treat for symptoms including neck pain, back pain, and headaches.

While employed at Midwest on April 30, 2014, Mr. Younghans slipped and fell as he descended stairs in the rain. He injured his neck, left shoulder, elbow, wrist, and fingers. In the months that followed, Mr. Younghans treated at Twin Cities Orthopedics. An MRI done on September 29, 2014, showed the fusion at C5-6 to be stable with some disc degeneration at C6-7 with no significant nerve impairment and some mild degeneration in the level above the fusion. He was later referred to Dr. Matthew Monsein who recommended a chronic pain program. Mr. Younghans testified at the hearing that he had not recovered from the 2014 work injury, as he had continuing neck stiffness and pain, pain down his arms, and pain down his legs. At the time of the hearing, Mr. Younghans was still employed at Midwest in a light duty position.

On September 30, 2015, the employee was seen for an independent medical evaluation by Dr. Mark Friedland, who prepared a report dated the same day. In his 13-page report, Dr. Friedland outlined his review of reports and records from 20 providers and examiners, provided a thorough medical history, and detailed the results of his own examination of the employee. Dr. Friedland opined that the employee had sustained no injury to the cervical spine as a result of the fall on April 30, 2014. He also set forth an apportionment opinion with regard to the employee’s ongoing chronic pain symptoms. He slightly revised the apportionment opinion contained in his report in his August 30, 2016, deposition, concluding that 50% could be apportioned to the 1988 work injury, and 50% to the 1993 motor vehicle accident.

Dr. Monsein of Courage Kenny Rehabilitation Institute issued a report dated January 25, 2016. He noted that he had seen the employee on two occasions for pain management on referral from Dr. Transfeldt in 2015, and that he had reviewed records from 13 providers and examiners. It was Dr. Monsein’s opinion that both the 1988 and 2014 injuries were substantial contributing causes of the employee’s cervical condition.

Mr. Younghans was seen by Dr. Kristen Zeller for an independent medical evaluation on April 21, 2016. Dr. Zeller prepared a 17-page report dated May 11, 2016, in which she detailed the employee’s medical history from 1976 to 2016, and the results of her examination. With respect to the employee’s cervical condition, Dr. Zeller concluded that Mr. Younghans’s symptoms were due to an Arnold-Chiari Type I malformation,[1] which was noted in an October 1999 MRI scan. She stated this was a congenital condition, unrelated to any injury. It was Dr. Zeller’s opinion that the 1988 work injury was not a contributing factor to the employee’s present condition.

In December 2015, the employee filed a claim petition seeking benefits arising out of the 1988 injury at Johnson Brothers, and the 2014 injury at Midwest. The claim was heard by Compensation Judge William Marshall on September 6, 2016. Issues considered at the hearing included the employee’s claims for temporary partial disability benefits, rehabilitation services, approval of the chronic pain program recommended by Dr. Monsein, and the relative responsibility of the 1988 and 2014 injuries. At the hearing, testimony was taken of the employee and a representative of Midwest. The compensation judge was provided copies of the employee’s voluminous medical records, as well as narrative reports and causation opinions.

The compensation judge issued his Findings and Order on October 12, 2016, denying the employee’s claims. The judge determined that “the preponderance of the evidence fails to show that the 1988 injury is responsible for the employee’s ongoing symptoms.” He also found the 2014 injury to have been a temporary aggravation of the employee’s underlying cervical condition. He further found that the chronic pain program was not causally related to either work injury.

The employee appeals only those findings concerning the 1988 injury.


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 has appealed the compensation judge’s determination that the 1988 work injury was not proven to be a substantial contributing factor in the employee’s present condition. The employee argues that the compensation judge’s decision is not supported by substantial evidence. The employee contends that the compensation judge erred in failing to acknowledge the permanent nature of the 1988 injury and in accepting the “unfounded and abbreviated” opinions of Dr. Zeller instead of the opinions of Dr. Friedland.

It is undisputed that the employee had fusion surgery in 1989 at the C5-6 level as a result of the 1988 work injury. However, the mere fact that the employee had surgery almost 30 years ago does not in itself establish that the 1988 injury is a substantial contributing factor in his current condition and the claims arising out of that condition.

The employee discusses at some length in his brief, the degenerative changes in his cervical spine above and below the fusion site that was noted in various radiographic studies. Even assuming a causal connection between the 1989 surgery and those degenerative changes, we find little evidence in the record to support a relationship between the degenerative changes and the employee’s symptoms. Given the record of the employee’s care since 1988, his history of injuries and symptoms, and the opinions of the medical professionals, the existence of a permanent injury in 1988 does not establish liability against the 1988 insurer for the employee’s present claims. In this matter, whether there is a causal relationship between the 1988 work injury and the employee’s condition as of the date of hearing is primarily a question to be answered by expert medical opinion.

In concluding that the employee failed to establish by a preponderance of the evidence that the 1988 injury was a substantial contributing factor in the employee’s condition, the compensation judge accepted in large part the opinion of Dr. Kristen Zeller. (Finding 51.) The employee argues that Dr. Zeller lacked foundation for her opinion and that it was error for the compensation judge to rely on her opinion. The employee contends that Dr. Zeller disqualified herself from expressing a causation opinion by supposedly acknowledging a lack of expertise in her diagnosis of Arnold-Chiari malformation. We disagree.

Dr. Zeller is a medical doctor and, according to her report, practices in the area of anesthesiology and chronic pain management. She conducted an examination of the employee, took a history from him, and in her report detailed medical records she reviewed. This information generally provides foundation for an opinion. Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130, 1132-33 (Minn. 1988); Niemi v. M.A. Mortenson, 74 W.C.D. 679 (W.C.C.A. 2014).

Dr. Zeller’s ultimate conclusion was that the employee’s complaints were not due to the 1988 work injury. She stated that the cervical spine had been stable for years following the 1988 injury, and that the likely contributor to the employee’s cervical complaints was the Arnold-Chiari malformation that had been found in radiographic studies going back to 1999. As support for that opinion, she referred to the lack of objective findings in the cervical spine, the increasing headaches the employee was experiencing, and potential balance issues as evidenced by the employee’s multiple falls. In response, the employee’s brief quotes from Dr. Zeller’s report in which she states, “This is not my area of expertise.” The employee claims that Dr. Zeller essentially conceded that her diagnosis and conclusions were outside of her qualifications. We conclude this is a misreading of Dr. Zeller’s report.

Dr. Zeller’s report contains three and one-half pages of her conclusions and opinions, set out in numbered paragraphs. Her opinion that the employee’s condition is due to the Arnold-Chiari malformation and not a cervical injury is found throughout her report. In paragraph 8, she discusses possible employment restrictions necessary because of the Arnold-Chiari malformation. She identifies some restrictions which might be necessary as well as indicating that setting restrictions because of this condition is not her area of expertise. Rather than a concession as to her lack of qualifications, it is instead consistent with her recommendations elsewhere in her report that the employee should be seen for evaluation and treatment by a specialist in the treatment of Arnold-Chiari malformation. The primary issue in this matter was causation, and not restrictions. We conclude that Dr. Zeller’s opinion had adequate foundation for the purpose of providing a causation opinion, and it was not error for the compensation judge to rely on that opinion in reaching his decision.

We have consistently held that it is the function of a compensation judge to choose between competing medical opinions and where a compensation judge’s decision is based on a medical opinion with adequate foundation, that decision will generally be affirmed. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003). We find no reason to vary from that general rule here.

The employee also alleges that the compensation judge applied an incorrect legal standard and erred as a matter of law, pointing to a statement made in the memorandum that he found “persuasive that the employee’s post 1988 incidents, most notably the MVA changed his condition severing the tie to 1988.” The employee argues that the compensation judge considered the 1993 MVA to be a superseding cause, but without evidence that his conduct was unreasonable, negligent or dangerous, citing to the standard set forth in Eide v. Whirlpool Seeger Corp., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961).

The employee’s argument here is a variant of his initial argument that once there is a permanent work injury, the injury must be found to be a significant contributing factor in everything that happens to the employee from that point forward. The compensation judge determined that, given the traumatic nature of the MVA, its effect on the employee’s need for medical care and symptoms, and its effect on the employee’s work and personal activities, the causal relationship between the employee’s work injury in 1988 and his current symptoms was too attenuated. We find no basis for concluding that the compensation judge used an incorrect legal standard in deciding this case. See Hughes v. Karps Twin City Supply, slip op. (W.C.C.A. Nov. 27, 1996); Smith v. Timberland Co., Inc., No. 06-106 (W.C.C.A. Aug. 23, 2006); Keane v. Critical Care Servs., Inc., 72 W.C.D. 709 (W.C.C.A. 2012).

The decision of the compensation judge is affirmed.

[1] Arnold-Chiari Type I malformation refers to a congenital condition in which brain tissue extends into the spinal canal. Chiari Malformation, Mayo Clinic,