AUGUST 14, 2018

No. WC18-6136

SUBSTANTIAL EVIDENCE. Substantial evidence, including medical records and expert medical opinion, supports the compensation judge’s determination that the employee’s work injuries were temporary and had resolved, and that the employee’s claimed medical expenses were not causally related to the employee’s work injuries.

WAGES - MULTIPLE EMPLOYMENTS. Where the employee did not have any income or scheduled assignments from a second employer over a 10-month period around the work injury, the compensation judge did not err by finding that the employee did not regularly work for multiple employers on the date of injury and excluding any claim for additional earnings from the second employer from the determination of the employee’s average weekly wage.

EVIDENCE - RES JUDICATA; PRACTICE & PROCEDURE. The compensation judge properly refused to apply res judicata to any portion of a Findings and Decision issued under Minn. Stat. § 176.106 where the employee appealed that Findings and Decision. As the hearing in that appeal is de novo, there is no force or effect in the underlying order appealed from.

    Determined by:
  1. Patricia J. Milun, Chief Judge
  2. David A. Stofferahn, Judge
  3. Sean M. Quinn, Judge

Compensation Judge: Sandra J. Grove

Attorneys: Aaron W. Ferguson, Aaron Ferguson Law, St. Paul, Minnesota, for the Appellant. Andrew W. Lynn and Aaron D. Schmidt, Lynn, Scharfenberg & Hollick, Minneapolis, Minnesota, for the Respondents. Mark A. Kleinschmidt and Elizabeth R. Cox, Cousineau Waldhauser & Kieselbach, Mendota Heights, Minnesota, for the Respondents.




The employee has raised issues regarding adequate foundation for medical opinions in the record, the lack of substantial evidence supporting the compensation judge’s findings, the calculation of an average weekly wage (AWW), and the application of the doctrine of res judicata arising from a decision in an administrative conference held under Minn. Stat. § 176.106. As there is adequate foundation for the medical opinions offered, substantial evidence for the compensation judge’s findings, an appropriate basis for the calculation of the AWW, and the doctrine of res judicata is inapplicable in this case, we affirm.


The employee is a licensed practical nurse. She has a history of low back problems for which she received treatment dating from an automobile accident in 1999. An MRI performed in 2000 showed disk material contacting the nerve root at L3, on the left side. The employee began treating with Walid Mikhail, M.D., at this time. An EMG showed abnormalities at L3-L4, on the left side. Another MRI performed in 2002 was unremarkable. Those low back problems resolved with conservative care.

On March 19, 2008, the employee sought care for an unrelated work injury causing severe pain in her low back. A CT scan and MRI were conducted at that time. The employee primarily complained of low back and right-sided pain, with occasional right side radiculopathy. On April 22, 2008, the employee was assessed at maximum medical improvement (MMI) for that injury, with no ratable permanent partial disability (PPD). The employee reported that all symptoms had resolved by April 29, 2008.

While the employee’s low back problems resolved with conservative care, the employee suffered from recurring back pain, which she addressed with over-the-counter pain medications and stretching exercises. As of February 1, 2013, the employee was under no medical restrictions and she had no ratable permanent partial disability. In addition to working for St. Croix Hospice (St. Croix/SFM), an assisted living facility, the employee had an on-call position providing patient care with Accurate Home Health Care. The last time that the employee provided such services with Accurate Home Health Care was August 2012, and she received her last paycheck in September 2012. (T. at 74, 78-79; Employee’s Ex. P.)

On February 1, 2013, the employee suffered a low back injury while performing resident care in the employ of St. Croix. The employee sought medical care for pain arising from the injury on February 5, 2013, where the employee was diagnosed with possible sacroiliac (SI) joint strain, left. Dr. Mikhail ordered an MRI, which showed left paracentral L1-L2 disk herniation with mild bulging at other levels. Dr. Mikhail diagnosed disc herniation and ordered a course of physical therapy (PT). On August 20, 2013, Dr. Mikhail assessed the employee at MMI for the February 1, 2013, work injury, with no ratable PPD. Dr. Mikhail imposed permanent restrictions of frequent lifting of 10 pounds, occasional lifting of 30 pounds, occasional push/pull of 25 pounds, and occasional bending, twisting, kneeling, and squatting. On September 24, 2013, Dr. Mikhail revised his opinion, indicating that the employee had a 7% PPD rating of her low back under Minn. R. 5223.0390, subd. 3.C.(1). As part of the employee’s ongoing low back care, Dr. Mikhail prescribed use of a TENS unit.

The employee’s employment with St. Croix ended following the work injury. The employee indicated that there was a difference of opinion regarding appropriate patient care and reporting that resulted in threats of disciplinary action. (T. at 69; St. Croix Ex. 10.) The employee began working for the Minneapolis School District as a school nurse in February 2013. That income was supplemented by additional short-term positions with other employers beginning in June 2013.

On January 14, 2015, the employee was examined by Paul Yellin, M.D., for an independent medical examination (IME) on behalf of St. Croix/SFM. Dr. Yellin reviewed the employee’s medical record and conducted a physical examination in which the employee displayed no acute signs of an ongoing low back condition. Dr. Yellen noted tenderness with deep palpation over the right SI joint. Dr. Yellin opined that the February 1, 2013, work injury was a temporary aggravation of the employee’s chronic L3-L4 problems. While Dr. Yellin opined that the medical care received by the employee was reasonable and necessary, the care received after August 20, 2013, was unrelated to February 1, 2013, work injury. Similarly, Dr. Yellin agreed that the employee was properly rated at 7% PPD, but considered the PPD to be unrelated to the February 1, 2013, work injury. In the same vein, the ongoing lifting and positioning restrictions were considered both appropriate and unrelated to the work injury.

On May 6, 2015, the employee underwent a steroid injection by John Eklund, M.D., to address ongoing low back pain.

On November 6, 2015, the employee was examined by Mark Larkins, M.D., for a neutral medical examination conducted by agreement of St. Croix/SFM and the employee. Dr. Larkins reviewed the employee’s medical record and conducted a physical examination in which the employee displayed tensor fascia latae pain on her left side. In other respects, Dr. Larkins noted no objective sign of an ongoing low back condition. Dr. Larkins attributed the employee’s complaints of pain to hip and tensor fascia latae problems. He noted no objective evidence of radiculopathy. Dr. Larkins attributed the employee’s current condition to the February 1, 2013, work injury. The employee was not at MMI in the opinion of Dr. Larkins and he recommended injections and PT to address the condition. The ongoing lifting and positioning restrictions were considered both appropriate and caused by the work injury.

On November 12, 2015, the employee was working for Walker Methodist Health Center, Inc. (Walker/Great American), providing patient care when she suffered a low back injury. The employee was examined by Peter Badroos, M.D., who noted the employee complained of low back pain for the preceding four days precipitated by recent heavy lifting. Dr. Badroos noted no radiculopathy, no local tenderness, antalgic gait, and appearance of mild pain. The employee was diagnosed with lumbar strain and degenerative disc disease without herniated disc. Dr. Badroos directed conservative treatment and released the employee to work with restrictions. At subsequent follow-up examinations, the employee displayed similar symptoms, sometimes with observed muscle spasms, and on occasion, with reports of radiculopathy in one or both legs.

On February 12, 2016, the employee was examined at Courage Kenny Sports and Physical Therapy Center. A therapeutic exercise and three-week PT program was directed. On March 5, 2016, the employee underwent an MRI scan showing mild multi-level degenerative changes and an absence of stenosis. The employee began a course of PT with Summit Orthopedics. On March 29, 2016, the employee was examined by Bryan J. Lynn, M.D. Dr. Lynn diagnosed the employee with mid-level degenerative change of the lumbar disks and bilateral L5-S1 facet arthritis. The employee described no benefit from the course of PT, and Dr. Lynn recommended bilateral medial branch blocks at L3-L5 with consideration of radiofrequency neurotomy. Dr. Mikhael ordered the branch blocks, but that treatment was denied by the insurers in this matter.

On July 14, 2016, the employee was examined by William Simonet, M.D., for an IME on behalf of Walker/Great American. Dr. Simonet reviewed the employee’s medical record and conducted a physical examination. Dr. Simonet observed the employee using a normal range of motion and he described the employee’s back as having “a normal spinal alignment.” Dr. Simonet opined that the employee’s low back condition was unrelated to the November 12, 2015, work injury. Dr. Simonet considered the employee to have experienced a temporary aggravation of her pre-existing underlying condition. The treatment provided to the employee was considered to be excessive. Dr. Simonet recommended that the employee lose weight, cease smoking, and engage in a fitness program. Dr. Simonet opined that the employee reached MMI two weeks after the November 12, 2015, work injury and none of the requested medical care was necessary. Dr. Simonet considered the employee to be free of any medical restrictions that arose from the November 12, 2015, work injury and that she had no ratable PPD. In arriving at these conclusions, Dr. Simonet relied on the similarity of the employee’s MRI scans taken pre-injury and post-injury.

On August 14, 2017, the employee was examined by Eric Deal, M.D., for an IME on behalf of St. Croix/SFM. Dr. Deal reviewed the employee’s medical record, including imaging dictation, but not the scans themselves. Dr. Deal inquired as to a number of incidents affecting various parts of the body occurring through 2010. The employee agreed with some of those and denied others. Dr. Deal conducted a physical examination in which he described the employee as using a gait described as “somewhat nonphysiologic” and with heel and toe walking displaying no muscular difficulty. The employee reported pain with minimal forward flexion, lumbar extension, and lateral bending. The employee displayed a straight leg test that caused Dr. Deal to conclude that the employee was engaged in symptom magnification. Dr. Deal assessed the employee with no neurologic abnormalities. Dr. Deal opined that the February 1, 2013, work injury and the November 12, 2015, work injury were each temporary lumbosacral sprain/strains and that each would have resolved in six weeks. Dr. Deal concluded that the employee was not currently suffering from any medical condition caused, aggravated, or accelerated by either the February 1, 2013, work injury or the November 12, 2015, work injury. Dr. Deal indicated that no PPD rating was appropriate, no future medical care was reasonable or needed arising from the work injuries, the employee was at MMI from six weeks after each of the work injuries, and no work restrictions were appropriate.

An Administrative Conference was held on August 30, 2016, due to a rehabilitation request related to qualified rehabilitation consultant (QRC) services filed by Walker/Great American. Walker/Great American argued that the employee’s injury was temporary and resolved, and argued that referral to the Vocational Rehabilitation Unit (VRU) at the Department of Labor and Industry (DLI) was appropriate. A DLI mediator issued a Decision and Order on August 31, 2016 (2016 Decision). The mediator determined that the employee’s work injury was a substantial contributing factor to the employee’s disability and ordered the VRU to commence rehabilitation services and terminated the services of the employee’s QRC. The employee filed a Request for Formal Hearing regarding the 2016 Decision on September 26, 2016.

The employee subsequently filed a claim petition on March 10, 2017. The issues of the Request for Formal Hearing and claim petition were joined and the matter heard by a compensation judge on November 29, 2017. At issue were the nature and extent of the admitted work injuries of February 1, 2013, and November 12, 2015; apportionment, if appropriate; the employee’s average weekly wage on February 1, 2013; and whether certain recent medical treatment was reasonable and necessary and causally related to one or both work injuries. The employee testified at the hearing and described her ongoing employment, her search for supplemental employment, and the limitations that she was experiencing in activities of daily living, which the employee attributed to the two work injuries.

By Findings and Order served and filed December 19, 2017, the judge found that the employee’s February 1, 2013, injury was temporary in nature and resolved no later than August 20, 2013. The judge found that the November 12, 2015, work injury was also temporary in nature and resolved no later than December 24, 2015. The judge found that the medical treatment at issue was not reasonably required to cure and relieve the employee from the effects of either work injury. The judge also found that the employee’s average weekly wage on February 1, 2013, was $921.62. That figure included overtime pay and excluded mileage and any second employment earnings. 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).



1.   Adequate Foundation

The employee argues that the medical opinions of Dr. Yellin, Dr. Deal, and Dr. Simonet all lack adequate foundation and the compensation judge erred in relying on those opinions in determining the nature and extent of the employee’s injuries. Walker/Great American contends that, at the hearing, the employee objected to the foundation letters provided to obtain the opinions, not the medical reports of the doctors.

Generally, in workers’ compensation proceedings, a request for a medical opinion is structured in the form of a recitation of the employee’s background and specific questions identifying the aspects of the employee’s condition for which the opinion is sought. While among the parties there is an expectation that the letter will be neutral, that is not a requirement for obtaining a medical opinion. See Onsrud v. Honeywell, slip op. (W.C.C.A. July 25, 2000) (foundational letter should be generally consistent with testimony and treatment records).

Failure to object to a medical opinion on the basis of foundation at the hearing constitutes forfeiture of the objection on appeal. Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 801, 77 W.C.D. 117, 123 (Minn. 2017). In this matter, the employee objected to the contents of the foundation letters, not the opinions themselves. (T. at 18-19.) As the employee did not put the other parties or the compensation judge on notice that the foundation of the medical opinions was at issue, the issue of inadequate foundation for those opinions was forfeited and cannot be heard on appeal.[1]

2.   Substantial Evidence

The employee argues in great detail the adequacy of the evidence supporting the compensation judge’s findings and order. At the hearing, the employee had the burden of proving all elements of her claim, and on appeal it is equally her burden to show that the decision should be overturned. Adkins v. Univ. Health Care Ctr., 405 N.W.2d 233, 39 W.C.D. 898 (Minn. 1987). Here, the employee disagrees with the credibility findings made by the compensation judge and with the inferences drawn from evidence in the record. Based on the evidence in the record, we are not persuaded by the employee’s arguments.

The assessment of a witness’s testimony is the unique province of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989). This court will not disturb a finding based on credibility unless clearly contrary to the evidence. Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975); Folstrom v. Northgate Liquors, 77 W.C.D. 955 (W.C.C.A. 2017); Strohecker v. Mike’s Auto Repair & Tire, LLC, No. WC12-5437 (W.C.C.A. Aug. 7, 2012). In this matter, the compensation judge heard the testimony of the employee, including her description of her ongoing symptoms. The judge was able to observe the employee’s demeanor in the courtroom. The judge is in the unique position to determine credibility in the context of all oral testimony including subjective complaints of symptoms. Here, the judge found certain statements by the employee to be less credible and therefore less persuasive with respect to the facts and circumstances to be proved.[2] The weight of evidence is based on the believability or persuasiveness of evidence. Nothing in the record compels us to overturn the judge’s findings.

In addition to the determinations made in assessing witness credibility, the conflicts in the medical evidence are to be resolved by the compensation judge. “Until the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining [a] compensable injury or disease will have to remain in the province of the trier of fact.” Ruether v. State, 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1123 (Minn. 1990) (quoting Golob v. Buckingham Hotel, 244 Minn. 301, 304‑05, 69 N.W.2d 636, 639, 18 W.C.D. 275, 278 (1955)); see also Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). The employee’s assertion that one medical professional’s opinion is superior to all of the other opinions in the record and should have been adopted is an intrusion on the compensation judge’s discretion and not supported by the facts in this matter. See Nord v. City of Cook, 360N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

In this matter, the employee’s treatment records and the opinions of Drs. Yellin, Deal, and Simonet constitute substantial evidence that supports the compensation judge’s determinations. While the employee disagrees with the inferences drawn from that evidence, those inferences are reasonable and supported by the record.

3.   Average Weekly Wage Calculation

The employee asserts that the compensation judge erred in the calculation of the employee’s AWW for the February 1, 2013, work injury by not including some figure for the employee’s employment with Accurate Home Health Care. Minn. Stat. § 176.011, subd. 8a, provides that “If, at the time of injury, the employee was regularly employed by two or more employers, the employee's earnings in all such employments shall be included in the computation of daily wage. . . . the daily wage shall be computed by dividing the total amount the employee actually earned in such employment in the last twenty‑six weeks by the total number of days in which the employee actually performed any of the duties of such employment . . . .” (Emphasis added.)

In applying the statute, the compensation judge made a factual determination that the employee was not engaged in regular employment with two employers, since the employee had last worked for the second employer five months prior to the February 1, 2013, work injury, did no work for that employer for five months following that work injury, and was not scheduled for work with the second employer at any time over that ten-month period. The judge’s determination that the second job was not regular employment is supported by substantial evidence in the record.

The goal in determining an AWW is to “arrive at a fair approximation of the probable future earning power which has been impaired or destroyed because of the injury.” Palkowski v. Lakehead Constructors, 57 W.C.D. 21, 24 (W.C.C.A. 1997) (citing Knotz v. Viking Carpet, 361 N.W.2d 872, 874 (Minn. 1985)). A compensation judge can deviate from the statutory formula for calculating the AWW, “as long as that method reasonably reflects the employee’s injury related loss of earning power.” Hansford v. Berger Transfer, 46 W.C.D. 303, 309‑10 (W.C.C.A. 1991). Deviation from the statutory formula set out in Minn. Stat. § 176.011 is only allowed “where the evidence necessary to comply with the statutory directives concerning calculation of weekly wage is not available . . . .” Id. In this matter, the employee’s AWW as determined by the compensation judge included overtime earned with St. Croix, and excluded any figure for a second employer as the work was not regular. The resulting figure accurately reflects the loss of the employee’s earning power attributable to the February 1, 2013, work injury for the purpose of payment of economic benefits.

4.   Res Judicata

The employee contends that the compensation judge erred in not affording res judicata effect to the determination in the 2016 Decision that the employee’s work injury was a substantial contributing factor to the employee’s disability. St. Croix/SFM and Walker/Great American maintain that the issue is not properly before this court as the issue is not raised in the notice of appeal. Walker/Great American also maintain that the doctrine is not applicable due to the operation of Minn. Stat. § 176.106, subds. 5 and 7. Walker/Great American cite the holding of this court, that a perfected formal hearing request rendered an administrative decision issued under that statute to have no force or effect. Archibald v. Cedarview Care Ctr., 70 W.C.D. 301 (W.C.C.A. 2010).

Minn. R. 9800.0900, subp. 1, limits issues on appeal to those raised in the notice of appeal. In this matter, the employee asserted error in the compensation judge’s failure to apply portions of the 2016 Decision that were “not appealed by either employer.” (Notice of Appeal, ¶ 15.) While not using the term res judicata, this language clearly seeks to give binding effect to some portion the 2016 Decision. The issue was adequately identified to be addressed on appeal.[3]

Generally, the doctrines of res judicata and collateral estoppel may be applied in workers’ compensation cases. Darvell v. Wherley Motors, 63 W.C.D. 76 (W.C.C.A. 2003). To apply, the particular issue must have been specifically litigated and decided in the prior proceeding. Meyers v. Minn. Supply Co., No. WC09-169 (W.C.C.A. Oct. 26, 2009). These doctrines can apply to unappealed decisions from administrative conferences. Milosevic v. Certified Serv., slip op.(W.C.C.A. July 2, 1992).

In this matter, the employee appealed the 2016 Decision by filing a request for a formal hearing. Under Minn. Stat. § 176.106, subd. 7, this results in a de novo hearing before a compensation judge. No part of the 2016 Decision remains as a final decision to be given effect after the filing of the request for a formal hearing. As there is no final decision on the merits, the doctrine of res judicata was not available to the compensation judge and there was no error in refusing to apply the doctrine.

For the foregoing reasons, the Findings and Order of the compensation judge served and filed December 19, 2017, are affirmed.

[1] A compensation judge has the discretion to choose between “competing and conflicting medical experts’ reports and opinions.” SeeSchuette v. City of Hutchinson, 843 N.W.2d 233, 237, 74 W.C.D. 169, 173 (Minn. 2014). The medical expert’s opinion must be reasonable and based on adequate information that the conclusions are not speculation and conjecture. Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017). As a general rule, were we to consider the issue, the opinions appear to meet this standard.

[2] For example, the employee contends that the judge erred in referencing disputes between the employee and St. Croix as they were irrelevant to the claimed work injuries. The reference denotes a potential reason for the employee to magnify symptoms or attribute symptoms to a work injury, which goes to the credibility of the employee.

[3] St. Croix/SFM also assert that the employee failed to raise the issue before the compensation judge. At hearing, included in the list of issues presented to the judge was “What effect does the .106 Decision and Order of Mr. William Hauck have on the ongoing dispute of the parties?” (Employee’s Ex. A.) The employee’s contention on appeal is that some aspect of the determination of that issue was contrary to law. We disagree. The issue is properly before this court on appeal.