MARILYN C. AZUZ, Employee/Appellant, v. VESCIO’S and AMITRUST GROUP, Employer-Insurer/Respondents.

FEBRUARY 1, 2018

No. WC17-6086

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion and medical records, supports the compensation judge’s decision that the employee’s 2013 work injury was not a substantial contributing cause of her need for a five-level fusion surgery and to certain claimed disability benefits.

PERMANENT PARTIAL DISABILITY. An error in identifying a treating physician’s permanency rating does not require further proceedings where the compensation judge found that the work injury was temporary and resolved and the medical records support a reasonable inference that any continuing pain arose from the employee’s preexisting degenerative back condition.

    Determined by:
  1. Deborah K. Sundquist, Judge
  2. Patricia J. Milun, Chief Judge
  3. Gary M. Hall, Judge

Compensation Judge: Adam S. Wolkoff

Attorneys: Charles M. Cochrane, Cochrane Law Office, P.A., Roseville, Minnesota, for the Appellant. Gina M. Uhrbom and Nicholas J. Micheletti, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Respondents.

Affirmed, vacated in part.



Substantial evidence supports the compensation judge’s finding that the employee suffered a work injury in the nature of a temporary aggravation to her low back which resolved. As portions of Findings 18 and 34 are contrary to the record, those portions are vacated. As the remaining findings are sufficient to support the decision of the compensation judge, that decision is affirmed.


Marilyn Azuz, the employee, worked part-time as a server for Vescio’s, the employer. As a server, the employee took orders, carried food and drinks, and restocked dishes and glasses. She described her position as a physical job. On April 27, 2013, while working for Vescio’s, the employee slipped on water in the kitchen and fell causing low back pain. The employer and its insurer admitted liability and paid benefits.

Years before the April 27, 2013, injury, the employee complained of low back pain. In 2002, an x-ray showed degenerative disc disease at the L3-5 levels. In 2008, the employee complained of low back and right thigh pain and numbness after a fall on ice. There appeared to be no ongoing medical treatment and the employee was working without restrictions at the time of her injury.

On April 28, 2013, the day after the injury, the employee sought care and treatment with Twin Cities Medical Clinic complaining of low back pain with constant radiation into her right leg along the lateral thigh. The employee denied numbness, tingling or weakness. She was taken off work through May 14, 2013.

The employee’s care and treatment was transferred to Park Nicollet where she was initially seen by Mary Arneson, M.D. Dr. Arneson diagnosed low back pain and released her to return to work on May 22, 2013. After a course of physical therapy, the employee continued to complain of ongoing low back pain with right sided groin pain and transient right leg numbness. Dr. Arneson ordered an MRI scan which revealed multilevel degenerative disc disease including moderate right sided neural foraminal stenosis, mild left neural foraminal stenosis at the L4-5 level, and mild narrowing of the neural foramen at L3-S1. Dr. Arneson noted that the scan showed an L5-S1 disc abutting, but not compressing, the right S1 nerve root. She concluded that the employee was not a surgical candidate and recommended the MedX program through Physicians’ Diagnostic and Rehabilitation (PDR).

The employee attended the MedX program from August 28, 2013, to February 12, 2014. Thereafter, she treated with John Dunne, M.D., who diagnosed her condition as chronic low back pain with S1 radicular pain. He recommended L5-S1 epidural injections and gave her work restrictions. Following a series of injections, the employee was referred to physical medicine and rehabilitation physician, David Nutz, M.D. Dr. Nutz diagnosed the condition as low back pain without radicular pain. He echoed Dr. Arneson’s opinion that the employee was not a surgical candidate and recommended facet injections. The employee underwent facet injections and by July 16, 2014, she reported that she was pain free. Dr. Nutz confirmed that the employee had essentially complete relief of pain, she had no functional or mobility issues, and no specific activity restrictions.[1]

Dr. Dunne completed a Health Care Provider Report on July 22, 2014, releasing the employee to return to work without restrictions, and finding that she had reached maximum medical improvement (MMI). He reported that the employee’s low back condition was “resolved.”[2] Furthermore, Dr. Dunne opined that “her work injury of 04/27/2013 represents an aggravation of a preexisting problem, as so it is work-related, and with the persistence of pain, I think she is entitled to a 10% permanent partial disability per 5223.0390, sub part IIIC (2) lumbar pain syndrome.”[3]

A few weeks later, in August 2014, the employee moved to Chicago to live with her daughter. While in Chicago, the employee was without health insurance for nine months. During those nine months, the employee claimed that she continued to have low back pain, but sought no medical treatment due to the lack of insurance. She testified that she did not recall contacting the workers’ compensation carrier about the need for treatment.[4]

In March 2015, while still living in Chicago, the employee sought treatment for her low back pain with North Shore Medical Group. She was referred to Dr. Joseph Alleva and Dr. Daniel Hurley who performed a rhizotomy in July 2015, facet injections in October 2015, and another rhizotomy in October 2015. When the employee showed no improvement, she was referred to Noam Stadlan, M.D., for a neurosurgical consultation in December 2015. Dr. Stadlan noted that the employee suffered from low back pain for years and it was worsening progressively over time. On examination, the employee was neurologically intact. Dr. Stadlan ordered a CT scan which showed degenerative disc disease at the L3-4 and L4-5 levels. X-rays taken also revealed severe disc and endplate degeneration at L3-4 and L4-5. An MRI revealed a mild progression of degenerative changes at the L2-3 and L3-4 levels.

After seeing Dr. Stadlan, the employee followed up with assistant Elizabeth Tang, PA-C in January 2016, who noted on physical examination that the employee had full active range of motion in the lumbar area, was well-appearing, in no acute distress, and her gait was normal.

Dr. Stadlan recommended surgery for the employee’s diagnosed mechanical low back pain. Surgery was performed on March 7, 2016, in the nature of lumbar laminectomies at L3-5, fusion with cages, BMP[5] and local bone at L3-4 and L4-5, and posterior fusion with local bone at levels L2- S1. Following surgery, the employee continued to suffer ongoing low back pain.

Dr. Stadlan issued a narrative report on December 21, 2016, noting that the employee’s continuing pain restricted her from employment. He described the surgery, not as a five-level fusion, but as a two-level fusion. He opined that the work injury of April 27, 2013, was a substantial contributing factor to her low back pain, treatment, and work restrictions, because her pain began with the work injury and had been reasonably consistent since then. Due to his unfamiliarity with the Minnesota schedules, Dr. Stadlan did not offer an opinion regarding a permanent partial disability (PPD) rating. Medical bills for the surgery were in excess of $200,000.00.[6]

The employee sought the opinion of Robert Wengler, M.D., who conducted a records review and assigned a 37-percent rating based on radicular pain and paresthesias with objective findings. Dr. Wengler opined that the April 27, 2013, work injury was a substantial contributing factor to the employee’s condition and that surgery was appropriate.

The employer and insurer retained orthopedic surgeon William Simonet, M.D., to conduct an examination of the employee. Between August 5, 2014, and May 10, 2017, Dr. Simonet issued three narrative reports. In the first report, Dr. Simonet reported that the employee told him that she had no symptoms, and that she is “pretty close to 100 percent.”[7] On examination, he noted normal range of motion and normal neurological findings. Dr. Simonet diagnosed the employee with an “age appropriate” degenerative disc disease which was temporarily aggravated by the work injury. He explained that “this is the same degenerative disc disease that was noted on her x-ray prior to the incident in question.”[8] He opined that the employee had reached MMI, and required no restrictions or additional medical treatment.

In the second report, Dr. Simonet addressed the reasonableness of Dr. Stadlan’s five-level fusion. He stated that the employee was not a candidate for surgery, did not require any surgical approaches, and had not improved by the five-level fusion surgery performed by Dr. Stadlan.

Finally, in the last report, Dr. Simonet disputed Dr. Wengler’s 37-percent PPD rating and explained that the rating cited by Dr. Wengler required radicular pain or radicular paresthesia with objective clinical findings, which had not been documented. Dr. Simonet assigned a ten-percent PPD rating as unrelated to the employee’s work injury.

The employee filed a claim petition on December 21, 2015, for wage loss benefits, 37-percent PPD, medical expenses, and a vocational consultation. The matter was heard on May 16, 2017, by Compensation Judge Adam Wolkoff, who denied the employee’s claims. 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 compensation judge found that the employee’s work injury was temporary in nature and resolved without the need for restrictions. The judge determined that Dr. Simonet’s opinion was both credible and persuasive. Furthermore, the compensation judge relied upon the July 16, 2014, treatment note from Dr. Nutz who noted that the employee had no significant mobility or specific activity restrictions, and the July 22, 2014, note from Dr. Dunne who released the employee to return to work without restrictions.

On appeal, the employee argues that the judge committed an error of law by relying on Dr. Simonet’s opinion, which she maintains was fundamentally flawed and should not have been given weight. Citing Vanda v. Minn. Mining & Mfg. Co., 218 N.W.2d 458, 27 W.C.D. 379 (Minn. 1974), the employee maintains that when a work injury aggravates or accelerates a pre-existing condition to produce a disability, the entire disability is compensable.

There is no dispute that the employee’s injury was an aggravation of a preexisting condition, and for that reason, the employer admitted liability and paid workers’ compensation benefits to the employee. The dispute here is whether the aggravation was permanent or temporary. If temporary, the employer’s obligation ends when the temporary aggravation ends. Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987). The judge relied upon the opinion of Dr. Nutz that the employee’s low back pain had resolved, Dr. Dunne’s finding that the employee could work unrestricted, and Dr. Simonet’s report that the employee was close to 100 percent and the surgery was not indicated in a patient with normal neurological findings.

It is well established that a compensation judge’s choice of expert opinions must be upheld unless the opinion lacked adequate factual foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). An expert opinion which includes the facts upon which the expert relied and the basis for the opinion is generally sufficient to establish foundation. An opinion need only be based on “enough facts to form a reasonable opinion that is not based on speculation or conjecture.” Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017) (citing Wenner v. Gulf Oil Corp., 264 N.W.2d 374, 381 (Minn. 1978)). Here, the record supports the factual foundation upon which Dr. Simonet relied. Dr. Simonet physically examined the employee, took a history from the employee, and reviewed multiple medical records. His opinion is also supported in the record by Drs. Nutz and Dunne who described the low back pain as resolved as of July 2014.[9]

The employee argues that the judge did not follow legal precedent in determining whether the work injury was a substantial contributing factor to the employee’s low back condition. She cites McClellan v. Up N. Plastics,[10] which offers an analysis to determine whether the injury was a temporary or permanent aggravation of a preexisting condition. She also argues that the judge erred in finding that Dr. Dunne assigned a zero-percent PPD rating.

In McClellan, we held that a judge may review several factors when determining whether an aggravation of a preexisting condition is temporary or permanent. Those factors included: 1) the nature and extent of the preexisting condition and the extent of restrictions and disability resulting therefrom; 2) the nature of the symptoms and extent of medical treatment prior to the aggravating incident; 3) the nature and severity of the aggravating incident and the extent of the restrictions and disability resulting therefrom; 4) the nature of the symptoms and extent.

These principles serve as a guide, not a requirement, to assist the compensation judge in finding that the injury was a temporary or permanent aggravation. Calbillo v. MG Waldbaum, No. WC05-235 (W.C.C.A. Jan. 31, 2006). In this matter, the parties introduced evidence which would have addressed all the McClellan factors. The employee argues that consideration of the McClellan factors should have led to a different result. The question for this court, however, is not whether a different decision from the compensation judge was possible, but whether substantial evidence supports the compensation judge’s decision. Escobedo v. Archtype Signmakers, No. WC17-6067 (W.C.C.A. Oct. 9, 2017).

We agree that the compensation judge erred in Findings 18 and 34 by incorrectly finding that Dr. Dunne issued a zero-percent PPD rating. Dr. Dunne rated the employee at 10 percent, not a zero percent, on July 22, 2014.[11] We vacate the portion of Findings 18 and 34 indicating that Dr. Dunne rated PPD at zero percent. Since the compensation judge found that the work injury was temporary and resolved, no award of permanent partial disability can be made. The compensation judge’s failure to note Dr. Dunne's ten-percent PPD rating does not affect the compensability of the injury because substantial evidence in the form of the employee's medical records supports a resolved temporary injury and therefore the denial of PPD benefits in this matter.

The record as a whole supports the finding that the employee’s preexisting condition was temporarily aggravated by the April 27, 2013, work injury. The employee had degenerative disc disease as early as 2002. She had low back pain symptoms with numbness in the right thigh in 2008. Following the injury at work on April 27, 2013, the employee underwent significant treatment. Her treating doctors agreed that she was not a surgical candidate and that she was neurologically intact. Following facet injections, her symptoms resolved. She was fully functional and released to return to work without restrictions in July 2014 by Dr. Dunne. In August 2014, the employee told Dr. Simonet that she was close to “100 percent.” The employee moved to Chicago in August 2014 and did not undergo medical treatment for nine months. It was not until her treatment in Chicago led her to a five-level fusion in March 2017 that she became unable to work due to pain. For these reasons, we affirm.

[1] Ex. 5.

[2] Id.

[3] Id.

[4] T. at 82.

[5] Bone morphogenetic protein.

[6] Ex. M.

[7] Ex. 1.

[8] Id.

[9] Ex. 5.

[10] McClellan v. Up N. Plastics, slip op. (W.C.C.A. Oct. 18, 1994).

[11] Ex. 5.