JOSHUA COLE, Employee/Appellant, v. LAMETTI & SONS, INC. and AETNA/TRAVELERS GROUP, Employer-Insurer/Respondents and MATHIOWETZ CONSTR. CO. and LIBERTY MUT. INS. COS., Employer-Insurer/Respondents.

The employee appeals the compensation judge’s findings that the employee had not sustained a left shoulder injury in 2014, that the 2014 injury was not a substantial contributing cause of the employee’s need for left shoulder surgery, and that the 2014 right shoulder injury had resolved. We affirm.

Joshua J. Cole,^[1] the employee, has a history of prior work injuries with multiple employers and has undergone extensive treatment. In 1997, the employee was driving a bulldozer when it hit a rock, jarring him and injuring his neck, back, and left arm. In 1999, when standing on the tracks of an excavator, the employee slipped and fell on his back, landing on the tracks. He experienced neck, upper back, and left shoulder pain and eventually underwent a C4-6 anterior fusion in 2001. The employee reached maximum medical improvement on May 17, 2002, with restrictions of no lifting over 20 pounds, no repetitive lifting, bending, or twisting, and no heavy equipment work. He continued to have symptoms of left shoulder pain.

On July 5, 2005, the employee injured his neck and shoulders as he was helping carry a heavy piece of equipment while working for Mathiowetz Construction Company, which was insured for workers’ compensation liability by Liberty Mutual Insurance Companies.^[2] The employee was diagnosed with left shoulder subacromial impingement. In March 2006, the employee was referred to a specialist who recommended a subacromial decompression surgery. In June 2006, the employee treated with Dr. Jeffrey Kalo, who opined that the employee’s left shoulder subacromial decompression did not warrant further treatment until his cervical spine condition resolved.

On August 7, 2012, the employee sustained a severe traction injury to his left shoulder while working for a different employer. He was diagnosed with a left shoulder partial thickness tear by Dr. Peter Looby, who recommended an arthroscopic rotator cuff repair with subacromial decompression, distal clavicle excision, and possible biceps tenotomy. On January 4, 2013, Dr. Looby performed left shoulder surgery on the employee which included arthroscopic labral debridement, subacromial decompression with acromioplasty, distal clavicle excision, rotator cuff repair, and glenoid chondroplasty. The employee was released to work without restrictions on May 21, 2013, and reached maximum medical improvement on August 2, 2013, with a permanent partial disability rating of three percent.

In November 2013, the employee sustained a traction injury to his right shoulder while working for yet another employer. He was diagnosed with right shoulder rotator cuff tendinopathy and possible torn rotator cuff, and treated with an injection and physical therapy. In January 2014, the employee underwent a right shoulder arthroscopic extensive glenohumeral joint debridement, glenoid chondroplasty, subacromial decompression, and distal clavicle excision.

On October 23, 2014, the employee was injured as he was helping lift a 350-pound pipe while working for Lametti & Sons, Inc., the employer, which was insured for workers’ compensation liability by Aetna/Travelers Group, the insurer. The employee testified that he felt a pulling sensation in both arms, but when he sought treatment on November 25, 2014, he reported right shoulder and neck pain. The employee was diagnosed with a cervical strain and right shoulder AC ligament strain and was referred for an orthopedic consultation. The employee indicated that he felt a pulling sensation in his right neck and shoulder. The employer and its insurer admitted liability for a right shoulder injury and paid various workers’ compensation benefits, but disputed the nature and extent of the injury. The employee had physical therapy from November 2014 through January 2015. On February 5, 2015, the employee underwent a right shoulder arthroscopic extensive glenohumeral debridement and subacromial decompression with bursectomy. The employee returned to physical therapy from February to June 2015 when he transitioned to work hardening. He continued with that program until August 19, 2015, when it was put on hold pending cervical spine treatment.

The employee underwent an independent medical evaluation on November 23, 2015, with Dr. Mark Larkins, who opined that the employee had sustained a temporary aggravation of his pre-existing cervical spine condition and prior injuries, and had returned to baseline within six weeks. On January 28, 2016, the employee was evaluated by Dr. Kevin Mullaney at Twin Cities Spine Center, reporting right shoulder and neck pain and denying left arm symptoms. Dr. Mullaney assessed a right shoulder traction injury/brachial plexopathy, not cervical in nature.

In April 2016, the employee was evaluated by Dr. Michael Freehill, who performed an arthroscopic subpectoral biceps tenodesis and extensive debridement on the employee’s right shoulder girdle on June 27, 2016. The employee underwent physical therapy and in July 2016 reported ongoing and increased pain in his left shoulder. He reported that he recalled his left shoulder being painful after the 2014 injury. In August 2016, the employee reported left shoulder pain and was diagnosed with left biceps tendinopathy and osteoarthritis of the glenohumeral joint. An October 4, 2016, MRI scan indicated tendinopathy of the infraspinatus tendon, intrasubstance tearing of the subscapularis tendon, and medial dislocation of the biceps tendon. On November 3, 2016, Dr. Freehill recommended left shoulder surgery, involving arthroscopic assisted biceps tenodesis, debridement of the shoulder girdle, and assessment of the rotator cuff.

The employee was examined by Dr. Michael D’Amato as part of a dispute resolution program through the employee’s union. Dr. D’Amato reviewed the October 2016 MRI scan and opined that those findings were consistent with the natural history and progression of his pre-existing left shoulder condition. Dr. D’Amato issued reports dated June 13, 2017, and March 14, 2018, and opined that the employee’s left shoulder condition was not caused by the 2014 work injury, but involved Gillette injuries culminating in 2005 and 2012. He considered the 2014 injury a temporary aggravation of the employee’s pre-existing right shoulder condition from the November 2013 injury.

On June 26, 2017, the employee filed a claim petition alleging two dates of injury for injuries to his bilateral shoulders and cervical spine, the first sustained on July 5, 2005, while employed by Mathiowetz Construction and the second sustained on October 23, 2014, while working for the employer. The employee sought approval of medical treatment and surgery for his left shoulder as recommended by Dr. Freehill. The employer denied liability for a left shoulder injury and admitted a temporary right shoulder injury which had resolved and was no longer a substantial contributing factor to the employee’s disability and need for treatment. An amended claim petition was filed on October 11, 2017, seeking temporary partial disability benefits from September 4, 2017, through December 24, 2017, which the employer and insurer denied.

On November 16, 2017, Dr. Bradley Helms conducted an independent medical evaluation of the employee on behalf of Mathiowetz Construction Company and its insurer, Liberty Mutual Insurance Companies. Dr. Helms opined that the employee’s 2014 work injury was a substantial contributing factor in causing, accelerating, or aggravating the employee’s bilateral shoulder condition.

After a hearing on April 12, 2018, the compensation judge found that the employee’s 2005 work injury was substantial contributing cause of the employee’s need for the left shoulder surgery recommended by Dr. Freehill. The judge further found that the employee had not sustained a left shoulder injury in 2014 and that the 2014 injury was not a substantial contributing cause of the employee’s need for the left shoulder surgery recommended by Dr. Freehill. The judge also found that the employee’s right shoulder injury in 2014 had resolved and denied the employee’s claim for temporary partial disability benefits. The employee appeals the compensation judge’s findings that the employee had not sustained a left shoulder injury in 2014, that the 2014 injury was not a substantial contributing cause of the employee’s need for left shoulder surgery, and that the 2014 right shoulder injury had resolved.^[3]

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 argues that substantial evidence does not support the compensation judge’s finding that the October 23, 2014, injury was not a substantial contributing cause of the employee’s need for the left shoulder surgery recommended by Dr. Freehill. Respondents Mathiowetz Construction Company and Liberty Mutual join in the employee’s argument related to the left shoulder.

The employee asserts that the 2014 injury involved a different part of his shoulders, specifically bilateral labrum tears in his biceps. He claims that the compensation judge failed to differentiate the effects of the 2014 injury from his previous shoulder injuries involving his rotator cuffs. The employee requests a remand for reconsideration of the injuries being claimed.

At the hearing, the employee testified that he felt a pulling sensation in both biceps at the time of the 2014 injury and that the pain was in a different location of his shoulders than it had been with his previous injuries. The compensation judge found this testimony to be inconsistent with the contemporaneous medical records which indicated that the employee had right-sided neck pain and right shoulder pain with some numbness in his right arm and hand. Further, the employee had extensive medical treatment for his right shoulder after the 2014 injury and did not seek treatment for his left shoulder symptoms after that injury until July 2016. The employee testified that he reported left shoulder symptoms after the 2014 injury, but the compensation judge found this statement to be inconsistent with the contemporaneous medical records.^[4] While there are a few references in the employee’s medical records regarding left shoulder symptoms after the 2014 injury, such as radiating pain into the left shoulder and arm on January 8, 2016, at SWMN Orthopedics Marshall, there are numerous records of the employee only reporting right shoulder and neck pain. Further, the employee denied left arm symptoms while being evaluated by Dr. Mullaney at Twin Cities Spine Center on January 28, 2016. Our review of the employee’s medical treatment from October 2014 through July 2016 shows that the treatment at that time was solely focused on his right shoulder. It was not unreasonable for the compensation judge to conclude that the employee had not injured his left shoulder in October 2014.

Dr. D’Amato’s expert medical opinion also supports the compensation judge’s findings. He reviewed the October 2016 MRI scan and opined that those findings are consistent with the natural history and progression of the employee’s pre-existing left shoulder condition and determined that the employee’s left shoulder condition was not causally related to the October 2014 injury. While there was a contrary expert opinion from Dr. Helms, who opined that the employee’s 2014 work injury was a substantial contributing factor in causing, accelerating, or aggravating the employee’s bilateral shoulder condition, the trier of fact's choice between experts whose testimony conflicts is upheld where the facts assumed by the expert in rendering his opinion are supported by the evidence.^[5]

Substantial evidence supports the compensation judge’s findings that the employee had not sustained a left shoulder injury in 2014 and that the 2014 injury was not a substantial contributing cause of the employee’s need for left shoulder surgery as recommended by Dr. Freehill.

The employee also contends that substantial evidence does not support the compensation judge’s finding that the 2014 right shoulder injury was a temporary aggravation and had resolved, relying on his treating doctors’ notes that his condition was asymptomatic before the 2014 injury, was symptomatic after, and required ongoing treatment. In addition, the employee contends that the finding that his right shoulder injury had resolved was premature since a right shoulder MRI has been recommended to determine whether the employee had reinjured his right shoulder during physical therapy in April 2017.

A work injury which contributes to the aggravation or acceleration of a pre-existing condition is compensable.^[6] An employee need not prove that the employment was the sole cause, only that it was a substantial contributing cause, of the disability for which workers’ compensation benefits are sought. ^[7]

In Wold v. Olinger Trucking, Inc., slip op. (W.C.C.A. Aug. 29, 1994), this court identified several factors which the finder of fact might consider when determining whether an aggravation of a pre-existing condition is temporary or permanent, including: the nature and severity of the pre-existing condition and the extent of restrictions and disability resulting therefrom; the nature of the symptoms and extent of medical treatment prior to the aggravating incident; the nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom; the nature of the symptoms and extent of medical treatment following the aggravating incident; the nature and extent of the employee’s work duties and non-work activities during the relevant period; and medical opinions on the issue. The significance of the Wold factors and the weight to be given the factors is a question of fact for the compensation judge. In deciding whether an injury is a permanent or a temporary aggravation, the compensation judge is not required to address each of the factors.^[8]

The compensation judge relied on Dr. D’Amato’s opinion that the employee’s 2014 right shoulder injury had resolved by August 2015 and that his current right shoulder condition was the result of the natural progression of the employee’s pre-existing right shoulder condition. The employee had sustained a traction injury to his right shoulder in November 2013 and, in January 2014, underwent surgery including a right shoulder arthroscopic extensive glenohumeral joint debridement with debridement of the inferior, posterior, and superior labrum, glenoid chondroplasty, rotator cuff debridement, subacromial decompression with acromioplasty, and distal clavicle excision. The employee was able to return to work after this injury and he continued to do heavy equipment work. Substantial evidence supports the compensation judge’s findings regarding the employee’s right shoulder. In addition, because the physical therapy treatment in April 2017, which may have aggravated the employee’s right shoulder, occurred after the employee’s 2014 work injury had resolved and therefore is not related to the work injury, the compensation judge’s finding of a temporary aggravation is not premature.

Although there is evidence in this case that the employee’s 2014 work injury was a factor in the employee current shoulder conditions, the issue on appeal is not whether substantial evidence would support alternative findings, but whether substantial evidence supports the judge’s findings.^[9] In addition, where more than one inference may reasonably be drawn from the evidence, the compensation judge's findings are to be upheld.^[10] We conclude there is substantial evidence in the record, including medical opinions and extensive medical records, supporting the compensation judge’s findings that the employee’s 2014 work injury did not cause his current left shoulder condition and caused only a temporary aggravation of his right shoulder condition. As the compensation judge’s determinations are supported by substantial evidence and are not clearly erroneous, under this court’s standard of review, we affirm.^[11]