AUGUST 30, 2018

No. WC18-6153

MAXIMUM MEDICAL IMPROVEMENT – SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee’s medical record and determination by a treating physician, supports the compensation judge’s finding that the employee had reached maximum medical improvement from his compensable work injury.

REHABILITATION - ELIGIBILITY. Where the employee had returned to suitable gainful employment with the date-of-injury employer, substantial evidence supports the compensation judge’s finding that the employee was not a qualified employee for rehabilitation services.

EVIDENCE – EXPERT MEDICAL OPINION. Where the physicians had sufficient facts to form reasonable opinions, and these opinions were not based upon speculation or conjecture, the opinions are adequately founded and may be relied upon by the compensation judge.

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

Compensation Judge: Paul D. Vallant

Attorneys: James T. Hansing, Minneapolis, Minnesota, for the Appellant. Beth A. Butler and Arlen R. Logren, Peterson, Logren & Kilbury, P.A., Roseville, Minnesota, for the Respondents.




The employee contends that the compensation judge erred in finding that the employee reached maximum medical improvement on June 13, 2017; that the employee was not entitled to wage loss and continuing rehabilitation services; and that the employee did not sustain an injury to his cervical spine on September 2, 2015. We affirm.


The employee was hired by the employer in 1995 as an unskilled floor shifter and was promoted into the position of core maker and then master core maker when he sustained an injury in 2015. The core maker’s job required the employee to move molten iron in crucibles that weighed 700 to 800 pounds empty and when filled with liquid molten iron weighed approximately 1200 to 1300 pounds. The crucible was directed by an operator and immediately controlled by a worker, who was required to physically adjust the crucible to prevent spillage. On September 2, 2015, the employee was handling a crucible of molten iron when the employee’s left arm was jerked in the process of pouring. During that shift, the employee experienced symptoms of heat stroke and needed to rest following that work. The employee made no complaint of arm pain or neck pain at that time.

On September 23, 2015, the employee was examined by Daniel Foley, M.D. The employee indicated that he was experiencing pain in his left elbow and weakness in his left hand and fingers. Dr. Foley diagnosed the employee with lateral epicondylitis and began conservative therapy to the left elbow. The employee did not experience relief from his symptoms. The employee began treating with David P. Falconer, M.D., in October 2015. By December 1, 2015, the employee’s diagnosis had changed to arthralgia of the left elbow. On January 6, 2016, the employee’s medical record indicated that the elbow condition had resolved, but the employee was experiencing left carpal tunnel syndrome resulting in left hand numbness and tingling. By February 2, 2016, the employee’s work was adjusted to use bracing and an elbow strap. The employee continued to experience left upper extremity pain. Dr. Falconer ordered an EMG test which returned positive results for moderate carpal tunnel syndrome.

On February 9, 2016, the employee reported that his left hand was numb all the time, and days later, his entire left arm went numb. On March 1, 2016, the employee underwent left elbow and forearm injections. On April 27, 2016, the employee underwent carpal tunnel release surgery. During the pre-operative examination, the employee’s neck was examined and no abnormalities noted. Following carpal tunnel release surgery, the employee was taken off of work for four weeks. Except for the period of surgical recovery, the employee worked continually at his position, with some minor modifications to his job duties to accommodate his physical limitations.

By June 20, 2016, the employee was using his left arm sparingly, and experiencing continued lessened numbness and tingling in his left hand and pain in his left elbow. The employee reported increased left elbow pain, without external cause, on June 30, 2016. The condition did not resolve with continued conservative treatment.

On January 24, 2017, the employee underwent a left elbow platelet rich plasma (PRP) injection conducted by Dr. Falconer. The employee’s symptoms continued despite the treatment received. On March 28, 2017, the employee’s treating physician described the employee’s situation as “Ideology [sic] of the whole arm is non dermatomal ….” (Employee’s Ex. B.) Dr. Falconer considered conservative approaches to be nearly exhausted, but noted a possible TENEX procedure that relied on minimally invasive surgery using focused ultrasonic removal of damaged tissue from the affected joint.

On April 12, 2017, the employee was examined on referral by Elizabeth Plocher, M.D. Dr. Plocher suspected a cervical spine contribution to the employee’s condition and recommended another EMG and a cervical spine MRI. By April 25, 2017, the employee’s EMG showed an improved left elbow and the employee’s work restrictions were eased. The employee continued to experience numbness in his left arm.

On June 2, 2017, the employee was examined on a neurological referral from Dr. Falconer to Vanda R. Niemi, M.D. Dr. Niemi suspected that the employee could have experienced an asymptomatic neck injury as part of the September 2, 2015, work injury and ordered an MRI. On June 9, 2017, the employee underwent an MRI of his cervical spine. At the C3-C4 level, the employee displayed central stenosis secondary to degenerative disc disease with signal change at that level. At the C5-C6 level, there was a small disc herniation, but no signs of nerve root impingement or spinal stenosis. Dr. Niemi noted that the narrowing of the spinal cord could result in an injury through a jerking motion that could remain asymptomatic. The employee was immediately taken off work and referred to a neurosurgeon because of the potential for paralysis in the event of a neck injury. The employee was subsequently examined by Mahmoud Nagib, M.D., who proposed surgery to address the employee’s cervical stenosis.

At the request of the employer and insurer, an independent medical examination (IME) was performed on July 31, 2017, by neurologist Joel I. Gedan, M.D. Dr. Gedan opined that the employee was correctly diagnosed with lateral epicondylitis and left carpal tunnel syndrome, and that the latter had resolved and was at MMI. Dr. Gedan noted that the employee was being scheduled for cervical decompression and fusion surgery. Dr. Gedan opined that the employee’s September 2, 2015, work injury did not affect the employee’s neck in any way and the findings on the MRI were unrelated to any work injury. In arriving at this conclusion, Dr. Gedan noted that the employee did not display any symptoms at the time of the work injury, but rather had worsening symptoms beginning some weeks after the work injury. The MRI and symptomology were, in Dr. Gedan’s opinion, inconsistent with a traumatic event. Dr. Gedan diagnosed the employee with cervical myelopathy with unilateral central cord syndrome with spinal stenosis and signal changes at the C3-C4 level. Dr. Gedan agreed with Dr. Nagib that the proposed cervical fusion surgery was necessary and reasonable, but concluded that the procedure was unrelated to the September 2, 2015, work injury. Dr. Gedan declined to render any opinion about the employee’s elbow condition.

On August 16, 2017, the employee underwent cervical spine surgery performed by Dr. Nagib to address the observed stenosis. The employee continued to complain of the left elbow and arm symptoms following the surgery.

On November 1, 2017, Dr. Falconer issued an MMI determination, effective June 13, 2017, regarding the employee’s left elbow. Dr. Falconer assigned a 0% permanent partial disability rating to the employee’s condition.

The employee filed a claim petition seeking temporary total disability (TTD) benefits, rehabilitation services, and payment for medical care received, including the cervical fusion surgery. On November 16, 2017, the matter came on for hearing before a compensation judge. The employee was the only witness.

The judge found that the employee did not suffer an injury to his cervical spine on September 2, 2015, that the medical care received for the employee’s spinal condition did not arise from a work injury, and that the employee was not entitled to TTD or rehabilitation benefits. The judge also found that the employee reached MMI from the effects of the September 2, 2015, work injury on June 13, 2017, with notice effective November 2, 2017. 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.   MMI Determination

The compensation judge found that the September 2, 2015, work injury was the cause of the employee’s left elbow condition and subsequent work restrictions until the employee’s treating physician determined that the left elbow was at MMI on June 13, 2017. The employee disagrees and points to the record which shows continued left arm symptoms after June of 2017, contending that his condition had not stabilized at that time. In addition, the employee notes that Dr. Gedan declined to provide his medical opinion on the condition of employee’s elbow. The employee also contends that the standards set out in Minn. R. 5221.0410, subp. 3, were not considered by the doctor who made the decision. To that end, the employee maintains that the judge’s finding that the employee’s elbow was at MMI was premature.

Generally, when an employee requires additional treatment the employee is not yet at maximum medical improvement. Hamann v. Syngenta Corp., No. WC04-102 (W.C.C.A. Jun. 10, 2004); Walters v. Schult Home Corp., slip op. (W.C.C.A. Mar. 21, 1990); Sundquist v. Kaiser Engineers, Inc., 42 W.C.D. 1095, 1097 (W.C.C.A. 1989), rev’d in part on other grounds, 456 N.W.2d 86, 42 W.C.D. 1101 (Minn. 1990). However, this court has held that MMI can be reached notwithstanding the fact that the employee could experience further exacerbations of symptoms. Patterson v. Denny's Rest., 42 W.C.D. 868, 871 (W.C.C.A. 1989). Here, as in Patterson, there was a continued display of symptoms, which did not preclude a finding of MMI. As this court has stated:

MMI is not a purely medical conclusion but instead is a finding of ultimate fact to be based on a variety of factors, including, in addition to medical opinion, factors such as the history of improvement, current treatment, pre‑existing conditions, proposed treatment, vocational experts' statements, and testimony of the employee.[1]

The employee’s treating physician, Dr. Falconer, made the MMI determination based on the employee’s ongoing symptoms being non-dermatomal, the normal course of treatment having plateaued, and an alternative source of the employee’s symptoms having come to light. While the employee’s physician was considering a further procedure, this alone is not sufficient to demonstrate that the MMI determination was inappropriate. The employee’s medical record supports an inference that is not unreasonable: the employee was experiencing an overlay of symptoms between the effects of the September 2, 2015, work injury and the condition of the employee’s cervical spine. A conclusion further supported by the employee’s medical record is that the cervical spine condition was unrelated to, and did not arise from the September 2, 2015, work injury.

As previously stated, maximum medical improvement is an issue of fact to be decided by the compensation judge. Substantial evidence supports the judge’s ultimate conclusion that the employee had reached MMI for his left elbow on June 13, 2017.

2.   TTD and Rehabilitation Benefits

The employee was working with minimal restrictions at the time he was taken off of work pending cervical spine surgery. As discussed above, a reasonable inference from the employee’s complete medical record is that the employee’s cervical spine condition was independent of, and unrelated to, the September 2, 2015, work injury. As the employee’s disability from work and subsequent inability to resume his employment arose out of a condition found by the compensation judge to be unconnected to any work injury, the employee is not entitled to TTD benefits and is no longer a “qualified employee” eligible to receive rehabilitation benefits under Minn. R. 5220.0100, subp. 22.

3.   Expert Medical Opinion

The employee contends that the compensation judge erred in relying on the opinions of Dr. Gedan regarding causation and Dr. Falconer regarding MMI. The employee contends that the opinions of Drs. Niemi and Nagib were not understood by the compensation judge and failing to adopt their opinions constitutes error.

The compensation judge could have accepted the opinions of Drs. Niemi and Nagib, that the employee suffered an asymptomatic cervical spine injury as part of the September 2, 2015, work injury. Instead, the judge accepted the opinion of Dr. Gedan that there was no cervical injury and the employee’s symptoms arose from the employee’s preexisting cervical spine condition, which was not affected by the September 2, 2015, work injury.

Based on our review of the record, adequate foundation exists for Dr. Gedan’s opinion. See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978); Groetsch v. Kemp’s, LLC, 76 W.C.D. 775 (W.C.C.A. 2016), summarily aff’d (Minn. Oct. 3, 2016). The choice between adequately founded medical opinions is left to the discretion of the compensation judge. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985). The judge’s choice is supported by substantial evidence in the record as well as the reasonable inferences taken from that evidence to reach the ultimate finding that the employee did not sustain an injury to his cervical spine on September 2, 2015. As the compensation judge’s choice is supported by substantial evidence in the record and the inferences taken from that evidence are reasonable, we affirm the January 12, 2018, Findings and Order.

[1] Korthals v. McNeilus Truck Mfg., slip op. (W.C.C.A. May 19, 1991) (citing Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528‑29, 41 W.C.D. 634, 639 (Minn. 1989)); see also Mundy v. Am. Red Cross, slip op. (W.C.C.A. Aug. 29, 2000).