MARCH 6, 2018

No. WC17-6098

CAUSATION – PERMANENT INJURY. Substantial evidence, including expert medical opinion, medical records, and lay testimony, supported the finding that the employee’s work injury was permanent in nature.

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

Compensation Judge: Rolf G. Hagen

Attorneys: Russell G. Sundquist, Sundquist Law Firm, St. Paul, Minnesota, for the Respondent. Larry J. Peterson and Travis J. Adams, Peterson, Logren & Kilbury, P.A, St. Paul, Minnesota, for the Appellants.




The employer and insurer appeal the compensation judge’s finding that the employee sustained a permanent injury to his right knee as a result of a work injury on August 31, 2015, and from the compensation judge’s award of benefits. We affirm.


The parties agree the employee sustained a personal injury to his right knee on August 31, 2015, arising out of and in the course of his employment with Valley Paving, Inc. At the hearing, the parties disputed:

  1. the nature and extent of the injury;
  2. the employee’s wage on the date of injury and whether the employee had been underpaid benefits;
  3. whether the employee was entitled to past and continuing wage loss benefits;
  4. permanent partial disability; and
  5. entitlement to rehabilitation services.

Corey Miller, the employee, was 43 years old on the date of injury. He graduated from college in 2000 and for a number of years thereafter worked in temporary jobs as a teacher or teacher’s aide. In approximately 2010, he began working construction jobs and he started working for the employer, Valley Paving, in June 2015.

The employee worked as a laborer for Valley Paving. On the date of injury, the company was removing old concrete roadway so that new roadway surfacing could be applied. The employee was using a concrete saw to cut up the existing roadway. After the concrete was removed, the employee would use a hand shovel to locate powerlines. As he was doing so, the employee stepped backwards into a hole with his right foot and fell backwards. The employee felt immediate pain in his right knee. The employee was not able to finish working that day and went home. He sought medical attention the next day at Allina Clinic – Lakeville.

Before this work injury, the employee had a history of knee problems. He injured his right knee while playing football in high school. The employee testified that he fully recovered from this injury. He also had a left knee injury from playing football in college and was diagnosed with a lateral meniscus tear. A left knee arthroscopy with a lateral meniscectomy and debridement was done by Dr. David Gilchrist of St. Cloud Orthopedic Consultants in December 1994. In 2011, the employee was seen for left leg swelling and knee pain. Radiographic studies showed degenerative changes in his left knee.

On April 8, 2014, the employee went to Allina Clinic – Burnsville for an injury to his right knee while playing basketball “a few weeks ago.” (Ex. N.) The employee was referred to Dr. Joseph Nemanich at Twin Cities Orthopedics, who saw the employee on April 20, 2014. Dr. Nemanich took a history of ongoing left knee pain since he had it “scoped in 2000.” (Ex. L.) The employee also had right knee pain which he attributed to compensating for his left knee. With regard to the right knee, Dr. Nemanich concluded that the findings and symptoms were consistent with a medial meniscus tear. Treatment options were discussed with the employee, but no decision on treatment was made. Dr. Nemanich did not see the employee again until after his work injury in 2015.

The employee’s physical therapist referred him to Dr. Aimee Klapach at Sports and Orthopedic Specialists. He saw Dr. Klapach on May 23, 2014, with complaints of knee pain “right greater than left.” After examination and review of MRI scans, Dr. Klapach diagnosed “[r]ight knee medial meniscus tear” and “[r]ight knee ACL laxity.” (Ex. O.) Dr. Klapach recommended a medial meniscectomy for the right knee and total knee replacement for the left. No further treatment for either knee was provided before the work injury of August 2015.

At his initial visit after the injury, the employee reported stepping backwards into a hole and twisting his knee when he fell. Tenderness along the MCL on the right knee was noted. At a return visit a week later, no change was noted and the employee was given a referral for an orthopedic consultation.

The employer and its insurer accepted liability for the employee’s injury and began paying for medical expenses and wage loss benefits.

The employee saw a physician’s assistant at Twin Cities Orthopedics on September 8, 2015. An MRI scan was performed and was read as showing a tear of the medial meniscus. Dr. Nemanich met with the employee after the MRI results and, based on the failure of the employee to improve with conservative measures, a recommendation was made for a diagnostic arthroscopy with treatment as indicated by that procedure. The arthroscopic surgery was done on October 9, 2015, by Dr. Nemanich. Direct arthroscopic visualization during the procedure disclosed an extensive tear of the meniscus, chondral fraying on the posterior aspect of the lateral tibial plateau, and a mobile meniscal flap. After surgery the employee began physical therapy. He was off work for a time after surgery and then returned to light duty work with the employer, including cleaning equipment. His supervisor was Brent Carron, a vice president of the employer.

In return visits, Dr. Nemanich concluded the employee was not making desired progress from physical therapy. He took the employee off work and referred him to a work hardening program. The employee worked with qualified rehabilitation consultant (QRC) Pam Huber. In February 2016, it was noted by the occupational therapist that the employee had completed seven weeks of work hardening. Work restrictions which limited lifting and called for sedentary work for half of the work days were recommended. A functional capacities evaluation (FCE) was conducted in March 2016 which indicated the employee was not able to return to his pre-injury employment with the employer.

In April 2016, the employer offered the employee a position as a Project Manager’s Assistant, which the employee accepted. QRC Huber closed the employee’s rehabilitation file at that time. At the hearing, Brent Carron testified that the employee had a poor attitude and brought a “negative energy.” (T. 110.) Dustin Goranson, the employee’s direct supervisor in 2016, stated the employee had a negative attitude and terminated the employee because he “ran out of things to do to keep him busy.” (T. 120.)

After the employee was laid off at the end of July 2016, he was placed back on temporary total disability benefits and began working with a different QRC, Kaylene Kickhafer. The employee secured employment as a teacher for Dakota County CAP Agency in December 2016 at a substantial wage loss. He lost that job and found another job, this one as a substitute teacher for Teachers on Call, a private company. The employee was working in this position as of the date of hearing.

At the request of the employee’s attorney, Dr. Nemanich prepared a report dated May 13, 2016, in which he summarized his treatment of the employee and his opinion on causation. Dr. Nemanich attributed the employee’s right knee problems to the August 31, 2015, work injury and he provided a 2 percent permanent partial disability rating based on Minn. R. 5223.0510, subp. 3.B. He was also of the opinion that the limitations set out in the March 15, 2016, FCE were related to the work injury and would not allow the employee to return to his laboring work.

The employee was seen by Dr. Thomas Nelson for an independent medical examination (IME) on October 22, 2016. Dr. Nelson reviewed the employee’s medical records, the employee’s deposition, and surveillance video taken by an investigator on behalf of the employer and insurer. It was his opinion that the torn meniscus in the right knee was present before the August 31, 2015, work injury and that the work injury was a temporary aggravation of the employee’s pre-existing condition. No work restrictions or permanent partial disability were related to the work injury in Dr. Nelson’s opinion.

In a follow-up report of February 18, 2017, Dr. Nemanich noted that he had reviewed Dr. Nelson’s report and he reiterated his opinion that “the injury which occurred on [August 31, 2015,] was the cause of his current symptoms.” (Ex. I.) Dr. Nemanich stated that the symptoms might be an exacerbation but “his underlying problem had never been exacerbated to the point that he is currently at and where he is unable to return to his occupation.” (Id.)

Dr. Nelson provided a post-hearing deposition. Dr. Nelson amplified the opinions in his report, explaining why he thought the August 2015 work injury was temporary and did not affect the underlying structure of the employee’s knee. Dr. Nelson also reviewed the reports of Dr. Nemanich and stated that those reports did not change his opinion.

The hearing on the employee’s claims was held on April 20, 2017, before Compensation Judge Rolf Hagen. Testifying at the hearing were the employee, QRC Kickhafer, Brent Carron, and Dustin Goranson. The compensation judge issued his Findings and Order on July 18, 2017. He found the August 2015 work injury was a permanent injury to the right knee and awarded benefits based on that determination. The employer and insurer filed a timely appeal of the compensation judge’s decision.


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 employer and insurer have appealed the compensation judge’s finding that the August 2015 work injury resulted in permanent injury and from the compensation judge’s award of benefits.

1.     Credibility of the Employee

The central issue raised by the employer and insurer at the hearing and in this appeal is the credibility of the employee. In his Findings and Order, the compensation judge made a specific finding that he “found the hearing testimony of the employee to be credible.” (Finding 2.) Appellants contend in their brief that there is not substantial credible evidence to support this finding.

Appellants make three points in their allegation that the employee should not have been found credible. First, they argue the employee failed to disclose his prior knee injuries to his doctors and denied a prior injury under oath. Second, the employee failed to exhibit a cooperative attitude when he returned to work for the employer on a light duty basis. Third, surveillance video showed that the employee was capable of performing light duty work.

On the issue of the employee’s pre-existing knee problems, it is apparent that the employee had problems with his right knee before the work injury. We think it is significant that Dr. Nemanich, who concluded that the work injury was a permanent injury, had treated the employee for his knee problems in 2014 and was undeniably qualified to provide an opinion on this question. As to the employee’s attitude when he returned to his light duty job with the employer, the compensation judge heard the testimony of the employee’s supervisors and the employee. We note that it is not unusual for relations between injured workers and their employers to be fraught with difficulties and ill feelings on both sides. We see little relevance between an employee’s attitude to work and his overall credibility in the absence of any evidence specific to that issue. Finally, the appellants argue that the compensation judge failed to consider the surveillance video. We have held previously that it is not necessary for a compensation judge to comment on or discuss every piece of evidence. Engels v. City of Delano, 65 W.C.D. 497, 507 (W.C.C.A. 2005), summarily aff’d (Minn. June 29, 2005); Polzin v. Canterbury Park, WC12-5461 (W.C.C.A. Feb. 20, 2013). Despite the evidence and arguments of the employer and insurer, the compensation judge specifically found that the employee’s testimony was credible.

We have previously held that a compensation judge is in a unique position to consider the credibility of witnesses at a hearing and to weigh conflicting testimony. Tews v. George A. Hormel & Co., 430 N.W.2d 178, 180, 41 W.C.D. 410, 412 (Minn. 1988); Strohecker v. Mike’s Auto Repair & Tire, No. WC12-5437 (W.C.C.A. Aug. 7, 2012). Here, where there were differing conclusions that could be drawn from conflicting evidence we find no basis to reverse the compensation judge’s determination on credibility. We affirm the compensation judge on this issue.

2.     Permanent Injury

The compensation judge adopted the opinion of Dr. Nemanich and found that the employee sustained a permanent injury to his right knee as a result of the August 2015 injury. (Finding 13.) The appellants argue that in making this finding, the compensation judge failed to consider competent and substantial evidence. Specifically, they contend that the opinions of Dr. Nelson, were more persuasive and substantiated by the evidence than the opinions of Dr. Nemanich.

The primary dispute in this matter was whether the employee’s work injury was temporary and therefore any ongoing problems were the result of his pre-existing knee problems, or whether the work injury was permanent and was a substantial contributing factor in the employee’s current disability. The parties submitted medical records, testimony, and medical reports in support of their respective positions. The employee submitted the opinions of Dr. Nemanich and the employer and insurer submitted the opinions of Dr. Nelson.

Each of the doctors provided medical opinions in this matter and examined the employee, reviewed records of his care and treatment, and considered the opinions of the other medical expert. This amount of information is sufficient to establish foundation for providing a medical opinion. Scott v. Southview Chevrolet, 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn.1978); Parker v. Teamvantage Molding, 72 W.C.D. 559 (W.C.C.A. 2012).

Appellants attack Dr. Nemanich’s foundation because he relied upon the employee’s “discredited subjective reporting.” (Appellants’ brief at 13.) We have already affirmed the compensation judge’s finding that the employee was a credible witness and, accordingly, do not agree that the employee’s testimony as to his symptoms was “discredited.” Further, as we discussed previously, Dr. Nemanich was familiar with the employee’s earlier knee problems and was well-qualified to express an opinion on this issue.

It is a central function of a compensation judge to weigh competing medical opinions. We have held in a number of opinions that this court will generally accept the compensation judge’s decision based on the compensation judge’s choice of medical opinion where that opinion has adequate foundation. Smith v. Quebecor Printing, Inc., 63 W.C.D. 566, 573 (W.C.C.A. 2003), summarily aff’d (Minn. Aug. 15, 2003); Torgusson v. Lutheran Soc. Servs., 77 W.C.D. 143 (W.C.C.A. 2017).

3.     Wage

The parties agree that the employee was an apprentice on the date of the work injury. Under the statute, if an apprentice sustains a work injury resulting in compensable permanent partial disability, the employee is to be paid the maximum rate for temporary total disability benefits. Minn. Stat. § 176.101, subd. 6. The compensation judge found the employee’s injury resulted in 2 percent permanent partial disability based on the opinion of Dr. Nemanich. As a result, the compensation judge determined the employee’s wage to be $1,470.33, an amount which would result in the maximum benefit being paid to the employee for temporary total disability and temporary partial disability benefits. (Finding 15.) The only argument the appellants raise on this point in that the employee’s work injury was not permanent. We have affirmed the compensation judge’s decision in accepting the opinions of Dr. Nemanich and as a result the determination of the employee’s wages is affirmed as well.

The decision of the compensation judge is affirmed in all respects.