TYLER MORGAN, Employee/Appellant, v. MIDWEST SPECIALIZED TRANSP. and ADMIN. CLAIM SERV., INC., Employer-Insurer/Respondents, and BLUE CROSS BLUE SHIELD MN/BLUE PLUS, Intervenor.

The employee appeals the compensation judge’s findings and order denying the employee’s claim for penalties, attorney’s fees, wage loss, vocational rehabilitation, and medical benefits. As the compensation judge’s findings are supported by substantial evidence, we affirm.

Tyler Morgan, the employee, age 33, has a significant history of pre-existing knee injuries. (T. 103.) At the age of 17, he injured his right leg and right knee when it sustained a severed direct blow and was pinned between a wellhead pipe and a motorcycle. At the age of 23, he twisted his right knee and reported to his doctor at the Mayo Austin Clinic that his right knee had popped out of place more than 20 times. In July 2011, he twisted his right knee again and appeared to have torn the lateral meniscus. He underwent surgery. Two years later, he was in a motor vehicle accident and placed on long term narcotics. The employee twisted his left knee while getting out of a chair in November 2013 and reported to his doctor at Olmstead Medical Center that he had a recurring bilateral knee problem. He underwent surgery to the left knee in January 2014.

In June 2015, Midwest Specialized Transportation hired the employee as an over-the-road truck driver to secure materials and haul them in a flatbed truck throughout the Midwest. He was not required to load or unload the truck. On August 30, 2016, after checking in with the receiving department at his delivery destination, the employee slipped while climbing the metal steps leading up into the truck’s cab. The employee testified that he hit his right shin on the metal steps, struck his right knee on the steps, and struck his left knee on inside of the cab. He noticed immediate pain and swelling, but picked up another load and delivered it before going to the emergency room at Mayo Austin Hospital. The emergency doctor recorded as history that the employee struck his shin, six inches below his knee. No right or left knee injury is mentioned in the emergency room record.

The employee followed up on September 2, 2016, with David Paz, M.D., at Mayo-Austin. Dr. Paz noted that an emergency room x-ray showed no acute fracture in the tibia or fibula. He recorded that the employee slipped on the steps leading to the truck’s cab and landed on his right knee, but there was again no mention of a left knee injury. The impression was contusion of the right leg, right leg and knee pain and swelling, and right knee joint limitation of motion. Dr. Paz ordered an MRI and took the employee off work. The employee again sought emergency room care on September 4, 2016, complaining of right leg swelling and pain. The history taken on that date states that the employee struck his anterior shin on a step; the employee denied any other injury from the fall. Compartment syndrome was ruled out and the employee was released with crutches and an ACE wrap, and directed to follow up with his primary care provider.

The employee underwent an MRI of the right leg on September 8, 2016, which showed a “defect of the posterior horn of the lateral meniscus, which is presumably due to previous partial meniscectomy.” (Ex. 2.) There was also full thickness loss of articular cartilage of the lateral tibial plateau and near full thickness loss of lateral femoral condyle. The employee sought care with orthopedic surgeon Matthew J. Kirsch, M.D., who had performed his previous knee surgeries in 2011 and 2014.

As of September 22, 2016, the employee continued to complain of right knee and shin pain. Dr. Kirsch ordered another MRI scan which showed an increased signal within the posterior horn of the lateral meniscus suggesting a tear, and large fluid collection which was thought to represent a possible hematoma. Dr. Kirsch recommended that the employee undergo arthroscopic surgery in the nature of a partial lateral meniscectomy. The employee underwent surgery on October 24, 2016. The procedure was not a meniscectomy, but rather a right knee lateral compartment chondroplasty. The operative report showed that the meniscus was mostly normal and/or stable. The chondroplasty was immediately followed by drainage of the right tibial hematoma performed by a plastic surgeon.

A week after the surgery, the employee continued to complain of right knee pain and also reported a catching sensation in the left knee. Dr. Kirsch diagnosed moderate valgus degenerative arthritis in the right knee, a right anterior shin hematoma, and subjective painful mechanical painful clicking in the left knee, etiology unknown. He ordered a cortisone injection and physical therapy. The employee continued to complain of buckling with increasing frequency, and daily giving way with frequent falls and locking after prolonged flexion.

In December 2017, the employee met with a QRC who determined that he was a qualified employee for purposes of vocational rehabilitation services. After a release to return to work by Dr. Kirsch, the employee returned to work on January 12, 2017, in a dry van position at reduced pay. The employer and insurer paid temporary partial disability (“TPD”) benefits. Three months later, the employee continued to have knee buckling. On April 12, 2017, Dr. Kirsch restricted the employee to sedentary work. Because the employer could not accommodate this proposed restriction, the employee stopped working on April 16, 2017. The employer and insurer filed a notice of intention to discontinue TPD benefits on April 19, 2017. (App. Brief at 15).

The employer and insurer retained medical expert Edward Szalapski, M.D., an orthopedic surgeon, who examined the employee on May 2, 2017. Dr. Szalapski reviewed medical records and took a history from the employee. In his report of May 24, 2017, Dr. Szalapski diagnosed the employee with osteoarthritis of both knees with a hematoma over the proximal tibia which had been drained and resolved. He concluded that the medical records did not support any injury to the knees on August 30, 2016, but that the records did support a diagnosis of a hematoma of the anterior right leg as a result of the August 30, 2016, injury. He opined that the bilateral knee osteoarthritis was not caused by the fall in August 2016. Explaining the basis for his causation opinion, Dr. Szalapski noted both the employee’s previous knee surgeries and the employee’s obesity^[1] as the cause of a pre-existing osteoarthritis. He explained that the August 2016 injury, as described by the employee, was not capable of generating arthritis. He opined that the employee’s arthroscopic knee surgery was not reasonable and necessary. He observed that when the employee underwent the arthroscopy, there were no acute findings in the knee to suggest any recent injury. Dr. Szalapski concluded that the employee could drive a truck, but not load and unload, and that he was limited to walking 300 feet without stopping to rest.

After the employee stopped working for the employer on April 16, 2017, he did not look for work. He testified that he applied for and received social security disability income and that he would lose his social security benefits if he returned to work.

The employee filed a claim petition on May 17, 2017, seeking vocational rehabilitation, medical and wage loss benefits, and penalties. The matter was heard on April 6, 2018. Following the hearing, the compensation judge found that the employee’s work injury resolved no later than November 30, 2016, with no ongoing restrictions. The compensation judge denied the employee’s claims for temporary total disability (“TTD”) benefits, penalties, contested medical expenses, additional vocational rehabilitation services, and for approval of a further MRI scan. 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 resulted in a temporary hematoma and, at most, a mild and temporary aggravation of his right knee condition, both of which resolved no later than November 30, 2016, with no ongoing restrictions. Accordingly, the compensation judge denied the employee’s claims for TTD, beginning April 17, 2017; for penalties for the employer and insurer’s failure to initiate payment of TTD benefits from April 17, 2017; for contested medical expenses; for additional vocational rehabilitation services; and for approval of a further MRI scan.

The compensation judge explained that she found the employee’s testimony regarding the severity of his knee symptoms before and after the August 30, 2016, injury less than credible in light of the information contained in his medical records and his lack of candor regarding his prior injuries and medical conditions. She further explained that the medical records, including the emergency records from the day of the accident, made no mention of either knee. She adopted Dr. Szalapski’s opinion that the employee’s obesity and prior lateral meniscectomy virtually ensured he would develop arthritis in his right knee. She also observed that neither the employee’s orthopedic surgeon, Dr. Kirsch, nor any other medical expert, had issued a report or other analysis contradicting Dr. Szalapski’s conclusions.

On appeal, the employee argues that the compensation judge erred both in accepting the opinion of Dr. Szalapski and in concluding that the employee did not offer an expert medical opinion in support of his claims. He argues that the treating physician had “intimated” throughout the medical records that the employee’s knee condition was a consequence of the August 30, 2016, injury. The employee further argues that judge erred in finding that the employee had no restrictions from the work injury and that the contested medical care and treatment was not causally related to the work injury. Finally, he argues that the judge erred in denying penalties against the employer for failure to pay wage loss benefits after the employer could no longer accommodate the employee’s restrictions.

A significant factor underlying many of the judge’s conclusions was the judge’s determination that the employee’s testimony about the nature of his injury was not credible. The assessment of witness credibility is for the finder of fact, and this court will not reverse a credibility determination on appeal absent exceptional circumstances. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).

After reviewing the evidence in this case, we conclude that the judge could reasonably conclude that the employee was less than credible. The employee testified that he had injured both knees on August 30, 2016, yet the medical record on the day of the accident made no mention of a bilateral knee injury. The first time a left knee injury is mentioned in the medical records was after the employee’s October 2016 right knee surgery. Furthermore, Dr. Szalapski wrote that “if one reads through the physical therapy notes or the clinic notes with the doctor’s comment, at no time did they describe the patient to demonstrate as much difficulty walking and weight bearing as he demonstrated in my clinic at the time of this examination, and this raises the specter of symptom amplification.” (Ex. 1.) We note, further, that the employee testified that he had little recollection of the previous injuries or resulting knee surgeries, yet he was able to remember in detail the August 30, 2016, injury. (T. 103.)

A trier of fact’s choice between conflicting expert opinions is usually upheld, unless the expert’s opinion is based on facts not supported by the evidence and so long as there is sufficient foundation for the expert’s opinion. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Based on the evidence, we cannot conclude that the compensation judge erred in adopting Dr. Szalapski’s medical conclusions that the employee did not injure his knees on August 30, 2016, that his surgery was not reasonable and necessary, and that he could return to work with restrictions unrelated to the work injury.

Dr. Szalapski reviewed medical records and the employee’s history, and conducted an examination of the employee. This is generally sufficient to provide an adequate foundation for an expert medical opinion. Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 77 W.C.D. 117 (Minn. 2017). We note, also, that the employee made no foundational objection to Dr. Szalapski’s report at the hearing. The record offers little beyond the employee’s testimony to support his claim that the August 30, 2016, injury was a substantial contributing factor to his bilateral knee problems. The employee argues that a causal connection was “intimated” throughout the medical records. It was the employee’s burden to prove his claim by a preponderance of the evidence. Minn. Stat. § 176.021, subd. 1. The relative weight to be given to each part of the evidence is a matter for the compensation judge. The compensation judge accepted Dr. Szalapski’s expert opinion, and was not required to reach a contrary conclusion based on any alleged “intimations” of causation in the medical records. As Dr. Szalapski’s opinion was well founded and supported by the record, it was reasonable for the compensation judge to adopt his opinion.

Finally, the employee argues that the judge erred in denying both his claim for TTD benefits and his claim for penalties associated with what he contends was a frivolous denial of payment for the claimed TTD benefits beginning on April 17, 2017, after the employer could not accommodate the employee’s sedentary restrictions.

As we have noted above, however, the compensation judge accepted the opinion of Dr. Szalapski and found that the employee had no restrictions due to the work injury after November 30, 2016, at the latest. This finding resulted in the denial of the employee’s claim for TTD benefits after April 16, 2017.

The employee had claimed penalties pursuant to Minn. Stat. § 176.225, subd. 5, which imposes a penalty of 25 percent where the employer and insurer are “guilty of inexcusable delay in making payments” by failing to initiate payment of TTD benefits when the employee stopped working for the employer. When an employer has commenced payment of benefits, the employer may not discontinue payment of compensation until it provides the employee with notice in writing of its intention to do so. Minn. Stat. § 176.238. Here, the employer complied with the statute in notifying the employee of its intention to discontinue benefits. We note, also, that the judge found that the employee was not entitled to the disputed benefits. Where there is no evidence of inexcusable delay in making payment, and where the record supports the judge’s denial of the employee’s claims, we conclude that the judge did not err in finding that the employee was not entitled to penalties.

The compensation judge’s Findings and Order is affirmed in all respects.