MAY 3, 2018

No. WC17-6088

PRACTICE & PROCEDURE – ESTOPPEL. In the absence of prejudice to the employee from the employer and insurer’s initial acceptance of her claim and payment of benefits, there is no basis to estop the employer and insurer from subsequently asserting a primary liability defense predicated on a mistake of fact.

PRACTICE & PROCEDURE – EXPEDITED HEARING. The employer and insurer were not limited to the filing of either a NOID or a petition to discontinue, nor were they required to combine different grounds for the discontinuance of various benefits into one request. The failure to raise their primary liability defense at an expedited hearing resulting from an NOID seeking discontinuance of temporary total disability compensation on the basis of attainment of maximum medical improvement did not result in the waiver of that defense in a subsequent hearing.

EVIDENCE – EXPERT MEDICAL OPINION. The compensation judge did not err in relying on the expert medical opinion despite a foundational objection where the compensation judge could reasonably conclude that that there was an adequate factual foundation for the expert’s opinion.

    Determined by:
  1. Gary M. Hall, Judge
  2. David A. Stofferahn, Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge: Miriam P. Rykken

Attorneys: Mark Rodgers and James H. Perkett, Rodgers Law Office, P.L.L.C., Bemidji, Minnesota, for the Appellant. Edward Q. Cassidy and Ashley R. Thronson, Fredrikson & Byron, P.A., Minneapolis, Minnesota, for the Respondents.




The employee appeals from the compensation judge’s finding that the employee had not sustained a work-related injury. We affirm.


The employee was hired by the employer’s predecessor, Hillcrest Nursing, in 1977 as a nurse’s aide. In 1986, the employer purchased Hillcrest and the employee initially continued working as a nursing aide and activity assistant until 1993, when she transferred into a job as an activity assistant, working with residents to do games and exercises and taking them on outings. From 2008 until late in 2011, the employee worked for the employer as a nursing assistant and as a medical records clerk. The history of the employee’s days scheduled in these various positions shows that between 2003 and the end of 2011 the employee was generally scheduled to work six days every two weeks, but also remained on call for other work, and the employee testified that she did pick up some additional shifts from time to time, filling in for other employees who were absent.

In December 2011, she transferred to a position as a supply chain clerk. This job involved loading medical supplies onto a cart from a central storeroom and using the cart to deliver them to various departments and storage locations in a hospital setting. The employee testified that the heaviest supplies she had to lift in this job were IV fluids, weighing from 37 to 50 pounds, and cases of copy paper, which she estimated at 50 pounds. The employee was initially scheduled to work in this position six days every two weeks. She also continued on call to pick up shifts as a nursing assistant. Starting in December 2013, the employee was regularly scheduled to work eight days every two weeks in her supply clerk position.

From 2008 to 2012 the employee also worked at a taco stand on weekends during the summer as part of a family business. She has also helped her husband operate a taco truck until about 2016, sometimes taking time off from work to do so during the summer season.

On or about January 25, 2016, the employee and several co-workers were assigned an additional project to “redo” the storage room. This project included taking all the supplies off the shelves, dismantling and replacing shelving, and then putting the supplies back on the new shelving. The project lasted three weeks and was performed in addition to the employees’ normal work activities. The employee was given the option to work full-time during this project, and did so during the first two weeks of the project. She testified that because she was feeling stiff and exhausted from the extra work, she chose to return to her four day per week schedule for the third week.

The employee was not scheduled to work on Friday, February 12, 2016. She awoke at home that morning in bed noting that her left arm was raised overhead and that it felt numb. On pulling it down with her other hand she felt an onset of pain in the left shoulder. The pain worsened as the day progressed and she went to the hospital where she was seen by Dr. Olatubosun Fashoro in the emergency department with complaints of excruciating pain near the left scapula. The employee was asked about her recent activities; she responded that “she had been performing repetitive tasks in the form of overhead movements moving heavy boxes at work for the past week or so. She however did not have pain at the time.”[1]

The employee was referred to physical therapy. At her initial physical therapy evaluation, the physical therapist recorded that the employee “Woke the morning of the 12th in severe pain.” She summarized the history of the employee’s functional status as follows: “Before injury: Prior to 2 weeks ago [the employee] was working having no problems. After injury: Unable to work, severe pain, left arm numbness, left hand numb into the last 2 fingers.”[2]

The employee underwent an MRI of the cervical spine on February 18, 2016. It showed a large ruptured disc on the left at C7-T1 with left C8 nerve root compression. Dr. Fashoro referred the employee to Dr. Sunny Kim at Tristate Brain and Spine Institute. Dr. Kim saw the employee on February 25, 2016. He recorded as history that “she woke up with these symptoms” and had since been unable to work due to pain and weakness. He recommended emergency surgery in the form of a decompression and fusion at C7-T1 with cage and instrumentation. The employee underwent the recommended surgery on February 26, 2016.

On March 17, 2016, the employee filed a first report of injury claiming an injury at work on or about January 25, 2016. On March 18, 2016, the employer and insurer served a notice of primary liability determination accepting the claim, and began paying wage loss benefits and medical expenses.

The employee did not progress as expected after surgery and by early June 2016 was diagnosed with reflex sympathetic dystrophy or complex regional pain syndrome (“CRPS”) in the left hand. She was also treated for depression and generalized anxiety disorder. She saw another neurosurgeon at Tri State Brain and Spine Institute for a second opinion, who recommended a stellate ganglion block and possible further surgery. Dr. Kim subsequently recommended that the employee undergo an anterior and posterior cervical fusion from C4 to T2.

On September 30, 2016, the employee underwent an examination on behalf of the employer and insurer by Dr. Eric Deal, who concluded that the employee had sustained an idiopathic injury unrelated to her work for the employer and her condition was instead a direct consequence of an underlying pre-existing degenerative disc disease. On October 26, 2016, the employer and insurer filed a Petition to Discontinue workers’ compensation benefits based on a defense of no primary liability and payment under a mistake of fact.

Dr. Deal also opined that the employee would reach maximum medical improvement (“MMI”) one year postoperative to the February 26, 2016, surgery. On January 26, 2017, the employer and insurer filed a notice of intent to discontinue temporary total disability compensation (“NOID”) on the basis of MMI. The employee objected to the NOID and the issue of MMI was determined following a separate expedited hearing before another compensation judge on March 6, 2017. The findings from that hearing are not at issue in this appeal.

A hearing was held on May 19, 2017, on the Petition to Discontinue. The employee’s attorney objected to the hearing on procedural grounds and on the basis that it would be unfair to determine primary liability and causation at an expedited hearing. The employee’s attorney also sought leave to supplement the record with further medical opinion evidence. The judge ruled, over the employee’s objection, that as both sides had submitted very recent medical reports, the record would not remain open for further responsive medical reports from either side. The judge determined the issue of causation, accepting the opinion of Dr. Deal and finding that the employee had not sustained a work-related injury. 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.   Procedural Objections

The employee argues on appeal that the employer and insurer, having initiated payment of benefits, were not entitled to raise their primary liability defense at the expedited hearing held on their Petition to Discontinue.

Minn. Stat. § 176.221, subd. 1, requires that payment of compensation be commenced within narrow time limits, but provides that “[c]ommencement of payment by an employer or insurer does not waive any rights to any defense the employer has on any claim or incident either with respect to the compensability of the claim under this chapter or the amount of compensation due.” In Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988), the supreme court held that consideration of primary liability in an expedited discontinuance proceeding is not constitutionally improper so long as the opposing party has reasonable notice. In the present case, the hearing took place more than six months after the service of the Petition to Discontinue. We conclude that the employee had ample notice of the primary liability issue and ample opportunity to prepare for the hearing.

The employee, however, argues that the employer should have been barred from raising its primary liability defense in the hearing on its Petition to Discontinue because it had not raised that issue at the expedited hearing held before another judge on March 6, 2017, on the issue of MMI as raised by the NOID filed on January 26, 2017. We note, however, that Minn. Stat. § 176.238, subd. 6, limits the scope of an expedited hearing on discontinuance to the issues raised by the notice which originated the hearing, absent agreement by the parties to expand the issues. Since the issue of primary liability was not raised in the NOID, it could not be addressed at the expedited hearing on the NOID.

The employee seems to further contend that the issues of primary liability and of MMI were required to be combined into one pleading. The language of Minn. Stat. § 176.238 provides various options that an employer and insurer may use in asserting a basis to discontinue benefits. Nothing in that statute indicates that these options are mutually exclusive or that all potential bases for discontinuance must be combined into one claim. We note, in addition, that Dr. Deal’s opinion was that MMI would be attained one year following the employee’s surgery; that point in time was still several months in the future when the employer and insurer filed their Petition to Discontinue on the basis of primary liability. Even if we were to conclude that multiple grounds for discontinuance should, where feasible, be combined into one NOID or petition to discontinue, multiple grounds for discontinuance were not yet present when the employer and insurer filed their Petition to Discontinue in this case.

We see no basis in the procedural posture of this case to overturn the compensation judge’s determination of the primary liability issue presented at the hearing below.

The employee contends, however, that even if there was no procedural error in the manner in which the issue of primary liability was raised, the employer and insurer should be estopped from doing so because the employee would be unduly prejudiced under the specific facts of the case. The doctrine of equitable estoppel may be invoked “to prevent a party from taking unconscionable advantage of [its] own wrong by asserting [its] strict legal rights.” Northern Petrochemical Co. v. U.S. Fire Ins. Co., 277 N.W.2d 408, 410 (Minn. 1979). As a general rule, estoppel does not apply to bar an employer and insurer that had voluntarily paid benefits from changing their position and asserting defenses to continuing liability. See, e.g., Kingbird v. Anderson Fabrics, 63 W.C.D. 237 (W.C.C.A. 2002), summarily aff’d (Minn. Mar. 27, 2003); Ouelette v. Wal-Mart Stores, Inc., 75 W.C.D. 135 (W.C.C.A. 2014).

The employee argues that the facts of this case constitute an exception to the general rule. Specifically, the employee asserts that she sustained further injury consequential to her surgery, and that this case accordingly presents the issue of “whether an Employer should be permitted to cover an employee’s surgery and associated medical treatment and then when it comes to light that the Employee may have sustained a consequential injury as a result of said medical treatment, subsequently contest primary liability based on a mistake of fact defense before a compensation judge in an attempt to absolve itself of any liability.” (Employee’s brief at 17).

The employee’s argument is, essentially, that she might not have undergone the surgery performed by Dr. Kim but for the fact that the respondents accepted liability for the injury and her medical expenses, and thus the employer and insurer should be liable for any disability and expenses arising from that surgery, regardless of their liability for the underlying injury. The employee cites no case approving this theory of liability on similar facts, although she does cite and attempt to distinguish Davis v. Bio Co., Inc., 75 W.C.D. 143 (W.C.C.A. 2015), a case in which an analogous theory was rejected where the likelihood that the employee would have avoided a consequential injury was deemed too speculative.[3]

We note, in any event, that the employee had the surgery recommended by Dr. Kim on an emergency basis on February 26, 2016, but that she first provided notice of injury to the respondents on March 17, 2016, and that they did not accept liability for her claim until March 18, 2016. There is no evidence that the employee’s decision to undergo the surgery recommended by Dr. Kim was affected by the subsequent decision by the employer and insurer to retroactively cover its costs. Thus we need not determine whether the consequential effects of the employee’s surgery could support an estoppel of the denial of liability, as there is insufficient evidence here to support a causal link between the respondents’ initial acceptance of liability and the occurrence of the employee’s alleged consequential injury.

The employee claims she was also prejudiced because the limited scope of the expedited hearing resulted in the judge determining primary liability for the underlying alleged work injury without taking the employee’s alleged consequential injury claim into consideration. However, since a consequential injury claim is derivative of the existence of an underlying work injury, we fail to see any prejudice to the employee. Determining whether there was an underlying work injury necessarily preceded any determination whether there was or was not an additional consequential injury, whether those issues were determined in one or in multiple hearings. The judge’s finding that the employee did not sustain the underlying work injury precludes a consequential injury claim. There is no prejudice to the employee in the fact that she cannot now seek to pursue a claim which necessarily rests on proof of the underlying work injury that the judge found had not occurred.

The employee also argues that this case is distinguishable from other cases where an employer and insurer were permitted to offer a primary liability defense after an initial payment of benefits, in that the payments made in error here were extensive. The employee received over a year of benefits to which she has now been found not to have been entitled, as well as extensive payments for medical expenses; since this situation can hardly be considered prejudicial to the employee, the greater than usual extent of the payments hardly constitutes a distinction that favors departing from the general rule that an employer and insurer who initially pay benefits are not estopped from denying liability on grounds of primary liability.

Finally, the employee argues that the judge erred in allowing into evidence a supplementary report of Dr. Deal which had been provided only a short time prior to the hearing, without leaving the record open for the employee to elicit and submit a response from the employee’s physicians. Generally, evidentiary rulings are in the sound discretion of the compensation judge. The question presented here is whether the compensation judge abused her discretion in her decision not to keep the record open for further responses. "A compensation judge is given broad latitude in conducting a hearing and in the admission of evidence in order to assure that justice and fairness prevail." Murphy v. Keebler Co., 45 W.C.D. 356, 358 (W.C.C.A. 1991). Minn. Stat. § 176.411, subd. 1, provides, in relevant part, that:

[W]hen a compensation judge . . . conducts a hearing, the compensation judge is bound neither by the common law or statutory rules of evidence nor by technical or formal rules of pleading or procedure. Hearsay evidence which is reliable is admissible. The . . . hearing shall be conducted in a manner to ascertain the substantial rights of the parties.

See Minn. R. 1415.2900, subp. 6.A. Here, the record discloses that a very recent medical report from one of the employee’s experts had been similarly admitted, and the record as a whole also reveals that there were sufficient medical opinions in evidence to support the both sides’ underlying positions on the issue of causation and the existence of a work injury. The judge reasonably determined that under these circumstances any further evidence would be merely cumulative. In our view, the judge’s ruling denying the request to leave the record open was not an abuse of discretion.

2.   Foundation for the Opinion of Dr. Deal

The compensation judge expressly accepted the expert medical opinion of Dr. Deal that the employee’s injury was unrelated to her job with the employer. This court will generally affirm a compensation judge’s findings of fact based on the choice between expert opinions, “so long as the accepted opinion has adequate foundation.” Smith v. Quebecor Printing, Inc., 63 W.C.D. 566, 573 (W.C.C.A. 2003) (citing Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985)), summarily aff’d (Minn. Aug. 15, 2003).

We note that Dr. Deal took the employee’s medical history, performed an examination, and reviewed the employee’s medical records. This level of knowledge is generally sufficient to afford foundation for a doctor to render an expert medical opinion. See Caizzo v. McDonald’s, 65 W.C.D. 378, 382 (W.C.C.A. 2005). The adequacy of foundation for an expert opinion is a decision within the discretion of the trial judge, subject to review for abuse of discretion. See Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760-61 (Minn. 1998).

The employee objected at the hearing to the opinion of Dr. Deal on foundation grounds and argues on appeal that the compensation judge erred in considering the opinion adequately founded and in relying on it. Specifically, the employee disagrees with Dr. Deal’s characterization of her job as being “not laborious” and not involving significant manual labor. In addition, the employee notes that there was a clarification at the hearing that the employee’s work schedule as provided to Dr. Deal did not entirely reflect all of her hours worked, in that she occasionally picked up on-call shifts for absent workers. The employee points out that Dr. Deal likely was not aware of this point, and that he may therefore have underestimated the amount of hours she worked.

With respect to the disagreement over whether the employee’s job was laborious, Dr. Deal relied both on the employer’s job description and on the employee’s own description of her duties to him at his medical evaluation. The question whether the employee’s job duties are fairly characterized as laborious is more a question of semantics and interpretation than of one of a lack of sufficient information about the duties.

Although Dr. Deal might have been unaware that the employee worked slightly more hours than were reflected in her schedule, the compensation judge could reasonably conclude that any discrepancy due to her working an occasional additional shift was minor at best, and does not significantly change the assumptions on which Dr. Deal relied, as the employee in any event still normally worked an essentially part-time schedule.

We conclude that the compensation judge reasonably relied on the opinion of Dr. Deal and accordingly affirm her findings denying a work injury, which were based on substantial evidence in the record as a whole, including not only Dr. Deal’s opinion, but also the employee’s medical records and testimony.

[1] Ex. J., February 12, 2016, emergency department provider notes.

[2] Ex. J., March 16, 2016, physical therapy initial evaluation.

[3] In Davis, the employee argued that the employer and insurer should be estopped from denying primary liability for what the compensation judge found to be a non-work-related ganglionic cyst, claiming that but for their initial acceptance of her claim and their approval of a surgical procedure to remove the cyst, she might have decided to stop working for the employer and her arm condition might have improved.