EMAD ABED, Employee/Appellant, v. ERA VENTURE CAPITAL and AMTRUST GROUP, Employer-Insurer/Respondents, and NORAN NEUROLOGICAL CLINIC, P.A., CTR. FOR DIAGNOSTIC IMAGING, and UCARE, Intervenors.

The employee appeals the compensation judge’s denial of his claims based on findings that the employee had not sustained injuries to his neck or low back as a result of his February 25, 2017, work injury, and that the admitted right foot and ankle work injury had resolved. We affirm.

On February 25, 2017, Emad Abed, the employee, was injured when he either fell off a stool or his foot slipped off of a stool rung while working at a Budget Rent a Car franchise which he owned through ERA Venture Capital, the employer. The employee treated for the injury a few days after the incident and reported right foot pain, and did not report that he had fallen to the ground. The employee testified that he began to feel pain in his neck and low back a few days after that appointment, and he reported pain in his neck, low back, right heel, and right elbow in March 2017. The employee filed a claim petition listing injuries to his neck, low back, right elbow, and right foot and claiming temporary total disability benefits, medical expenses, and rehabilitation services. The employer’s workers’ compensation insurer admitted primary liability for the employee’s right foot and ankle injury but disputed the nature and extent of that injury. The employer and insurer denied liability for injuries claimed to the employee’s right elbow, neck, and low back.

The employee had previously claimed multiple injuries after a 2007 non-work-related incident on an airport escalator, including injuries to his neck, shoulders, arms, low back, and numbness in his anterior thighs. A December 2007 cervical spine MRI indicated a non-compressive central disc herniation at C2-3, multilevel degenerative disc disease with foraminal stenosis at C4-5 and C5-6, as well as posterior osteophytic ridging and hypermobility at C5-6. The employee was also diagnosed with a spinal myoligamentous strain injury and meralgia paresthetica.^[1] In May 2011, another cervical spine MRI showed spondylosis at multiple levels, disc space narrowing at C5-6, mild central stenosis at C4-5 and C5-6 with mild right ventral cord flattening, mild central canal stenosis at C3-4, and moderate right foraminal stenosis at C4-5 and bilaterally at C5-6. In September 2011, another cervical spine MRI showed left/central osteophyte or herniated disc with foraminal root compression at C5-6 and a smaller left central herniated disc at C4-5, as well as severe degenerative disc disease at C5-6. A C1-2 fixation and fusion, C4-5 and C5-6 discectomies, partial corpectomy, interbody fusion, and cage stabilization was recommended. The employee filed a lawsuit against the airport as a result of these injuries. His claims were dismissed on summary judgment in 2011, which was affirmed by the Minnesota Court of Appeals in 2012.^[2] The employee did not undergo the recommended surgery and did not seek further treatment until 2014 when he had a pulmonary vein isolation procedure and afterwards had symptoms of burning numbness over the anterolateral aspect of both thighs, which was diagnosed as bilateral femoral neuropathies.

After the February 25, 2017, work injury, the employee saw Dr. Paul Dworak at Twin Cities Orthopedics Urgent Care on February 27, 2017. The employee reported right foot pain, reporting that his foot had struck a bar on a chair as he was stepping off. X-rays of his foot were taken and numbness was noted in distribution of the posterior tibial nerve. Dr. Dworak opined that the employee’s condition should resolve in two to three weeks. The employee treated with Arlen Lieberman, D.C., at Advanced Medical of Twin Cities, P.C., on March 6, 2017. The employee reported low back pain and right-sided neck, elbow, and heel pain after he fell off of a high stool. Dr. Lieberman noted bilateral leg numbness, recommended treatment three times per week for four weeks, and took the employee off work. He released the employee to return to work with restrictions for four hours per day on June 23, 2017.

Dr. Ryan Pfannenstein treated the employee for his right foot injury on May 2, 2017, at HealthPartners Foot & Ankle Clinic. The employee stated that he had injured his right foot when he fell off a chair, landing on his back and foot, and reported pain and numbness. Dr. Pfannenstein assessed tarsal tunnel syndrome and ordered an MRI scan. The May 11, 2017, MRI scan of the right foot showed no abnormality of the tarsal tunnel but did show mild venous varicosities, which could contribute to the employee’s nerve sensations. On May 17, 2017, Dr. Pfannenstein referred the employee for a neurology consultation and took the employee off work pending that appointment.

On June 13, 2017, the employee underwent an independent medical examination (IME) with Dr. Mark Friedland, and reported that he had fallen off of a stool onto his back and hit his head, back, and right foot. Dr. Friedland diagnosed a right ankle contusion and/or tendon strain injury, minimal age-appropriate cervical degenerative disc disease and lumbar facet arthropathy, diabetes, morbid obesity, meralgia paresthetica due to morbid obesity, and complaints of right elbow pain, and opined that the employee had not sustained injuries to his neck, low back, or right elbow, and that his right foot and ankle injury had resolved. He noted that the lack of reported symptoms to the neck, low back, and right elbow when the employee was treated in February 2017 was inconsistent with any such injuries occurring at that time. He further noted that a pain diagram from March 2017 indicated that the employee had pain over his entire body, not just the body parts listed.

The employee was evaluated by Dr. Fred Lux at Noran Neurological Clinic at Dr. Pfannenstein’s referral. Dr. Lux ordered an MRI scan of the cervical spine which was performed on September 17, 2017. Dr. Lux interpreted this scan as showing radiological changes from the time of the 2011 MRI scan, including development of C3-4 disc extrusion with increased spondylosis at C4-5 and mildly increased spondylosis at C5-6. A September 27, 2017, EMG indicated a normal study for the right arm and leg. In October 2017, Dr. Lux recommended physical therapy for the employee’s neck, arm, and low back pain. In a November 10, 2017, report, Dr. Lux noted the employee’s reported symptoms of pain in his neck, back, bilateral legs, right foot, and right elbow, and stated that it was his understanding that there had been no similar complaints before the February 2017 injury. He also stated that the structural changes shown in the cervical spine MRI played a bigger role in the employee’s present condition. Dr. Lux opined that the employee had chronic pain from the 2007 incident that could have been aggravated by the fall in 2017 and that the employee’s condition was chronic, “but the fall injury . . . could have exacerbated [his] structural condition and affect his ability to function.” (Ex. D.) Dr. Lux concluded that the employee’s work injury caused his present condition, or was at least a substantial contributing factor, and referred the employee to Dr. Stefano Sinicropi for a surgical consultation.

Dr. Sinicropi saw the employee on January 12, 2018, and diagnosed significant multilevel spinal cord impingements at C3-6 with cervical myelopathy. He recommended an anterior cervical decompression and fusion at C3-6 and partial inferior corpectomies at C3-5. Dr. Friedland responded to this recommendation, stating that the surgery was not reasonable or necessary regardless of cause. He reviewed the September 17, 2017, MRI scan and found that the changes were consistent with the expected natural progression of multilevel cervical degenerative disc disease identified on the 2007 and 2011 MRI scans. Dr. Friedland also reviewed Dr. Sinicropi’s surgical recommendation. He concluded these records did not change his opinion regarding the employee’s condition.

In a report dated May 31, 2018, Dr. Sinicropi noted that the employee had been treated for the 2007 injury and that there were reports of ongoing neck and low back symptoms. He also noted that the employee had new pathology after the work injury when compared to the 2011 MRI scan and opined that the employee had sustained a significant injury to his cervical spine as a result of the 2017 work injury. Dr. Sinicropi stated he was “unaware of any injuries other than the February 25, 2017 injury while working for Budget Car Rental, and that it is my understanding that he was not having neck or low back problems when the work injury occurred.” (Ex. C.)

The employer and insurer filed a notice of intention to discontinue benefits and a rehabilitation request to terminate rehabilitation benefits, which were both granted in July 2017. The employee objected to the discontinuance of benefits and filed a request for formal hearing, various medical requests, and an amended claim petition for approval of anterior cervical decompression and fusion surgery at C3-6. These matters were consolidated and heard on June 5, 2018. In her Findings and Order, the compensation judge adopted Dr. Friedland’s opinion and found that the employee did not sustain injuries to his neck or low back and that his admitted right foot and ankle injury had resolved. 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).

In determining the employee failed to prove he sustained a work-related injury to his low back and neck and failed to prove that his admitted right foot and ankle injury had not resolved, the compensation judge found the employee’s testimony was inconsistent with the medical treatment records in evidence, his testimony was not credible, and the expert medical opinion of Dr. Friedland was more persuasive than the opinions of Drs. Lux and Sinicropi. The employee argues the compensation judge erred by rejecting the opinion of Dr. Sinicropi, asserting his opinion is supported by adequate foundation. While the compensation judge did not make a finding that Dr. Sinicropi’s opinion lacked foundation, the employee claims that the compensation judge implicitly found that Dr. Sinicropi lacked requisite foundation to render a medical opinion by erroneously concluding that Dr. Sinicropi was unaware of the employee’s 2007 injuries.

The employee argues that Dr. Sinicropi’s opinion cannot be considered to lack foundation because he had reviewed Dr. Friedland’s report which outlined the employee’s previous low back injuries and treatment, citing Kness v. Kwik Trip, 77 W.C.D. 733 (W.C.C.A. 2017). In that case, the employee argued that the compensation judge had erred by rejecting a doctor’s opinion for lack of foundation and that the matter should be vacated and remanded. The court concluded that the doctor, who had reviewed an IME report which listed the employee’s history of low back problems, had adequate foundation for a medical opinion. The court, however, did not vacate and remand on that basis. Similar to this case, the Kness court noted that the compensation judge had not found that the doctor’s opinion lacked foundation, but had relied on another doctor’s opinion and other medical evidence to support the finding that the employee’s injury in that case had resolved. In this case, the compensation judge did not specifically find that Dr. Sinicropi’s opinion lacked foundation, and the judge’s adoption of one expert medical opinion does not constitute a finding that the rejected opinion was not adequately founded. Further, while the judge noted that Dr. Sinicropi had stated in his May 31, 2018, report, that he was unaware of any injuries other than the February 25, 2017, injury while working for the employer, the judge also noted that Dr. Sinicropi had reviewed Dr. Friedland’s reports and the employee’s medical records. (Finding 42.)

The employee also contends that Dr. Friedland’s opinion lacks foundation, as he argued at the hearing, and therefore that the compensation judge erred by relying on that opinion. The issue of foundation goes to an expert’s qualification to render an opinion. The competency of a witness to provide expert medical testimony depends upon both the degree of the witness’s scientific knowledge and the extent of the witness’s practical experience with the matter which is the subject of the offered testimony. See Drews v. Kohl’s, 55 W.C.D. 33, 37-38 (W.C.C.A. 1996) (citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)), summarily aff’d (Minn. July 11, 1996). The employee argues that Dr. Friedland misinterpreted a pain diagram, that there are objective findings on the 2017 cervical spine MRI which show that the employee’s condition changed after the injury, and that there is no evidence of meralgia paresthetica as discussed by Dr. Friedland. These assertions go to the weight to be given Dr. Friedland’s opinion, not to its foundation. Further, Dr. Friedland addressed the 2017 cervical spine MRI in his second report and opined that the changes were consistent with the expected natural progression of multilevel cervical degenerative disc disease identified on the previous MRI scans. Dr. Friedland’s opinion has adequate foundation.

The determination of nature and extent of injury is within the province of the compensation judge. Felton v. Anton Chevrolet, 513N.W.2d 457, 459, 50 W.C.D. 181, 184 (Minn. 1994). There were conflicting expert medical opinions on this point. The compensation judge weighed the opinions and concluded that Dr. Sinicropi did not appreciate the full extent of the employee’s prior injuries, treatment, and surgery recommendations. The compensation judge found the opinion of Dr. Friedland, that the cervical spine changes shown in the 2017 MRI scan were consistent with the expected natural progression of the employee’s cervical spine condition and that the recommended surgery was not reasonable or necessary regardless of cause, to be more persuasive than the opinion of Dr. Sinicropi. Where there is adequate foundation for the opinion adopted by the judge, as a general rule, this court must uphold the compensation judge’s choice of medical expert. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Fiedler v. Home Depot, 75 W.C.D. 431, 438 (W.C.C.A. 2015).

In this case, we cannot conclude the compensation judge erred in adopting the opinion of Dr. Friedland. The employee’s medical records, in combination with Dr. Friedland’s opinion, adequately support the compensation judge’s determination. Accordingly, we affirm the compensation judge’s denial of the employee’s claims.