JANUARY 31, 2019

No. WC18-6198

CAUSATION – TEMPORARY INJURY. Substantial evidence, including medical records and expert medical opinion, supported the compensation judge’s findings that the employee’s work injury resulted in a right shoulder strain/sprain and a right bicep tear, both of which were temporary in nature and had resolved.

MEDICAL TREATMENT & EXPENSE – SUBSTANTIAL EVIDENCE. Substantial evidence, including medical records and expert medical opinion, supported the compensation judge’s findings that medical care rendered or recommended after the resolution of temporary injuries was not causally related to the work injury.

INTERVENORS. Where an intervenor provided evidence for only a portion of its claim, and failed to provide evidence at hearing or otherwise of the remainder of its claim, the compensation judge did not err in awarding that portion for which evidence was presented despite the intervenor failing to follow the order to attend the hearing.

    Determined by:
  1. Sean M. Quinn, Judge
  2. David A. Stofferahn, Judge
  3. Gary M. Hall, Judge

Compensation Judge: Catherine A. Dallner

Attorneys: Aaron W. Ferguson, Aaron Ferguson Law, St. Paul, Minnesota, for the Appellant. Elisa Murillo, Aafedt, Ford, Gray, Monson & Hager, PA, Minneapolis, Minnesota, for the Respondent.




The employee appeals from the compensation judge’s decision to deny ongoing medical benefits for her admitted right shoulder injury. The employee also appeals the compensation judge’s determination that she did not suffer an injury to her neck. The employer and insurer cross-appeal from the compensation judge’s award of medical expenses for services provided by intervenor Hennepin County Medical Center & Physicians through August 1, 2014. Because the Findings and Order is well supported by the record, we affirm.


On March 31, 2014, the employee, Laura Daza Zaragoza, suffered an admitted injury while working for the employer, Golden Employment Group, Inc. On that date, the employee was packing boxes with shampoo bottles when she felt a “pop” in her right upper extremity. She was seen at Hennepin County Medical Center (HCMC) on the date of the injury, complaining of severe right bicep pain with pain radiating to her right shoulder and neck. The employee felt “a ball” in her right bicep area, which was found to be tender. She was diagnosed with a partial tear of her right bicep tendon. The employee was treated with medication, told to wear a sling, and advised to commence physical therapy. She was restricted from using her right arm for any work activity.

By April 17, 2014, the employee had reported some mild improvement in her pain as well as her functioning. She was continuing to wear a sling for certain activities and was doing range of motion exercises of her upper extremity.

Physical therapy at HCMC did not commence until May 7, 2014. At that time, the employee still had pain, which was worse when raising her arm. Her pain was localized to the posterolateral shoulder, anteromedial bicep, and chest. She also complained of pain in her right index finger when raising her arm. She characterized her pain as soreness and achiness. She reported the pain disturbed her sleep, although this had been improving in the weeks since the original injury.

By May 22, 2014, the employee’s symptoms had improved, as had her range of motion and strength. She was able to lift 10 pounds without difficulty.

On June 12, 2014, the employee was seen at HCMC by Dr. Charles Anderson. He diagnosed an improving partial bicep tear and believed an MRI might be appropriate if the employee was unable to maintain full-duty work. She no longer had swelling or bicep bulging, and she had normal strength. She reported some mild bicep pain and shoulder pain with overhead activities and was restricted from overhead work.

On July 9, 2014, during a physical therapy visit, the employee reported improvement of her symptoms during the past three to four weeks. The only pain she still felt was on the top of her shoulder. She was able to work without restrictions, although she had some minor pain at the end of the day, and her range of motion and strength had been improving.

On July 10, 2014, the employee returned to Dr. Anderson. She had full range of motion of the shoulder. Dr. Anderson found some mild residual joint dysfunction, but determined she did not need any additional care other than the completion of her physical therapy. He diagnosed her with a “resolved partial bicep tear.”

At the employee’s last physical therapy visit on August 1, 2014, she reported pain in the front of her arm and elbow, but no numbness or tingling. Her symptoms were most noticeable when her arm was in an overhead position.

The physical therapy note from August 1, 2014, stated the employee should schedule additional physical therapy. The employee testified that she had the additional therapy, however, neither party was able to obtain records from HCMC for dates of service after August 1, 2014. HCMC intervened and sought payment for treatment provided through and after August 1, 2014. Although ordered to attend the hearing, HCMC did not appear or submit medical records for treatment provided after August 1, 2014.

While treating and undergoing physical therapy at HCMC, the employee also began a course of care with Rivera Chiropractic Center. The employee received treatment for complaints of pain in her neck, mid back, and low back. The employee underwent two MRIs at Suburban Imaging – Southdale on August 5, 2014. The cervical spine MRI showed some minimal anterior spur formation at C4-5 and C5-6, but the findings were otherwise normal. The right shoulder MRI showed a mildly curved type II acromion and degenerative changes of the AC joint.

On two occasions in early 2015, the employee was seen by Dr. Douglas Becker at Minneapolis Orthopedics for complaints of pain in the right shoulder. At the first visit, on February 16, 2015, Dr. Becker diagnosed impingement of the right shoulder. At the second visit, on March 16, 2015, Dr. Becker recommended right shoulder arthroscopic evaluation.

On November 10, 2015, the employee was involved in a car accident. She suffered injury to her spine, but did not suffer any additional injury to her right shoulder or right upper extremity.

The employee was seen by Dr.Christopher Meyer on three occasions at the request of the employer and insurer. Dr. Meyer diagnosed the employee as having suffered a disruption of the long head of the bicep tendon, as well as right shoulder sprain/strain. He related these diagnoses to the employee’s work injury. He stated that her bicep tendon should have healed within 8-12 weeks of the work injury, which he felt was consistent with the examination performed in July 2014 by Dr. Anderson. He also found her shoulder strain had resolved by his October 28, 2014, examination. Dr. Meyer also noted subjective complaints which were out of proportion to the employee’s objective findings on exam, x-ray, and MRI. He stated the employee exhibited “touch-me-not” behavior during examination. Finally, Dr. Meyer concluded that chiropractic care was not reasonable or necessary treatment for the right shoulder injury, particularly in light of the treatment already received at HCMC, including the physical therapy. He opined that although symptoms might migrate from the shoulder into the neck, the employee did not need any separate care for her neck. The employer and insurer stopped paying for medical care after this report was issued on November 26, 2014.

In his subsequent reports, Dr. Meyer noted the employee continued to have subjective complaints beyond objective findings. He concluded Dr. Becker’s treatment of the right shoulder was not related to the employee’s work injury. However, he did note evidence of shoulder impingement such that an MRI ought to be done. Dr. Meyer opined that any shoulder impingement and associated treatment was unrelated to the work injury. Dr. Meyer rated the employee with a one percent permanent partial disability (PPD) rating for her bicep tendon condition pursuant to Minn. R. 5223.0450, subp. 2D. The employer and insurer paid the employee PPD benefits based on this rating.

The employee sought payment of outstanding medical expenses, approval of a right shoulder MRI as recommended by Dr. Meyer, and approval of right shoulder surgery as recommended by Dr. Becker. The matter came on for hearing before a compensation judge on April 5, 2018.

On June 18, 2018, the compensation judge issued a Findings and Order. Therein, she found that the employee’s work-related partial bicep tear had resolved by July 10, 2014, based upon the minimal positive findings at HCMC on June 12, 2014, the release to full-duty work, and Dr. Anderson’s release from further care on July 10, 2014. The compensation judge was also persuaded by Dr. Meyer’s opinion that the employee’s partial bicep tear had resolved.

The compensation judge found the employee had suffered a work-related right shoulder sprain/strain, which had resolved by the date of Dr. Meyer’s first examination on October 28, 2014. In addition to Dr. Meyer’s opinion, the compensation judge relied upon the lack of any impingement findings on the August 5, 2014, MRI. The compensation judge further found the chiropractic care was not reasonable or necessary to cure or relieve the effects of the shoulder injury, and was not related to the shoulder injury. The compensation judge did not find that the employee suffered a work-related injury to her neck. Noting the bicep tendon injury and shoulder injury had resolved by July and October 2014 respectively, the compensation judge determined the care and treatment from and after those dates were not causally related to the work injury. This included the care provided by Dr. Becker, his recommendation for surgery, and Dr. Meyer’s recommendation for an MRI of the shoulder.

Finally, the compensation judge found the care and treatment provided by HCMC through August 1, 2014, was reasonable, necessary, and causally related to the work injury. Although HCMC did not appear at the hearing, despite being ordered to attend, the compensation judge ordered the employer and insurer to pay for the care rendered by HCMC to the employee’s shoulder and bicep through August 1, 2014. Because HCMC had not provided records for care rendered after August 1, 2014, with its motion to intervene, or in response to repeated requests from counsel, the compensation judge denied reimbursement for care rendered at HCMC after August 1, 2014.

The employee appeals the compensation judge’s denial of the MRI recommended by Dr. Meyer, denial of the right shoulder surgery recommended by Dr. Becker, denial of HCMC’s claim for reimbursement for care rendered after August 1, 2014, denial of payment for the chiropractic care rendered by Rivera Chiropractic, and rejection of her claim of a work-related neck injury.

The employer and insurer cross-appeal the award of HCMC’s claim for reimbursement for care rendered on and before August 1, 2014.


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.   Nature and Extent of the Injury

The employee appeals the compensation judge’s denial of benefits based upon findings that her partial bicep tendon tear resolved by July 2014, that her sprain/strain of her right shoulder resolved by October 2014, and the conclusion that she did not suffer a work-related injury to her neck.

The compensation judge found persuasive the opinions of Dr. Meyer, who conducted three examinations of the employee and who issued four reports. The employee argues that Dr. Meyer’s opinion should not have been accepted because he was the only doctor to observe “touch-me-not” behaviors by the employee and to conclude she was exaggerating her complaints. Because Dr. Meyer’s observations of symptom magnification are unsupported by any of the treating doctors, the employee argues they are not credible.

It is well settled that this court will not overturn a compensation judge’s choice of medical expert opinion as long as the medical expert relied upon by the compensation judge had adequate foundation for his or her opinion. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

Dr. Meyer’s opinions are well supported. He conducted three separate examinations and reviewed all of the available medical records. His opinion regarding the resolution of the bicep tendon tear is consistent with the views of the employee’s own doctors. His diagnosis of a resolved strain of the shoulder is similarly consistent with the medical records.

Both Dr. Meyer and Dr. Becker diagnosed impingement of the right shoulder. Dr. Becker opined this impingement was related to the work injury. Dr. Meyer, however, disagreed and concluded that any impingement seen after the fall of 2014 was unrelated to the work injury. The opinions of both doctors were based upon solid foundation, and the compensation judge was free to choose between the opinion of Dr. Becker and the opinion of Dr. Meyer. Her conclusion that Dr. Meyer’s opinion was more persuasive than that of Dr. Becker will not be overturned by this court.

The employee also argues that the compensation judge failed to make any direct finding regarding the employee’s credibility, and that in the absence of such a finding, her testimony is credible in all respects. We are not persuaded.

While the employee testified at trial that she suffered severe symptoms in her right shoulder from the date of injury through the date of trial, the compensation judge was not bound by the employee’s testimony. In fact, the employee’s testimony is contrary to the symptoms recorded by her physicians at HCMC in June, July, and August 2014, that she was having progressively less pain and greater functionality through the help of her medical care. Likewise, the mere fact the employee has a type II acromion does not mean she has a work-related impingement syndrome. Furthermore, there is no mention of any impingement in the MRI report from August 2014.

The compensation judge’s conclusions that the right partial bicep tear and shoulder strain had resolved, and that the employee sustained no other injury, are supported by substantial evidence. Those findings are therefore affirmed. Because those affirmed findings regarding the nature and extent of the injury necessarily led to the denial of the claimed medical care, the compensation judge’s denial is likewise affirmed.

2.   HCMC Intervention

The employer and insurer cross-appeal the award of HCMC’s claim for reimbursement for care rendered on and before August 1, 2014.

The compensation judge found the care provided by HCMC through August 1, 2014, to be reasonable, necessary, and causally related to the work injury. The employer and insurer did not appeal this finding. Nevertheless, the employer and insurer assert HCMC’s failure to attend the hearing, after being ordered to do so, results in its forfeiture of its entire intervention claim. The employer and insurer rely upon Minn. Stat. § 176.361, subd. 4, which reads:

A person who has submitted a timely written motion to intervene. . . is not required to attend . . . the hearing, unless attendance is ordered by the compensation judge. . . . If attendance is ordered, failure of the intervenor to attend a proceeding either in person or, if approved by the compensation judge, by telephone or some other electronic medium, shall result in the denial of the claim for reimbursement except upon a showing of good cause.

The employer and insurer argue the statutory language is clear that the failure of an intervenor to attend a hearing pursuant to a court order results in a complete denial of its claim. We are not persuaded.

HCMC intervened seeking payment for services provided before and after August 1, 2014. HCMC did not provide medical records related to care rendered after August 1, 2014, and did not attend the hearing.

It is evident from the trial transcripts, the documents in evidence, and the Findings and Order of the compensation judge, that the order for HCMC to appear was based upon its failure to provide records after August 1, 2014, given that it had intervened for medical care provided both before and after that date. The compensation judge denied HCMC’s claim to the extent it sought reimbursement for care rendered after August 1, 2014, due to its failure to prove entitlement to reimbursement.

Although the compensation judge did not make an explicit finding of “good cause” for HCMC to not attend the hearing, she reasonably concluded that HCMC’s non-attendance was not fatal to its claim for care rendered on and before August 1, 2014. HCMC’s attendance was required under the circumstances presented to preserve its claims for care rendered after August 1, 2014, not for the earlier claims. The compensation judge did not err by awarding HCMC’s claim for services provided through August 1, 2014.

The compensation judge’s Findings and Order is affirmed in its entirety.