JESSIKA R. HYLAND, Employee/Appellant, v. ST. MARY’S HOSP., MAYO CLINIC, Self-Insured Employer/Respondent, and BLUE CROSS BLUE SHIELD MINN./BLUE PLUS and MINN. DEP’T OF HUMAN SERVS./BRS, Intervenors.

The employee appeals the compensation judge’s finding that a fall on stairs at home on June 17, 2016, was unrelated to the employee’s admitted low back injury of December 22, 2012, that the employee was not permanently and totally disabled, and that she had not met the permanent partial disability thresholds for establishing permanent total disability. We affirm the finding that the 2016 fall was not a consequential injury. However, we vacate and remand on the issues of whether the employee failed to meet the permanency threshold and whether she was permanently and totally disabled.

Jessika Hyland was approximately 21 years old in 2006 when she sustained a herniated disc with left L5-S1 nerve root impingement. She underwent surgery, but low back and left lower extremity pain continued to bother her. In 2009, she passed a pre-employment physical and the self-insured employer, St. Mary’s Hospital Mayo Clinic, hired her as a patient care assistant (PCA). In 2012, the employee obtained an associate’s degree in nursing.

On December 22, 2012, the employee suffered an admitted injury to her low back at work while boosting a patient with a draw sheet. Following the injury, she underwent multiple surgeries, including left L4-5 and L5-S1 foraminotomies and the implantation of a spinal cord stimulator. The employee was taken off work. She underwent epidural injections and was prescribed long-term narcotic medication. She was eventually released to work part time and did not return to her former job. The employee continued her education, obtaining a bachelor’s degree in nursing in 2014.

Between 2013 and 2016, the employee’s symptoms worsened. She consistently complained to medical providers of frequent falling, which she believed was due to low back pain and left lower extremity weakness. On examination, physicians noted the employee had an antalgic gait and used a cane. She treated with Jeffrey Payne, M.D., who reported on November 5, 2013, that the employee’s left leg “buckles and gives out.” He observed multiple bruises on her legs and arms. Dr. Payne indicated that he could not explain her falls as there were no associated neurologic findings. (Ex. C.) Matthew J. Pingree, M.D., diagnosed the employee with failed back surgery syndrome. He noted on August 4, 2014, that the employee continued to fall, with one recent fall resulting in a right ankle injury. (Ex. C-11.)

The employee also treated with a physical medicine and rehabilitation physician, Russell Gelfman, M.D., who sought to return her to work. On January 26, 2016, the employee was released to return to part-time light-duty work at two hours per day, two days per week. By June 14, 2016, the employee was released to work four hours per day, three days per week and was able to lift 40 pounds occasionally, and perform a single lift of up to 50 pounds. (Ex. F at 30.) A return to work meeting was planned for the near future.

The employee claims that her leg gave out three days later, on June 17, 2016, while she was carrying laundry up some stairs at home, causing her to fall forward. Less than an hour later, she was seen at the emergency room at Mayo Clinic-Albert Lea Hospital where she reported a history of falls due to a spinal injury. As a result of the fall, the employee fractured fingers on both hands. After conservative care, the employee’s hand symptoms worsened and she was diagnosed with bilateral complex regional pain syndrome (CRPS). Dr. Gelfman rated permanent partial disability (PPD) from her low back injury at 14 percent and from her hand injury at 20.16 percent. (Ex. J.) He took her off work due to upper extremity pain and unexplained episodes of falling.

The employee was referred to James C. Watson, M.D., at the Mayo Pain Clinic for a neuro-pain evaluation regarding unexplained episodes of imbalance and unexplained falls. On August 31, 2017, Dr. Watson ordered MRI scans and an EMG. On September 27, 2017,^[1] he noted that the EMG showed chronic left lumbosacral radiculopathies which were known and unchanged from 2014. He observed that the cervical and thoracic spine MRIs showed abnormalities, but nothing to which he could attribute the falls. Likewise, the lumbar spine MRI showed known abnormalities, but Dr. Watson was unable to identify anything neurologically that would explain the employee’s falls. Dr. Watson associated the falls with a worsening of the employee’s pain, relating them to a maladaptive, learned guarding response to her pain syndrome. He referred the employee to a chronic pain program and to ongoing cognitive behavioral therapy (CBT). The employee testified that she had little success in previous attempts in a chronic pain program, but continued with CBT.

The self-insured employer retained neurologist Joel Gedan, M.D., to conduct an independent medical examination. Dr. Gedan performed a physical examination of the employee, reviewed medical records, and drafted a report on August 9, 2017, followed by two supplemental reports on September 7, 2017, and January 16, 2018. In the initial report, Dr. Gedan concluded that the CRPS injury was not a consequence of the 2012 work injury. He concluded that the employee had simply “tripped and fell” on the stairs at home while carrying a laundry basket, finding no medical explanation that would relate it to the December 22, 2012, spine injury. He also opined that the employee had suffered a permanent aggravation to her low back in December 2012. He rated the employee’s PPD before the 2012 injury at 11 percent, and rated the employee with an additional 5 percent PPD as a result of the 2012 work injury. He did not address the PPD rating for the employee’s CRPS in her hands.

Dr. Gedan later reviewed additional medical records, including physical therapy notes describing falls two to three times daily. In his supplemental report of September 7, 2017, Dr. Gedan questioned the employee’s claim of frequent falls, reasoning that if she were falling frequently, her medical records would have documented injuries from those falls.^[2] In light of the absence of any significant injury until the fall in June 2016, Dr. Gedan again expressed the opinion that the 2012 work injury did not cause the employee to fall on the stairs at home.

Prior to his final report of January 16, 2018, Dr. Gedan was provided with more medical records, including Dr. Gelfman’s opinion that patients with chronic pain often describe weakness and falling. Dr. Gedan reiterated his conclusion that the employee’s fall on the stairs was unrelated to the December 22, 2012, injury. He explained that it was unlikely that the employee would have a large number of falls without trauma or injury, that the MRI scan showed no abnormality that would cause the employee to fall, that her neurological examination was unchanged, and that the employee’s balance and gait were both within normal limits. He disagreed with Dr. Gelfman’s opinion that people with chronic pain tend to fall, remarking that “this is a non-scientific statement, and lacks any foundation in medical fact or objective evidence. It is an unsubstantiated and speculative declaration.” (Ex. 8.) With respect to the CRPS injury, Dr. Gedan concluded that the employee did not have CRPS.

The self-insured employer obtained further expert medical opinion from a physical medicine and rehabilitation physician, Teresa Gurin, M.D. Dr. Gurin reviewed medical records, examined the employee and took her history. In a narrative report of July 26, 2017, Dr. Gurin opined that the December 22, 2012, low back injury was a temporary aggravation of the employee’s underlying and pre-existing low back injury. She noted that regardless of causation, the employee’s medical providers could find no reliable medical reason for her complaints of left lower extremity give way weakness, and that the employee had a history of unusual, unexplainable medical complaints dating back more than a decade. Dr. Gurin concluded that the employee had reached maximum medical improvement (MMI) without PPD attributable to the December 22, 2012 injury. (Ex. 12.) On February 20, 2018, Dr. Gurin offered a PPD rating for the employee’s hand injury of 2.2 percent, regardless of causation. (Ex. 24.)

The employee filed a claim petition on April 10, 2017, alleging a consequential CRPS injury to her hands following the fall on stairs at home on June 17, 2016, which she claimed occurred as a result of the December 22, 2012, low back injury. She also claimed entitlement to 20.16 percent PPD and to permanent total disability (PTD) benefits.

The employee had worked with a QRC from June 10, 2013, through December 13, 2017, when vocational rehabilitation was closed because the employee had not been released to return to work “in any capacity.” (Ex. I.) In support of her PTD claim, the employee provided vocational rehabilitation reports from her QRC.

To further support the PTD claim, the employee retained Justin M. King, PsyD., of Metropolitan Rehabilitation Services, Inc., who administered written and physical vocational testing over three days. In his report of March 27, 2017, Dr. King opined that the employee was permanently and totally disabled. He explained that despite the employee’s intelligence and education, she experienced significant pain in both hands even from basic demands like holding a pencil. He reported that testing was terminated early on the second day due to the employee’s pain and discomfort and that she required several unscheduled breaks to even attempt generally sedentary tasks. (Ex. H.) Dr. King testified that the 40-pound restrictions outlined by Drs. Gedan and Gurin were not supported by the testing he performed. He concluded that the employee was capable of lifting only between five and ten pounds.

The self-insured employer retained vocational expert Jan Lowe, who reviewed test results and interviewed the employee. In her October 13, 2017, report, she concluded that the employee was capable of employment. She accepted the views of both Dr. Gedan and Dr. Gurin, who opined that the employee has “the ability to work in her labor market in selected RN position or other related positions which accommodate her physical capacities….” Assuming these opinions were accurate, Ms. Lowe concluded that the employee remains able to work, and that her lack of employment since June 17, 2016, was due to her failure to continue in her job with the Mayo Clinic, and her lack of a job search to find replacement employment. (Ex. 2.)

The self-insured employer also obtained surveillance video of the employee on August 2, 2017, which showed the employee moving easily in and out of a vehicle in which she was a passenger, and using her hands to hold a cell phone and water bottle. (Ex. 1.) She was also observed stretching her fingers and wearing compression gloves.

A hearing was held before a compensation judge on February 12, 2018. The issues presented included the nature and extent of the employee’s December 22, 2012, injury; whether the employee suffered a consequential injury to her hands on June 17, 2016; whether she was entitled to PPD benefits to the extent of 20.16 percent; and whether she was entitled to PTD benefits. Witnesses included the employee, Dr. King, Dr. Gelfman, Jan Lowe, a private investigator, and the employee’s fiancé. Her fiancé testified that he had witnessed the employee falling on several occasions when her leg gave out, although he was not present on June 17, 2016, when the employee fell on the stairs. Tammy Radloff, a return to work consultant for the self-insured employer, testified that light-duty and sedentary jobs are continually available at the Mayo Clinic. She testified that although the employee was no longer employed there as of June 9, 2017, she retained the option of re-applying.

The judge found that the employee had suffered a permanent aggravation to her low back on December 22, 2012, that she did not suffer a consequential injury to her hands on June 17, 2016, that she failed to show entitlement to 20.16 percent PPD benefits due to the December 22, 2012, injury, that she failed to meet the PPD thresholds for establishing PTD, and that she was not permanently and totally disabled as a result of the December 22, 2012, 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).

On appeal, the employee argues that the judge’s finding that the fall on stairs on June 17, 2016, was not a consequential injury is unsupported by substantial evidence. She also argues that the judge erred in failing to make findings on the employee’s PPD claim and that the PTD claim should be remanded for redetermination.

The employee argues that the weight of the evidence supports her claim that the pain from the December 22, 2012, injury was a substantial contributing factor to the fall on June 17, 2016. She relies on her own testimony, and that of her fiancé, that she had a history of falls due to her leg giving out following her surgery in 2013. She also relies on a lengthy medical history of falls reported to her doctors, and on the expert opinions of Drs. Gelfman and Watson, who opined that the body’s response to chronic pain can be weakness or spasm causing falls. The employee further argues that Dr. Gedan’s contrary opinion was not based on a full review of the records and that he was insufficiently aware of her history so as to render a competent opinion.

While the employee asserts that substantial evidence supports her claim of a consequential injury, this is not the standard of review this court must apply on appeal from a compensation judge’s factual determination. Our review is limited to whether a judge’s findings and order are supported by substantial evidence.

Here, it was reasonable for the judge to find that the fall on the steps was not a consequential injury, based on the opinion of Dr. Gedan. Generally, this court must affirm a compensation judge’s choice of expert opinion, as long as the opinion chosen has adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Dr. Gedan had the necessary foundation upon which to base his opinion. He examined the employee, reviewed the medical records, and, as a neurologist, had the expertise to render an opinion on the employee’s reported falls.

The judge reasoned that there were no objective findings in the record to explain the falls. He also noted that the employee had experienced unexplained falls before the 2012 work injury. The employee testified that there was nothing she could identify to explain her falls, nor was there an onset of pain symptoms that signaled a fall would soon occur. The judge reviewed the medical opinions of the employee’s experts, Dr. Gelfman and Dr. Watson, noting that they could not find a neurological basis for the falls in the employee’s diagnostic studies. While both Drs. Gelfman and Watson suggested that the falls could be the result of a pain response, the judge could reasonably conclude that the employee’s testimony that she fell without first feeling pain contradicted their causation opinions. We conclude that the record provides substantial support for the finding that the employee’s fall on the stairs was not related to the December 22, 2012, low back injury.

The employee also argues that the judge erred in finding that the employee had failed to meet the statutory threshold for PTD benefits (Finding 36) and in finding that the preponderance of the evidence fails to show the employee to be permanently and totally disabled (Finding 37).

We note that the judge failed to make any findings regarding the ratings applicable either to the employee’s 2012 work injury or to her hand condition from the 2016 fall at home. The judge stated in his memorandum that he considered the question of whether the fall had resulted in CRPS was moot. We note, however, that although the judge found that the hand condition was not the result of a consequential injury, and that the 2016 injury was therefore not itself compensable, those findings did not obviate the need to determine whether the hand condition contributed to an inability to work or to the employee’s overall PPD rating for purposes of determining whether the employee met the PTD threshold. There is no requirement that a PPD rating be related to the work injury to be included in an overall rating to meet the statutory threshold. A non-work-related rating is included so long as it “affect[s] the employee’s ability to ‘secure anything more than sporadic employment resulting in an insubstantial income.’” Allan v. R.D. Offutt Co., 869 N.W.2d 31, 75 W.C.D. 401 (Minn. 2015).

Because the employee was in her 30s at the time of the hearing, she was required to establish at least a 17 percent PPD rating of the whole body to meet the applicable threshold under Minn. Stat. § 176.101, subd. 5. We note that the evidence could support more than one result with respect to whether the employee established a sufficient rating to meet the PTD threshold. We generally affirm a compensation judge’s finding that an employee failed to meet the threshold where there is substantial evidence in the record to support that determination. Here, however, in the absence of findings regarding the appropriate ratings for the employee’s low back and hand conditions, we are unable to determine how the compensation judge reached his ultimate conclusions in the case.

The employee’s hand injury was rated both by the IME, Dr. Gurin, and by the employee’s treating physician, Dr. Gelfman. Dr. Gurin assigned a 2.2 percent PPD rating. Dr. Gelfman assigned a 20.16 percent rating. The judge found that the employee’s hand condition did not warrant a 20.16 percent rating, but made no finding as to what PPD ratings should apply. Similarly, the judge made no findings regarding whether the employee’s hand and low back conditions contributed to vocational disability. The judge’s memorandum does not explain his reasoning on the PTD threshold issue. It is not the role of this court to make factual findings on these matters. Without such findings, we are unable to determine the basis for the judge’s conclusion that the employee failed to meet the statutory threshold, as it is not clear whether the judge considered PPD ratings from non-work conditions in assessing the issue. We therefore vacate Finding 36 and remand for a determination of whether the employee met the PTD threshold. The judge’s ultimate finding on this issue should be supported by explanation, including applicable ratings for any work-related and non-work conditions which are found to contribute to vocational disability.

The employee argues that the issue of PTD must also be vacated and remanded for reconsideration. The statute requires that the PPD minimum be met as a precondition to any determination that an employee is found to be permanently and totally disabled. Where an employee meets the applicable PPD threshold, other factors, including the employee’s age, education, training and experience are also considered in determining whether an employee is permanently and totally disabled. Minn. Stat. § 176.101, subd. 5(2); see also Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967). An employee may meet the PPD thresholds, yet not be permanently and totally disabled on the basis of the other requirements set forth in Minn. Stat. § 176.101, subd. 5(2).

Here, while the judge found that the preponderance of the evidence failed to show that the employee is permanently and totally disabled, the judge again did not provide either an explanation of his reasoning or specific findings regarding the employee’s age, education, training and experience, including whether she could secure more than sporadic employment resulting in insubstantial income. It is unclear whether the judge’s conclusion that the employee was not permanently and totally disabled was based on the finding, which we have vacated, that the employee failed to meet the threshold, or on a determination that the employee failed to meet the vocational factors demonstrating permanent and total disability. We vacate and remand the issue of whether the employee is permanently and totally disabled for specific findings to support the judge’s conclusions.