MEDICAL TREATMENT & EXPENSE – REASONABLE & NECESSARY. Substantial evidence in the record supports the compensation judge’s award of the proposed right shoulder surgery as that medical treatment is reasonable, necessary, and causally related to the work injury.
EVIDENCE – EXPERT MEDICAL OPINION. The compensation judge did not abuse her discretion in relying on portions of expert medical opinion offered where the medical opinions relied on were consistent with the judge’s factual findings regarding the employee’s condition.
Compensation Judge: Miriam P. Rykken
Attorneys: Gerald W. Bosch, Bosch Law Firm Ltd., St. Paul, Minnesota, for the Respondent. Steven T. Scharfenberg, Lynn, Scharfenberg & Hollick, Minneapolis, Minnesota, for the Appellants.
Affirmed.
PATRICIA J. MILUN, Chief Judge
The employer and insurer appeal from the compensation judge’s determination, which relied on the opinion of the employee’s treating physician, Dr. Peter Daly, and on the opinion of independent medical examiner, Dr. Paul Wicklund, that the proposed right shoulder surgery is reasonable, necessary, and causally related to the admitted February 9, 2016, work injury.
The employee, Michelle Johnson, is a Certified Ophthalmic Assistant at the St. Paul Eye Clinic. In this position, the employee sets up equipment for the administration of eye examinations. On February 9, 2016, the employee was positioning equipment using her right arm when she heard a pop in her right shoulder and felt immediate pain. She was able to finish her shift, but felt increasing pain through the evening. The following morning, the employee sought medical attention. On examination, swelling was visible in her right shoulder. Tenderness over the supraspinatus and in the region of the glenohumeral joint, acromioclavicular joint and the coracoid process were noted by the examiner. The employer and insurer were provided notice of the injury and accepted liability.
On February 17, 2016, the employee underwent an MRI of her right shoulder, which revealed a small, full-thickness tear of the supraspinatus tendon. Peter Daly, M.D., performed a surgical repair of the tendon on March 8, 2016. The employee reported continuing pain in her right shoulder after the surgery. Her shoulder pain caused sleep interruption and impaired some activities of daily living (ADLs). The employee was released to light duty work on April 5, 2016. She also began physical therapy to strengthen her shoulder. On April 21, 2016, the employee experienced pain and worsening of her shoulder during physical therapy. The employee displayed limited range of motion (ROM) and complained of decreased strength and intermittent tingling running to her fingers following the surgery.
In a follow-up examination with Dr. Daly on July 14, 2016, the employee complained of continued right shoulder pain and limited ROM. On July 20, 2016, the employee underwent an MRI which showed the expected surgical alterations to the employee’s right shoulder, along with tendonitis and bursal inflammation. On August 3, 2016, the employee underwent an MRI arthrogram of the right shoulder. From September through November 2016, the employee treated with John Dowdle, M.D. A rule-out MRI and injection of the cervical spine were conducted. On November 30, 2016, the employee underwent a bicep tendon injection to the right shoulder and reported good results.
The employee returned to full-duty work on January 16, 2017, with no restrictions. Despite being released to full-duty work, the employee could not perform all of the functions of her job. She experienced continued pain in her right shoulder and she began to experience left shoulder pain. On March 16, 2017, Daniel Peterson, PA-C, working with Dr. Daly, diagnosed the employee’s left shoulder pain as due to overuse arising from limitations in her right shoulder. PA-C Peterson directed conservative care be undertaken and an MRI be performed in the event the left shoulder did not improve.
On May 4, 2017, the employee returned to PA-C Peterson for a recheck of the employee’s left shoulder. The employee continued to complain of bilateral shoulder pain while engaged in active ROM. An MRI of the left shoulder was performed on May 9, 2017, and showed a partial-thickness supraspinatus tear, tendonitis, bursitis, edema and inflammation.
The employee was approved for a second opinion for her right shoulder. On May 8, 2017, Glenn Ciegler, M.D., examined the employee. He reviewed the post-surgery 2016 MRI of the right shoulder and identified a signal change at the insertion point of the right supraspinatus tendon. Dr. Ciegler noted the difficulty of assessing that type of imaging and ordered an MRI arthrogram of the right shoulder which was performed on June 8, 2017. On June 12, 2017, Dr. Ciegler reviewed the MRI arthrogram of the employee’s right shoulder and noted possible fraying of the right shoulder supraspinatus tendon, which he did not consider sufficiently serious to require surgical intervention.
On July 13, 2017, Dr. Daly examined the employee’s right and left shoulders, and reviewed recent scans. With respect to the right shoulder, he noted the employee’s description of symptoms was consistent with those prior to her 2016 surgical repair of the supraspinatus tendon. Dr. Daly diagnosed the employee with a right shoulder partial undersurface supraspinatus tear as reflected in the 2017 MRI arthrogram. He proposed the tear be surgically repaired. With respect to the employee’s left shoulder, Dr. Daly diagnosed a partial-thickness rotator cuff tear, which he proposed be surgically repaired.
On August 30, 2017, the employee underwent an independent medical examination (IME) conducted by Michael D'Amato, M.D., on behalf of the employer and insurer. The employee’s complaints of right shoulder pain and limited range of motion were considered exaggerated. Dr. D'Amato concluded there was no need for surgery to the employee's right shoulder as that condition had healed. Dr. D'Amato assessed the employee's left shoulder as having a full-thickness tear of the tendon, for which surgery was reasonable and necessary. Dr. D’Amato attributed the employee's left shoulder condition to a chronic pre-existing condition of unknown origin and not a consequence of overuse of the left arm due to the effects of the employee's February 9, 2016, work injury.
On November 20, 2017, the employee was at work changing a lens. While engaged in this activity, she experienced a loud pop and pain in her left shoulder. The employee continued to receive conservative treatment to her left shoulder.
On February 17, 2018, the employee underwent an IME conducted by Paul T. Wicklund, M.D., requested by the employee’s counsel. Dr. Wicklund concluded the employee’s right shoulder injury arose out of employment activities on February 9, 2016, and was not the result of some preexisting injury or condition. Dr. Wicklund was of the opinion that further right shoulder surgery was not necessary or reasonable. He assessed the condition of the employee’s left shoulder to be a consequential injury to the February 9, 2016, work injury. The left shoulder condition was also assessed as arising from the November 20, 2017, incident.[1] On June 1, 2018, Dr. Wicklund supplemented his earlier report, now discounting the possibility of a separate injury in November 2017. Dr. Wicklund maintained that the employee’s transfer of effort to her left shoulder due to the effects of the February 9, 2016, work injury was the cause of her left shoulder condition. Dr. Wicklund recommended surgery on the employee’s left shoulder. On June 6, 2018, Dr. Wicklund clarified that, in his opinion, the left shoulder condition was a consequential injury to the employee’s right shoulder work injury.
On February 17, 2018, Dr. D'Amato supplemented his earlier report, concluding the employee had not experienced a separate work injury on November 20, 2017, and restating that the employee’s left shoulder condition was not a consequence of the February 9, 2016, work injury.
The employee filed a medical request seeking approval for bilateral shoulder surgeries as proposed by Dr. Daly, which came on for hearing before a compensation judge on June 6, 2018. The issues were identified as reasonableness and necessity of the proposed right shoulder surgery, causation for the claimed left shoulder injury as a consequential injury to the right shoulder injury, reasonableness and necessity of the proposed left shoulder surgery, and intervenor interests. The employee testified regarding the limitations she experienced following right shoulder surgery in 2016 and the subsequent onset of her left shoulder problems.
The compensation judge issued a Findings and Order, filed and served on July 9, 2018. The compensation judge rejected the opinion of Dr. D’Amato, except for the need for surgery on the left shoulder. The judge accepted the opinions of Drs. Daly and Wicklund that the left shoulder condition arose as a consequence of the admitted February 9, 2016, work injury. The judge approved the surgeries to both shoulders as proposed by Dr. Daly.
The employer and insurer appeal from the Findings and Order. While some of the appealed findings relate to the employee’s bilateral shoulder condition, the notice of appeal and the appellants’ brief do not identify or set forth argument regarding the compensation judge’s findings with respect to the left shoulder. In particular, the employer and insurer did not appeal the finding that the employee sustained an injury to her left shoulder as a consequence of the work injury (Finding 27), or the finding that the proposed left shoulder surgery is causally related to the work injury (Finding 28). Accordingly, this court’s review will be limited to the issues involving only the right shoulder.
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 employer and insurer dispute whether substantial evidence supports the compensation judge’s determination that the proposed right shoulder surgery was reasonable, necessary, and causally related to her work injury. Appellants point to the compensation judge’s reliance on the opinion of Dr. Wicklund as evidence of reversible error. We are not persuaded by this argument. Substantial evidence in the record, which includes the opinions of Drs. Daly and Wicklund, supports the findings of the compensation judge. Accordingly, we affirm.
“It is well established that a compensation judge’s choice among conflicting expert medical opinions must be upheld unless the opinion lacked adequate factual foundation.”[2] Determining whether an expert opinion rests on adequate foundation is within the discretion of the compensation judge, subject to review for abuse of discretion.[3] Here, appellants ask us to reject the entire reports of Dr. Wicklund and Dr. Daly based on a few record notations that appellants read in isolation and out of context. The compensation judge’s findings that the employee’s current right shoulder condition is related to the work injury, and that the proposed right shoulder surgery is reasonable, necessary and causally related to the work injury, are supported by the testimony of the employee concerning the continued presentation of tenderness at the supraspinatus tendon of the right shoulder, as well as the expert medical opinion of her treating physician, Dr. Daly. Dr. Daly recommended surgery to address the condition of the employee’s right shoulder with symptoms reported by the employee on multiple medical visits and as revealed by the MRI scan. The fact that Drs. Ciegler, Wicklund, and D’Amato considered right shoulder surgery to be unnecessary in light of the same evidence creates a record of conflicting expert opinions that requires analysis and resolution by the compensation judge. Here, the judge was persuaded by the employee’s testimony and weighed some expert opinions over others, and determined the proposed right shoulder surgery is reasonable, necessary, and causally related to the work injury.
On appeal, our review is limited to whether the compensation judge’s determination that the expert opinion relied upon had adequate foundation was an abuse of discretion. The expert medical opinions relied on by the judge had adequate foundation to support the conclusion that the proposed treatment is reasonable, necessary and causally related to the work injury. Appellants’ criticism falls short of establishing that the medical opinions wholly lack adequate foundation. The judge did not abuse her discretion by giving greater weight to the opinion of Dr. Daly, or by relying on Dr. Wicklund’s opinion on causation, in deciding this case.
The compensation judge found the employee continues to experience pain, limited ROM, and physical limitations in performing her job duties and ADLs, all of which support the medical opinion regarding the reasonableness and necessity of the treatment proposed by Dr. Daly. As the compensation judge’s approval of right shoulder surgery is consistent with her factual findings, there is no basis for a remand or reversal.[4] The decision of the compensation judge is affirmed.
[1] Dr. Wicklund incorrectly described this as happening during physical therapy and not at work.
[2] Mattick v. Hy-Vee Food Stores, 898 N.W.2d 616, 621, 77 W.C.D. 617, 624 (Minn. 2017).
[3] Id.
[4] The employer and insurer assert that the differences between the varying medical opinions requires, at minimum, a remand for further findings. The compensation judge made clear and unambiguous findings regarding which medical opinions supported particular parts of her decision. Accepting part, but not all, of a medical opinion is within the sound discretion of the compensation judge. See Armstrong v. RJ Sport & Cycle, 73 W.C.D. 457, 470 (W.C.C.A. 2013).