APRIL 15, 2019

No. WC19-6243

CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence, including an expert medical opinion with adequate foundation, supports the compensation judge’s denial of the employee’s claims.

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

Compensation Judge: Kathleen Behounek

Attorneys: Mark J. Thalberg, Schneider & Madsen, P.C., Willmar, Minnesota, for the Appellant. Thomas J. Christenson, Quinlivan & Hughes, P.A., St. Cloud, Minnesota, for the Respondents.




The employee appeals from the compensation judge’s determination that her right hip complaints are not related to her work injury of December 30, 2016, and from the compensation judge’s denial of her claim for benefits. We affirm.


The employee sustained an injury on December 30, 2016, in the course of her employment as town clerk for Belle River Township. She was walking from her house to the mailbox to mail a township report when she slipped on the icy ground and fell, landing on her right side. The employee sought immediate medical care at the emergency room at Douglas County Hospital, with complaints of right shoulder, back, and right hip pain. X-ray studies did not show any fractures or dislocations. She was given an injection for pain relief, her right arm was placed in a sling, and she was discharged with pain medication.

The employee’s right shoulder pain was subsequently diagnosed as being the result of a rotator cuff tear. Surgical repair of the tear was done on February 7, 2017, by Dr. Dennis Weigel at Douglas County Hospital. The employer and insurer admitted liability for the employee’s right shoulder injury and paid for the surgery.

The employee also sought medical care for her right hip and low back. She began treatment for these conditions at Heartland Orthopedic Specialists in January 2017. The employer and insurer denied that the employee’s low back and right hip complaints were related to the work injury and refused to pay for such treatment.

The employee filed a claim petition in March 2018, in which she claimed entitlement to wage loss benefits, permanent partial disability, and medical expenses resulting from injuries to her back and right hip that she alleged resulted from the fall on December 30, 2016. A hearing was held before a compensation judge on October 11, 2018. In the Findings and Order served and filed on November 16, 2018, the compensation judge denied the employee’s claim. The compensation judge determined that the employee had failed to establish by a preponderance of the evidence that she had sustained injuries to her back and right hip. The employee appealed the compensation judge’s decision.

In the notice of appeal filed with this court, the employee stated the issue of appeal is “whether the employee sustained injuries to her right hip.” No reference was made in the notice regarding the claim made at the hearing for the low back and that claim was not addressed in the employee’s brief. Accordingly, we limit our review to the issue argued by the employee in her brief: whether there is substantial evidence to support the compensation judge’s determination that the employee did not sustain an injury to her right hip. See Minn. Stat. § 176.421, subd. 6.


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 issue for the compensation judge’s determination was whether the evidence presented by the employee established a causal relationship between the employee’s work injury and her ongoing right hip complaints.

In a joint exhibit, the parties introduced more than one thousand pages of the employee’s medical records which pre-dated the 2016 work injury. As the compensation judge noted in an unappealed finding, the “employee received physical therapy for complaints including right knee pain, sacroiliitis lumbago, lumbar radiculitis, tendinitis/bursitis of the pes anserinus, and right trochanteric bursitis.” (Finding 14.)

The employee’s claim was supported by Dr. Jefferson Brand, a physician at Heartland Orthopedic Specialists. Dr. Brand had been involved in the employee’s care since 2011. He provided reports dated August 29 and October 20, 2017. In his first report, he diagnosed a labral tear which indicated femoroacetabular impingement. He concluded that the employee’s current right hip condition was the result of her fall. In his second report, he diagnosed greater trochanteric bursitis and hip arthritis which had been aggravated by the fall.

The employer and insurer relied on the opinion of their independent medical examiner, Dr. Edward Szalapski, who saw the employee on April 17, 2018, and generated a report dated May 3, 2018. Dr. Szalapski reviewed records from multiple providers and cited those records in his report. He noted that the employee had been seen in February 2002 for right lower extremity numbness and had received a number of piriformis injections. Those injections and her treatment for right hip pain continued on a regular basis into August 2005. The employee received additional treatment for right hip pain in 2013. Dr. Szalapski referred to physical therapy treatment notes from October 7, 2013, in which the employee was using a cane because of right hip pain. He also referenced the employee’s lumbar fusion surgery at L5-S1 in December 2010 and a revision fusion at L4-5 done in 2012. Dr. Szalapski concluded that the employee did not have hip bursitis. He considered her right hip pain to be referred pain from her low back condition, which he diagnosed as degenerative disc disease at L4-5. He also concluded that the employee had osteoarthritis of the hip that was not related to the work injury and which had not been aggravated by the work injury.

The employee argues in her brief that the opinion of Dr. Szalapski should not have been accepted by the compensation judge because he failed to mention that the employee responded favorably to multiple bursal injections, which she contends is evidence that she suffered from bursitis as opposed to referred low back pain. However, that argument does not indicate a defect in the foundation for Dr. Szalapski’s opinion, but instead simply reflects an opposing view as to the significance of the employee’s pre-existing hip complaints and the treatment she received for her right hip. Dr. Szalapski had adequate foundation for his opinion based on his physical examination of the employee and his review of the employee’s voluminous medical records.

This court will generally affirm factual determinations based on the compensation judge’s choice between expert medical opinions so long as the accepted opinion has adequate foundation. See, e.g., Smith v. Quebecor Printing, Inc., 63 W.C.D. 566, 573 (W.C.C.A. 2003), summarily aff’d (Minn. Aug. 15, 2003); see also Kness v. Kwik Trip, 77 W.C.D. 733 (W.C.C.A. 2017). The decision of the compensation judge in this case was supported by substantial evidence, and is therefore affirmed.