JILL M. KOHLER, Employee/Appellant, v. DOUGLAS CNTY. HOSP. and MN COUNTIES INTERGOVERNMENTAL TRUST, SELF-INSURED, Employer-Insurer/Respondents, and BLUE CROSS AND BLUE SHIELD OF MINN. AND BLUE PLUS, THE WINKLEY CO., TWIN CITIES SPINE CTR., and SANFORD HEALTH, Intervenors.

The employee appeals the judge’s finding that a fusion and decompression surgery of five levels of the cervical spine was not reasonable, necessary, or causally related to the employee’s work injuries. Substantial evidence supports the judge’s finding and we affirm.

Jill Kohler, the employee, worked as a registered nurse for Douglas County Hospital, the employer. When hired in 1991, she worked without restrictions in her job which required lifting up to 100 pounds. Beginning in 2001, the employee began treating with John Toft, D.C., for neck pain and headaches, and continued to treat through March 1, 2007. Between 2001 and 2007, Dr. Toft’s notes do not reflect that her work activities were the reason for the neck pain or chiropractic treatment.

On March 2, 2007, the employee injured her neck and back while moving a patient whose knees had buckled. The employee was placed on restrictions for one month and returned to work with no restrictions. She reached maximum medical improvement (MMI) for that injury with no recommendation for further care after May 31, 2007.

On August 2, 2008, the employee suffered a neck strain while assisting a patient out of bed. The patient became belligerent and grabbed and pulled the employee’s forearm causing the employee pain in the back of her neck and right elbow. She treated with Dr. Toft for neck pain radiating into her shoulders. Dr. Toft recommended that she follow up with a medical provider. The employee saw Michael Bristow, D.O., at the Alexandria Clinic who ordered an MRI scan.

The MRI of the cervical spine showed moderate to severe degenerative changes, including uncinate process spurs, neural foraminal narrowing, and impingement of the left C7 nerve. Dr. Bristow referred the employee to a spine specialist. The employee saw a neurosurgeon, Jeffrey Gerdes, M.D. who took the employee’s medical history, reviewed the MRI scans, and examined the employee. He described her injury as a “whiplash type injury” and referred her for physical therapy and radiofrequency ablation (RFA). He opined that surgical intervention was not warranted.

The employee suffered a third injury on February 9, 2009, when she slipped on ice in the parking lot at work. She reported falling and striking the back of her head which caused an increase in neck pain. A month later she underwent cervical medial branch blocks and RFA with 50 percent pain relief, but she continued to have migraine type headache pain. Other treatment modalities were tried including epidural steroid injections and physical therapy.

In 2010, when she began having new symptoms, the employee underwent another MRI scan which revealed a progression of the C5-6 herniated disc. She was again referred to Dr. Gerdes for a surgical consultation. Dr. Gerdes reiterated his previous opinion that surgery would not be effective.

A third MRI of the cervical spine, conducted on May 12, 2011, showed reversal of the normal curvature with spondylolisthesis at multiple levels, facet joint arthrosis at multiple levels, and progression to chronic disc herniation at C5-6 and C6-7.

The employee was referred to orthopedic surgeon Amir Mehbod, M.D., for a second surgical opinion. In May 2011, Dr. Mehbod took a medical history, examined the employee, and reviewed an MRI scan which revealed no spinal nerve or cord impingement. He diagnosed the employee with multilevel disc degeneration of the cervical spine. Recommending conservative care, he also opined that surgery would be ineffective due to the extensive degenerative changes.

The employee continued to treat conservatively with prescription medication including Vicodin and Flexeril. In July 2017, she left her job with the employer and her symptoms continued to worsen.

She underwent a fourth MRI scan conducted on July 17, 2017, and saw neurosurgeon Timothy Lindley, M.D., in October 2017. Dr. Lindley read the MRI scan as left lateral recess stenosis at multiple levels and reversal of the cervical lordosis. He diagnosed her with severe neck pain and cervical kyphotic deformity. Noting that the employee did not show classic signs of radiculopathy, he opined that the employee would benefit from cervical fusion surgery. He recommended surgery in the nature of a C3-C7 anterior cervical discectomy and fusion.

In March 2018, the employee sought another surgical opinion from Timothy Garvey, M.D., at Twin Cities Spine Center. Dr. Garvey recommended an anterior cervical decompression and fusion from C3-7 with posterior cervical decompression and fusion from C2-C7. He opined that the surgery was reasonable and necessary to ameliorate the symptoms she had due to multilevel degenerative cervical spondylosis, stenosis, kyphosis, and disc herniations. He also concluded that the work injuries of March 2, 2007, August 2, 2008, and February 9, 2009, were contributing factors to the cause and progression of the degenerative cervical spine.

Following the surgical recommendation, the employer and insurer sought the medical opinion of orthopedic surgeon, Eric Deal, M.D. Dr. Deal reviewed medical records, took a medical history from the employee, and examined her. He diagnosed chronic neck pain, degenerative disc disease, and degenerative facet arthrosis which he opined were not related to the employee’s work injury in August 2008. As the August 2008 injury was originally diagnosed as a neck strain, he explained that it would have healed within six weeks or less with minimal conservative care. He concluded that the recommended fusion surgery was not medically necessary nor causally related to the August 2008 work injury.

The employee underwent an anterior cervical decompression and fusion from C3-C7 with a posterior cervical decompression and fusion from C2-C7, on May 15, 2018. The employee reported that she had a good result from the surgery. Subsequently the employee filed a medical request seeking payment for the surgery. The matter went to hearing on October 16, 2018. The compensation judge found that the four and five level anterior posterior decompression and fusion surgery was not reasonable, necessary, or causally related to the employee’s work injuries of March 2, 2007, August 2, 2008, or February 9, 2009. 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 finding that the preponderance of evidence failed to establish that the cervical surgery was reasonable, necessary or causally related to the work injuries, the judge relied in part on the medical opinion of Dr. Deal. On appeal, the employee argues that the judge erred because Dr. Deal’s opinions lacked foundation. The employee also argues that substantial evidence does not support the judge’s finding that cervical fusion surgery was not reasonable, necessary, or causally related to the employee’s work injury. Further, she asserts that the judge improperly expanded the issues without notice by finding that the employee’s work injuries were temporary and had resolved. The employee asserts that the doctrine of equitable estoppel precludes this outcome.

The employee claims that Dr. Deal’s opinion lacks foundation because Dr. Deal did not possess fundamental information. She claims that Dr. Deal failed to conduct an adequate physical examination and review the medical records which she argues clearly document radicular symptoms after the 2008 injury. Dr. Deal’s finding of no radiculopathy or need for physical restrictions, she claims, is also unsupported because there is overwhelming evidence of herniated discs impinging on spinal nerves since immediately after the 2008 injury causing radicular symptoms. She asserts that Dr. Deal did not address the 12 percent permanent partial disability paid by the employer and insurer as an assumed indicator of the permanent nature of the 2008 injury and which contradicts Dr. Deal’s conclusion that the 2008 work injury was temporary in nature lasting only six weeks.

Where a denial of benefits is based on an expert’s opinion, the law regarding foundation is well settled. A medical expert need not review every possible fact but must have enough evidence to form an opinion which is not based on conjecture or speculation. Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017). The adequacy of foundation of an expert’s opinion is within the discretion of the trier of fact. Mattick v. Hy-Vee Food Stores, 898 N.W.2d 616, 621, 77 W.C.D. 617, 624 (Minn. 2017).

Here, the judge could reasonably conclude that Dr. Deal based his opinion on adequate foundation. Dr. Deal conducted a physical examination of the employee and recorded the findings. Dr. Deal reviewed the employee’s medical records in detail, providing a summary that included his opinions at various points. Dr. Deal acknowledged Dr. Sundby’s finding of MMI on June 30, 2011, and 14 percent PPD under 5223.0070, subps. 2.B.(1)(a) and (5), although Dr. Deal considered a zero percent rating to be consistent with the employee’s symptoms. Dr. Deal had the necessary foundation on which to base his medical opinion that the employee’s cervical surgery was not reasonable, necessary, or causally related to the employee’s claimed injuries.

The employee argues that substantial evidence does not support the judge’s finding that the surgery was not reasonable, necessary, or causally related to the work injuries. Generally, choosing between conflicting medical experts’ opinions is the job of the trier of fact. Nord v. City of Cook, 360 N.W.2d 337, 342-43 (Minn. 1985). It is this court’s job to determine whether substantial evidence supports the judge’s findings, and here we are convinced that it does.

The employee has treated since 2001 for neck and headache symptoms with Dr. Toft. After the 2008 injury, the employee again saw Dr. Toft who diagnosed the injury as a severe cervical thoracic strain. The employee also saw Dr. Gerdes a few months after the 2008 injury. Dr. Gerdes opined then that the surgery would be ineffective. After the 2009 injury, the employee returned to Dr. Gerdes. He reiterated his prior opinion that surgery would be ineffective due to the degenerative nature of the employee’s cervical condition. In 2011, the employee saw Dr. Mehbod for a second surgical opinion. Dr. Mehbod also opined that surgery would not be effective due to the extensive degenerative changes in the employee’s cervical spine. Dr. Deal’s opinion mirrors the opinions of Drs. Gerdes and Mehbod, that surgery was not reasonable or necessary. Because it was reasonable for the judge to rely on the opinion of Dr. Deal in concluding that the five-level cervical fusion surgery was not reasonable, necessary, or causally related to the work injuries, we affirm.

The employee maintains that the judge erred by expanding the issues in the proceeding from the reasonableness, necessity, and causal relation of the employee’s fusion surgery to a denial of primary liability. Because the parties had previously stipulated to a 12 percent permanent partial disability rating, the employee argues that labeling the employee’s injuries as temporary created a new issue, one that necessarily results in the extinguishing of primary liability. She further argues that decision results in extreme prejudice as the judge essentially ends the employee’s workers’ compensation benefits without notice of a defense never raised and that this result is barred by the doctrine of equitable estoppel. We disagree.

The fundamental issues at trial were limited to the reasonableness, necessity, and causal relationship between the work injuries and the employee’s fusion surgery. This is reflected both in the statement of issues in the judge’s Findings and Order and in the second paragraph of the judge’s memorandum. The employee cites no specific finding of the judge regarding either: 1) finding the employee’s work injuries to be temporary; or 2) that the employer is not now primarily liable for those injuries. In Finding 42, the judge determined that the employee had failed to establish by the preponderance of the evidence that “the anterior cervical decompression and fusion from C3-7, and posterior cervical decompression and fusion from C2-7 . . . was reasonable, necessary and causally related to the work injuries of March 2, 2007, August 2, 2008, and/or February 9, 2009.” There was no expansion of issues and, as substantial evidence supports the findings of the compensation judge, we therefore affirm.