CAUSATION – SUBSTANTIAL EVIDENCE. Where the medical opinions supporting the employee’s claim for surgery did not substantially support that the surgery was causally related to the employee’s work injuries, and the compensation judge adopted an adequately founded medical expert opinion of no causal relationship with the work injuries, substantial evidence supports the compensation judge’s denial of the claim.
Compensation Judge: James F. Cannon
Attorneys: Pro Se Appellant, Merrifield, Minnesota. Erica A. Weber, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Respondents.
Affirmed.
SEAN M. QUINN, Judge
The employee, appearing pro se, appeals the compensation judge’s finding that his work injuries were not substantial contributing factors to his right great toe injury and need for surgery. We affirm.
On August 8, 2015, the employee, Michael Lenneman, while working for the employer, Brainerd General Rental, suffered an injury to his right great toe. He was wearing steel-toed boots when a trailer tipped and landed on his right great toe.
On December 29, 2016, while working for the employer, the employee attempted to move a wood block by kicking it with his right foot. Because the wood block was frozen to the ground, the impact from the kick injured the employee’s right great toe.
Despite the two injuries, the employee did not seek medical care for his right great toe until February 2017. At trial, the employee testified that his right great toe was symptomatic after each injury and progressed to the point where he finally sought medical care.
On March 21, 2017, the employee saw Dr. Peter MacKay. Dr. MacKay’s note states:
[The employee] wanted to know, is the [right great toe condition] directly the result of the injuries and I told him I cannot answer that question with any certainty. I explained that it is not unusual for a 57 year old gentleman to have some arthritis in a joint.(Ex. 7.)
Dr. MacKay also completed a health care provider report on May 16, 2017, which included the question “[i]n your opinion (as substantiated by the history and physical examination) was the injury or disease caused, aggravated, or accelerated by the employee’s alleged employment activity or environment?” His answer was “yes.” (Ex. 1.)
The employee also saw Dr. Aaron Hokanson, a chiropractor, for his right great toe symptoms from March 27 through October 5, 2017. In his notes, Dr. Hokanson diagnosed a sprain of the joint but did not express a causation opinion.
On September 18, 2017, Dr. Bradley McCusker wrote in a treatment note that he had a lengthy discussion with the employee regarding the etiology of the employee’s right great toe pain and treatment. Dr. McCusker did not otherwise describe the extent of that conversation in the note.
The employee saw Dr. David Ruta on May 14, 2018, and discussed his two work injuries. Dr. Ruta assessed the employee as having right hallux rigidus, grade 2-3, which was notably symptomatic and “post-traumatic.” After conservative treatment was attempted, Dr. Ruta recommended surgery, a first metatarsophalangeal joint chellectomy with possible proximal phalanx osteotomy.
The employee filed a medical request seeking approval of the surgery recommended by Dr. Ruta. Following an administrative conference, his request was denied, as it was determined the employee had failed to prove by a preponderance of the evidence that the work injuries, singularly or combined, were substantial contributing factors to his need for the surgery. The employee appealed this decision for a full de novo hearing.
At the request of the employer and its insurer, the employee was evaluated by Dr. Devanshu Kansara. In a report dated November 6, 2018, Dr. Kansara agreed with the diagnosis of hallux rigidus of the first metatarsophalangeal joint of the right great toe. He also agreed that surgery was appropriate treatment for the employee. Dr. Kansara’s opinion was that neither of the work injuries were significant enough to play a substantial contributing role in the employee’s right great toe diagnosis and need for treatment.
In January 2019, at the request of the employee’s attorney, Dr. Ruta wrote a report in which he opined, “it is very possible that one or both of [the employee’s work injuries] as described was a substantial contributing factor to the aggravation and/or acceleration of his degenerative first metatarsophalangeal joint condition.” (Ex. E, emphasis added.)
Following a hearing, a compensation judge issued a Findings and Order dated April 1, 2019, which was later amended to correct an error in the caption. In his findings, the compensation judge noted that Dr. MacKay, Dr. McCusker, and Dr. Hokanson, all treating physicians, did not support the employee’s claims. The compensation judge found the most favorable opinion came from Dr. MacKay who gave the “very possible” causation opinion. The compensation judge found this opinion to be minimal, but not substantial, support for the employee’s claims. (Finding 12.) The compensation judge also found Dr. Kansara’s opinion had appropriate foundation and deemed it persuasive and adopted it. (Finding 13.) Consequently, the compensation judge denied all the employee’s claims arising from his two injuries to his right great toe, including the proposed surgery.
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).
An employee does not need to prove that his work-related injury was the sole cause of his current disability, only that the injury was a substantial contributing cause of the disability. Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989). A work-related injury is also compensable where the injury is a substantial contributing cause of an aggravation or acceleration of a pre‑existing condition. Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975). An employee must show, by a preponderance of the evidence, that the work injury played a substantial role in the disability. Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 497, 40 W.C.D. 117, 122 (Minn. 1987).
Minn. Stat. § 176.021, subd. 1a, requires factual disputes to be determined by a preponderance of the evidence, meaning “evidence produced in substantiation of a fact which, when weighed against the evidence opposing the fact, has more convincing force and greater probability of truth.” Consequently, a medical opinion does not have to establish with absolute certainty that work injury caused the disability, but it must establish that the work activities more likely than not caused the disability. In short, it is enough that the opinion is “probably true.” Pommeranz v. State, Dep’t of Public Welfare, 261 N.W.2d 90, 91, 30 W.C.D. 174, 177 (Minn. 1977). The burden of proving this level of likelihood that the work-related injury caused the disability rests with the employee.
Here, Dr. Ruta refers to the employee’s right great toe condition as “traumatic” in one of the treatment notes. When he was explicitly asked by the employee’s attorney whether the two work injuries probably caused the employee’s arthritic right great toe condition and need for surgery, Dr. Ruta said, “very possibly.” While we will not overly rely upon semantics, Mallick v. McPhillips Bros. Roofing, slip op. (W.C.C.A. Aug. 3, 1994) (citing Boldt v. Josten's, Inc., 261 N.W.2d 92, 94, 30 W.C.D. 178, 181 (Minn. 1977)), it is clear Dr. Ruta did not opine that the employee’s right great toe condition was more probably work-related than not. No other doctor did either.[1] As the compensation judge found, Dr. Ruta’s opinion was minimally supportive but was not substantial evidence. The employee did not meet the burden of proving his case.[2]
Conversely, Dr. Kansara’s opinion was expressed with the requisite amount of certainty, that more probably than not the employee’s work injuries did not substantially aggravate the employee’s right great toe condition. The compensation judge adopted Dr. Kansara’s opinion and this court will not second-guess a compensation judge’s choice between competing well-founded medical opinions. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).
For these reasons, we affirm the Findings and Order of the compensation judge.
[2] The employee also argued on appeal that the compensation judge’s findings make no reference to his testimony. We agree the compensation judge could have referenced the testimony and, if appropriate, made a finding on credibility. Had the employee’s testimony been found entirely credible however, the outcome would not differ because the compensation judge’s decision below was based on the failure of any doctor’s opinion supporting the employee’s claim.