KRISTINE A. MARKHAM, Employee/Appellant, v. MINN. DEP’T OF NATURAL RES./SELF-INSURED, Employer/Respondent.

The employee appeals the compensation judge’s finding that she is not entitled to permanent partial disability to the extent of 14 percent. Because substantial evidence supports the compensation judge’s finding, we affirm.

Kristine A. Markham, the employee, worked as a seasonal naturalist at Fort Snelling State Park through the Minnesota Department of Natural Resources, the employer. The employee’s job required her to assist with educational programs and activities for children and families visiting the park. On May 20, 2014, while in the scope and course of her employment, the employee was carrying fishing bait to a van when her foot missed the curb, causing her to twist her right ankle. She was initially diagnosed with an ankle sprain, but when her ankle failed to improve after physical therapy, she saw Sharilyn Moore, D.P.M., who performed surgery. The employee developed an allergic reaction to the hardware and was ultimately diagnosed by Dr. Moore with chronic regional pain syndrome (CRPS). The self-insured employer admitted liability and paid medical, wage loss and vocational rehabilitation benefits. However, a dispute arose over medical treatment and a proposed retraining claim, and the matter went to hearing on October 12, 2017.

In a findings and order filed December 6, 2017, a compensation judge found that the employee had developed CRPS, awarded medical treatment claimed, and found that the employee was entitled to retraining as outlined in a proposed retraining plan. On appeal to this court, the employer argued that the judge erred as a matter of law in approving the retraining plan. We disagreed, affirming the compensation judge’s findings and order.^[1]

On February 14, 2018, the employee filed a claim petition for permanent partial disability (PPD) for the CRPS condition. Matthew Monsein, M.D., at Courage Kenny, who had treated the employee for her CRPS condition, assigned a 14 percent PPD rating under Minn. R. 5223.0435, subp. 2, using the appropriate rules listed in assigning the ratings. He noted “slightly decreased strength” on dorsiflexion on the right and rated the employee’s lower extremity incomplete motor loss at 3.5 percent pursuant to Minn. R. 5223.0420, subps. 2I and 5B, which require that the tested muscles are unable to sustain contraction against expected resistance but able to sustain contraction against some applied resistance. Under Minn. R. 5223.0430, subps. 2G(2) and 5, Dr. Monsein assigned a .5 percent rating for partial sensory loss of the lateral plantar branch for decreased sensation along the lateral side of her foot. Finally, he noted slight skin redness and that she walked with a limp, and assigned a 10 percent rating under Minn. R. 5223.0630, subp. 2C, which requires that “signs or symptoms of skin disorder are present, and intermittent treatment is required, and there is limitation in the performance of some of the activities of daily living.”^[2]

The employee also treated with Terri Lynn Allen, N.P., at Courage Kenny from December 2017 to June 2018. The nurse practitioner noted on several examinations that the employee’s right ankle had decreased range of motion, diffuse tenderness to light palpation, and normal motor and sensory examination. The employee’s ankle appeared pink, warm, dry, and intact with no color change noticed in the right ankle, but was cooler to the touch than the left ankle.

The employer retained Paul Biewen, M.D., for an independent medical examination. Dr. Biewen opined that the employee had developed CRPS, but it had since resolved. He disagreed with Dr. Monsein’s PPD rating of 14 percent, indicating that the employee’s physical symptoms did not support such a rating. With respect to the specific findings required for a PPD rating, he explained that the employee was able to walk on her toes and heels with discomfort, but there was no evidence of motor loss. She had a decreased plantar flexion and range of motion in digits four and five, but he reasoned that this loss alone was not a ratable finding. He observed that the employee had a sensory alteration which was not consistent with a loss, nor did she demonstrate abnormality consistent with vascular loss or skin changes which could qualify her for an impairment rating. He agreed with the previous opinion of Dr. Moore, which he stated was a zero percent rating for painful organic syndrome affecting the right ankle under Minn. R. 5223.0520, subp. 2C, and was more accurate than Dr. Monsein’s opinion.

In Findings and Order served and filed December 11, 2018, the compensation judge adopted the opinion of Dr. Biewen and denied the employee’s PPD claim. 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 compensation judge was barred by the principles of res judicata from determining that the employee did not suffer from the symptoms of CRPS. She further argues that the judge’s finding that the employee was not entitled to PPD is not supported by substantial evidence.

The compensation judge incorporated the previous December 6, 2017, findings and order within the findings and order on appeal. In that decision, he found that the employee developed CRPS in her right foot and that Dr. Biewen had assessed permanent restrictions. (Findings 1, 7, and 10.) The employee argues that the judge’s previous findings act as a bar against determining that the employee’s CRPS condition was not rateable and that she is not entitled to PPD. She argues that the doctrine of res judicata prevents the judge from “changing his earlier” findings.

Res judicata is a doctrine bringing finality to legal proceedings in which “a final judgment on the merits bars a second suit from the same claim by parties . . . .” Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn. 1984). The doctrine precludes only litigation of issues and claims which were specifically decided in an earlier decision. Mach v. Wells Concrete Prods. Co., 866 N.W.2d 921, 925, 79 W.C.D. 279, 283 (Minn. 2015); Fischer v. Saga Corp., 498 N.W.2d 449, 450, 48 W.C.D. 368, 369 (Minn. 1993).

It is not clear that the employee raised the issue of whether the doctrine of res judicata barred the parties from litigating the permanent nature of the injury at the hearing. The employee offered the Findings and Order served and filed on December 6, 2017, as an exhibit to show the judge’s previous finding indicated that the employee “suffered CRPS and was continuing with symptoms and limitations as a result of that which was the underlying condition that necessitated her being retrained.” (T. 9-10.) Assuming the res judicata argument was made, we see no reason for application of the doctrine of res judicata in this case. There was no previous finding in the 2017 decision that would preclude the litigation of the employee’s claimed PPD rating. There were no specific findings by the judge that the employee had permanent restrictions, only recitations of Dr. Biewen’s opinion indicating that she had such restrictions.^[3] Furthermore, the parties had not litigated the permanent nature of the employee’s CRPS condition, only medical treatment and a proposed retraining plan. Permanent partial disability had not been rated by Dr. Monsein and had been rated by Dr. Biewen at zero percent^[4] at the time of the 2017 hearing, but was not at issue. Finally, while the judge found that the employee had developed CRPS in her right foot, there is no evidence in the record that the symptoms of CRPS could not wax and wane over time with treatment. We therefore conclude that the judge did not err in failing to apply the doctrine of res judicata in this case.

The employee also argues that substantial evidence does not support the judge’s finding that she was not entitled to PPD, claiming the judge erred by finding that her CRPS condition had resolved. This argument is inconsistent with the compensation judge’s findings and order because the judge made no finding that the employee’s CRPS condition had resolved, only that the preponderance of the evidence failed to show that the employee was entitled to a PPD rating. In so doing, the judge adopted the medical opinion of Dr. Biewen over that of Dr. Monsein.^[5]

Generally, a compensation judge’s choice among conflicting expert opinions must be upheld unless the opinion lacked adequate factual foundation. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985). An expert opinion lacks adequate foundation when the opinion does not include the facts and/or data upon which the expert relied in forming the opinion; does not explain the basis for the opinion; or the facts assumed by the expert in rendering an opinion are not supported by the evidence. Hudson v. Trillium Staffing, 896 N.W.2d 536, 540, 77 W.C.D. 437, 442 (Minn. 2017). The opinion need only be based on “enough facts to form a reasonable opinion that is not based on speculation or conjecture.” Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017). Whether an expert’s opinion rests on adequate foundation “is a decision within the discretion of the trial judge, subject to review for abuse of discretion.” Id. Dr. Biewen is a board-certified specialist in pain, medicine and rehabilitation. He physically examined the employee twice, reviewed multiple medical treatment records, took a history from the employee, and wrote three separate reports. The medical opinion of Dr. Biewen adopted by the judge was not based on conjecture or speculation, but on enough facts to support his opinion.

In adopting Dr. Biewen’s opinion as more persuasive than Dr. Monsein’s opinion, the judge explained that Dr. Monsein pointed to no findings on examination in support of his ratings. While Dr. Monsein mentions that the right foot was slightly redder with slightly decreased strength on dorsiflexion, the judge did not see a sufficient basis to support Dr. Monsein’s rating. The judge also reasoned that although Dr. Monsein described skin changes to support the bulk of his PPD rating, besides the slight redness and antalgic gait which he related to a limitation in the performance of some of the activities of daily living, he made no other observations. The judge further explained that the lack of observations by Dr. Monsein, coupled with the nurse practitioner’s consistent lack of sufficient findings on physical examination, made the 14 percent PPD rating unreasonable.

While the record may support some of Dr. Monsein’s conclusions, the issue for this court, however, is not whether there is substantial evidence in the record to support the employee’s claim based on Dr. Monsein’s opinion, but whether there is substantial evidence supporting the finding the compensation judge made, based on Dr. Biewen’s opinion, that the employee was not entitled to PPD. See Ludford v. Honeywell, Inc., slip op. (W.C.C.A. Mar. 17, 2004); Land v. Washington County Sheriff’s Dep’t, slip op. (W.C.C.A. Dec. 23, 2003); see also Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (“[t]he point is not whether [the appellate court] might have viewed the evidence differently, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate”). In his narrative reports, Dr. Biewen outlined the employee’s medical history, reviewed her examination, and explained the basis for his opinion that the employee’s symptoms were insufficient for a rating under the PPD schedule. He opined that there was no evidence of motor loss, that the decreased range of motion in digits four and five was not a ratable finding, that any sensory alteration which was not consistent with a loss, and that there were no skin changes which could qualify her for a PPD rating. The nurse practitioner’s records also consistently reported no changes to the skin color and a normal motor and sensory examination. Where more than one inference may reasonably be drawn from the evidence, the compensation judge’s findings are to be affirmed. Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240.

Based on the record, substantial evidence supports the compensation judge’s finding that the employee was not entitled to PPD, and we affirm.