OCTOBER 24, 2019

No. WC19-6286

CAUSATION – SUBSTANTIAL EVIDENCE.  Substantial evidence, including the employee’s medical records and expert medical opinion, supports the compensation judge’s determination regarding causation of the employee’s need for surgery.

    Determined by:
  1. Patricia J. Milun, Chief Judge
  2. Gary M. Hall, Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge:  Stacy P. Bouman

Attorneys:  James A. Batchelor, Batchelor Law Firm, P.A., Minneapolis, Minnesota, for the Appellant.  Thomas F. Coleman, Cousineau, Waldhauser & Kieselbach, P.A., Mendota Heights, Minnesota, for the Respondent.




The employee appeals the compensation judge’s determination that the evidence does not support a finding that the employee’s decompression and fusion surgery was causally related to his 2013 or 2017 work injuries.  We affirm.


Michael W. Mucker, the employee, had a significant history of cervical spine problems before his employment with Metro Transit/Metropolitan Council, the self-insured employer.  In 2004, he was involved in a work-related motor vehicle accident while working for a different employer.  The employee reported neck and upper back pain as well as pain radiating down both arms.  An MRI showed multi-level degenerative changes at C4-5, C5-6, and C6-7, severe spinal stenosis at C4-5 with severe neural foramina narrowing and a small disc herniation, and moderate spinal stenosis at C3-4, C5-6, and C6-7 with moderate narrowing of the neural foramina bilaterally.

The employee underwent a cervical decompression, discectomy, and fusion surgery at C4-5, performed by Dr. Bryan Lynn at the Institute for Low Back and Neck Care, on September 2, 2004.  Dr. Lynn noted there was some degree of myelomalacia at the most stenotic level and opined the 2004 motor vehicle accident substantially contributed to the development of the stenosis.  He assigned restrictions of light or moderate duty and avoiding positions that required prolonged static flexion or extension of the employee’s cervical spine.

Dr. Mark Larkins conducted an independent medical evaluation of the employee on October 19, 2004.  He opined that the employee had pre-existing myelomalacia and stenosis conditions which, although not caused by the motor vehicle accident, were permanently aggravated by that accident.  Dr. Larkins concluded the pre-existing conditions and the 2004 work injury were substantial contributing factors to the employee's need for surgery and restrictions.

The employee reported intermittent posterior cervical discomfort at his six-month post-surgery checkup.  On August 17, 2005, Dr. Lynn issued a health care provider report indicating the employee had reached maximum medical improvement and had a 12.5 percent permanent partial disability rating.

The employee began working for Metro Transit as a part-time bus driver in July 2005 and became a full-time driver in 2012.

In January 2006, the employee treated at the Institute for Low Back and Neck Care, reporting increasing discomfort in his cervical spine and occipital region and occasional numbness in his arm.  Dr. Lynn indicated that there was a ten percent chance the employee would need further cervical spine surgery if his degenerative condition progressed.  In 2007, the employee reported increased pain in his cervical spine, right occipital region, and right upper extremity, with no preceding accident or injury.

On January 27, 2013, the employee sustained an admitted work-related injury in a bus/vehicle accident while working for the employer.  The employee was treated the next day for left-sided neck and shoulder pain by Dr. Shanda Dorff at North Clinic.  On examination, he had full active range of motion of the left shoulder and neck, and his strength and sensation were equal and symmetrical in both arms.  On January 28, 2013, the employee was released to work without restrictions.  The employee continued conservative treatment, including chiropractic care, injections, physical therapy, and medication management.

The employee treated for left-sided neck and arm pain at the Institute for Low Back and Neck Care in February 2013.  A cervical MRI indicated post-surgical changes at C4-5, myelomalacia, a C3-4 disc bulge with moderate central canal stenosis and moderate foraminal narrowing, and C5-6 and C6-7 disc bulging with moderate central canal stenosis and moderate foraminal narrowing.  Dr. Erik Ekstrom opined that the stenosis appeared worse than in the previous scans and recommended steroid injections.  In a November 2013 report, Dr. Ekstrom opined that the 2013 work injury substantially contributed to exacerbating the employee’s cervicalgia, cervical stenosis, and cervicogenic headaches, and substantially contributed to a new diagnosis of cervical disc herniation at C6-7 and resultant cervical radiculopathy.  Dr. Ekstrom noted that he was not able to determine whether the aggravation was temporary or permanent at that time, but assigned a 10 percent permanency rating in March 2014.

Dr. Dorff referred the employee to North Memorial Health Care for pain management in May 2014.  The employee treated with Dr. Tria Lor and saw him in follow-up for medication refills for chronic back and neck pain through 2018.

On October 11, 2017, the employee tripped on the bus steps and fell into the bus, striking his right shoulder on the fare box.[1]  The employee was seen by Dr. Lor on October 26, 2017, for right shoulder pain and was diagnosed as likely having a shoulder strain.  On examination, the employee had full range of motion of his right shoulder and neck without arm weakness or numbness.  The employee was not given restrictions and continued treatment under the same medication management program.

In March 2018, the employee sought treatment with Dr. Steven Stulc at Summit Orthopedics (formerly the Institute for Low Back and Neck Care) for chronic neck and arm pain as well as low back and leg pain, reporting that his neck pain had worsened since he fell on his right shoulder.  The employee was referred to Dr. David Strothman, who restricted the employee to sedentary work on April 20, 2018.  The employee stopped working and was treated with injections and physical therapy.  After a surgical evaluation, Dr. Strothman recommended an anterior cervical decompression and fusion at C3-4, C5-6, and C6-7, and a posterior cervical fusion from C3 to C7.

Dr. Larkins evaluated the employee again on June 27, 2018, and diagnosed the employee with a cervical radiculopathy, most likely involving multiple levels.  He opined that the employee’s underlying cervical degenerative disc disease was permanently aggravated by his 2004 injury and that the employee’s need for surgery was not substantially caused, aggravated, or accelerated by the 2017 or 2013 work injuries.  He recommended that the employee not drive a bus, avoid repetitive lifting, and not lift more than 20 pounds, but indicated these restrictions were due solely to the employee's underlying spinal condition and 2004 aggravation.

On August 6, 2018, the employee underwent anterior cervical decompression and fusion at C3-4, C5-6, and C6-7, posterior cervical fusion at C4 to C7, and intersegmental decompression from C4 to C7, performed by Dr. Strothman.  In October 2018, Dr. Strothman issued a narrative report describing the employee’s treatment at Summit Orthopedics and the surgery.  He agreed with Dr. Ekstrom’s 2013 assessment that the employee's 2013 injury “substantially contributed to the potential for [the employee’s] cervicalgia, headaches, cervical disc herniation at C6-7, and cervical radiculopathy,” but also stated that “it is at least equally likely” natural cervical spine degeneration had occurred.[2]   Dr. Strothman opined the 2017 fall aggravated the employee's pain, but was unlikely to have created any new pathology to account for the employee's symptoms.  While he considered it difficult to determine the degree to which the 2013 injury contributed to the accelerated development of the employee’s cervical spondylosis, central stenosis, foraminal stenosis, and radiculopathy, he concluded that the new disc herniation at C6-7 sustained at the time of the 2013 injury would predispose that level to further degeneration so as to ultimately be a contributing cause to the employee’s eventual need for surgical treatment.  Dr. Strothman also opined the 2013 and 2017 injuries were substantial contributing factors to the employee’s need for medical care, including visits to Dr. Lor and Summit Orthopedics, MRI scans, and physical therapy.  Regarding causation, Dr. Strothman stated that although the work injuries exacerbated the employee’s pain, he could not state with certainty they were “ultimately . . . the direct or majority cause” of the need for surgery.[3]   On October 17, 2018, Dr. Strothman released the employee to return to light-duty work.

Dr. Larkins issued a supplemental report on October 22, 2018, opining that the employee’s January 27, 2013, injury was not a substantial contributing, aggravating or accelerating factor to the employee’s disability and need for treatment, including the fusion surgery, and that his condition was related to the expected progression of the employee’s multilevel degenerative changes.

The employee filed a claim petition on May 4, 2018, seeking medical, wage loss, and rehabilitation benefits as a result of work-related injuries on January 27, 2013, and October 11, 2017.  A hearing was held on February 13, 2019.  In her Findings and Order dated April 1, 2019, the compensation judge found the employee sustained an injury in the course and scope of his employment with the self-insured employer on October 11, 2017, which resulted in temporary right shoulder pain.  The judge also found the employee’s 2018 decompression and fusion surgery was not causally related to his 2013 or 2017 work injuries and denied the employee’s wage loss claims.  The judge found the employee's October 26, 2017, office visit with Dr. Lor was reasonable, necessary and causally related to the 2017 work injury and therefore North Memorial Healthcare was entitled to reimbursement for that date of service.  The compensation judge denied North Memorial Healthcare's remaining intervention claim and the claims of all other intervenors.  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).


The employee argues the compensation judge erred by framing the issues in her Findings and Order in a manner which changed the initial focus of her analysis to the 2017 injury instead of the 2013 injury.  While the employee concedes that the “reorganization of the issues and the focus on 2017, and not 2013, would not likely, in and of itself, lead to a reversible decision,”[4]  he argues that the judge’s approach changed the structure of the employee’s claims, leading to a course of improper reasoning which altered the evidence, misstated crucial facts, and took statements out of context in order to reach a conclusion unsupported by substantial evidence in the record.  We are not persuaded by the employee’s argument.

In the Findings and Order, the compensation judge listed one of the issues as “[w]hether the claimed medical expenses, including the decompression and fusion surgery, were reasonable, necessary, and causally related to the January 27, 2013, and/or claimed October 11, 2017, work injury.”[5]  The compensation judge clearly addressed this issue in her findings and in her memorandum, stating that the evidence did not support a finding that either the 2013 or the 2017 work injury was a substantial contributing cause of the employee’s need for fusion surgery.  As a general rule, a compensation judge may consider the evidence from any perspective that reasonably addresses the issues raised by the parties.  We will not dictate the order in which the judge considered the issues where the judge’s analysis in the Findings and Order addresses the appropriate issues and is consistent with the evidence of record in the case.

The employee next asserts that the contemporaneous medical records from his treatment with Dr. Dorff from January 2013 to March 2014 inaccurately portrayed his medical history, resulting in an erroneous impression, which was relied on by the compensation judge, that the employee’s current neck symptoms began before the 2013 accident.  While the contemporaneous records are not entirely clear, there are repeated references to chronic neck pain over many years in the medical records.  When the employee first treated with Dr. Lor in June 2014, it was noted that he reported chronic achiness and pain in his lower back and neck.  When the employee was evaluated for physical therapy as recommended by Dr. Strothman, the therapist recorded that the employee presented with a complaint of chronic neck pain, ongoing over ten years.  The compensation judge considered the employee’s medical history in light of all the evidence.  Substantial evidence supports the judge’s determination that the employee had intermittent ongoing cervical spine pain before 2013.

The main issue before the compensation judge was whether the two injuries the employee sustained while working for the employer were substantial contributing factors to the employee's current cervical spine condition and ultimate need for a second fusion surgery.

The determination of the nature and extent of an injury is within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 459, 50 W.C.D. 181, 184 (Minn. 1994).  In considering the causation issue, the compensation judge reviewed the employee’s medical records from 2001 through the additional surgery in 2018 and considered the expert medical opinions submitted into evidence by the parties.  The judge discussed the employee’s 2004 cervical spine injury and surgery, his degenerative disc disease and borderline stenosis at other levels, and his work injuries in 2013 and 2017, along with the resulting medical treatment.  The judge also noted the employee was treated conservatively and continued a pain management plan similar to one he had started for other reasons before the 2013 injury.

The judge also weighed the competing medical opinions of Dr. Strothman and Dr. Larkins.  The compensation judge concluded that Dr. Strothman’s opinion was equivocal on two fronts: one, the degree to which the 2013 work injury contributed to the acceleration of cervical spondylosis, central stenosis, foraminal stenosis and radiculopathy; and two, the degree to which the 2013 injury predisposed the C6-7 level to further degeneration and was causally related to the employee’s need for the additional surgery.  The employee claims that the compensation judge’s rejection of Dr. Strothman’s opinion imposed a legally impermissible burden of proof for medical causation because the doctor stated he was not certain that the work injuries were a “direct or majority cause” instead of a substantial contributing cause.  We disagree.  Dr. Strothman’s opinion was open to more than one interpretation.  While he concluded that the new C6-7 disc herniation in 2013 would predispose that level to further degeneration and ultimately be a contributing cause of the need for surgical treatment, he also stated it was “at least equally likely” natural cervical spine degeneration had occurred.[6]  The compensation judge, as the trier of fact, could reasonably reject Dr. Strothman’s opinion as less persuasive and rely on Dr. Larkins’ opinions that the cervical spine changes shown in multiple MRI scans were consistent with the expected progression of the employee’s cervical spine degeneration and led to the need for surgery regardless of the 2017 injury; that the 2013 injury was not a substantial contributing factor to the employee’s disability or need for treatment and surgery; and that the employee’s condition was related to the expected progression of his multilevel degenerative changes.  When there is adequate foundation for the opinion relied on by the judge, this court generally upholds the compensation judge’s choice of medical expert.  See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372-73 (Minn. 1985); Fiedler v. Home Depot, 75 W.C.D. 431, 438 (W.C.C.A. 2015).

The employee’s medical records, in combination with Dr. Larkins’ opinions, provide substantial evidence to adequately support the compensation judge’s determination.  Accordingly, we affirm the compensation judge’s denial of the employee’s claims.

[1] Hearing exhibit 16, titled “Bus Accident Video – 10/11/17,” was submitted into evidence by the employer and insurer as a digital file on a USB drive.

[2] Ex. U.

[3] Id.

[4] Appellant’s brief at 24.

[5] Findings and Order, Issue 4.

[6] The compensation judge stated that Dr. Ekstrom’s 2013 opinion was uncertain.  The employee argues the judge erred in failing to note the doctor’s comment that his uncertainty in 2013 was because of the acuity of the injury.  The employee also points out that Dr. Ekstrom’s 2014 health care provider report assigned ten percent permanency, indicating that he found the employee’s 2013 work injury to be permanent.  We note, however, that the compensation judge addressed the permanency rating in another finding and did not specifically rely on Dr. Ekstrom’s opinion.  Further, Dr. Larkins’ opinion provides substantial evidence to support the compensation judge’s decision.