APPEALS – NOTICE OF APPEAL. This court lacks jurisdiction to consider an issue briefed but not listed by specific finding or order or identified as an issue raised on appeal in the appellant’s notice of appeal pursuant to Minn. Stat. § 176.421.
CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence in the form of a medical opinion with adequate foundation supports the compensation judge’s determination that the employee’s 2015 work injury was not a substantial contributing factor in his claimed disability.
Compensation Judge: Grant R. Hartman
Attorneys: Lorrie Bescheinen, Fishman, Carp, Bescheinen & Van Berkom, Ltd., Plymouth, Minnesota, for the Appellant. Joshua Steinbrecher, Heacox, Hartman, Koshmrl, Cosgriff, Johnson, Lane & Feenstra, P.A., St. Paul, Minnesota, for the Respondents.
Affirmed.
DAVID A. STOFFERAHN, Judge
The employee appeals the compensation judge’s finding that his work injury is not a substantial contributing factor to his ongoing disability, and the denial of his claims for wage loss benefits and payment of intervention claims. We affirm.
The employee, Junus A. Reason, was working as a truck driver for ELL Z Trucking on July 9, 2015, when he was injured in a roll-over accident. He was transported to Regions Hospital where he was treated primarily for left leg pain and hematoma development. No fractures or dislocations were identified and his CT scan results were normal. The employee was treated with pain medication and discharged the following day. He received follow-up care at Hennepin County Medical Center (HCMC) for the left leg hematoma. The employee also treated regularly with a chiropractor at Northside Chiropractic Clinic, where he was diagnosed with acute traumatic cervical, thoracic, lumbar, and sacroiliac joint sprain/strain, shoulder sprain/strain, neck strain and subluxation, knee sprain, and multiple contusions and lacerations. The employer and its workers’ compensation insurer admitted the employee’s injury and paid temporary total and temporary partial disability benefits.
The employee’s medical records before the work injury show a history of back pain going back to 2002. The employee was treated at HCMC on May 30, 2002, for left leg weakness, numbness, and low back pain that was attributed to degenerative disc disease. The employee applied for and was found to be eligible for Social Security disability (SSDI) benefits as of February 2, 2002. In his application for disability benefits, completed by the employee and dated August 19, 2002, the employee identified the conditions that limited his ability to work as “lower back & neck, sleep apnea, high blood pressure, leg numbness.” The employee received SSDI for a number of years. A trial work period in 2004 was considered unsuccessful and the Social Security Administration determined in 2006 that the employee continued to be disabled and entitled to disability benefits. It is unclear from the record whether the employee’s SSDI benefits ceased.
The employee sustained a work injury on February 2, 2010, in a motor vehicle accident while working as a driver for a different employer. That employer and its insurer admitted an injury to the employee’s low back, neck, and right shoulder and paid the employee 128.4 weeks of temporary total disability benefits. The employee’s treatment following this injury was primarily for the low back. An MRI scan done in October 2010 was read as showing moderate disc desiccation/degeneration at L4-5 and L5-S1 along with evidence of osteoarthritis of the facet joints at those levels. The employee treated for the 2010 injury into August 2012 at the Noran Neurological Clinic. In October 2013, he was seen at the emergency department at North Memorial Medical Center for lumbar spine pain with sciatica. The employee’s 2010 work injury was settled in 2014. The employee had not been employed from the date of the injury until the date of the settlement.
Following his July 2015 work injury, the employee began receiving chiropractic care at Northside Chiropractic Center beginning on July 14, 2015. The employee treated there on a regular basis until December 1, 2015, receiving 40 chiropractic treatments during that time. The employee was also seen on a number of occasions at Dodson Pain Consultants for a review of his chiropractic care.
Ryan Mairs, D.C., reviewed the post-injury medical records on behalf of the employer and insurer on March 14, 2016. In his report, he concluded that the employee had sustained multiple contusions and strains to the cervical, thoracic, and lumbar spine, shoulders, and knees in the July 2015 roll-over accident. He stated that the employee had received an excessive amount of chiropractic and therapeutic measures and opined that the employee had reached maximum medical improvement from the injury in October 2015.
The employee was seen by Dr. Thomas Bergman, a neurosurgeon at HCMC, on May 6, 2016. Dr. Bergman reviewed an MRI scan that had been done at HCMC on April 21. The MRI results were not significantly changed from the MRI done in October 2015. Dr. Bergman found no evidence of neural compression in either the neural foramen or spinal canal. Dr. Bergman did not believe the employee would benefit from surgery.
The employee was also referred to a physical medicine and rehabilitation physician, Dr. Frank Wei. Dr. Wei’s impression after examining the employee was possible bilateral radicular leg pain, associated sleep dysfunction, and deconditioning. Dr. Wei recommended physical therapy and an increased dosage of gabapentin. The employee saw Dr. Wei on a number of occasions. Dr. Wei released the employee to return to work with no restrictions as of October 11, 2017.
The employee was then seen by Dr. Daniel Hanson at Minnesota Spine Institute on October 13, 2017. No paraspinal tenderness was found on examination and range of motion was normal. MRI images done on September 8, 2017, were read as showing decreased disc hydration at L4-5 and L5-S1, and left L4-5 arthritis in the facet joint along with narrowing along the L5 nerve. Dr. Hanson recommended a left L4-5 transforaminal decompression of the left L5 nerve root and performed that procedure on March 5, 2018. The employee reported in follow up with Dr. Hanson on April 6, 2018, that his back pain had resolved following the surgery.
The employee filed a claim petition in June 2017, claiming temporary partial disability from April 3 to October 1, 2017, temporary total disability from November 21, 2017, and continuing, and asserting intervention claims from the medical providers.
The employee was evaluated by Dr. Brian Lynn, an orthopedist, on behalf of the employer and insurer. Dr. Lynn prepared a report dated November 11, 2017, following his evaluation. In that report, Dr. Lynn stated, “Mr. Reason reports that prior to 2015, he denies previous accidents or injuries to his lumbar spine and denies lower extremity pain.” Dr. Lynn concluded the employee’s 2015 lumbar injury had resolved by October 2015 but that physical therapy, for what Dr. Lynn diagnosed as a left sacroiliac joint strain, would be reasonable.
Dr. Lynn subsequently received additional medical records detailing the employee’s low back and radicular complaints and treatment beginning in May 2002, as well as records from after his evaluation of the employee in November 2017. Dr. Lynn wrote a supplemental report dated August 1, 2018. Dr. Lynn noted that it was “very disconcerting” that the employee had denied any history of low back injuries before the 2015 accident. Dr. Lynn did not believe that the 2018 surgery was reasonable or necessary since there was no evidence of nerve compression. He stated that treatment of the lumbar strain from the date of injury until October 2015 was reasonable and necessary. Dr. Lynn also concluded that any “current discomfort” experienced by the employee was unrelated to the 2015 work injury.
The employee’s claims came on for hearing before a compensation judge on August 16, 2018, for a determination of the nature and extent of the employee’s July 9, 2015, work injury, his entitlement to wage loss benefits for claimed periods of time in 2017, and the compensability of intervention claims. After considering the testimony of the employee and reviewing medical records and other submitted evidence, the compensation judge issued Findings and Order on September 28, 2018, in which he found the employee’s work injury 2015 to be temporary and resolved as of October 9, 2015. The compensation judge denied the employee’s claim for wage loss benefits, denied the intervention claim of Dr. Wei, and denied the intervention claim of Northside Chiropractic Clinic for treatment rendered beyond the date of resolution of the employee’s work injury.
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, sub. 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, in his appeal, cites to two errors he alleges were committed by the compensation judge in denying his claims. First, the employee claims the compensation judge committed legal error by determining that the employee received SSDI benefits in part because of his low back and lower extremity symptoms. Second, the employee contends that the compensation judge erred in finding that Dr. Wei did not have proper foundation for his opinion.
Minn. Stat. § 176.421, subd. 6, states that this court’s review “is limited to the issues raised by the parties in the notice of appeal or by a cross-appeal.” A notice of appeal must specify, among other things, “the particular finding of fact or conclusion of law which the appellant claims was unsupported by substantial evidence in view of the entire record as submitted” and “any other ground upon which the appeal is taken.” Minn. Stat. § 176.421, subd. 3(3) and (4).
The compensation judge made two findings related to the employee’s receipt of SSDI benefits. In Finding 2, the compensation judge referred to the application for benefits filed by the employee in August 2002 in which the employee identified lower back and leg numbness, among other symptoms, as contributing to his inability to work. In Finding 4, the compensation judge described a 2005 form in which the employee listed low back pain and left leg numbness as contributing to his inability to work. In the memorandum, the compensation judge stated that his finding that the employee’s 2015 work injury was not a substantial contributing factor to his ongoing condition was supported in part because the “employee’s prior low back and left lower extremity symptoms were significant enough that he received Social Security disability benefits for a number of years based, in part, upon those symptoms.” The employee, in his notice of appeal, listed numbered findings and orders from which he appealed. This list did not include Findings 2 or 4, or the supporting memorandum quoted here.
We acknowledge that an appellant’s failure to list a specific finding will not necessarily forfeit an issue on appeal. A notice may be sufficient if it “apprises this court and the other parties of the facts and issues being appealed.” Bonilla v. Dakota Premium Foods, 75 W.C.D. 629, 642 (W.C.C.A. 2015), summarily aff’d (Minn. Nov. 25, 2015). In this case, the notice of appeal filed by the employee identifies three issues raised on appeal: whether the employee’s work injury was a permanent injury, whether the employee was entitled to temporary total disability benefits, and whether the employee was entitled to temporary partial disability benefits. None of the issues identified in the notice of appeal relate to the employee’s receipt of SSDI benefits. The notice of appeal filed by the employee did not put the employer and insurer on notice of this issue and this court lacks jurisdiction to consider this issue further.
The compensation judge stated at the outset of the hearing that the issues for his determination were whether the employee’s July 9, 2015, work injury was a substantial contributing factor in the employee’s ongoing disability, whether the employee was entitled to wage loss benefits, and whether the intervenors were entitled to payment of medical bills. The attorneys for the parties agreed with this statement of the issues. (T. 6.) To address these issues, the parties submitted the employee’s medical and Social Security records, the employee’s testimony, and medical opinions on the question of causation.
The employee’s claims were based on the opinion of Dr. Wei stated in his June 4, 2018, report in which he opined that the employee’s current condition was related to the 2015 work injury. The employer and insurer introduced and relied on the opinion of their IME, Dr. Lynn, as set out in his August 1, 2018, report, that the 2015 injury was temporary and had resolved by October 9, 2015. The compensation judge accepted the opinion of Dr. Lynn and denied the employee’s claim. The employee challenges that determination in his appeal.
Dr. Wei began treating the employee in 2016. In his initial report of May 23, 2016, to the referring physician, Dr. Wei related the onset of the employee’s low back pain to the 2015 work injury. In his recitation of the employee’s past medical history, there is reference to a previous injury of his rotator cuff and gastric bypass surgery. There is no mention of the employee’s low back and radicular symptoms going back to 2002.
The report of Dr. Wei relied upon by the employee at the hearing was that of June 4, 2018. At that time, Dr. Wei had received and reviewed Dr. Lynn’s initial report dated November 11, 2017. Dr. Wei was apparently not aware that Dr. Lynn had not had a complete medical history when he wrote that report. After his receipt of medical records preceding the 2015 injury, Dr. Lynn concluded in his August 1, 2018, report that the employee’s symptoms were “secondary to his longstanding chronic low back pain and not related to any workplace injury of July 9, 2015.” There is no indication that Dr. Wei had the benefit of that additional information when he provided his 2018 report.
The employee alleges in his brief that the compensation judge erred in finding that Dr. Wei had inadequate foundation for his opinion. The compensation judge made no such finding. Instead, the findings of the compensation judge are a recitation of the evidence submitted by both parties on this issue. In his memorandum, the compensation judge stated that he found Dr. Lynn’s opinion on causation to be persuasive.
It is the function of the compensation judge to consider competing expert opinions and the compensation judge’s decision in that regard will not be reversed so long as the accepted opinion has adequate foundation. Smith v. Quebecor Printing, 63 W.C.D. 566, 573 (W.C.C.A. 2003) (citing Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985)), summarily aff’d (Minn. Aug. 15, 2003). Dr. Lynn’s opinion had adequate foundation and the decision of the compensation judge based on that opinion is supported by substantial evidence.
The decision of the compensation judge is affirmed.