EVIDENCE – BURDEN OF PROOF. Where a compensation judge stated, in consideration of a petition to discontinue benefits, that an employer and insurer’s evidence was not more convincing nor had a greater probability of truth than the employee’s evidence presented in support of the employee’s claim that her medical condition was related to the work injury, and held that that the employer and insurer did not meet their burden of proof, the judge erred by placing the burden of proving whether the employee was entitled to benefits on the employer and insurer instead of on the employee as required by Minn. Stat. § 176.021, subd. 1. The judge’s finding that the employer and insurer did not meet their burden of proof that the employee’s work injury was temporary and had resolved and the dismissal of the petition to discontinue benefits are vacated, and the matter is remanded to the compensation judge.
Compensation Judge: Grant Hartman
Attorneys: Stephen R. Quanrud and Thomas A. Klint, Midwest Disability, Coon Rapids, Minnesota, for the Respondent. Kirk C. Thompson, Kirk C. Thompson Law Office, P.A., Minneapolis, Minnesota, for the Appellants.
Vacated and remanded.
GARY M. HALL, Judge
The employer and insurer appeal the compensation judge’s finding that they did not meet their burden of proof that the employee’s July 14, 2016, work injury was a temporary muscular low back strain that had resolved. We vacate the findings and order and remand for further consideration.
On July 14, 2016, Lori A. Schallock, the employee, sustained a low back injury when transferring a patient while working as a certified nurse assistant for Battle Lake Good Samaritan Center, the employer, which was insured for workers’ compensation liability by Sentry Insurance Group. The employee had no low back or left leg symptoms before this injury. The employee was off work for one week and returned to work with light-duty restrictions. Three months after the injury, the employee developed left leg weakness and treated with Dr. Sunny Kim. The employee was again taken off work because her left leg would not support her. Dr. Kim opined that her left leg weakness was not due to her spine and that the employee might have multiple sclerosis. The employee was paid temporary total disability benefits (TTD) for the first week, temporary partial disability benefits into October 2016, and TTD beginning again on October 12, 2016.
The employee has been evaluated by numerous physicians, including multiple neurologists, a neurosurgeon, and orthopedic surgeons. The employee underwent extensive treatment and multiple scans. Potential diagnoses included low back sprain/strain, lumbar facet arthropathy, L5 radiculopathy, chronic regional pain syndrome, multiple sclerosis, and FSH dystrophy.
In February 2017, Dr. Thomas Nelson conducted an examination of the employee at the employer and insurer’s request. He opined that the employee had sustained a minor low back muscle strain that temporarily aggravated her pre-existing facet joint arthritis, that there was no evidence of L5 radiculopathy on MRI scans, and that the employee’s left leg symptoms were not related to her low back injury. In a report dated May 2, 2018, the employee’s treating neurologist, Dr. Kathleen Rieke, opined that the employee’s left leg symptoms were related to her work-related low back injury.
On April 13, 2018, Dr. Khalafalla Bushara, a neurologist, conducted a neutral examination of the employee. Dr. Bushara opined that the employee’s work injury was a temporary sprain/strain which had resolved, was not the cause of the employee’s left leg weakness, and was not a substantial contributing cause of the employee’s current medical condition. He also stated that the employee’s left leg weakness was consistent with muscular dystrophy and that the upper motor neuron condition was likely multiple sclerosis.
In May 2018, Dr. James Andrews opined that the employee had sustained a permanent injury to her lumbar facet joints as a result of the work injury. He also noted that the employee’s left leg weakness might be a type of muscle disease.
Based on Dr. Nelson’s opinion, the employer and insurer filed a notice of intention to discontinue the employee’s TTD benefits on February 21, 2017. After an administrative conference was held on April 3, 2017, discontinuance was denied by an Order on Discontinuance served and filed April 7, 2017. The employer and insurer filed a petition to discontinue benefits on June 5, 2017, again based on Dr. Nelson’s opinion. A May 19, 2017, medical request for unpaid medical expenses was initially consolidated for hearing with the petition to discontinue, but these pleadings were later bifurcated. The employer and insurer scheduled another medical examination for the employee with Dr. Nelson on August 30, 2018, which the employee did not attend.
A hearing was held on the petition to discontinue on September 21, 2018. The issue at the hearing was whether the employee’s July 14, 2016, work injury was a substantial contributing factor to her ongoing symptoms and disability. The compensation judge found that the employer and insurer “did not meet its burden of proof that the employee’s July 14, 2016, work injury was a temporary muscular low back strain that has resolved” (Finding 12) and denied the petition to discontinue. The employer and insurer appeal.
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 compensation judge found that the employer and insurer did not meet their burden of proof that the employee’s July 14, 2016, work injury was a temporary muscular low back strain that had resolved. The employer and insurer argue that the compensation judge erred by placing the burden of proof regarding entitlement to compensation upon the employer and insurer.
The employee has the burden of proof to show that a work-related injury caused the disability. Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 497, 40 W.C.D. 117, 122 (Minn. 1987). "An employer petitioning to discontinue benefits has the initial burden to establish the evidentiary basis for the petition. Once this occurs, the burden of proving entitlement to benefits is upon the employee. The employee's burden may include the proof necessary to establish primary liability." King v. Farmstead Foods, 45 W.C.D. 292, 294 (W.C.C.A. 1991), summarily aff’d (Minn. Oct. 1, 1991). The employee retains the burden of proof for entitlement to workers’ compensation benefits after a petition to discontinue has been filed. See Minn. Stat. § 176.021, subd. 1. Disputed issues are determined by a preponderance of evidence, which “means 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.” Minn. Stat. § 176.021, subd. 1a.
In this case, the compensation judge reviewed the evidence, including the medical opinions listed above and the subsequent reports by Dr. Nelson and Dr. Bushara indicating their opinions had not changed. The judge found that employer and insurer did not meet their burden of proof that the employee’s work injury was a temporary muscular low back strain that had resolved. In the memorandum, the judge noted that the employee had no previous symptoms, had consistently treated for her symptoms, and had experienced relief from medial branch blocks, which supported a diagnosis of low back radiculopathy. The judge determined, based upon all of the medical evidence, “it is plausible the employee could be suffering from both an L5 radiculopathy and a form of muscular dystrophy.” (Memorandum at 5.) The compensation judge concluded the following:
The evidence produced in substantiation of the employer/insurer’s Petition to Discontinue was not more convincing, nor had a greater probability of truth, than the evidence presented in support of the employee’s claim that her medical condition was related to the work injury. Therefore, the employer/insurer did not meet its burden of proof.
(Id.)
The employee contends that the compensation judge did not erroneously place the burden of proof on the employer and insurer, but instead simply found that the employer and insurer did not meet their initial burden of establishing an evidentiary basis for the petition to discontinue. We disagree. The compensation judge gave no indication that he was only considering the employer and insurer’s evidentiary basis for the petition. He clearly considered the employee’s evidence on the issue of whether the employee’s work injury was a substantial contributing factor of her condition, because he listed Dr. Rieke’s opinion in the findings and concluded that the employee could have both an L5 radiculopathy and a form of muscular dystrophy in his memorandum. The judge’s statement, that the employer and insurer’s evidence was not more convincing nor had a greater probability of truth than the employee’s evidence presented in support of her claim that her medical condition was related to the work injury, indicates that the judge erroneously placed the burden of proving whether the employee was entitled to benefits on the employer and insurer, instead of on the employee as required by Minn. Stat. § 176.021, subd. 1.
The employer and insurer met their initial burden of establishing an evidentiary basis for their petition to discontinue benefits. The burden then shifted to the employee to prove that her July 14, 2016, work injury is a substantial contributing factor to her ongoing symptoms and disability. We vacate the compensation judge’s finding that the employer and insurer did not meet their burden of proof that the employee’s July 14, 2016, work injury was a temporary muscular low back strain that had resolved, vacate the judge’s dismissal of the employer and insurer’s petition to discontinue, and remand for determination of whether the employee’s July 14, 2016, work injury is a substantial contributing factor to her ongoing symptoms and disability using the appropriate burden of proof. In light of the vacation of the dismissal and remand for further consideration, we will not address whether the compensation judge failed to determine all contested issues of law and fact or whether substantial evidence supports the compensation judge’s decision.
[1] In an addendum to their notice of appeal, the employer and insurer asserted that the employee failed to attend a second examination with Dr. Nelson without a justifiable excuse. This was discussed in a footnote in their brief. We note, however, that refusal of an examination was not listed on the notice of intention to discontinue or the petition to discontinue. This issue was not specifically raised as grounds for discontinuance at the hearing below. Issues may not be raised for the first time on appeal, and we will not consider this issue. See Bradford v. Bureau of Engraving, 459 N.W.2d 697, 698, 43 W.C.D. 279, 280 (Minn. 1990); Malinoski v. North Am. Cable Sys., slip op. (W.C.C.A. Dec. 14, 1989); see also Barnett v. Pillsbury Co., 34 W.C.D. 581 (W.C.C.A. 1982) (issue first raised at appellate hearing was not timely).