RONALD L. SHERVA, Employee/Appellant, v. ST. REGIS PAPER CO. and AETNA/TRAVELERS INS. GRP., Employer-Insurer/Respondents, and WILSON SPORTING GOODS and ARGONAUT INS. CO., Employer-Insurer/Respondents, and SPECIAL COMP. FUND, Respondent.

The employee appeals from the compensation judge’s denial of his claims.  We affirm.

Ronald Sherva, the employee, sustained a work injury to his left knee on October 22, 1966, while employed by St. Regis Paper Co.  Liability for the injury was accepted by the employer and its insurer.  The insurer also registered the employee’s injury with the second injury fund of the Special Compensation Fund (SCF) pursuant to Minn. Stat. § 176.131 (repealed 1992).  The employee sustained a work injury to his right knee on July 3, 1972, while employed by Wilson Sporting Goods.  Liability for this work injury was accepted and benefits were paid by this employer and its insurer.

The employee, both employers and insurers, and the SCF entered into a settlement agreement in 1985.  The stipulation recited that, as a result of the 1966 left knee injury, the employee had received 61 weeks of temporary total disability (TTD) benefits, 25 percent permanent partial disability (PPD) of the left leg, and 52 weeks of retraining benefits, and as a result of the 1972 injury to his right knee, the employee had been paid 177 weeks of TTD benefits, 25 percent PPD of the right leg, and 104 weeks of retraining benefits.  Medical treatment for each knee had been paid as well.  The employee’s claim, as set out in the stipulation, was that he was a candidate for total knee replacement surgeries in each leg and that he had been totally disabled since 1984.

The stipulation provided that the employee was to be paid an additional 25 percent PPD of each leg and an additional 165 weeks of weekly benefits representing TTD benefits and permanent total disability (PTD) benefits.  The stipulation further stated:

The employee filed a petition to vacate the settlement in 2007, alleging there had been a substantial change in his medical condition, as reflected in his ongoing inability to work as a result of his injuries.  This court considered the petition, and in its decision, noted that the employee had undergone numerous surgeries on both knees, including right total knee replacement in 2004.  It was also noted that the employee’s treating doctor in 2005 had found extensive degenerative arthritis in both knees that affected his hips and lumbar spine.  As to any change in employability, the court found no change since the employee had alleged in the 1985 stipulation that he was totally unable to work.  The employee’s petition was denied.^[1]  The employee subsequently filed a claim petition which was heard in June 2008.  The primary issue at hearing was whether the employee’s right hip condition and a right total hip arthroplasty performed in April 2008 were related to the 1966 and 1972 work injuries.  There was no claim for treatment of the left hip.  The compensation judge found the right hip surgery to be related to the employee’s work injuries and the employee’s claim for medical expenses from the surgery was awarded.  The employee did not claim PPD benefits for the right hip condition at that time.  There was no appeal from the compensation judge’s decision.

The employee filed another claim petition, which was heard in October 2018 by the same compensation judge who had heard the 2008 claim.  The employee claimed that, as a result of the 1966 and 1972 work injuries, he had sustained an injury to his left hip, injuries to his right and left shoulders, and sleep apnea.  The employee sought medical expenses for those conditions as well as PPD benefits for both hips and both shoulders.  The employers and SCF alleged the employee’s PPD claims were barred by the 1985 settlement.

In her Findings and Order, served and filed November 29, 2018, the compensation judge found that the preponderance of the evidence failed to show that the employee’s left hip osteoarthritis was substantially aggravated or accelerated as a consequence of his 1966 and 1972 work injuries or that his claimed sleep apnea or right and left shoulder conditions were causally related to the 1966 and 1972 work injuries.  She also found that the employee’s claim for PPD benefits was barred by the 1985 settlement agreement.  The compensation judge determined that the “employee’s claimed consequential injuries and/or conditions resulting from the 1966 and 1972 work injuries were, or should have been, reasonably within the contemplation of the parties at the time the settlement agreement was reached in September 1985.”  (Finding 11.)

The employee appeals the compensation judge’s findings that the left hip condition was not causally related to the 1966 and 1972 work injuries and that his claim for PPD of the right hip was barred by the 1985 stipulation.

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 claimed at hearing that his left hip condition and need for surgery were related to his 1966 and 1972 work injuries.  The compensation judge denied that claim, finding that the “preponderance of the evidence fails to establish that the employee’s left hip osteoarthritis was substantially aggravated or accelerated as a consequence of the employee’s 1966 and 1972 work injuries.”  (Finding 26.)  The employee challenges this finding on appeal.

In his brief, the employee refers to this finding as an error of law by the compensation judge.  However, the question of whether a medical condition is related to a work injury is a question of fact and the issue for this court is whether substantial evidence supports the compensation judge’s determination.  See Bender v. Dongo Tool Co., 509 N.W.2d 366, 367, 49 W.C.D. 511, 513 (Minn. 1993).

The compensation judge explained the rationale for her determination in her memorandum.  The compensation judge noted the differences in the employee’s left hip symptoms and the progression of those symptoms compared to those in the right hip, which the compensation judge had found to be work related in her 2008 decision.  The compensation judge also specifically adopted the opinion of Dr. Friedland that the employee’s activity levels since 1985, “when he was disabled from work, were insufficient or not significant enough to cause, aggravate, or accelerate the underlying osteoarthritic condition of the employee’s left hip.”  (Memorandum at 10.)

The compensation judge was presented with conflicting medical opinions on the issue of causation.  We have consistently held that the choice of medical opinion is within the compensation judge’s discretion, so long as the opinion relied upon by the compensation judge has adequate foundation.  Tamayo Lopez v. JBS USA, LLC, 76 W.C.D. 273, 280 (W.C.C.A 2015), summarily aff’d (Minn. Mar. 21, 2016).  The employee challenges Dr. Friedland’s foundation for his opinion but we find no basis for that argument.  Dr. Friedland took a medical history from the employee, reviewed the employee’s voluminous medical records, and performed an orthopedic and neurological examination of the employee’s spine, hips, hands, and knees.  Dr. Friedland’s opinion had an adequate basis and the compensation judge did not err by relying on this opinion.  See Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124-25 (Minn. 2017).

Substantial evidence supports the compensation judge’s finding that the employee has not proven that his left hip osteoarthritis was substantially aggravated or accelerated as a result of his 1966 and 1972 work injuries and the judge’s determination on this issue is affirmed.  Accordingly, the compensation judge’s denial of PPD benefits for the left hip condition is also affirmed.

The employee also claimed entitlement to PPD benefits for his consequential right hip injury.  The compensation judge determined the claim was precluded by the 1985 agreement.  The employee appeals this finding.

The language in the 1985 settlement closed out all claims arising out of the 1966 and 1972 work injuries, specifically including claims for PPD benefits.  The issue here is whether that provision closes out the employee’s claims for PPD benefits for the right hip condition which was found to be causally related to the work injuries in 2008.

In Ryan v. Potlatch, 882 N.W.2d. 220, 76 W.C.D. 491 (Minn. 2016), the Minnesota Supreme Court considered the compensability of a consequential injury claim following a full, final, and complete settlement.  In part, the court examined that issue in view of the statutory changes which apply to settlements after 1992.^[2]  The court also made two holdings which are relevant to the present case.  First, the supreme court held that this court had misconstrued the holding in Sweep v. Hanson Silo Co., 391 N.W.2d 817, 89 W.C.D. 51 (Minn. 1986), and had failed to recognize that a settlement could close out consequential injury claims so long as those claims could have been reasonably contemplated at the time of settlement.  Second, the employee bears the burden to establish that the consequential injury could not have been reasonably contemplated.

Whether a consequential injury could have been contemplated at the time of settlement is a factual determination to be made by a compensation judge.  In the present case, the employee did not present any evidence that his hip complaints did not begin until after the settlement in 1985.  Rather, the employee testified in his deposition that his hip problems began shortly after he moved to Oregon in 1977.  The compensation judge specifically determined that the employee had failed to present persuasive evidence that his consequential right hip injury was not reasonably contemplated at the time of the settlement agreement.

Accordingly, we affirm the compensation judge’s denial of the employee’s claim for PPD benefits related to his right hip injury.

I concur with the majority regarding the denial of benefits for the employee’s left hip condition.  As to the denial of permanent partial disability (PPD) benefits arising from the employee’s right hip condition, I concur in the result.

In my opinion, the employee’s claim for additional PPD of the right leg fails for two reasons.  First, substantial evidence does not support the employee’s claim for additional PPD benefits under the law in effect at the time of his knee injuries. The employee did not offer any evidence as to the appropriate body-part rating to support any award of additional PPD benefits for the employee’s right leg.  He only offered evidence of whole-body PPD based upon the statutory schedules in effect for hip injuries occurring between January 1, 1984 and June 30, 1992, which are not applicable for the employee’s dates of injury. See Minn. Stat. § 176.101, subd. 3 (repealed effective January 1, 1984). Second, the 1985 stipulation for settlement closes out all claims arising out of the work injuries, including additional claims for PPD of the right leg, which necessarily includes PPD attributable to the right hip condition.  For these reasons, I agree with the denial of the employee’s claim for additional PPD benefits for his right leg due to his right hip condition.

Ryan v. Potlach Corp., 882 N.W.2d 220, 76 W.C.D. 491 (Minn. 2016) suggests, for consequential injury claims made after a settlement, an employee needs to present evidence that the parties did not reasonably contemplate the later development of a consequential injury.  In this case, the compensation judge found the employee had not presented such evidence and that the employee’s consequential injury claim was therefore barred.  The majority affirms this decision, finding substantial evidence supports this result.

I disagree that substantial evidence supports the finding that the employee’s claimed consequential right hip condition injury was, or should have been, reasonably within the contemplation of the parties in 1985.  The only evidence of right hip complaints by the employee before the 1985 settlement was his 2018 testimony where he vaguely recalled having hip pain sometime in the 1980s.  There no evidence that this was right hip specific pain or that it was consequential to the knee injuries.  In my opinion, there is not substantial evidence to support the compensation judge’s conclusion.

I would vacate the compensation judge’s finding, that the employee’s claimed consequential injuries were, or should have been, reasonably within the contemplation of the parties at the time of the settlement agreement, as not supported by substantial evidence and affirm the compensation judge’s denial of the additional PPD benefits on other grounds as stated above.

I also have concerns with Ryan as applied.  First, because Ryan relied on the 1992 amendments to Minn. Stat. § 176.461(b)(4), it should not apply to cases involving stipulations for settlement approved before July 1, 1992.  Second, a finding under Ryan that an employee’s claimed consequential injury was, or should have been, reasonably within the contemplation of the parties at the time of the settlement agreement, may be problematic in a petition to vacate for the same injury.  See Minn. Stat. § 176.461(a) (this court has original jurisdiction for petitions to vacate).