ELIAKIM ANGWENYI, Employee/Respondent, v. AGGRESSIVE INDUS., INC. and TRIFAC WORKERS’ COMP. FUND/MEADOWBROOK INS. GRP., Employer-Insurer/Appellants.

Employer and insurer appeal the compensation judge’s award of temporary total disability benefits and the finding that the employee’s return to work aggravated the employee’s bilateral elbow condition. Because substantial evidence supports the compensation judge’s finding, we affirm.

Eliakim Angwenyi, the employee, emigrated from Kenya in 1996.  In 1997, he was hired by Aggressive Industries as a machine operator.  For 22 years, he made plastic parts in a molding machine, hammered the molds to remove the parts and trimmed parts with a knife.  He also used wrenches while setting up various molds.  In 2010, he noticed some pain and swelling in his right elbow and treated with Bangean K. Abdullah, M.D., at Allina Health and with Orrin Mann, M.D., of Multicare Associates.  Based on an MRI of the right elbow which confirmed a small partial thickness tear and tendinopathy in the common extensor tendon, Dr. Mann diagnosed lateral epicondylitis.  The employee made a claim for a work-related injury, which was denied.  The employee continued to perform his regular job.

On April 12, 2017, while hammering molds, the employee again experienced swelling and pain in both elbows.  He continued to work, but his pain became severe and on June 16, 2017, he was taken off work.  The employer admitted liability for a bilateral elbow injury and paid benefits.  The employee left for Kenya in August 2017 and returned in October 2017.  He remained off work in November 2017 and underwent treatment with Dr. Mann which included platelet-rich plasma (PRP) injections.  Beginning in March 2018, the employee treated with  Kirk Scofield, M.D., at Summit Orthopedics for ongoing complaints of bilateral lateral elbow pain.  Dr. Scofield ordered a CET PRP injection in March 2018 and a CET Tenex in April 2018.  In May 2018, the employee returned to work in a light-duty capacity.  Two months later, on July 2, 2018, he was taken off work again pending treatment.  Between July 2, 2018 and January 29, 2019, the employee underwent no medical treatment.  On January 29, 2019, Dr. Scofield recommended an FCE and a trial of work hardening to return the employee to work.  The employee was released to return to light-duty work again in February 2019 but had not returned to his full-duty pre-injury job since June 16, 2017.

The employer and insurer retained Julie Happe, M.D., to conduct an independent medical examination.  (Ex. 1.)  Dr. Happe reviewed the employee’s medical records, drafted an extensive medical history and interviewed and examined the employee.  In her report of November 20, 2018, she noted that the employee presented with no evidence of bilateral lateral epicondylitis or any other upper extremity diagnosis.  At most, she opined, the employee had a temporary aggravation of a pre-existing lateral epicondylitis which resolved by June 16, 2017.  She suggested the employee’s outside work activities, including his work as a handyman and his hobby of repairing cars could be a possible cause of his ongoing complaints of pain.  Dr. Happe opined that the employee needed no restrictions and no further medical treatment.  Consequently, the employer and insurer denied Dr. Scofield’s treatment recommendations and the employee’s ongoing benefits.

In a narrative report dated March 12, 2019, Dr. Scofield disagreed with Dr. Happe’s opinion.  Contrary to Dr. Happe’s assertion that the employee did not have an upper extremity diagnosis, Dr. Scofield concluded that it was clear that the employee has “common extensor tendon tendinosis, which has waxed and waned over a number of years but is clearly aggravated by and ultimately initially caused by his repetitive activity at work.”  He also noted that at every visit since the procedure, the employee had exhibited tenderness over the common extensor tendon and pain with resisted wrist and finger extension.  He disagreed with Dr. Happe’s suggestion of possible aggravating factors outside employment.  Dr. Scofield opined that there was nothing in the employee’s life activities outside of work that remotely compared to the stress he placed on his elbow by repetitive hammering, lifting, and use of an impact wrench over 20 years.  Dr. Scofield was confident that the employee’s condition was work related.  He also disagreed with Dr. Happe’s opinion that the employee did not require work restrictions, stating “contrary to Dr. Happe’s assertion, work restrictions are routinely given after a Tenex procedure and recovery often times takes a couple of months post procedure.”  He recommended  permanent retraining into a different job that would not aggravate the employee’s chronic condition.  He opined that the employee had reached maximum medical improvement and was at risk for recurrent injury but did not qualify for a permanent partial disability rating as he had full range of motion.  Dr. Scofield restricted the employee from work following the Tenex procedure.  (Ex. B.)

The employer and insurer filed a notice of intent to discontinue the employee’s benefits (NOID).  The NOID was granted following an administrative conference, the employee filed a Request for Formal Hearing, and the matter was heard before a compensation judge on March 27, 2019.  The issues before the judge were whether the April 12, 2017, work injury had resolved and whether the employee was entitled to temporary total disability benefits (TTD) from January 24, 2019, through the date the employee returned to work.  The compensation judge adopted the medical opinion of Dr. Scofield as persuasive and awarded benefits.  She further found that the April 12, 2017, injury had not resolved, and the employee had not returned to his pre-injury status.  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).

On appeal, the employer and insurer dispute the award of TTD benefits from January 24, 2019, through the employee’s return to work.  Arguing that the employee’s condition had resolved before 2019, they maintain that the order to pay TTD benefits from January 24, 2019, was manifestly contrary to the evidence.  Pointing to the pattern of treatment, the employer and insurer also argue that because the employee did not treat in 2018 following a trip to Kenya, because there was a lack of objective findings on examination, and because there was but little improvement in symptoms during the employee’s release from work, a different conclusion should have been reached by the compensation judge.  We are not persuaded.

Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Hengemuhle, 358 N.W.2d 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).

Here, the employee had worked for the employer for over 22 years in the same job.  Since April 12, 2017, the employee had ongoing pain and swelling in his right arm and pain in his left arm, and decreased grip strength testing.  As noted in the employer and insurer’s medical expert’s report, from 2017 through 2018 the employee treated with Dr. Mann who restricted the employee to lighter work.  A month after his return from Kenya in October 2017, the employee saw Dr. Mann, who noted that the employee continued to have severe pain and ordered MRI scans.  The MRI scans were read as confirming a diagnosis of common extensor tendinosis consistent with lateral epicondylitis.  Despite ongoing therapy, injections and medication, the employee’s condition did not improve.  Dr. Mann suggested that the lack of improvement was possibly due to the employee’s ongoing attempt to work.  Likewise, after March 2018, Dr. Scofield documented ongoing tenderness over the employee’s common extensor tendon and pain with resisted wrist and finger extension.  Based on this record, it was reasonable for the compensation judge to conclude that the employee’s condition had not resolved.

On appeal, the employer and insurer also argue that the compensation judge abused her discretion in admitting and relying on the narrative report of Dr. Scofield.  They assert that Dr. Scofield’s opinion lacked adequate foundation because he had only treated the employee twice before he wrote the narrative report and because each of the treatment visits occurred after the employee was off work.  Thus, they argue, the doctor had no basis, other than the employee’s subjective complaints, to render an opinion on the employee’s disability.  They also argue that Dr. Scofield lacked understanding of the employee’s post-injury jobs, and therefore, that his opinion was not adequately founded.  We are not persuaded.

The medical opinion upon which the judge relies 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. Scofield first saw the employee  in March 2018 and at least six more times before drafting the narrative report.  (Exs. A, B, and 1.)  Dr. Scofield took a history of the employee’s job duties and medical treatment, physically examined and treated the employee’s condition, and as the employee’s treating physician, he had the medical expertise and understanding of the employee’s condition to render an opinion.  Dr. Scofield found the employee’s condition medically significant enough after September 2018 to warrant work restrictions, consideration of the TENEX procedure for the left elbow, and ultimately a recommendation for permanent retraining into a different job.  It was reasonable for the compensation judge to adopt Dr. Scofield’s medical opinion, as it was adequately supported by the record.

Finally, the employer and insurer argue that the compensation judge exceeded the scope of issues before her by finding that the employee’s 2019 return to work aggravated his bilateral elbow condition.

Discontinuances generally follow an expedited hearing process pursuant to Minn. Stat. § 176.238, subd. 6, which states that, “The hearing shall be limited to the issues raised by the notice or petition unless all parties agree to expanding the issues.”  “Basic fairness requires that the parties in a workers’ compensation proceeding be afforded reasonable notice and an opportunity to be heard before decision concerning entitlement to benefits can be made.”   Kulenkamp v. Time Savers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988).  We are mindful that “the totality of the facts and circumstances of a case, tempered with the application of common sense,” sometimes require that the scope of the issues raised “be viewed with a degree of latitude.”  Frederick v. Divine Home Care, Inc., 74 W.C.D. 239 (W.C.C.A. 2014) (citing Meyer v. George F. Cook Constr. Co., slip op. (W.C.C.A. Dec. 14, 2001)); see also Reid v. Ryder Truck Rental, 42 W.C.D. 677, 681 (W.C.C.A. 1989) (explaining that where the rationale for a NOID intertwines with other entitlement issues, “a compensation judge is not required to make decisions in a vacuum or attempt to deal with interrelated issues in isolation”); see Kulenkamp, 420 N.W.2d at 894, 40 W.C.D. at 873.

Here, the judge was to consider whether the April 12, 2017, admitted injury had resolved and whether the employee had returned to his pre-injury status.  (T. 6.)  In finding that the employee’s return to work aggravated the employee’s injury, the judge did not exceed the scope of the issues before her.  To the contrary, that finding is connected to the issue of whether the employee’s condition had resolved and supports the judge’s ultimate conclusion that it had not resolved by the time the matter was heard on March 27, 2019.  Furthermore, aggravation was not a surprise issue considered by the judge.  The employer and insurer maintained that the employee had a temporary aggravation of long-standing, pre-existing, ongoing epicondylitis and had not performed the duties that would cause it to be aggravated.  (T.18.)  Because substantial evidence supports the compensation judge’s findings and because she did not exceed the scope of the issues before her, we affirm.