TREVOR M. ARNDT, Employee/Appellant, v. TRI CNTY. COOP OIL ASS’N and RAM MUT. INS. CO., Employer-Insurer/Respondents, and CARRIS HEALTH RICE MEM’L HOSP., GENEX REHAB. SERVS., ACMC HEALTH, FAIRVIEW HEALTH SERVS., UCARE, and UNITED HEALTHCARE SERVS., Intervenors.

The employee appeals from the compensation judge’s denial of his claims for wage loss benefits, medical benefits, rehabilitation benefits, and reimbursement to intervenors.  We affirm, as modified. ^[1]

The employee, Trevor Arndt, sustained a significant work-related injury to his low back while working for the employer, Tri County Coop Oil Association, on December 12, 2012.  Under the medical care of Dr. Jeffrey Gerdes, the employee underwent two microdiscectomies in 2013 and was released from medical care with permanent restrictions.  Following his release, the employee experienced occasional flare-ups that he was able to treat with conservative care, including steroid injections.

In 2015, the employee started his own business delivering barrels of hydrogen peroxide to farm clients.  On September 2, 2017, during a delivery, the employee moved a barrel containing 50 gallons of hydrogen peroxide out of his pickup truck.  He estimated the barrel weighed 510 pounds.  (T. 91.)  The employee testified that the barrel was on a pallet in the bed of his pickup truck.  To move the barrel off the pallet, the employee pushed the weight of the barrel forward to use its center of gravity to roll, or “walk,” the barrel.  (T. 48-50.)  The barrel needed to be rotated and tipped to get it over a lip on the truck’s tailgate.  (T. 107-09.)  This activity caused a flare-up of his low back symptoms.

The employee’s symptoms following the barrel moving incident did not resolve, unlike his previous flare-ups.  (T. 42.)  He underwent an MRI in November 2017 which showed a herniation at L4-5.  He was seen in consultation by Dr. Hamid Abbasi on November 29, 2017.  Dr. Abbasi diagnosed a disc re-herniation at the L3/4/5 levels and recommended a three-level fusion.  The employee underwent the recommended fusion surgery on January 25, 2018.  Following the fusion surgery, the employee experienced increasing symptoms at the sacroiliac (SI) joint.  He underwent a series of injections in January 2019 and Dr. Abbasi ultimately recommended an additional fusion of the spine at the SI joint.

Dr. Abbasi issued a brief narrative report in 2018 and was deposed prior to hearing.  It was Dr. Abbasi’s opinion that the employee’s need for fusion surgery was related to his December 12, 2012, work injury.  Specifically, he believed the 2013 surgeries resulted in a weakened condition of the employee’s lumbar spine such that the 2012 work injury was a substantial contributing factor to the employee’s current condition and his need for fusion.  However, in his deposition, Dr. Abbasi acknowledged that he had limited information regarding the September 2017 barrel moving incident.

The employee was seen for an independent medical evaluation (IME) by Dr. Stephen Barron on behalf of the employer and insurer on September 4, 2018.  Dr. Barron reviewed medical records, performed a physical examination, and took a history from the employee.  In his report dated September 17, 2018, he opined that the employee’s December 12, 2012, work injury was not a substantial contributing factor to the employee’s low back condition and need for medical care.  Instead, Dr. Barron concluded that the September 2017 barrel moving incident had resulted in a symptomatic recurrent disc herniation and represented a superseding intervening cause of the employee’s current low back condition and subsequent need for medical treatment.  In his report, Dr. Barron described the history he obtained from the employee with respect to September 2017 incident, stating “he moved two 50-gallon barrels on and off his trailer.  They weighed 600 pounds.  He did not lift the barrels but tilted them on end and rolled them off the trailer.”  (Ex. A.)  With respect to the 2018 injury, Dr. Barron considered only a fusion at the L4-5 level to have been reasonable and necessary, rather than the three-level fusion performed by Dr. Abbasi.

In an addendum report dated April 26, 2019, Dr. Barron restated the opinions set forth in his initial report.  Having reviewed additional records, including Dr. Abbasi’s medical treatment records, Dr. Barron further concluded that the employee’s SI joint symptoms were unrelated to the December 12, 2012, work injury and the SI joint fusion was not reasonable or necessary treatment.  (Ex. B.)

The employee’s claims for wage loss, medical expenses, and rehabilitation benefits came on for hearing before a compensation judge on May 1, 2019.  In support of his claim, the employee offered his own testimony, submitted medical records, and offered the narrative report and deposition testimony of Dr. Abbasi.  The employer and insurer contended that the September 2017 barrel moving incident constituted a superseding intervening cause, relying primarily on the opinion of Dr. Barron.  The employer and insurer offered into evidence both the IME report of Dr. Barron, as well as an addendum report prepared on the day before the hearing.  Counsel for the employee objected to the admission of the addendum report on the basis that it lacked foundation by virtue of Dr. Barron’s incomplete and inaccurate description of the September 2017 barrel moving incident.  The employee also objected to the addendum report asserting inability to cross-examine Dr. Barron on that report.  The compensation judge accepted and admitted both reports into evidence over these objections.^[2]

In a Findings and Order dated July 16, 2019, the compensation judge denied the employee’s claims, finding the September 2, 2017, incident constituted a superseding intervening cause of the employee’s condition and that the December 12, 2012, work injury was no longer a substantial contributing factor.   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.”^[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.”^[4]  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.^[5]  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.”^[6]

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.^[7]

The employee appeals from the compensation judge’s ultimate finding that the September 2017 barrel moving incident was a superseding intervening event that severed the causal connection between the initial injury on December 12, 2012, and the employee’s subsequent condition and treatment.

It is a long-standing principle that where an injury or condition is found to arise out of the course and scope of employment, the employer is liable for every natural consequence that flows from the condition unless it can be shown that the later condition is the result of an independent, intervening cause. ^[8] Liability continues when intervening events and conditions appear if the work-related injury remains a substantial contributing cause of the ongoing disability.^[9]

The causal link between the work injury and the subsequent aggravation is severed when the aggravation is the result of “unreasonable, negligent, dangerous or abnormal activity on the part of the employee.”^[10]  Whether a subsequent injury is an entirely new injury, sustained as a result of an occurrence which had no causal relation to the prior compensable injury, is a question of fact for the compensation judge.  The burden of proof to establish this defense is on the employer and insurer.^[11]

In the present case, the compensation judge relied on the opinion of Dr. Barron in finding that the 2017 incident was a superseding, intervening event.  The employee argues Dr. Barron’s report lacked adequate factual foundation and was therefore insufficient support for the finding of a superseding intervening event.  Specifically, the employee contends the report of Dr. Barron failed to adequately address the method by which the employee moved the barrels, which the doctor considered to be the mechanism of the re-injury.  We are not persuaded by the employee’s argument.

Pointing to Dr. Barron’s reports, the employee argues that the doctor’s incomplete description demonstrates a lack of understanding of the mechanism of the September 2, 2017, injury.  We disagree.  The employee provided Dr. Barron with a history of tilting and rolling 50-gallon drums on September 2, 2017.  In addition, Dr. Barron reviewed medical records from the employee’s 2012 injury through his 2018 surgery and performed an examination of the employee.  Dr. Barron reasonably relied on these facts and data in forming and explaining his opinions.

An expert opinion which includes the facts upon which the expert relied, and the basis for the opinion, is generally sufficient to establish foundation.  An opinion need only be based on “enough facts to form a reasonable opinion that is not based on speculation or conjecture.”^[12]   The determination of whether an expert opinion has adequate foundation is within the discretion of the compensation judge.^[13]

Facts of minor significance which are unknown to the doctor do not necessarily render an opinion without foundation.^[14]  Although Dr. Barron made a single statement of the employee “moving” a 500-pound barrel, we agree with the compensation judge’s conclusion that this purported distinction did not render the medical opinions of Dr. Barron to be without adequate foundation.  The compensation judge did not abuse his discretion, nor err as a matter of law, in admitting and relying on Dr. Barron’s report.  We conclude there was sufficient foundation for the opinion of Dr. Barron.

In addition to Dr. Barron’s expert medical opinion, the judge reasonably relied on other evidence to conclude the employee’s 2012 work injury was no longer a substantial contributing cause of the ongoing condition and in finding that the employee’s 2017 incident was the result of unreasonable activity by the employee.  The employee had medical restrictions of no lifting more than 30 pounds and limited twisting, bending and stooping at the time of the barrel moving.  The judge found, accordingly, that moving a barrel weighing more than 500 pounds did not constitute a reasonable activity in light of the employee’s condition and restrictions.  Under these facts, we conclude the compensation judge did not err in finding that the employee’s worsened condition was no longer a natural consequence of the original work injury.  The judge’s determination that the barrel moving incident in 2017 constituted an independent intervening cause is supported by substantial evidence and we affirm.