ADAM J. BOUCHER, Employee/Appellant, v. ST. LUKE’S HOSP. OF DULUTH and SFM MUT. INS. CO., Employer-Insurer/Respondents.

The employee appeals the compensation judge’s denial of medical benefits.  As the compensation judge’s findings are supported by substantial evidence, we affirm.

Adam Boucher, the employee, was a certified nursing assistant working for employer St. Luke’s Hospital when he injured his low back lifting a patient on June 30, 2018.  The same day, the employee sought care at St. Luke’s with complaints of low back pain into his pelvis and buttocks with occasional pain and numbness in his right leg.  He underwent physical therapy and by August 2018 appeared to improve, reporting little pain and walking two miles without issue.

By September 2018, the employee’s condition worsened.  He complained of bilateral lower extremity paresthesia and low back pain.  In October 2018, when his left leg symptoms caused a loss of the ability to lift his left leg, he began treating with Eric Kirchner, M.D., who ordered a number of diagnostic studies including multiple MRI scans and an EMG.  Dr. Kirchner noted that the workup revealed an L5-S1 disc protrusion, but the EMG showed no evidence of radiculopathy.  He further noted that an epidural injection did not relieve the employee’s symptoms.  Dr. Kirchner questioned whether the employee’s complaints were somatization as the tests were unremarkable and did not account for his reported weakness.

When his left leg symptoms continued to worsen, the employee was referred to the Mayo Clinic in December 2018 and was seen in the occupational medicine department by Michael C. Wainberg, M.D.  Dr. Wainberg diagnosed the employee’s condition as back pain and an abnormal gait non-orthopedic.  He recommended facet or sacroiliac block and trigger point injections, but these treatments provided no significant relief of the employee’s pain.  The employee was then seen by Shirlene Sampson, M.D., who diagnosed the employee with anxiety, PTSD - prolonged, panic disorder, chronic pain, and clinical depression.

In March 2019, Dr. Kirchner reflected on the Mayo Clinic assessment of functional gait disorder, noting that there were no findings to explain the employee’s lower left leg weakness.  The employee began complaining of bowel and bladder issues and a repeat MRI scan was ordered but revealed no new findings.  Over the course of the employee’s treatment, four separate MRI scans were conducted, on July 26, 2018, October 12, 2018, December 10, 2018, and April 2, 2019, all of which revealed similar findings.

When the employer denied payment of medical expenses, the employee filed a Medical Request on April 30, 2019.  The employer responded on May 1, 2019, refusing to pay for treatment on the basis that the left leg symptoms were unrelated to the work injury.  Based on the lack of diagnostic findings, the employer and insurer argued that the employee’s subjective complaints of perceived left leg pain were noted by the employee’s physician as possible symptoms of magnification and somatization.  The matter went to an administrative conference held under Minn. Stat. § 176.106 and the compensation judge denied the employee’s claim for payment, explaining that the employee had failed to show that the work injury of June 30, 2018, represented a substantial contributing factor to the disputed treatment and medical bills.  The employee requested a formal hearing on the dispute.

The employer and its insurer retained a neurologist, Bruce Idelkope, M.D., who examined the employee, reviewed multiple medical records extending back years before the work injury, and took a history from the employee.  Dr. Idelkope noted that the employee had pre-existing left leg weakness following an anoxic brain injury in 2013 but did not find it was a factor in the employee’s current complaints.  In his August 5, 2019, report, Dr. Idelkope observed that the employee’s physicians had pursued alternative causes for his symptoms without demonstrating any objective anatomical correlate related either to his lumbar strain or other etiology.  He concluded that the employee had suffered a lumbar strain on June 30, 2018, which resolved without residual effects in mid-October 2018.  He opined that all medical treatment was reasonable, necessary, and causally related to the June 30, 2018, work injury up to mid-October 2018.  Dr. Idelkope opined that, from mid-October 2018 onward, the employee required no additional medical treatment.  Furthermore, Dr. Idelkope addressed the issue of ongoing disability stating that by mid-October 2018 the employee had reached MMI, could return to work full time without restrictions, and had no permanent partial disability.

The employee sought the opinion of Dr. Kirchner, whose narrative report of November 4, 2019, outlined the employee’s course of treatment and commented on the reasonableness and necessity of that treatment.  Dr. Kirchner concluded that “It is possible that the physical and emotional stress from the initial work injury, slow recovery from the initial back pain and limitations at work may have contributed to the functional neurologic disorder.  If that is the case, then the treatments received would be reasonable and appropriate.”  (Ex. L.)

The matter came on for formal hearing before a compensation judge on November 6, 2019.  The employee was the only witness to testify.  By Findings and Order of November 22, 2019, the judge adopted Dr. Idelkope’s opinion that the employee’s condition had resolved and found that the employee had not met his burden in proving entitlement to medical benefits after November 20, 2018.  The judge denied the employee’s claim for payment of medical bills.  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, 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 employee argues that the compensation judge made multiple findings that were unsupported by substantial evidence based on incorrect and unreliable hearsay described in the employee’s medical records.  (Findings 22, 28, and 34.)  He also argues that the decision was not supported by substantial evidence because the judge relied in part on the prior leg condition that Dr. Idelkope had ruled out as causative.  The employee argues that the judge did not base her decision on relevant and material evidence pursuant to Minn. Stat. § 176.411, subd. 3.  Finally, the employee argues that it was an error for the judge not to make a credibility finding when the medical records contradicted the employee’s testimony.

While hearsay evidence which is reliable is admissible under Minn. Stat. § 176.411, subds. 1 and 3, the employee’s challenge rests on the judge’s reliance upon medical records asserted to be unreliable hearsay.  These records were introduced by the employee, who claimed at trial that the medical records “do a good job of depicting the symptoms that he was reporting to the providers at various points, as well as his response to the treatment that he received.”  (T. 11.)  The employee did not object at hearing to the contents of the records and therefore cannot object to those contents on appeal.  See Peterson v. H.J. Martin & Sons, Inc., No. WC08-119 (W.C.C.A. Sept. 23, 2008).

Furthermore, the employee’s specific objections on appeal are based on evidence which can be reasonably interpreted to support the compensation judge’s findings.  The employee argues that the judge erred in finding that there was no pain relief after the December 20, 2018, injection.  (Finding 28.)  The employee claims that his testimony was that the injection actually provided his first pain-free episode since the work injury.  The employee does not mention that while the judge found that the employee initially reported no pain relief from the injection, the judge indicated that he obtained some relief, which was consistent with the employee’s testimony.  (T. 31-32.)  The employee also challenges the judge’s finding that the SpineX program did not help with the employee’s pain.  (Finding 34.)  He claims that he testified that the program helped with both pain reduction and function.  Yet, the employee’s testimony that the SpineX program helped with some pain but did not do much in the long term is consistent with the judge’s findings.  (T. 33.)  The employee also questions the judge’s finding as to who referred the employee to the Mayo Clinic. (Finding 23.)  The judge found that the employee’s father had asked for the referral, but the testimony does not dispute that.  The testimony was that it was not the employee’s idea to go down to the Mayo Clinic.  (T. 30.)  Whose idea it was to go to the Mayo Clinic is not critical to the issue here.  And even if it were, a judge may base his or her conclusions on other reliable evidence in the record.  Reimer v. Minnit Tool /M.I.T. Tool Corp., 520 N.W.2d 397, 51 W.C.D. 153 (Minn. 1994).  Finally, the employee’s testimony often offered little information for the judge’s consideration.  The employee could not recall much of his medical history and instead relied upon and deferred to the medical records when questioned.  We are therefore not persuaded by the employee’s argument that the judge’s findings were based on incorrect and unreliable hearsay from the employee’s medical records.

We are also not persuaded by the employee’s claim that the judge erred in not making an express credibility finding.  This supposes that the employee’s testimony was at odds with the medical record.  Though the employee testified that there were inaccuracies in the medical records, he did not connect the alleged inaccuracies to the material facts necessary to prove his claim that medical treatment after November 20, 2018, was reasonable, and necessary, and causally related to the work injury.

In deciding the issue of whether medical treatment was reasonable, necessary, and causally related to the employee’s June 30, 2018, work injury, the compensation judge weighed the opinions of two medical experts.  Dr. Kirchner, the employee’s treating doctor, offered a medical opinion that was not couched in medical certainty.  He opined that it was “possible” that the physical and emotional stress from the initial injury “may” have contributed to the need for medical treatment.  (Ex. L.)  Dr. Idelkope, the doctor retained by the employer, offered a medical opinion based on review of hundreds of medical records, an examination of the employee, and the history taken by the employee.  His opinions were offered “within a reasonable degree of medical certainty” that the employee’s low back pain had resolved by mid-October 2018.  (Ex. 7.)

The compensation judge found Dr. Idelkope’s opinion more persuasive based on several factors.  The employee had a history of left leg weakness and numbness predating his work injury.  The employee’s low back pain was minimal and not interfering with activities by late August 2018.  The employee’s left leg symptoms began in September 2018, three months after the work injury.  Numerous MRI scans and an EMG indicated no spinal pathology.  Several of the employee’s treating doctors stated the employee’s symptoms had a psychogenic component.  No doctor opined that it is more likely than not that the employee’s ongoing symptoms and functional gait disorder are related to his work injury.  Although Dr. Idelkope did not consider the first factor, the history of left leg weakness and numbness, to be causative, the other factors, all of which are substantiated by the record, support the judge’s findings.

In weighing medical evidence, a compensation judge has the discretion as the trier of fact to choose between competing and conflicting medical expert’s reports and opinions.  Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 803, 77 W.C.D. 117, 126 (Minn. 2017).  This assessment of the weight to be given to the conflicting opinion is upheld on appeal, absent an abuse of discretion.  Mattick v. HyVee Food Stores, 898 N.W.2d 616, 77 W.C.D. 617 (Minn. 2017).  As the facts assumed by Dr. Idelkope are supported by the evidence, the compensation judge’s choice is therefore upheld.  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  For the foregoing reasons, the decision of the compensation judge is affirmed.