EVIDENCE – EXCLUSION; PRACTICE & PROCEDURE. Where the employee was represented at the hearing below and the transcript does not indicate any disputes or objections as to the exhibits submitted, there is no basis in the record that the compensation judge erred by excluding exhibits at the hearing.
CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence, including adequately founded expert medical opinion, supports the judge’s findings that the employee’s work-related low back injury was temporary and had resolved, and that he had not sustained work-related shoulder injuries.
Compensation Judge: Stacy P. Bouman
Attorneys: Pro Se Appellant, Richfield, Minnesota. Eric S. Westphal and N. Amee Pham, Heacox, Hartman, Koshmrl, Cosgriff, Johnson, Lane & Feenstra, P.A., St. Paul, Minnesota, for the Respondent.
Affirmed.
GARY M. HALL, Judge
The pro se employee appeals the compensation judge’s finding that the employee’s work-related low back injury was temporary and had resolved and the finding that he had not sustained work-related shoulder injuries. We affirm.
Prior to moving to Minnesota, Martez Gibson, the employee, sustained a work-related injury to his neck and left shoulder when he lifted a 200-pound deer carcass while working for the South Carolina state highway department on August 5, 2016. The employee was diagnosed with cervical strain and treated with physical therapy. He was released to work without restrictions on September 26, 2016. In November 2016, the employee was taken off work for ongoing symptoms of weakness in his left arm and was diagnosed with left carpal tunnel syndrome and left shoulder impingement. Trigger point injections and physical therapy were recommended. The employee did not seek additional treatment for this injury after December 2016.
In 2017, the employee moved to Minnesota. On April 3, 3017, the employee began working for the City of St. Paul, the self-insured employer, as a traffic maintenance worker repairing and replacing street signs. At a pre-placement physical, the employee denied having any work restrictions or any back or extremity pain, and did not mention his 2016 injury. On March 15, 2018, the employee sustained a work-related injury when he slipped and fell on ice while carrying five or six ten-foot poles, landing on his back. A co-worker helped him up and he continued to work. He did not report a work injury at that time. On March 19, 2018, the employee was terminated from his employment when his probationary period with the employer ended.
The employee sought treatment for his neck, left shoulder, and low back pain on March 23, 2018, at HealthPartners Urgent Care. He reported left shoulder pain due to the 2016 injury and did not mention the March 2018 injury. The same day, he reported his 2018 work injury to the employer. Three days later, the employee treated with Dr. Emily Bannister, reporting the 2018 injury and stating that he did not have much pain at first, but that it developed over the week. He did not report his 2016 left shoulder injury to Dr. Bannister. The doctor assessed neck, low back and left shoulder strain, referred the employee for physical therapy, and assigned work restrictions. In April 2018, Dr. Bannister indicated that the employee’s left shoulder symptoms were consistent with a rotator cuff injury, and ordered a left shoulder MRI scan and a lumbar spine MRI scan for evaluation of L4 or L5 radiculopathy.
The recommended lumbar spine and left shoulder MRI scans were conducted on May 10, 2018. The left shoulder MRI scan indicated bicipital tendinosis, rotator cuff tendinosis, and mild bursitis. The lumbar spine scan indicated mild multi-level degenerative disc and facet disease, including a shallow disc protrusion at L2-3 with no nerve root compression, a shallow protrusion at L4-5 with no nerve root compression, and mild foraminal narrowing on the left at L5-S1.
The employee filed a claim petition in April 2018 seeking temporary total disability (TTD) benefits and also requested rehabilitation services, alleging work-related injuries to his low back, both shoulders, left arm, and left leg on March 15, 2018. The self-insured employer denied the claims.
The employee was evaluated for left shoulder pain by Dr. Kirk Aadalen at TRIA Orthopedic Center on May 23, 2018. The employee reported a popping sensation in his left shoulder when he fell at work on March 15. Dr Aadalen recommended rotator cuff repair, subacromial decompression, and biceps tenotomy surgery after treatment with injections and physical therapy. On July 17, 2018, the employee underwent the recommended left shoulder surgery. A few months later, the employee developed similar symptoms in his right shoulder and underwent a similar surgery on his right shoulder on August 27, 2018. The employee was given light-duty work restrictions.
On January 22, 2019, the employee was evaluated by Dr. Paul Wicklund at the employer’s request. Dr. Wicklund diagnosed multilevel degenerative disc disease of the lumbar spine, post bilateral rotator cuff repair and biceps tenotomy with subacromial decompression, and resolved low back pain. He noted that the employee denied low back pain. Dr. Wicklund opined that the employee’s fall, as described, would not cause damage to the employee’s biceps tendon or rotator cuff, but would only cause a temporary back contusion and possible cervical strain. He also opined that the employee had reached maximum medical improvement (MMI) and recommended a 30-pound lifting restriction. On March 14, 2019, Dr. Aadalen agreed with Dr. Wicklund’s opinion that the employee had reached MMI and with the assigned work restriction.
A hearing was held on June 3, 2019. The employee was represented by counsel at the hearing. The compensation judge found the employee had sustained a cervical spine and low back strain in the work-related fall on March 15, 2018, and that the injuries were temporary and had resolved without the need for treatment or restrictions. The judge also found that the employee had not shown that he had sustained injuries to his shoulders, left arm, or left leg, stating that Dr. Bannister’s opinion did not support the assertion that the injuries to the employee’s rotator cuff or bicep tendinosis were consistent with the mechanism of the work injury. The pro se 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).
The pro se employee appeals the compensation judge’s findings, asserting that the evidence supports a determination that the 2018 work injury caused his bilateral shoulder and low back conditions, or at least accelerated his pre-existing conditions. He contends that his low back condition has not resolved and states that he is currently in physical therapy for his low back.
The employee also claims that evidence he requested to be included, an affidavit from an unidentified witness and an unspecified surgeon’s summary report, were excluded from the record at the hearing. Addressing this issue first, we note that the employee does not specifically identify the affidavit he requested to be admitted or the report which he claims was not submitted into evidence at the hearing. Operative reports from both shoulder surgeries were included in the employee’s exhibits. Further, the employee was represented at the hearing below, and the transcript does not indicate any disputes or objections as to the exhibits submitted. There is no basis in the record for a determination that the compensation judge erred by excluding exhibits at the hearing.
The employee asserts that the compensation judge acknowledged that he had sustained a back injury and that Dr. Wicklund’s diagnosis that the back injury had resolved was erroneous, implying that the compensation judge erred by relying on Dr. Wicklund’s opinion. In order to challenge foundation of an expert opinion on appeal, an objection must be made at the hearing. Sirian v. City of St. Paul Pub. Works, 77 W.C.D. 133, 140 (W.C.C.A. 2017). The employee did not object to Dr. Wicklund’s opinion, as offered by the self-insured employer and admitted into evidence at the hearing, on the basis of foundation.[1] Moreover, Dr. Wicklund had foundation for his opinion, based on an examination of the employee, review of medical records, history taken from the employee, and the explanation of his conclusion, which was sufficient for him to form a reasonable opinion that was not based on speculation or conjecture. See Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017). The compensation judge did not err by relying on Dr. Wicklund’s opinion in finding that the employee’s low back strain resulting from the March 15, 2018, work injury had resolved.
The employee also suggests that his 2018 work injury accelerated his pre-existing shoulder condition. As the compensation judge noted, when the employee first sought treatment for his neck, left shoulder, and low back pain on March 23, 2018, he reported having left shoulder pain due to the 2016 injury and did not mention the March 15, 2018, fall. In addition, Dr. Wicklund opined that the employee’s fall would not cause damage to the employee’s biceps tendon or rotator cuff. While Dr. Bannister opined that the employee’s left shoulder symptoms were consistent with a rotator cuff injury, the judge noted that Dr. Bannister did not opine that the mechanism of the 2018 work injury was consistent with the employee’s rotator cuff or biceps tendon conditions, and concluded that her opinion was not persuasive in this regard. A compensation judge’s choice of competing adequately-founded medical opinions is generally affirmed. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D 364 (Minn. 1985); Smith v. Quebecor Printing, Inc., 63 W.C.D. 566, 573 (W.C.C.A. 2003), summarily aff’d (Minn. Aug. 15, 2003).
The issue before this court was not whether the evidence may support a conclusion different from that of the compensation judge, but whether substantial evidence existed to support the judge’s findings. On review, the standard is not whether an appellate court might have viewed the evidence differently, “but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate.” Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). Substantial evidence supports the judge’s findings that the employee’s work-related low back injury was temporary and had resolved, and that he had not sustained work-related shoulder injuries. Accordingly, we affirm.
[1] At the hearing, the employee was asked whether he agreed with Dr. Wicklund’s report. The self-insured employer’s attorney objected to the question on the basis of foundation, referring to the employee’s foundation for answering the question, not to the foundation of Dr. Wicklund’s opinion.