BRADLEY S. HANSON, Employee/Respondent, and SCHLEIS FLOOR COVERING, INC., and REGENT INS. CO./QBE OF N. AM., Employer-Insurer/Respondent v. OMNI/INTERIOR CONSTR. SERVS. and GALLAGHER BASSETT SERVS., INC., Employer-Insurer/Appellants, and MN DEED, Intervenor.

Employer Omni Interior Construction Services (Omni), self-insured, appeals the compensation judge’s findings that the employee’s work injury was a substantial contributing factor to the need for knee replacement surgery, that Omni bears 100 percent of the responsibility for the benefits awarded, and that the employee is entitled to temporary total disability benefits.  As substantial evidence supports the decision, we affirm.

The employee, Bradley Hanson, played Division III football in 1982 for the University of Minnesota/Morris.  In the last game of the 1982 season, the employee suffered a right knee injury for which he underwent physical rehabilitation.  In 1983, the employee was playing pick-up basketball when he re-injured his right knee.  Later that year, when the injury had not resolved, the employee underwent right knee arthroscopic surgery.^[1]  After rehabilitation following the surgery, the employee experienced no pain symptoms and enjoyed full range of motion in his right knee.  After leaving college in 1984, the employee began working in construction.  In 1990, the employee started work as a union floor covering installer, which required the employee to spend significant time on his knees, wearing knee pads, to install carpet, wood flooring, and vinyl flooring.  The employee engaged in this employment until he was taken off of work due to a work injury in 2018.

On July 25, 2008, the employee was working for Omni.  The employee was on his knees when he felt a pop or slip in his right knee along with immediate sharp pain.  Conservative treatment was ordered.  When the employee’s symptoms did not improve, he was referred to an orthopedist, Gavin T. Pittman, M.D.  An MRI of the employee’s right knee showed a chronic ACL tear, extensive loss of medial meniscus, significant degenerative arthritis, moderate patellofemoral chondromalacia, calcified loose bodies, and patellar tendinopathy.  (Ex. G.)  Dr. Pittman’s August 15, 2008, chart note states: “[the employee’s] occupation as a floor installer likely has lead [sic] to this advancement of his degeneration at a young age.”  Dr. Pittman recommended arthroscopic surgery.  (Ex. 9.)

On September 4, 2008, the employee underwent an independent medical examination (IME) conducted by Paul Cederberg, M.D., on behalf of Omni.  Dr. Cederberg opined that the employee’s work injury was a substantial contributing factor to the employee’s right knee condition, which was described as “not temporary.”  Dr. Cederberg also indicated that the employee’s repetitive work activities contributed to the employee’s condition.  He considered the surgery proposed by Dr. Pittman to be reasonable and necessary to address the effects of the July 25, 2008, work injury.  (Ex. 6.)

On September 30, 2008, the employee underwent right knee arthroscopy and medial chondroplasty performed by Dr. Pittman.  Dr. Pittman observed grade 3 degenerative changes in the medial compartment of the knee and grade 4 chondromalacia.  (Ex. 10.)  After rehabilitation from the surgery, the employee was able to return to work as a floor covering installer without formal restrictions.  On November 23, 2009, Dr. Pittman examined the employee and concluded that while the employee was doing well, he would need a total knee replacement due to the severity of the degeneration in his right knee.  (Ex. 12.)

On September 30, 2018, the employee was working on a job site for Schleis Floor Covering, Inc. (Schleis), when he stumbled over a sheet of plywood and steadied himself by planting his right leg.  He felt immediate pain in his right knee.  Conservative treatment was undertaken.  The employee underwent another MRI which showed similar conditions in the right knee to those observed in 2008.  The employee was referred to an orthopedist, Cyril Kruse, M.D.  Dr. Kruse ordered a series of injections.  The injections did not reduce the employee’s right knee pain.  Dr. Kruse proposed a total knee replacement to address the employee’s right knee condition.

On October 11, 2018, Dr. Kruse took the employee off work on a week-to-week basis.  On October 26, 2018, Dr. Kruse released the employee to work with no restrictions beyond “no use of the affected limb.” (Ex. C; T. 68-69.)  Dr. Kruse omitted the restriction language through another note to qualify the employee for unemployment compensation.  (T. 69-70.)  In early November 2018, the employee contacted Schleis and was informed that there was no work and that he was laid off.

From November 14, 2018, to February 6, 2019, the employee collected unemployment compensation.  After contacting Schleis in November 2018, the employee called the union hall once to check on whether work was available from some other employer.  (T. 85-86.)  The employee’s right knee became more symptomatic over this period.  On February 7, 2019, the employee was taken off work by Dr. Kruse pending the knee replacement surgery due to pain symptoms in the employee’s knee.  (Ex. C.)

On April 15, 2019, the employee underwent an IME conducted by Nolan Segal, M.D., on behalf of Schleis.  Dr. Segal diagnosed the employee with right knee advanced osteoarthritis with an anterior cruciate deficient knee.  Dr. Segal opined that the employee’s right knee condition was the result of the earlier sports injuries and not causally related to either of the employee’s work injuries.  Dr. Segal considered the September 30, 2018, work injury to be, at most, a temporary aggravation of the employee’s preexisting condition.  (Ex. 13.)

On October 25, 2019, in a response to questions from the employee’s counsel, Dr. Kruse indicated that the employee’s two work injuries were substantial contributing factors to the need for the surgery.  Dr. Kruse allocated responsibility for the need for surgery one-third to the preexisting condition, one-third to the July 25, 2008, work injury, and one-third to the September 10, 2018, work injury.  (Ex. A.) 

On November 21, 2019, the employee underwent an IME conducted by Paul T. Wicklund, M.D., at the request of the employee’s counsel.  Dr. Wicklund diagnosed the employee with right knee end-stage osteoarthritis with a vagus deformity and patellofemoral osteoarthritis. Dr. Wicklund opined that the employee’s two work injuries were substantial contributing causes to the employee’s right knee condition.  Dr. Wicklund apportioned the responsibility for the employee’s condition equally between the employee’s work injuries.  (Ex. D.)

On February 12, 2020, the employee underwent an IME conducted by Michael D’Amato, M.D., on behalf of Omni.  Dr. D’Amato diagnosed the employee with right knee tricompartmental degenerative joint disease with medial meniscal deficiency and chronic anterior cruciate ligament deficiency, together with chronic obesity.  Dr. D’Amato opined that the employee’s right knee condition was the result of the earlier sports injuries and the employee’s weight. Dr. D’Amato assessed both work injuries as, at most, temporary aggravations of the underlying preexisting condition.  (Ex. 1.)

The employee filed a claim petition and a rehabilitation request seeking approval of the proposed knee replacement surgery, temporary total disability (TTD) benefits, payment of out of pocket medical expenses and medical mileage, and rehabilitation services.  MN DEED intervened for repayment of unemployment compensation.  The case came on for hearing before a compensation judge on March 10, 2020.  While admitting the two work injuries, both employers disputed causation of the employee’s condition and placed at issue the nature and extent of the employee’s right knee injuries.  A job search defense was raised to the TTD benefits claim.  The employee testified regarding the nature of his work injuries, the effects of treatment, the ongoing condition of his right knee, and his work situation from November 2018 to February 2019.  The employee testified that he performed floor covering installation work without experiencing right knee pain until July 25, 2008.

The compensation judge found that the employee’s July 25, 2008, work injury was a substantial contributing cause of the employee’s permanent knee condition, and that the total knee replacement proposed by Dr. Kruse was reasonable and necessary to address the condition.  The judge found that the September 30, 2018, work injury was temporary and had resolved without contributing to the need for the proposed knee surgery.  The responsibility for the surgery was apportioned 100 percent to Omni, and 0 percent to Schleis.  TTD benefits were awarded, payable by Omni.  Omni appealed.

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).

Omni asserts that the judge’s conclusions regarding causation are unsupported by any particular medical opinion and that this is an error of law.  Omni contends that the judge misapplied the appropriate test for assessing the impact of the work injury.  Additionally, Omni argues that the employee did not conduct an adequate job search, and that the award of TTD benefits was in error.  The employee and Schleis maintain that the judge correctly applied the law and that substantial evidence, including expert medical evidence, supports the decision.

The compensation judge determined that only the July 25, 2008, work injury was a substantial contributing cause to the employee’s period of disability and need for a knee replacement.  Omni asserts that there is inadequate medical support for the judge’s conclusions.  Drs. Pittman, Cederberg, and Wicklund all concluded that the July 25, 2008, work injury substantially contributed to the need for the employee’s right knee replacement.  Drs. Segal and D’Amato considered the September 30, 2018, work injury to be, at most, a temporary aggravation of the employee’s preexisting condition.  No foundation objection was raised to any of that evidence.

Omni notes that aspects of each of those medical opinions differ from the result determined by the compensation judge.  The responsibility for resolving conflicts between medical testimony lies with the compensation judge.  Ruether v. State, 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1123 (Minn. 1990).  The judge is not required to adopt a single medical opinion in resolving the issues presented.  Erickson v. Qwest Corp., 79 W.C.D. 659 (W.C.C.A. 2019); Moore v. Big Timber Wood-Premier Res., 73 W.C.D. 157 (W.C.C.A. 2013).  There are medical opinions in the record supporting conclusions that the employee’s right knee condition is permanent; that the July 25, 2008, work injury was a substantial contributing factor in the need for surgery; and that the September 30, 2018, work injury was temporary and resolved without residual effects.  There is ample medical support for the findings made in this case.

In determining the nature and extent of the two work injuries, the compensation judge applied the assessment set out in Wold v. Olinger Trucking, Inc., slip op. (W.C.C.A. Aug. 29, 1994).  Omni contends that the judge misapplied the Wold test by failing to compare the employee’s right knee condition before and after the July 25, 2008, work injury.  We disagree.

In Wold, this court identified several factors which the finder of fact might consider when determining whether an aggravation of a preexisting condition is temporary or permanent, including: the nature and severity of the preexisting condition and the extent of restrictions and disability resulting therefrom; the nature of the symptoms and extent of medical treatment prior to the aggravating incident; the nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom; the nature of the symptoms and extent of medical treatment following the aggravating incident; the nature and extent of the employee’s work duties and non-work activities during the relevant period; and medical opinions on the issue.  The significance of the Wold factors and the weight to be given the factors is a question of fact for the compensation judge.  In deciding whether an injury is a permanent or a temporary aggravation, the compensation judge is not required to address each of the factors.  Johnson v. Micro Control Co., No. WC10-5206 (W.C.C.A. June 2, 2011).

The judge carefully compared the employee’s condition, symptoms, and ability to work before and after each of the employee’s work injuries.  The differing medical opinions were weighed regarding the effect of each work injury on the employee’s preexisting condition.  This assessment is set out in the judge’s Findings 6 through 20 and the judge’s Memorandum.  Omni is critical of the inferences the judge took from that comparison, but so long as a judge’s inferences are reasonable, they are undisturbed on appeal.  Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  Here, the judge’s inferences are both reasonable and  supported by substantial evidence in the record.  We affirm the judge’s findings regarding the nature and extent of the employee’s two work injuries and allocation of 100 percent responsibility for benefits to Omni.

Omni argues that the employee initially conducted an inadequate job search, followed by no job search since February 7, 2019.  For these reasons, Omni asserts that the judge erred in awarding TTD benefits.  Under Minn. Stat. § 176.101, subd. 1(g), TTD benefits cease where an employee’s disability due to the work injury ends and “the employee fails to diligently search for appropriate work ….”  The employee was in contact with Schleis in November 2018, when he was laid off due to no work.  The employee also contacted his union local, which is the only mechanism available to him to find work as a union flooring installer.  Dr. Kruse took the employee off work due to the condition of his right knee as of February 7, 2019.

Assessment of the adequacy of a job search is the responsibility of the compensation judge.  Redgate, 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  “Whether an injured employee makes a reasonably diligent search for suitable employment is a question of fact which must be upheld unless manifestly contrary to the evidence.”  Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 841, 39 W.C.D. 758, 761 (Minn. 1987) (citing McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538 (Minn. 1983)).

The judge can consider the employee’s condition in assessing the extent to which the job search was adequate (or even if any search would be futile).  See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 432 (Minn. 1978).  Here, the employee’s work options were limited and the period between being released to work and being taken off all work due to the effects of the work injury was short.  We conclude that the judge’s determination that the employee conducted an adequate job search is not manifestly contrary to the evidence.  The TTD benefits award is affirmed.