CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence, including adequately founded expert medical opinion, supports the compensation judge’s finding that the employee did not sustain a bilateral knee injury when he stepped on a power cord threshold while working for the employer.
Compensation Judge: William J. Marshall
Attorneys: Pro se Appellant. Craig B. Nichols, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, Minnesota, for the Respondents.
Affirmed.
SEAN M. QUINN, Judge
The pro se employee appeals the compensation judge’s finding that the employee did not sustain a work-related injury to his knees. We affirm.
On April 6, 2019, the employee, Michael H. McMillan, was working for the employer, Freeman Expositions, Inc., at U.S. Bank Stadium to prepare the facility for the upcoming NCAA Final Four men’s basketball tournament. The employee was hanging drapes under bleachers to form a corridor for players to walk through before entering the court. While stepping backwards, he stepped on top of a “threshold,” a plastic or rubber covering placed over power cords. The employee described the threshold as having a steep slope on both sides with a flat middle and claimed he hyperextended both knees when he stepped on it. He did not experience immediate pain, but had pain by the end of that day.
Before the work injury, the employee had a history of bilateral knee difficulties. An MRI scan of his right knee performed on May 3, 2007, showed complex tearing of the posterior horn of the medial meniscus, with additional superior surface tearing and fraying of the anterior horn of the lateral meniscus, chondral thinning and irregularity of the medial tibial plateau, femoral trochlea and patella, and mild to moderate knee joint effusion. Another MRI scan of the right knee performed on April 25, 2008, showed a moderately complex horizontal and vertical tearing of the body and posterior horn medial meniscus with a small to moderate associated parameniscal cyst, and mild to moderate patellofemoral and mild medial compartment degenerative articular cartilage loss, and small joint effusion.
Further, on January 18, 2011, the employee saw his doctor to follow up on a torquing injury to his left knee and swelling of both knees which he sustained in a motor vehicle/pedestrian accident the previous October. He was diagnosed with bilateral osteoarthritis of the medial and patellofemoral compartments of the knees. An MRI scan of the left knee on January 26, 2011, showed superficial undersurface tearing or fraying of the medial meniscus in the junction region between the posterior horn and body, with grade 2 chondromalacia of the medial compartment, and mild joint effusion. There was also a showing of possible low-grade partial tearing, stretch injury, or mild degeneration of the anterior cruciate ligament and grade 2 chondromalacia of the medial facet of the patella.
In addition, on July 28, 2015, the employee reported left knee pain since an injury the previous April when he was carrying a heavy load of items down some stairs. He was diagnosed with osteoarthritis of the left knee. An MRI scan of his left knee of July 30, 2015, showed grade 2 and 3 correlation medial joint space compartment with broad-based areas of near full-thickness chondral thinning of the weight-bearing portions, complex tearing and deformity of the middle and posterior one-third portions of the medial meniscus, and grade 2 and 3 chondromalacia of the patellofemoral compartment. There was also grade 2 correlation lateral joint space compartment, prepatellar and pretibial bursal inflammation, and a chronic healed medial collateral ligament sprain. The employee underwent a left knee arthroscopic medial meniscectomy on August 21, 2015.
Following the April 6, 2019, work injury, the employee presented to his family physician, Dr. Kay Maust on May 1, 2019, stating that he had “hyper-extended his knees at work since his last visit.”[1] (Ex. B.) Later that same day, the employee returned to his previous surgeon, Dr. Aimee Klapach of Allina Health – Sports and Orthopedic Specialists, reporting bilateral knee pain since hyperextending his knees while working at U.S. Bank Stadium. He told Dr. Klapach that he had a jolt of pain and swelling following the injury. He also reported to her that his left knee was “perfect” after the 2015 surgery until he slipped while pushing a cart in 2017, but that his symptoms had been manageable until the 2019 work injury. Dr. Klapach noticed knee joint trace effusion. X-rays showed mild medial joint space narrowing on the right and moderate medial joint space narrowing on the left, sharpening of the tibial spines, medial tibial plateau subchondral stenosis, bilateral patellofemoral osteophyte formation, medial osteophyte formation on the left, and varus alignment. Dr. Klapach diagnosed bilateral osteoarthritis that had worsened since she had last seen the employee. She told him that he could continue to conservatively manage his symptoms but there was no cure and the ultimate treatment would be bilateral total knee replacements.
On May 22, 2019, the employee returned to Dr. Klapach following an MRI scan. She noted findings that had worsened since the 2015 MRI scan, with increased tearing and increased chondral loss, as well as large joint effusion with synovitis. She also observed new findings of a focal deep fissuring and deep delamination involving the posterior lateral tibial plateau measuring approximately 4 millimeters in size. She stated that the employee had underlying osteoarthritis “which was flared due to his recent injury at work,” recommended use of a brace and monovisc injections, and suggested the employee consult with another surgeon regarding total knee replacement. (Ex. C.)
On June 13, 2019, the employee saw Dr. Robert Tuttle, who made findings consistent with severe osteoarthritis of the employee’s knees. Dr. Tuttle was of the opinion that the employee’s condition should be managed conservatively, but ultimately, he would need bilateral total knee replacements. He treated the employee with steroid injections to both knees, and as part of those procedures, the intra-articular placement of the injections was confirmed by free backflow of fluid from the knees.
The employer and insurer arranged for the employee to be examined by Dr. William Simonet, who submitted his report on November 14, 2019. Dr. Simonet reviewed MRI scans from 2007, 2008, 2015, and 2019. He described the arthritis seen in the 2007 MRI scan as the same arthritis, now progressed to bone-on-bone osteoarthritis, seen in the 2019 evaluation. Similarly, he noted that the 2008 medial meniscus tear and medial compartment loss was the same degenerative arthritis seen in the 2019 scan, and that the 2015 scan showing chondromalacia with near full-thickness chondral loss in the medial compartment was similar to that seen in the 2019 evaluation. Dr. Simonet also ordered x-rays, which showed bone-on-bone arthritis of the medial compartment of both knees with associated patellofemoral osteoarthritis. He diagnosed the employee with osteoarthritis of the knees, bilaterally. He agreed that the employee needed total knee replacements and that all the medical care he received for his knees to date had been reasonable and necessary. He opined, however, that none of the diagnoses, care, or need for future care was related to the work injury, as the mechanism of the employee’s work injury was not the type that would cause an injury, nor one that would aggravate or accelerate the employee’s underlying osteoarthritis. In fact, Dr. Simonet stated that there simply was no 2019 work injury at all.
The employee ultimately underwent a total left knee replacement on December 5, 2019. A similar procedure on the right knee is planned.
A hearing was held before Compensation Judge William Marshall on December 10, 2019, on the employee’s claim of wage loss and medical benefits. The employee testified that his knee symptoms had gradually worsened since they started in 2007, but he was not asked whether they had worsened after the work injury.
On March 20, 2020, the compensation judge issued his Findings and Order, determining that the employee did not prove he suffered a work injury to his knees on April 6, 2019, and denied the employee’s claims. The employee, now pro se, 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 substantial evidence supports his claim. Specifically, he suggests that the reasonable inference from the evidence, including new findings on MRI scans and the need to have steroid injections and fluid removed from his knees, which had not happened before the work injury, demonstrates that even though he had pre-existing bilateral knee problems, the work injury substantially aggravated or accelerated his condition to the point where he had a left total knee replacement surgery and needs another for his right knee. Moreover, he argues that Dr. Simonet ignored the new findings seen in the May 2019 MRI scan and therefore his opinion lacks foundation or credibility. The employee also argues that because there is a doctor visit of April 3, 2019, stating that he had hurt his knees five days prior at U.S. Bank, then the correct date of injury must have been March 29, not April 6, and this misunderstanding of the correct date led the compensation judge to find against him.
The employer and insurer argue substantial evidence supports the findings of the compensation judge. They also argue that the employee’s appeal was one day late, divesting this court of jurisdiction. Further, they argue that the employee’s brief should be stricken or his appeal dismissed because his brief was filed after the deadline.
The Findings and Order were served on March 20, 2020. Appeals to this court must be taken with 30 days. Minn. Stat. § 176.421, subd. 1. The employee filed his appeal on April 20, 2020, 31 days later. However, April 19, 2020, the 30th day, was a Sunday. When the 30th day falls on a weekend or holiday, that day is omitted from the count. Minn. Stat. § 645.15.[2] The employee timely filed his appeal and this court has jurisdiction to consider the appeal.
The employee’s brief was three days late. See Minn. R. 9800.0900, subp. 1. The employer and insurer argue that they were prejudiced by this lateness because they had fewer days to prepare their brief, and thus this court should strike the employee’s brief or dismiss his appeal. See Minn. R. 9800.0900, subp. 6; Minn. R. 9800.1710. Yet, the employer and insurer served and filed their brief 18 days before it was due. There is no showing of prejudice and we decline to strike the employee’s brief or dismiss the appeal.
The evidence offered by the employee, whether by document or testimony, was minimal. While it is true that the employee has undergone additional treatment, including steroid injections and a total left knee replacement, since the 2019 injury and that the 2019 MRI showed new findings not seen on previous MRIs, as well as more significant findings than those previously seen, there was no medical opinion offered by the employee specifically relating these changes to the work injury. It was reasonable for the compensation judge to conclude that Dr. Klapach’s singular statement contained in her May 22, 2019, treatment note, that the employee’s osteoarthritis was “flared” by his work injury, did not rise to an opinion establishing causation for the new findings. Likewise, there was no testimony from the employee that his symptoms had worsened after he suffered the work injury. Given the new MRI findings, the compensation judge could have inferred there was a causal link between the work injury and the employee’s bilateral knee conditions, but did not do so. Where more than one reasonable inference may be drawn from the evidence, this court will not substitute its judgment for that of the compensation judge. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988); Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240.
Furthermore, substantial evidence supports the compensation judge’s reliance upon the opinion of Dr. Simonet. Dr. Simonet had adequate foundation for his opinion, despite the assertions of the employee to the contrary. He examined the employee and reviewed x-rays taken as part of this examination. He addressed the findings from all of the MRIs, including the findings from the 2019 MRI.[3] He described the findings of the 2019 MRI as worse than those from the previous MRIs but showing a progressive worsening of the employee’s longstanding osteoarthritic condition rather than a new causative injury. Dr. Simonet further indicated that the mechanism of the work injury described by the employee was not the type that would aggravate or accelerate underlining osteoarthritis, and for that reason, opined there was no work injury. As Dr. Simonet’s opinion has foundation and credibility, we affirm the compensation judge’s acceptance of his opinion.
The employee also argues that the correct date of injury was March 29. This distinction is irrelevant to the compensation judge’s determination of causation. Nothing in the record indicates the compensation judge made his causation determination based upon the date of injury being April 6 and not March 29, as the employee suggests.
Substantial evidence supports the compensation judge’s finding that the employee did not sustain a work-related injury to his knees, and we affirm.
[1] His previous visit was on April 3, 2019, three days before the date of injury. At the April 3rd visit, the employee reported that he had hurt his knees at U.S. Bank Stadium five days before.
[2] See also Minn. R. of Civ. Pro. 6.01(a)(1)(C).
[3] We also note there was no foundation objection made at the hearing, a necessity to preserve the issue for appeal. See Sirian v. City of St. Paul Pub. Works, 77 W.C.D. 133, 140 (W.C.C.A. 2017); see also Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 801, 77 W.C.D. 117, 123 (Minn. 2017).