KENDRA K. PERPICH, Employee/Appellant, v. DELTA AIRLINES, INC., and SEDGWICK CLAIMS MGMT. SERV., INC., Employer-Insurer/Respondents, and BLUE CROSS BLUE SHIELD MN/BLUE PLUS, AM. ACCOUNTS CO., SUMMIT ORTHOPEDICS, CTR. FOR DIAGNOSTIC IMAGING, TWIN CITIES SPINE CTR., FAIRVIEW HEALTH SERV., UCARE, and THE WINKLEY CO., Intervenors.

The employee appeals from the finding that the preponderance of the evidence fails to prove that the employee sustained a low back injury on March 6, 2014.  We affirm.

Starting in 2001, the employee, Kendra Perpich, began working for the employer, Delta Airlines, as a flight attendant.  The employee’s medical history included multiple knee surgeries, including an ACL repair, due to incidents in the 1980s.  A pre-employment examination identified no ongoing knee issues, and the employee performed her job for the employer without knee problems for more than a decade.  On October 13, 2013, she saw a doctor at Park Nicollet for knee pain, swelling, and difficulty with extension, which started when she twisted her knee when her dog ran into her while she was out walking and carrying groceries.  Radiology and MRI studies showed her ACL graft remained intact, although there was some posterior cruciate ligament buckling.  The employee was diagnosed with a resolving hematoma and degenerative and post-operative changes.  She was given temporary restrictions on weight bearing and treated with physical therapy, after which she returned to her flight attendant job without restrictions.

On March 6, 2014, while the employee was working as a flight attendant and in the process of serving meals to passengers, she was thrown to the floor of the airplane because the aircraft had a sudden drop in altitude.  She heard a popping sound in her knee and had an onset of left knee pain.  The next day, she was seen at the urgent care department at Park Nicollet with knee instability, pain and swelling.  There was concern of a new rupture of the previous ACL graft.  An MRI scan was performed later that month which showed that her ACL graft was intact, but which also showed instability.  The employee underwent another ACL reconstruction surgery on April 14, 2014.  The surgery was not successful and the employee underwent an ACL revision on February 17, 2015.  She progressed well after this and was released to work with restrictions on May 2, 2016.

On July 11, 2016, the employee was seen at Fairview Sports and Orthopedic Care for low back pain with radiation down the legs.  She told the doctor that her low back pain resulted from the March 6, 2014, incident when she was thrown to the floor of the airplane.  A lumbar spine MRI on August 18, 2016, showed a two-level disc derangement at L4-5 and L5-S1.  A discogram on October 6, 2016, confirmed annular tears at L4-5 and L5-S1.  The employee eventually underwent an anterior discectomy and fusion at these levels on December 22, 2016, performed by Dr. Manuel Pinto.  The employee had a long period of recovery through September 6, 2018, when Dr. Pinto noted a near resolution of the employee’s back pain.

The employee was seen for an independent medical examination by Dr. Edward Szalapski on April 3, 2018.  Dr. Szalapski opined that the employee’s low back condition resulted from aging and was not due to the work incident of March 6, 2014, noting the lack of any treatment for or report of back symptoms until long after the date of that incident.  In an addendum report in 2019, Dr. Szalapski attributed the employee’s knee issues to her October 2013 non-work injury rather than the alleged 2014 work injury, noting that his review of the imaging showed that the employee’s ACL graft was just as functional following the 2014 work incident as it appeared in 2013.

The employee obtained a report from Dr. William Simonet, one of her treating physicians, who acknowledged that the employee’s ACL graft had remained intact following the 2014 work incident but considered it to have worsened as a result of that incident.  With respect to the alleged back injury, the employee relied primarily on the causation opinion of Dr. Pinto, as expressed in a “Medical Verification” form, that the employee sustained an injury to her low back as a result of the 2014 incident at work.

The self-insured employer disputed the employee’s low back claim and contested the nature and extent of her injury.  A hearing was held before a compensation judge on April 23, 2019.  The compensation judge found that the work incident of March 6, 2014, caused a permanent injury to the employee’s left knee, but that the preponderance of the evidence failed to show that the employee suffered an injury to her low back on that date.

The employee has appealed from the denial of her low back injury claim.

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).

As a preliminary matter, we address an argument raised by the respondent regarding the sufficiency of the employee’s notice of appeal.  The employee’s notice of appeal lists as appealed only Order 3, the order denying her low back claim, but does not list as appealed Finding 42, in which the compensation judge found that a preponderance of evidence fails to support the employee’s low back claim.  The respondents argue that this court must affirm the denial of the employee’s low back claim on the basis that it is supported by an unappealed finding, and that this court cannot consider the merits of the appeal.  We disagree.

On appeal, our review is by statute “limited to the issues raised by the parties in the notice of appeal or by a cross-appeal.”  Minn. Stat. § 176.421, subd. 6.  Pursuant to subdivision 3 of that statute, an appellant’s notice of appeal must specify:

In the present case, we conclude that the notice of appeal sufficiently placed the court and the respondents on notice that the issue on appeal was the compensation judge’s order and determination denying the employee’s claim of a low back injury.  We note that the respondents have not argued that in failing to specifically identify Finding 42, while appealing the order denying the low back claim, the employee’s notice of appeal somehow failed to apprise them that the issue on appeal was the denial of the low back claim.  Similarly, the respondents have offered no argument as to how they have been prejudiced by the employee’s failure to specifically identify Finding 42 as appealed.

Because the respondents’ argument goes only to the form, rather than the substance, of the notice provided, we conclude that this court may consider the merits of the employee’s appeal under these circumstances.

The employee appeals from the compensation judge’s determination that the preponderance of the evidence failed to demonstrate that the employee sustained a low back injury as a result of the March 6, 2014, work incident.  The employee bases her appeal on essentially one argument that Dr. Szalapski, who opined that the employee’s low back condition was the result of a degenerative process unrelated to the March 6, 2014, work incident, was not medically competent to offer an opinion on the cause of the employee’s need for low back surgery.

Specifically, the employee points out that Dr. Szalapski acknowledged in deposition testimony that he had not performed low back surgery for over 20 years, and that he generally referred back pain patients to other physicians for treatment.  The employee cites a number of non-workers’ compensation cases, primarily dealing with medical malpractice claims, for the proposition that theoretical knowledge regarding medical procedures, without practical experience with the procedure at issue, is an insufficient foundation for a doctor to offer an expert opinion on the standard of care applicable to the performance of that procedure.  Based on this line of cases, the employee asserts that Dr. Szalapski’s opinion regarding the causation of the employee’s low back symptoms was without sufficient foundation.  She asserts that the compensation judge thus should have instead relied on the opinion of Dr. Pinto, a back surgeon, who associated causation for the employee’s low back condition in part to the March 6, 2014, work incident.

We do not find this argument persuasive.  The question before the compensation judge was not one of whether the employee’s low back surgery was performed according to the appropriate standard of care, but rather, whether the employee’s low back condition itself was causally related to the work incident.  In several prior cases, this court has rejected similar arguments seeking to discredit the opinions of a medical expert relied on by the compensation judge.  For example, in Branstad v. Fedex Freight East,^[2] we held that an orthopedic surgeon was competent to render an expert medical opinion on an employee’s disability and need for disc replacement surgery, even though the doctor did not himself have experience performing the type of surgery being contemplated.  Similarly, in Johnson v. A & B Welding & Constr., Inc.,^[3] we held that a compensation judge could reasonably rely on the expert medical opinion of a board-certified orthopedist regarding causation for a thumb condition, even though the doctor was not a hand specialist.^[4] The competency of a witness to provide an expert opinion “depends upon both the degree of the witness’ scientific knowledge and the extent of the witness’ practical experience with the matter which is the subject of the offered testimony.”^[5]  However, where the doctor has sufficient expertise and foundation to render an opinion, these factors go to the weight of the opinion, and not to its admissibility.^[6]  Dr. Szalapski examined the employee and reviewed extensive medical records and history.  This level of information constitutes adequate foundation for purposes of providing a medical opinion.^[7]  We conclude that the compensation judge was entitled to rely on the opinion of Dr. Szalapski, a board-certified orthopedic surgeon, regarding causation for the employee’s orthopedic low back condition.  We also note that the compensation judge’s memorandum indicates that he relied heavily on the absence of back pain complaints in the employee’s medical records for more than two years following the work incident.  This evidence, together with Dr. Szalapski’s opinion regarding the employee’s low back condition, constitutes substantial evidence in support of the judge’s determination.  We affirm.