AUGUST 16, 2021

PRACTICE AND PROCEDURE – MATTERS AT ISSUE.  The compensation judge did not err in declining to address the issues of PPD benefits or penalties because neither were raised at hearing.

EVIDENCE – EXPERT MEDICAL OPINION.  This court affirms the compensation judge’s choice between competing expert opinions where the chosen opinion is adequately founded.

    Determined by:
  1. Sean M. Quinn, Judge
  2. David A. Stofferahn, Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge:  Grant Hartman

Attorneys: William T. Dillon, III, Pro se Appellant.  Kyle T. Kustermann, Erstad & Riemer, P.A., Edina, Minnesota, for the Respondents.




The employee appeals the compensation judge’s finding that he did not suffer a work-related injury to his left knee on November 15, 2017.  We affirm.


Prior to the alleged work injury on November 15, 2017, the employee, William Dillon III, had an extensive medical history with both right and left knee conditions.

The employee first injured his left knee in approximately 1990 while playing college football.  He underwent three separate anterior cruciate ligament (ACL) surgeries.  In 2007, he suffered another injury to his left knee and underwent two ACL reconstructive procedures.  In 2012, the employee underwent an MRI showing chronic tearing of the ACL, a tear of the medial meniscus, and tricompartmental degenerative joint disease.  In 2014, x-rays showed advanced degenerative changes and postoperative changes related to the numerous ACL surgeries.  X-rays in 2015 and 2017 again showed advanced degenerative joint disease in all three compartments.  The employee testified that he had pain, swelling, and stiffness related to his left knee from time to time over the years although he also had lengthy periods of time with no symptoms.  In fact, the employee was under no restrictions related to his left knee and testified that he engaged in a 150-mile bike ride in July 2017, only months before his claimed work injury.  He also engaged in CrossFit training and was very active in many other facets of his life without left knee difficulty.

The employee also had pre-existing problems with his right knee, including degenerative changes of the three compartments, a chronic tear of the medial meniscus, and degenerative changes of the patellofemoral joint.  He underwent a partial medial meniscectomy and patellar chondroplasty in 2015.

In November 2017, the employee attended a work-related retreat.  Evidence was presented that the retreat was voluntary and was hosted to give attendees an opportunity to have fun and relax after a busy and chaotic year.  However, evidence was also presented that the retreat would involve work-related discussions on improving the business and that the attendees were required to review documents ahead of the retreat.

During the retreat, on November 15, 2017, the employees were gathered and asked to demonstrate a personal physical ability.  When it was his turn, the employee stood up, jumped and touched his toes while in midair, and then landed.  When he landed on both feet, he felt extreme pain in both knees.  He went to the emergency room where he reported bilateral knee pain, right greater than left.  X-rays of the left knee demonstrated severe degenerative changes as well as the previous ACL surgeries.  X-rays of the right knee likewise showed degenerative changes, but also a fracture of the lateral tibial plateau of the right knee.  A CT scan taken the next day showed a comminuted intraarticular fracture of the right lateral tibial plateau.  On November 28, 2017, Dr. Jay Johnson of Twin Cities Orthopedics performed an open reduction/internal fixation surgery to repair the tibial plateau fracture.  The employer and insurer initially admitted the injury to the right knee and paid for some of the medical treatment for the employee’s right knee.

The employee also treated for left knee complaints.  An MRI taken on November 17, 2017, showed a medial meniscus tear and evidence of prior surgeries to the ACL.  There were no acute findings, although a medial meniscus tear was said to be of uncertain age, but consistent with chronic degenerative changes.  Approximately one month later, the employee saw Dr. Corey Wulf of Twin Cities Orthopedics with complaints of increasing left knee pain.  Dr. Wulf described the employee’s left knee complaints as being due to a chronic ACL tear, and he suspected that any acute pain would resolve with non-operative management.

Over the next several months, the employee continued to treat with Dr. Wulf for ongoing left knee complaints.  He underwent a cortisone injection.  A repeat MRI showed a chronic rupture of the ACL.  Dr. Wulf performed arthroscopic partial medial and lateral meniscectomies on the employee’s left knee in May 2018.  The employee reported doing well following the surgery but continued to have pain in the posterior aspect of his left knee.

The employee moved to Massachusetts and began treating with different doctors, Dr. Joseph Czarnecki and Dr. Michael Fehm.  In June 2019, Dr. Fehm noted bone-on-bone arthritis of the left knee and suggested total knee replacement.

In September 2019, the employee filed a medical request seeking approval of the recommended left total knee replacement surgery.  While the employer and insurer originally admitted liability for the right knee injury, they did not admit the left knee injury.  Following the medical request, the employer and insurer denied that any claims for the left knee were related to the November 15, 2017, event, and amended its position regarding the right knee, denying primary liability and asserting that the employee’s injuries occurred during a recreational event and were not compensable pursuant to Minn. Stat. § 176.021, subd. 9.  They argued that the previous payments made related to the right knee were made under a mistake of fact and refused to pay any unpaid bills for that knee.

The employer and insurer arranged for the employee to be examined by Dr. Michael D’Amato, who wrote a report dated December 26, 2019.  Dr. D’Amato opined that although the employee suffered pre-existing difficulty with his right knee, the event of November 15, 2017, caused the tibial plateau fracture.  As to the left knee, Dr. D’Amato opined that the employee had chronic longstanding difficulties with his left knee related to ACL deficiency, medial and lateral meniscus deficiency, and degenerative tricompartmental changes, all pre-dating the November 15, 2017, event.  He opined that the problems shown on the x-ray and MRI after November 15, 2017, were all consistent with that pre-existing condition and that the employee’s need for a total knee replacement, while appropriate, was related to that pre-existing condition and was not caused, aggravated, or accelerated by the November 15, 2017, event.

In January 2020, Dr. Wulf authored a short letter, stating that it was his opinion that the employee's chronic left knee condition was exacerbated by the November 15, 2017, injury.

The matter came on for a hearing before a compensation judge.  In his pre-trial statement, the employee, who represented himself throughout the proceedings and on appeal, raised the issues of whether he suffered a work-related injury, and if so, whether the injury involved both his right and left knee conditions.  The pre-trial statement also listed issues of whether the employer and insurer should be penalized for frivolous denials and for late payments, as well as for an alleged failure to make a primary liability determination in a timely fashion, and whether the employee was entitled to permanent partial disability (PPD) benefits related to the right knee under Minn. R. 5223.0510, subp. 2A(2) and unspecified PPD benefits for the left knee.  At the hearing, however, the issues presented to the compensation judge on the record were whether the employee suffered a compensable injury or whether he was injured during a recreational program, and if his injury is compensable, whether the employee suffered an injury to his left knee as a result of the November 15, 2017, event.  (T. 8-19.)

In a Findings and Order served and filed on June 3, 2020, the compensation judge determined that the employee suffered a compensable work injury to his right knee on November 15, 2017, and ordered the employer and insurer to pay the intervention claims related to right knee treatment.  As to the left knee, the compensation judge accepted the opinion of Dr. D’Amato over the opinion of Dr. Wulf, and found the employee did not suffer any injury to his left knee on November 15, 2017.  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).


The employee makes several arguments on appeal.  He asserts the compensation judge erred by not awarding PPD benefits for his right knee injury, and by denying his claim for penalties against the employer and insurer for an alleged frivolous denial of benefits and delayed medical payments.  Finally, he asserts that substantial evidence does not support the compensation judge’s finding that he did not suffer an injury to his left knee on November 15, 2017.

1.   Permanent Partial Disability for the Right Knee

The employee argues that the compensation judge erred by failing to award PPD benefits for the right knee under Minn. R. 5223.0510, subp. 2A(2).  We disagree.  The employee filed a medical request seeking approval of a total left knee replacement.  No claim for any other benefits was raised by this pleading.  The employee identified PPD benefits as an issue in his pre-trial statement, however, he did not raise the issue at hearing.  Finally, while it is true that the employee was pro se and might be given some benefit of the doubt on some procedural matters, there was no medical evidence or doctor’s report presented to the compensation judge as to the extent of any PPD rating for the employee’s right knee.  A compensation judge is limited to resolving only those issues that are raised at the hearing.  Minn. Stat. § 176.371; see Dexter v. Hubbard Cnty. Dev. Achievement Ctr., 79 W.C.D. 547, 551 (W.C.C.A. 2019) (citing Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988)).  Because no claim of entitlement to PPD benefits for the right knee was presented to the compensation judge, no error was committed in declining to address the claim.

2.   Penalties

The employee argues that the compensation judge erred in failing to address claims that he is entitled to an award of penalties against the employer and insurer for frivolously delaying the primary liability determination regarding his left knee injury, for constantly demanding additional information from the employee, and for frivolously delaying payments for medical treatment related to the right knee.  We are not persuaded.  The employee’s claims for penalties, while raised in his pre-trial statement, were not raised in the pleadings and were not raised at the hearing.  No claim of entitlement to an award of penalties was presented to the compensation judge for determination and no error was committed in declining to address the claim.[1]  See Dexter, 79 W.C.D. at 551.

3.   Primary Liability for the Left Knee Injury

The employee argues that substantial evidence does not support the compensation judge’s determination that the employee did not suffer an injury to his left knee on November 15, 2017.  He argues that despite his pre-existing problems with his left knee, he had no restrictions related to his left knee prior to November 15, 2017.  He points out that there was no recommendation for any medical care for his left knee before the work injury, but only a short time after the work injury, a total knee replacement is recommended.  He also notes that he was able to do several activities without difficulty prior to November 15, 2017, including a 150-mile bike ride and CrossFit training.  Finally, he argues that on November 15, 2017, he jumped and landed hard on both feet, and because he suffered a serious fracture to his right knee, he must have also injured his left knee.

The compensation judge concluded the employee did not suffer an injury to his left knee on November 15, 2017.  In his memorandum, the compensation judge explained his decision to rely upon Dr. D’Amato over Dr. Wulf by noting the employee’s five ACL reconstructive surgeries occurring in the years 1990 through 2008, the employee’s ongoing symptoms and treatment for his left knee after those five surgeries, the MRI and x-ray findings in 2012, 2014, 2015, and 2017, all predating the work injury, and that the recommendation for the total knee replacement was based upon advanced degenerative arthritis and not the November 15, 2017, event.

Substantial evidence in the record supports the compensation judge’s conclusions.  Simply because the employee began having more significant difficulty with his left knee shortly after November 15, 2017, does not mean that the November 15, 2017 event caused his left knee difficulties.  Correlation does not equate to causation.  The employee urges acceptance of the opinion of Dr. Wulf that the employee’s chronic left knee condition “was exacerbated by the work event injury.”  (Ex. A.)  The compensation judge adopted, and found persuasive, the opinion of Dr. D’Amato, which contained a detailed analysis of the employee’s pre-existing left knee problems, symptoms, and medical care.  He concluded that the work injury did not exacerbate or accelerate the employee’s left knee condition ultimately leading to the recommendation for total knee replacement.  As the trier of fact, the compensation judge has discretion in weighing medical evidence and in choosing between competing expert opinions.  See Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 803, 77 W.C.D. 117, 126 (Minn. 2017).  Generally, this court must affirm a compensation judge’s choice between competing expert opinions so long as the chosen opinion is adequately founded.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  The opinion of Dr. D’Amato is well-founded, and the compensation judge’s adoption of that opinion and his denial of the employee’s left knee injury claim are affirmed.

[1] The employer and insurer represent to this court that PPD benefits for the employee’s right knee have been paid.  As no issue was raised and no decision was made regarding PPD benefits or penalties, nothing in the compensation judge’s decision nor this court’s decision forecloses these claims.