TROY ERICKSON, Employee/Appellant, v. GRAND ITASCA CLINIC & HOSP., Self-Insured Employer/Respondent, admin’d by SFM RISK SOLS., INC., and ESSENTIA HEALTH, Intervenor.

The employee appeals the compensation judge’s finding that the employee suffered a temporary aggravation of one-day duration of a pre-existing right shoulder condition and was not entitled to shoulder surgery based on the expert medical opinion submitted by the self-insured employer.  We conclude that this opinion, adopted by the compensation judge, is not supported by the evidence, and we reverse and remand for a finding as to whether recommended surgery is reasonable and necessary pursuant to Minn. Stat. § 176.135.

Troy Erickson, the employee, is an orthopedic surgeon who was employed by the self-insured employer, Grand Itasca Clinic.  On September 28, 2017, while in a seated position performing hand surgery, he reached his right arm up and outward away from his body to adjust a surgical light stationed approximately three-and-one-half feet away.  He felt a “pop” and pain in the back of his shoulder, with pain and numbness radiating to the front of his shoulder and down the right arm.  He immediately reported the injury to the employer.^[1]  He testified that the surgical light was new and tighter than usual.  Following the incident, the employer inspected the surgical lights and measured the force necessary to move the lights up and down or right and left.^[2]  The employer admitted liability but disputed the nature and extent of the injury.

The employee did not seek immediate medical attention or suffer lost time due to the injury.  As a physician, the employee managed the pain on his own with exercises, job modification, and medication. Several months after the injury, on August 1, 2018, the employee underwent an orthopedic consultation with Jeffrey F. Klassen, M.D.  Dr. Klassen noted that the employee reported shoulder pain in the “back” of the shoulder with pain radiating to the front.  Dr. Klassen’s notes reflect that the employee had a prior right shoulder surgery in 2016.^[3]

The prior right shoulder surgery was performed by Justin Cummins, M.D., on January 18, 2016, to address the employee’s right shoulder SLAP tear, AC arthrosis. and biceps tendinosis.  The operative report noted that Dr. Cummins found fraying of the labrum anteriorly, but there was no mention of a posterior lesion.^[4]  The employee recovered without restrictions.

Following the January 2016 surgery, the employee testified that he recovered 99 percent and suffered no shoulder pain until the September 28, 2017, work injury.  He testified that the location of the pain was different in 2017.  He had never experienced posterior shoulder pain before which he described as “exactly the opposite” of the pre-existing injury.^[5]  Dr. Klassen ordered a shoulder MRI with contrast and an EMG.  The MRI showed expected post-operative changes wrought by the January 18, 2016, surgery, but also showed rotator cuff tendinopathy, post-operative changes consistent with distal clavicle resection and biceps tenodesis, and “[s]uspicion for posterior superior labral tear.”^[6]  The EMG showed evidence of right ulnar motor and sensory neuropathy.  Dr. Klassen recommended right shoulder arthroscopic surgery, debridement of the bicep remnant, revision surgery of the distal clavicle and biceps tenotomy, as well as labral repair.

The self-insured employer retained Edward Szalapski, M.D., as an independent medical examiner.  Dr. Szalapski took a history from the employee, conducted a physical examination, reviewed multiple medical records, drafted a narrative report, and testified by deposition.  In his October 9, 2018, narrative report, Dr. Szalapski reported that the employee was performing hand surgery when he reached overhead from a sitting position with sudden pain over his biceps tenodesis area and over the “front” of his shoulder.^[7]  On examination, Dr. Szalapski found atrophy of the right deltoid and limited abduction.  He diagnosed the employee with ongoing impingement syndrome and ulnar neuropathy of the epicondylar groove at the right elbow.  Dr. Szalapski opined that the injury was not a substantial contributing factor to the employee’s right shoulder symptoms.  He testified by deposition that the employee reaching to adjust the lamp was a “trivial” activity and added:

Based on Dr. Szalapski’s report, the employer denied ongoing benefits, claiming that the employee suffered a temporary aggravation of his pre-existing shoulder condition which resolved the day after the work injury.  On April 17, 2019, the employee filed a claim petition seeking surgery for a “[p]osterior labral tear with impingement and partial infraspinatus tendon tearing and biceps tendinosis right shoulder.”^[9]

Attached to the claim petition was an opinion by an orthopedic surgeon, Mark Gregerson, M.D.  Dr. Gregerson examined the employee, took a history and reviewed multiple medical records, including the 2018 MRI scan.  He noted that the 2018 MRI scan showed a previous distal clavicle resection and biceps tenodesis, but also showed evidence of a partial tear of the inferior supraspinatus and a posterior labral tear.  Dr. Gregerson diagnosed the employee’s shoulder condition as: 1) pre-existing history of rotator cuff impingement and biceps tendinosis status post January 18, 2016, right shoulder arthroscopy, debridement, decompression, distal clavicular excision, and biceps tenodesis, and 2) posterior labral tear with impingement, partial infraspinatus tendon tearing, and biceps tenodesis, secondary to the work injury of September 28, 2017.^[10]  He opined that the employee’s work activity of September 28, 2017, was a significant aggravating factor of his right shoulder condition and brought about the need for surgery recommended by Dr. Klassen.

The matter came to hearing on March 25, 2021, to determine the nature and extent of the September 28, 2017, injury and whether surgery was reasonable and necessary to cure or relieve the effects of the injury.  Expert opinions were offered into evidence.  Citing rule 702 of the Minnesota Rules of Evidence, the employee moved to exclude Dr. Szalapski’s report and testimony, arguing that his opinion was based on his own experience with surgical lights and was not within the specialized knowledge of an expert witness.  The employee argued that Dr. Szalapski was not entitled to cloak his own personal experience of pulling on surgical lights as specialized knowledge. The judge disagreed and admitted Dr. Szalapski’s report and deposition testimony.  By Findings and Order of April 19, 2021, the compensation judge adopted Dr. Szalapski’s opinion and found that the employee suffered a temporary aggravation of his pre-existing shoulder condition lasting one day and denied the requested shoulder surgery.  The compensation judge did not address the issue of whether the recommended surgery was reasonable and necessary.  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 involve 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).

In denying the employee’s claim, the compensation judge found that the employee had failed to meet his burden of proof that he suffered a right shoulder injury on September 28, 2017.  On appeal, the employee argues that Dr. Szalapski’s expert medical opinion lacks foundation and cannot be the basis of the compensation judge’s denial of his claim.^[11]  The employee also argues that the compensation judge erred in adopting that opinion because Dr. Szalapski misstated that the employee’s 2017 injury affected the front of his right shoulder rather than the back of it and he did not explain how the employee’s shoulder condition in 2016 somehow caused his symptoms in the back of his right shoulder in 2017, and because Dr. Szalapski’s reliance on his personal experience of moving surgical lights was outside the scope of expert testimony under rule 702 of the Minnesota Rules of Evidence.

An expert opinion lacks adequate foundation when the opinion does not include the facts upon which the expert is relying in forming the opinion, there is no explanation of the basis for the opinion, or the facts assumed by the expert are not supported by the evidence.  Hudson v. Trillium Staffing, 896 N.W.2d 536, 540, 77 W.C.D. 437, 442 (Minn. 2017).  Where a misstated fact does not discredit the entire report and opinion, it is not an abuse of discretion for the trial judge to accept the opinion.  Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 77 W.C.D. 617 (Minn. 2017).  Here, the compensation judge relied on a medical opinion by Dr. Szalapski.

Dr. Szalapski described the employee’s injury as occurring as he reached overhead from a sitting position and experienced shoulder pain over the biceps tenodesis area and over the “front” of his shoulder, after which he developed increasing pain.  The employer’s foundation letter to Dr. Szalapski and the deposition of the employee both indicate that the employee’s injury was felt in the “back” of the shoulder.  The initial August 1, 2018, medical record from Dr. Klassen describes pain in the “back” of his shoulder.  Furthermore, the 2018 right shoulder MRI subsequently showed suspicion of a posterior superior labral tear which Dr. Szalapski admitted would need to be confirmed.  Dr. Szalapski does not explain how the employee’s prior right shoulder problems in a different part of the shoulder anatomy caused his injury on September 28, 2017.  We conclude that the judge relied on a medical opinion that misstated the area of injury and lacked an explanation for that opinion.

The employee also argues that the compensation judge erred in adopting Dr. Szalapski’s opinion because he notably relied on his personal experience as a surgeon moving surgical lights, contrary to rule 702 of the Minnesota Rules of Evidence, which requires an expert witness to testify about specialized knowledge after performing an examination and commenting on the findings.  The employee asserts that the opinion expressed by Dr. Szalapski is based on his interpretation of his own personal experience with operating room lights different than those being used by the employee when he was injured.  This experience and resulting opinion, the employee argues, is not territory restricted to orthopedic surgeons, but instead is available to anyone who has ever reached above the shoulder to adjust a light.  The employee maintains that such personal experience is not specialized knowledge, given the experience can be shared by anyone who has ever reached above shoulder height to move or adjust something.  While as a rule, a compensation judge is not bound by common law or statutory rules of evidence, pursuant to Minn. Stat. § 176.411, subd. 1, the judge’s findings of fact must be based on material and relevant evidence only, as presented by competent witnesses, and must comport with Minn. Stat. § 176.021.

Dr. Szalapski’s personal experience with surgical lighting was a primary factor in his opinion that the employee’s injury did not cause his shoulder problems.  Dr. Szalapski opined that he never had a problem with surgical lights and therefore the employee’s claim that he suffered an injury from moving one during a surgery that the employee performed was not only trivial, but “hogwash.”^[12]  The employee, who had performed surgeries since 2003, also never had a problem with surgical lights until the injury of September 28, 2017, which involved a new surgical light that was tighter than usual.  That Dr. Szalapski did not suffer a similar injury himself in other operating rooms at other times cannot be said to be relevant or material to this case.  We conclude that Dr. Szalapski relied on evidence that was not relevant to this case, did not adequately explain the basis for his opinion, and misstated a fact which discredits the entire report and opinion, rendering the compensation judge’s reliance on the opinion contrary to the weight of the evidence, and that the compensation judge erred in adopting Dr. Szalapski’s opinion.

The compensation judge also relied on other factors in denying the employee’s shoulder surgery.^[13]  The judge noted that the employee had a long history of right shoulder impingement syndrome, the extent of which was uncertain due to the employee receiving “under-the-table” injections; that the employee’s symptoms after the 2016 surgery continued up until the September 28, 2017, incident; that the employee did not seek any medical attention for nearly a year after the injury; that the inspection of the lights revealed a force of 13.8 pounds required to pull the lights indicating that the incident was “minor;” and that Dr. Gregerson’s causation opinion was not persuasive.  In reviewing the record, we conclude that these additional factors do not provide substantial evidence to support the judge’s findings regarding causation.

The record does not indicate the presence of a posterior labral tear until after the employee’s 2017 injury, which was when the employee’s back shoulder pain became symptomatic and the 2018 MRI scan showed a suspected posterior labral tear.  The prior arthroscopic surgery report in January 2016 mentioned fraying of the anterior labrum, but there was no mention of any tear or fraying of the posterior labrum.  The lack of prior medical history, due in part to under-the-table injections received before 2017, does not support the compensation judge’s findings tying the symptoms to a pre-existing condition.  The employee testified that after the 2016 surgery, he was 99 percent recovered with no loss of strength, did not use pain medication, and his symptoms and objective findings were in a different part of the shoulder.  The employee also testified that before the 2017 work injury, he did not need a labral repair.  After the 2017 injury, he testified that the pain was in a different area, the back of his shoulder, which was exactly opposite of the pre-existing symptoms.  While the judge is correct in stating that the employee waited almost a year after the 2017 injury before seeing an orthopedist, as an orthopedic surgeon, the employee treated his injury with physical therapy, Tylenol, and modification of his work activities.  Further, there is no medical opinion or explanation to support the compensation judge’s determination that the September 28, 2017, incident was “minor”^[14] based on a report indicating that the force needed to move the surgical light was 13.8 pounds.  This report was not listed as being reviewed by the medical experts and therefore does not provide a basis for a determination as to whether this force was in fact “minor.”

The compensation judge’s findings in this case are manifestly contrary to the weight of the evidence and are not reasonably supported by the record.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  We therefore reverse the compensation judge’s denial of the employee’s request for shoulder surgery and remand this matter for a determination as to whether the recommended arthroscopic right shoulder surgery is reasonable and necessary medical treatment pursuant to Minn. Stat. § 176.135.