ANTHONY POWELL, Employee/Appellant, v. MASTERSON STAFFING SOLS. and MEADOWBROOK INS. GRP., Employer-Insurer/Respondents, and MEDICA HEALTH PLANS, GLENCOE REG’L HEALTH SERVS., BUFFALO HOSP., INTERVENTIONAL SPINE & PAIN PHYSICIANS, TRIA ORTHOPAEDIC CTR., TWIN CITIES SPINE CTR., Intervenors.

The pro se employee appeals from the compensation judge’s determination that the employee sustained only a left elbow fracture as a result of his fall at work.  We affirm.

The employee, Anthony Powell, worked for a temporary help agency, Masterson Staffing.  He was sent to a work assignment for Worldwide Dispensary which involved moving boxes from a filling machine to a pallet.  On his first day at this job, January 15, 2019, he tripped over a metal bar and fell, striking his left elbow on a metal box.  In the first report of injury, the employee identified injuries to his left elbow and left knee.

For about three weeks after his injury, the employee worked at a light duty job in the employer’s office shredding old documents.  A co-worker testified that the employee mentioned injuring his left elbow and knee but did not mention having sustained any other injuries.

The employee first sought medical care with a nurse practitioner on January 22, 2019, complaining of left shoulder pain and pain in the left lateral back radiating to the center of his lower back.  There was a scrape on the employee’s left elbow.  No bruising, swelling, or abrasions were present on his back.  The employee returned to the same practitioner on February 15, reporting increased pain in his left hip radiating into his middle and lower back.  He also reported that his left arm would lock up.

The employee saw Dr. Erik Ekstrom of Summit Orthopedics on March 1, 2019, and complained of low back and left lateral hip pain for the past six weeks after tripping over a bar on the floor on January 15, 2019, and falling on his left arm and hip.  He reported a history of a past failed L5-S1 fusion.  He was diagnosed with low back pain, facet arthropathy, and foraminal stenosis of lumbar region.  A lumbar MRI scan from October 2017 was reviewed.  Dr. Ekstrom recommended an updated lumbar spine MRI scan and referred the employee for further evaluation of his shoulder.

During March 2019 the employee was treated with physical therapy and a left SI joint injection.  The employee also began complaining of neck symptoms.  On April 17, 2019, Dr. Ekstrom referred the employee for a cervical spine MRI scan and evaluation of his right shoulder and right upper extremity pain.  He recommended an L3 nerve root injection and an SI joint injection along with physical therapy.  The employee was restricted from work.  The cervical spine MRI scan was performed on April 27, 2019 and showed a moderate left ventral osteophyte/disc protrusion with probable nerve root impingement at C3-4.

The employee was seen for an orthopedic evaluation of his left shoulder and elbow pain on May 13, 2019.  Left elbow x-rays demonstrated a healing radial head fracture.  X-rays of the left shoulder showed degenerative changes consistent with a rotator cuff tear.  A left shoulder MRI scan was recommended.  The physician noted it was unclear when the rotator cuff tear occurred.

Dr. Mark Thomas evaluated the employee on June 6, 2019.  The employee described his injury and stated he had not experienced any left shoulder pain or treated for the left shoulder prior to the work injury.  Dr. Thomas reviewed the employee’s MRI scan.  He concluded that the tear was unrepairable given its size and the extent of muscle atrophy.  He opined that the work injury caused a permanent aggravation of the employee’s left shoulder condition but noted that it was possible the employee had a chronic rotator cuff tear prior to that injury.  He recommended physical therapy and a possible reverse total shoulder arthroplasty and restricted the employee to light-duty work.

The employee was also seen several times by Dr. Jason Wolff in 2019 at Interventional Pain Physicians for chronic low back pain and left shoulder pain.  The employee reported an onset of lower extremity numbness and tingling as well as low back and left extremity pain following the work injury.  He was treated with a lumbar steroid injection at L3-4 on July 3, 2019.

The employee was seen for a second surgical opinion by Dr. Jonathan Braman on September 10, 2019.  The employee told Dr. Braman that his left shoulder symptoms first started following his January 2019 work injury.  Dr. Braman agreed that the employee’s rotator cuff tear was unrepairable.  He felt the employee would eventually require total shoulder arthroplasty and would be unable to return to heavy-duty work.  As a second surgical option, Dr. Braman offered superior capsular reconstruction with distal clavicle excision and possible repair of the subscapularis.  This latter procedure was scheduled for October 30, 2019 but was delayed due to tests showing a high A1C level on October 29, 2019.

The employee’s attorney requested a narrative report from Dr. Wolff regarding his back and neck conditions for purposes of litigation.  In his January 12, 2020, report, Dr. Wolff noted he had treated the employee since June 2019 and had reviewed records from other providers the employee had seen in 2019.  Dr. Wolff did not review treatment records prior to the employee’s work injury.  He diagnosed the employee with a displaced disc injury at C3-4 with spinal cord compression and foraminal stenosis, and with an exacerbation of failed lumbar back surgery.  He noted the date of the employee’s work injury as “the point in time where there was a definable change” in the employee’s symptoms and need for medical care, and accordingly opined that the work injury was more likely than not a substantial contributing factor to the employee’s medical conditions.

The employee also obtained a report from Dr. Braman about his left shoulder condition.  Dr. Braman stated that he had reviewed his records together with a progress report from Dr. Thomas dated June 6, 2019.  He diagnosed the employee with an unrepairable rotator cuff tear and opined that while the employee likely had an asymptomatic rotator cuff tear prior to the work injury, the injury had aggravated the tear to the point where surgery would become necessary and had been a substantial contributing factor in his need for medical treatment.

The employer and insurer had the employee evaluated by Dr. Mark Friedland.  They also obtained extensive medical records of the employee’s treatment history prior to the January 2019 work injury, which were provided to Dr. Friedland.  Dr. Friedland examined the employee on July 22, 2019.  The employee’s complaints on that date were of constant neck pain with radiating pain and numbness in the left upper arm; constant midback pain; constant low back and hip pain; left shoulder and left forearm pain and range of motion limitations; and a resolved left knee bruise.  The employee acknowledged having had lumbar surgery in 2005 and in 2006 but denied any prior cervical, left shoulder, left elbow, left hip or left knee pain, limited range of motion, injuries or need for treatment prior to January 15, 2019.  He stated that he had only a little pain in his low back during the time between his surgeries and the 2019 work injury.

In his report, Dr. Friedland summarized the employee’s prior medical history, which he noted included “voluminous medical records indicating continued and ongoing severe low back and left lower extremity symptoms from 2001 through May of 2018 with recommendations made by at least three surgeons for consideration of revision fusion” and for “the same modalities of pain management” later recommended by Dr. Wolff after the 2019 date of injury.  Dr. Friedland opined that the employee’s lumbar and left lower extremity radicular symptoms were solely a manifestation of a chronic pre-existing condition and had not been aggravated by the fall at work in January 2019.

Dr. Friedland also reviewed the MRI scans and plain x-rays of the employee’s cervical spine and his left shoulder.  He offered the opinion that the medical conditions shown in these areas would have required years to develop and were not the result of any acute injury or aggravation at work in January 2019.  As to any hip problems, Dr. Friedland noted that a pelvis x-ray on February 15, 2019, was consistent with a natural progression of chronic osteoarthritis of the hips and showed no evidence of acute traumatic structural pathology.  He further noted that the employee did not report any hip problems until about one month after the work injury.

Dr. Friedland agreed that the employee had sustained a non-displaced fracture of the left radial head of his left elbow during the fall at work.  He noted, however, that the x-rays showed that this fracture had healed without permanent disability by May 13, 2019, consistent with his physical examination.   Dr. Friedland considered this the only injury that the employee had sustained in his January 2019 fall at work.

The employer and insurer admitted a left elbow fracture injury but denied the employee’s other injury claims.  The employee filed a claim petition, the employer and insurer filed a petition to discontinue, and the employee filed an objection to discontinuance.  The issues were consolidated for hearing below.

At the hearing, the employer and insurer offered the expert opinion of Dr. Friedland along with evidence about the employee’s prior medical history showing that he had a significant history of low back pain and leg pain for which he had been treated surgically by lumbar fusion and a revision of the fusion; that he had been treated for bilateral hip pain in 2013; and that he had applied for and been awarded social security disability in 2010 based on claims of an inability to work due to back and leg pain and was found capable only of sedentary work.  The employee relied on the opinions expressed by Dr. Wolff, Dr. Braman, and a treating physician’s assistant.

Following the hearing, the compensation judge found that the employee had downplayed his previous medical history in connection with his workers’ compensation claim.  The judge did not find the employee’s testimony that he had fully recovered from the effects of his prior conditions by the date of the work injury to be credible.  The judge accepted the medical opinion of Dr. Friedland over those of the treating physicians.  Accordingly, the judge found that the employee had sustained only the admitted left elbow fracture as a result of his fall at work.  The judge further found that maximum medical improvement had been reached as of May 13, 2019, with no permanent impairment or need for further medical treatment.  The employee appeals.

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.^[1]  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.^[2]  Fact findings are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed.^[3]  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 the evidence or not reasonably supported by the evidence as a whole.^[4]

The pro se employee has appealed the decision of the compensation judge and asks that this court review and potentially “reopen” his case.^[5]  We decline to do so for the reasons set forth below.

This court has limited authority in reviewing a compensation judge’s findings.^[6]  Where evidence conflicts, or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed on appeal.^[7]   Under these circumstances, this court must affirm the compensation judge’s findings if they are supported by substantial evidence in the record, absent any clear error of law.

The compensation judge found that the employee’s work injury caused only a left elbow fracture and that the employee’s other conditions were unrelated to the work injury.  In reaching this finding, the compensation judge accepted the opinion of the employer and insurer’s medical expert, Dr. Friedland.  A compensation judge has the discretion to choose between competing and conflicting medical expert reports and opinions.^[8]  The compensation judge’s choice between conflicting medical opinions is upheld on appeal unless the facts assumed by the expert in giving the opinion are not supported by the evidence.  In other words, if adequate foundation for the medical opinion exists, we must uphold the judge’s choice of the medical expert.^[9] Dr. Friedland’s opinions are adequately based on the evidence in the record.

The employee objects to the compensation judge’s acceptance of Dr. Friedland’s opinion over those of his medical providers, noting that Dr. Friedland did not conduct a lengthy examination and was not a treating physician.  However, the compensation judge had the discretion to accept Dr. Friedland’s expert medical opinion over those of the employee’s experts and providers.  He explained his decision to do so on the basis that Dr. Friedland had been provided a more complete medical history.  The compensation judge also concluded that the employee’s testimony and statements made to his physicians about the timing and course of his symptoms were not entirely reliable.  The determination of those issues is a matter uniquely entrusted to the trier of fact, and this court will not disturb that determination absent clear error.^[10]

In addition, we note that there was further support for the compensation judge’s findings in the medical records introduced into evidence at the hearing.  Since the judge’s findings are supported by substantial evidence in the record, we must affirm.

The employee lists several other concerns in his brief and notice of appeal that he wishes this court to address.  He first argues that the compensation judge may have erred in failing to address whether employer negligence caused the employee’s injury.  We note, however, that a work injury is compensable without regard to employer negligence if it arises out of and in the course of employment.^[11]  Since it was not necessary for the employee to show negligence by the employer, the compensation judge did not commit an error of law in failing to make findings on any alleged employer negligence.

The employee argues that the only issue was whether he sustained a work injury, suggesting that treatment for any subsequent conditions should be compensable as a result.  He contends that in considering the claimed treatment, the compensation judge failed to address the injury and focused entirely on his prior medical history.  The compensation judge, however, found that the employee had sustained a work injury while on the job on January 15, 2019, and that the employee was entitled to benefits for the effects of that injury.   What was in dispute was whether the injury had caused or affected any medical conditions beyond the admitted injury to the employee’s left elbow.  Here, the compensation judge found the work injury’s effect was limited to the left elbow.  The judge did not err by denying medical expenses for treatment related to other conditions.

The employee next contends the compensation judge erred in accepting evidence about prior injuries and conditions and in relying on that evidence to deny benefits for certain conditions the judge found were not caused or made worse by the employee’s work injury.  The employer and insurer offered a defense that some of the medical conditions for which the employee had sought treatment following his work injury were not related to the work injury but were simply continuations of pre-existing medical conditions.  The compensation judge did not err in admitting the prior medical records into evidence or in reaching and deciding the issue of medical causation for those conditions.

Finally, the employee argues that the representation by his attorney below was ineffective.  This court does not have the authority to determine whether the representation provided by an employee’s attorney violated the canons of professional responsibility or constituted an actionable tort.   Any claims the employee may wish to make alleging ineffective representation by counsel must be raised in some other forum.