CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence in the form of expert medical opinion supported the finding that the work injury was a permanent aggravation of the employee’s pre-existing condition.
PRACTICE AND PROCEDURE – MATTERS AT ISSUE. Where the record was left open for submission of an amended exhibit to withdraw certain expense claims that the parties had agreed were unwarranted, but the exhibit that was submitted post hearing instead listed more than $10,000 in previously unclaimed expenses in addition to the $670 claimed in the original exhibit, and where the compensation judge did not respond to an objection to the amended exhibit, an order awarding the expenses shown on the amended exhibit was an abuse of discretion.
Compensation Judge: Kathleen Behounek
Attorneys: Joshua E. Borken, Law Office of Joshua E. Borken, St. Paul, Minnesota, for the Respondent. Luke Seifert, Dep’t of Admin, Risk Mgmt. Div., St. Paul, Minnesota, for the Appellant.
Affirmed in part and vacated in part.
DAVID A. STOFFERAHN, Judge
The self-insured employer appeals from the compensation judge’s determination that the employee’s work injury was a permanent aggravation of a pre-existing condition and from the compensation judge’s award of claimed out-of-pocket expenses. We affirm in part and vacate in part.
The employee, Bobbi Quandt, began working for the self-insured employer, the Minnesota Bureau of Criminal Apprehension, in 2014. As of August 7, 2017, she was a criminal history analyst, which was primarily a sedentary job with some walking to retrieve files. On that date, she injured her low back as she was getting up from her desk. Her foot caught in the cord of her computer mouse and she fell forward, striking her shoulder on a file cabinet. The employee testified that she felt her low back “seize up” and she experienced pain in her right lower back and buttocks. The employee was seen on the same day by her primary care provider, physician assistant Nikki Marcellino, who took her off work and prescribed muscle relaxants and pain medication. The employer admitted liability for the injury and began paying for wage loss, medical expenses, and rehabilitation services.
The employee had treated for low back problems prior to her work injury. She began treating for low back pain at Transition to Health in March 2013. At her initial visit, she stated she had been experiencing low back pain for fifteen years following trampoline falls she had as a child. She was treated with acupuncture at that time and occasionally for low back and leg pain in subsequent years. Her last treatment at this provider before the August 7, 2017, work incident was on August 4, 2017. In March 2014, the employee began treating on a regular basis with a chiropractor, Dr. Nicholas Kranz, for what she described as flareups of back and leg pain. Dr. Kranz initially diagnosed subluxations at L5, S1, and T8-10. The employee saw Dr. Kranz three days before the work injury with the same complaints. Following the August 2017 work injury, she returned to Dr. Kranz and was treated for neck, mid-back, and low back pain. The last treatment note from Dr. Kranz is from January 29, 2018, when he found muscle spasms on her low back, mid back, and cervical spine on examination.
The employee was seen at Health Partners in April 2017, reporting low back pain at a level of 10 out of 10 after lifting her daughter. The employee was also treated for low back pain at Regions Physical Therapy beginning in June 2017. At her first visit, it was noted that she related the onset of her back pain to an injury 11 years before and stated that her present pain started in April 2017, when she had reinjured her back while lifting her daughter.
The employee applied for benefits under the Family and Medical Leave Act (FMLA) in July 2017. Her application for benefits was approved by her treating doctor, Dr. Roan Precilla, at HealthPartners Woodbury. The application stated her “low back sprain” began on April 11, 2017, resulting in an inability for “working at desk, walking around building.” A reduction in work hours to two hours per day and two days per week was requested for a period ending October 1, 2017.
Following the work injury, the employer paid temporary total disability benefits from August 8 to November 6, 2017, and temporary partial disability benefits from November 7, 2017, to March 4, 2018. On March 5, 2018, P.A. Marcellino released the employee to return to work without restrictions. The employer discontinued all benefits and the employee filed a claim petition.
At the request of the employer, the employee was seen by Dr. Thomas Reiser on June 28, 2019. She advised Dr. Reiser that although she had recently returned to work for two hours a day, she had experienced flare ups in her low back which had caused her to be unable to work and had low back pain and spasm on her left side with all activities. Dr. Reiser reported no objective findings on examination and concluded that the August 2017 injury was a temporary aggravation of the employee’s previous low back problems which had resolved by February 2018.
The employee was referred by her attorney to Dr. Mark Agre for an evaluation on August 7, 2020. It was Dr. Agre’s opinion that the August 2017 work injury was a permanent aggravation of the employee’s pre-existing low back condition which had resulted in continuing disability and need for work restrictions. He also stated the employee had not reached maximum medical improvement.
The employee’s claim was heard by a compensation judge on September 17, 2020. Due to the COVID-19 pandemic, the hearing was not conducted in person. In the Findings and Order served and filed on November 5, 2020, the compensation judge found that the August 2017 work injury was a permanent aggravation of the pre-existing low back condition and that it was a substantial contributing factor in the employee’s condition, disability, and need for treatment. (Findings 22, 23.) The employee was awarded temporary total and temporary partial disability compensation from March 5, 2018, and continuing.[1] The compensation judge also ordered reimbursement of out-of-pocket expenses the employee had claimed in Exhibit T. (Finding 30, Order 3.) The employer has appealed.
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 claimed at the hearing that her work injury was a permanent aggravation of her pre-existing condition and that the employer was responsible for wage loss and medical benefits. Her claim was supported by the opinion of Dr. Agre, as set out in his August 27, 2020, report. In response, the employer argued that the work injury was a temporary aggravation of a pre-existing condition which resolved by March 5, 2018, as P.A. Marcellino had found and as Dr. Reiser had concluded. The issue for the compensation judge was which medical opinion to adopt. The compensation judge accepted Dr. Agre’s opinion and awarded the employee’s claim based on that opinion. A compensation judge’s decision which is based on the choice between competing medical opinions will generally be affirmed by this court so long as the opinion relied upon has adequate foundation. Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 77 W.C.D. 117 (Minn. 2017); Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Since the opinion of Dr. Agre has not been shown to have inadequate foundation, the compensation judge’s decision on this issue is supported by substantial evidence and we affirm.
At the beginning of the hearing, the employee’s attorney introduced Exhibit T, which was identified as an itemization of out-of-pocket medical expenses and medical travel costs incurred by the employee. In off-the-record discussions between the attorneys and the compensation judge, the employee’s attorney stated the claim was for $670. In further conversations, the employer’s attorney noted that a number of these expenses were incurred before the injury. The employee’s attorney stated he would withdraw the exhibit and present an amended claim. The compensation judge agreed to hold the record open for one week for that purpose. The employer’s attorney stated he would want to comment on this new claim.
The amended exhibit was sent by email to the judge one week later, on September 23. The employee’s claim was now for $10,788.16. The new exhibit consisted of several pages of itemized expenses, some of which were for copays or mileage involving providers whose records were not in evidence. No medical records or reports were provided to explain any of the items. The employer’s attorney sent an email to the judge the next day, objecting to consideration of a new claim that had not been made at hearing. The compensation judge did not address the employer’s objection. She issued her Findings and Order on November 5 and ordered the employer to pay the employee’s out-of-pocket expenses as set forth in Exhibit T. (Finding 30, Order 2.)
Parties are well aware when a hearing will take place and generally have known the date for a number of months. There might be rare instances where a party is not able to present evidence at the hearing, but that is not the case here. No extenuating circumstances were offered by the employee’s attorney as to why the “amended” claim for out-of-pocket expenses was not made at the hearing. With the new Exhibit T, the employer was presented with a claim more than 16 times larger than was alleged by the employee at the hearing. Compounding the prejudice to the employer was the failure of the compensation judge to address the objections raised by the employer’s attorney.
We conclude the compensation judge’s award of these expenses was an abuse of discretion. Finding 30 and Order 2 are vacated.
[1] At times, March 15 and 2019 are used in the Findings and Order, which appear to be clerical errors. The relevant date is March 5, 2018.