EVIDENCE – EXPERT MEDICAL OPINION. The compensation judge did not abuse his discretion in weighing the medical evidence and choosing one medical expert opinion over another when those opinions are supported by that expert’s treating records and other evidence in the record.
Compensation Judge: Steven R. Daly
Attorneys: Karen R. Swanton, Law Offices of Menk & Menk, Coon Rapids, Minnesota, for the Respondent. Melissa M. LaRocca and Jacob R. Colling, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed.
PATRICIA J. MILUN, Chief Judge
The employer and insurer appeal from the compensation judge’s finding that the employee sustained a permanent aggravation of an underlying right shoulder condition as a result of an admitted work injury, and from the award of the employee’s claim to various benefits. We affirm.
On March 20, 2018, the employee, Leocadio Villa Sanchez, suffered an injury to his right shoulder after he tripped and fell while carrying pieces of metal shelving at work. He was unable to use his hands to brace his fall and landed on his right shoulder. He felt immediate pain and worked for a few more hours before reporting the injury. When his pain did not ease, the employee sought treatment at Hennepin County Medical Center (HCMC) on April 9, 2018, complaining of right shoulder pain and weakness since his fall. The pain was constant with any physical activity. The employee was referred for an orthopedic appointment and taken off work.
On April 18, 2018, the employee was seen at the orthopedics department at HCMC with complaints of continued right shoulder pain. He denied prior injuries and stated that he had normal strength and no pain with motion prior to his fall at work. Imaging revealed a chronic rotator cuff tear and glenohumeral arthritis. The physician’s assistant considered it likely that the employee had a chronic tear that was likely re-injured or torn further as a result of the recent fall. He was referred for physical therapy and given work restrictions of no lifting, pushing, or pulling of more than one pound with the right arm and no climbing. A steroid injection was administered on April 23, 2018, which provided only minimal relief.
Despite participating in a physical therapy program, on June 14, 2018, the employee reported ongoing pain and trouble sleeping. His work restrictions were continued, and an MRI was ordered. The attending physician’s assistant recommended that the employee consult a surgeon due to the ineffectiveness of conservative measures. On June 26, 2018, the employee underwent an MRI of the right shoulder, which showed tearing of the rotator cuff, tearing of the infraspinatus and supraspinatus tendons with retraction, and significant atrophy of the rotator cuff muscles.
The employee was seen by Dr. Nancy Luger and Dr. Michael Baer at HCMC for surgical evaluation on July 11, 2018. The employee reported having been relatively asymptomatic prior to the March 20, 2018, work injury. It was noted that the employee likely had an asymptomatic rotator cuff tear which was “acutely aggravated or likely worsened” by his work injury. It was agreed that the employee would proceed with surgery to attempt to repair the rotator cuff tear and his work restrictions were continued.
Dr. Luger performed surgery on August 24, 2018, to repair the employee’s rotator cuff tear. Dr. Luger also performed a subacromial decompression and limited glenohumeral debridement with biceps tenotomy. The employee was seen for regular follow-up evaluations and for physical therapy through 2018.
The employee was seen in follow-up by Dr. Luger on November 28, 2018. She noted that the employee was still experiencing pain when lifting his arm and recommended that he continue physical therapy to increase his range of motion. An MRI in January 2019 showed that the surgical repair of the rotator cuff tear was intact. On January 30, 2019, Dr. Luger completed a Healthcare Provider Report. She marked a box indicating that the employee had pre-existing issues, but also stating that the condition was caused, aggravated, or accelerated by work activities. Dr. Luger opined that the employee had not yet reached medical maximum improvement and that it was too early to determine a permanency rating.
The employee was evaluated again by Dr. Luger on April 28, 2019. His work restrictions were changed to no lifting more than 10 pounds, though Dr. Luger recommended continued physical therapy, noting that the employee experienced continued pain and that his range of motion was quite limited. The employee participated in physical therapy through the summer of 2019 and remained under light-duty work restrictions that could not be accommodated by his employer. By August 2019, when the employee was discharged from physical therapy, his therapist had recorded measurements and assessed an 80-90 percent range of motion.
On August 21, 2019, the employee was seen by an HCMC physician’s assistant, who tested the employee’s range of motion and found it to be limited. The employee reported that he was no longer able to continue his work for the employer because he was required to exceed his lifting restrictions. He was referred for a work hardening program, followed by a functional capacity evaluation (FCE) to help him find new work.
Dr. Luger authored an October 14, 2019, narrative report. It was Dr. Luger’s opinion that the employee’s right shoulder disability and limited function were causally related to the March 20, 2018, work injury, and more likely than not are permanent in nature. Dr. Luger noted that the employee had not injured his right shoulder prior to the work injury. She opined that the employee would require continued light-duty work restrictions until an FCE could be performed and permanent restrictions could be assessed. Dr. Luger provided permanent partial disability (PPD) ratings of two percent for a partial thickness rotator cuff tear under Minn. R. 5223.0450, subp. 3.E(2), and eight percent for an abduction limitation under Minn. R. 5223.0450, subp. 4.B(1)(c). She stated that the employee has had a substantial change in the functioning of his shoulder after the work injury, and that while the repair surgery was reasonable and necessary treatment, the employee has not been able to fully return to his pre-injury level of function.
The employee was seen for an independent medical evaluation by Dr. Paul Cederberg on September 23, 2019. It was Dr. Cederberg’s opinion that the March 20, 2018, work injury was only a temporary aggravation of the employee’s pre-existing right shoulder condition evidenced on MRI. According to Dr. Cederberg, the employee’s work-related temporary aggravation had resolved, and the employee had reached medical maximum improvement (MMI) as of the date of the examination. He rated the employee with five percent PPD under Minn. R. 5223.0450, subp. 4.A(1)(c), however, that rating was not causally related to the work injury.
Relying on Dr. Cederberg’s report, the employer and insurer then discontinued benefits. One of the benefits then discontinued was vocational rehabilitation assistance. Up until that time, the employee had been working with a QRC and placement specialist under a rehabilitation plan to find suitable employment within the employee’s light-duty work restrictions issued under the care of Dr. Luger.
The employee’s claim for benefits came on for hearing before a compensation judge on September 11 and October 20, 2020. In Findings and Order dated November 23, 2020, the compensation judge found that the employee sustained a permanent aggravation to his underlying right shoulder condition on March 20, 2018. The judge found that the employee was qualified for rehabilitation services and awarded the intervention claim of the rehabilitation service provider. Although the judge denied the employee’s claim for work hardening, the FCE recommended by Dr. Luger was awarded. The judge also awarded PPD benefits for a combined 14.348 percent rating. Finally, the judge agreed with Dr. Cederberg that the employee had reached MMI as of September 23, 2019, and concluded that the employee had been overpaid wage loss benefits. The employer and insurer appeal.
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).
On appeal, the employer and insurer argue that the compensation judge erred in concluding that the March 20, 2018, work injury resulted in a permanent aggravation of the employee’s underlying right shoulder condition, and erred in awarding PPD benefits, vocational rehabilitation benefits, and the recommended FCE. The common thread of these arguments is the appellants’ contention that the compensation judge erred in relying on the October 2019 narrative report of the employee’s treating physician.
The compensation judge was presented with competing opinions from two medical experts, the employee’s treating physician, Dr. Nancy Luger, and the independent medical examiner hired by the employer and insurer, Dr. Paul Cederberg. The compensation judge concluded that the opinions of Dr. Luger were more persuasive than those of Dr. Cederberg. In general, this court must affirm a compensation judge’s choice between two expert opinions so long as the chosen opinion has adequate foundation. See Nord v. City of Cook, 360 N.W.2d 337, 342-43 (Minn. 1985). It is the compensation judge, not this court, who has the discretion as the trier of fact to weigh medical evidence and choose between competing expert opinions. See Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 803 (Minn. 2017). Also within the discretion of the compensation judge is the determination of whether an expert’s opinion is adequately founded, and this determination is subject to this court’s review for an abuse of discretion. Id. We conclude that the compensation judge did not abuse his discretion in relying on the opinions of Dr. Luger, whether expressed in her narrative report or treatment records, and that substantial evidence in the record supports his findings.
In both her narrative report and treatment records, Dr. Luger set forth her opinion that the employee’s work injury resulted in a permanent limitation of his functioning. Her treatment records, and the treatment records of other HCMC orthopedic providers, indicate the chronic nature of the employee’s shoulder condition and the likelihood that the March 20, 2018, work injury aggravated that underlying condition. On appeal, the employer and insurer rely heavily on Dr. Luger’s statement that the employee had not suffered an injury to his right shoulder prior to his 2018 work injury, alleging that this undermines the foundation for her entire report and opinions. We disagree. The medical evidence shows a single date of service related to the right shoulder from 2004. The employee was involved in a motor vehicle accident in 2013, but there is no evidence that the employee’s right shoulder was involved or impacted. Dr. Luger was aware of both issues from the treatment records at her disposal and from the background letter provided to her by the employee’s counsel. A review of her treatment records reveals her understanding that the employee’s rotator cuff tear, while aggravated by the work injury, was chronic in nature. In weighing the medical evidence, including the expert opinions of Dr. Luger, the compensation judge could reasonably reconcile Dr. Luger’s misstatement regarding a prior injury, and his reliance on her report and opinions in finding that the employee sustained a permanent aggravation of his pre-existing right shoulder condition does not constitute an abuse of discretion. We affirm the compensation judge’s finding regarding the nature and extent of the employee’s work injury.
The employer and insurer also appeal from the compensation judge’s award of PPD benefits for a combined 14.348 percent rating, arguing that the two percent and eight percent ratings provided by Dr. Luger in her narrative report were not based upon adequate foundation. We acknowledge that the narrative report itself merely cites the disability schedule ratings Dr. Luger deemed applicable to the employee’s condition. However, we are not limited to a review of Dr. Luger’s report, but rather, we must consider the record in its entirety to determine whether the compensation judge’s finding should be affirmed on appeal. The HCMC records of Dr. Luger and her colleagues support the ratings provided by Dr. Luger in her narrative report. It was noted early on in the employee’s course of treatment that while the imaging showed a chronic tear of the rotator cuff, it was likely that the March 20, 2018, incident at work either re-injured or resulted in further tearing. The record also shows that regardless of whether a tear pre-dated the work injury, the employee was asymptomatic and had no work or activity limitations. The HCMC records, and particularly the August 2019 physical therapy notes, document the employee’s decreased range of motion, consistent with the ratings provided by Dr. Luger in her narrative report authored only weeks later. The record as a whole supports the permanency ratings provided by Dr. Luger, and we affirm the compensation judge’s award of PPD benefits.
Substantial evidence in the record also supports the compensation judge’s award of vocational rehabilitation benefits and the FCE recommended by Dr. Luger. The employee requires ongoing restrictions due to his permanent condition and he is unable to return to work with the date of injury employer. The QRC’s report and testimony at hearing support the compensation judge’s conclusion that the employee was a qualified employee, that the employee was cooperative with rehabilitation, and that ongoing rehabilitation was appropriate in this case. We affirm the compensation judge’s award of vocational rehabilitation benefits and the recommended FCE.
The Findings and Order of the compensation judge are affirmed in their entirety.
[1] The employee testified that he did not recall a prior injury to his right shoulder. According to his medical chart, the employee presented at HCMC on September 20, 2004, complaining of right shoulder symptoms on abduction. He reported feeling sudden pain three weeks prior as a result of lifting at work and medication was prescribed. There is no indication in the record that the employee received any follow-up care or that his symptoms were ongoing. The employee was also involved in a motor vehicle accident in 2013, which he testified resulted in an injury to his forearm. No medical evidence was presented at hearing related to this incident, and there is no evidence in the record to suggest that it in any way impacted the employee’s right shoulder.