ARTHUR H. WENDROTH, Employee/Cross-Appellant, v. MADSEN & SONS and AUTO-OWNERS INS. GRP., Employer-Insurer/Appellants, and SPECIAL COMP. FUND.

NOVEMBER 19, 2021
No. WC21-6422

PERMANENT PARTIAL DISABILITY – SUBSTANTIAL EVIDENCE.  Substantial evidence, including medical records and expert medical opinion, supports the compensation judge’s ratings of permanency under the “old law” in effect on the date of injury, as well as the findings that the employee’s lumbar and cervical conditions are solely related to the effects of a consequential injury from chemical meningitis rather than partly due to his original injury, but that the employee failed to prove that the chemical meningitis condition was a substantial contributing cause of his brain and upper and lower extremity conditions.  

CREDITS AND OFFSETS.  A credit for PPD previously paid to the employee for his original injury, against PPD ordered for conditions found to result solely from a later consequential injury, was not warranted where the prior payment preceded the initial diagnosis of the consequential injury and was referenced in a full, final, and complete settlement of any and all claims relating specifically to the original injury.

    Determined by:
  1. Patricia J. Milun, Chief Judge
  2. Gary M. Hall, Judge
  3. Sean M. Quinn, Judge

Compensation Judge:  William J. Marshall

Attorneys:  James M. Sherburne, Sherburne Law Offices, P.A., St. Louis Park, Minnesota, for the Cross- Appellant.  Jason M. Schmickle, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis Minnesota, for the Appellants.




The employer and insurer appeal from an award of permanent partial disability (PPD) for the employee’s lumbar and cervical spine conditions.  The employee cross-appeals from the denial of PPD for conditions involving other body parts.  We affirm.


The employee, Arthur Wendroth, sustained an admitted work-related injury to his low back and left leg on September 29, 1977.  He was initially diagnosed with lumbar radiculitis possibly due to a bulging disc.  The employee was treated with physical therapy, an epidural block, and a back brace.  After a poor response to therapy, the employee was admitted to St. Gabriel’s Hospital on January 9, 1978, where a Pantopaque myelogram was performed on January 17, 1978.  It was read as consistent with disc herniations at L3 and possibly L4.

In August 1978, the employee was hospitalized for persistent pain in his low back and down his left leg.  He was diagnosed with chronic back pain with persistent recurring irritation of the left lumbosacral nerve root.  In January 1979, Dr. Joseph Engel, a physical medicine and rehabilitation specialist, saw the employee for sharp pain from the low back into the left leg along with pain in the ankle and foot.  He recommended conservative care and advised the employee that if his lower extremity weakness progressed, he might need disc decompression surgery.

The employer and insurer filed a notice of intent to discontinue (NOID) in October 1979 based on the opinion of their independent medical examiner, Dr. Donovan McCain, who examined the employee on August 20, 1979, and opined that the employee had fully recovered.

On June 10, 1980, Dr. Robert Wengler saw the employee and noted a limited range of back motion, tenderness at L4-5, and positive straight leg raising.  Dr. Wengler diagnosed a possible L4-5 disc prolapse and considered the employee temporarily and totally disabled.  He recommended the employee not return to truck driving or physical labor.  He rated PPD at 25 percent of the spine.

In early 1980, the employee continued to treat with Dr. Engel, who diagnosed a lumbar spine strain with probable intervertebral disc injury and nerve root irritation.

A hearing on the NOID was held on August 28, 1980.  The employee was found to be temporarily and totally disabled through August 20, 1980.  The judge rated the employee’s PPD of the spine at a minimum of 15 percent, with the full extent of permanency deferred for future determination.  The 15 percent minimum ascertainable PPD of the spine was paid on September 29, 1980.

In August 1983 the parties entered into a full, final, and complete settlement of any and all claims relating to the neck and low back injuries of September 29, 1977, including future claims for permanent total disability and permanent partial disability benefits.  An award on stipulation was issued on September 12, 1983.

The employee continued to treat sporadically with Dr. Engel for symptoms from the low back into the left leg.  In early 2004, Dr. Engel diagnosed a post-trauma degenerative spine disorder along with spondylolisthesis.  By this time, however, the employee’s cervical spine had become the main treatment concern because of MRI findings that showed a prominent osteophytic ridge at C5-6 with moderately severe central canal stenosis and cord deformity.

A lumbar spine MRI in August 2005 showed advanced degenerative disc disease, a congenitally small spinal canal, and Grade I-II spondylolisthesis at L5-S1.  In 2007, the employee was treating for paresthesias in his feet and ankles, which his doctor attributed to an unknown etiology.

The employee subsequently began treating with Dr. Mark Halstrom for bilateral neuropathic pain and numbness in his lower legs related to the 1977 injury.  In July 2012, Dr. Halstrom recommended reevaluation at the Mayo Clinic, and in November 2012 the employee underwent an EMG of his upper and lower extremities at that clinic.  A neurosurgeon concluded that the study showed advanced spondylotic changes and foraminal stenosis at multiple levels in the cervical and lumbar spine as well as significant cauda equina compression at L4-5.

An MRI of the lumbar spine on March 29, 2013, showed multilevel degenerative disc disease and anterolisthesis at L5-S1, as well as a left pars defect.  The radiologist found nerve root involvement difficult to assess because of associated spinal stenosis.

In the summer of 2014, the employee fell, struck his head, and was diagnosed with a closed-head brain injury.  The employee asserted that his fall was a consequence of a musculoskeletal dysfunction resulting from the 1977 work injury.

Dr. Charles Burton performed an IME in September 2014 and prepared a report dated October 8, 2014.  He characterized the employee’s medical situation as “most atypical.”  He opined that the employee’s work injury would have been expected to be temporary in nature, involving soft tissue injuries that would have resolved, rather than structural injury, but that the employee’s 1978 Pantopaque injection had led to post myelographic chemical meningitis and associated nerve and meningeal scarring with permanent effects.  This was the first time a physician had made the diagnosis of chemical meningitis.

In a report dated December 20, 2015, Dr. Halstrom concluded that the employee’s 1977 work injury had accelerated the severe degenerative changes to his cervical and lumbar spine.  Dr. Halstrom subsequently rated the employee’s cervical and lumbar spine each with a PPD rating of 28 percent of the whole body.  The employee subsequently claimed entitlement to permanent total disability compensation (PTD) and PPD benefits based on his chemical meningitis condition as a consequential injury of his 1977 work injury.

In deposition testimony on September 12, 2017, the employee’s expert, Dr. Burton, testified that he could not determine the specific etiology of the employee’s symptoms, and, contrary to his prior opinion, testified that it was not possible to determine with a reasonable degree of medical certainty whether any of the employee’s specific symptoms were related to chemical meningitis.  When asked if the 1977 work injury was permanent, he stated, “I can’t say that it resulted in a permanent injury, but it certainly seemed to aggravate his pre-existing medical conditions, particularly those involving his spinal cord and spinal canal.”  He declined to rate the employee’s PPD.

The matter was heard before a compensation judge on August 22, 2018.  The parties stipulated to an admitted work injury to the employee’s neck and low back on September 29, 1977, that TTD benefits were paid through the date of the 1983 settlement, and that the employee had sustained a consequential injury in the form of chemical meningitis due to the Pantopaque injection performed during the 1978 myelogram.

Among the expert opinions offered to the compensation judge at the 2018 hearing, Dr. Burton diagnosed chemical meningitis and opined that the 1977 injury had resolved.  He declined to provide a permanency opinion.  Dr. Wengler provided a PPD rating to the low back of 40 percent of the whole body, using the law in effect in 1977.  Dr. Halstrom initially rated the employee’s low back with a 33 percent whole-body permanency rating and the employee’s neck at 15 percent of the whole body under the 1984 schedules, but later offered a 28 percent whole-body rating for impairment of the lumbar spine and a 28 percent whole-body rating for impairment of the cervical spine.

The compensation judge found that the employee was permanently and totally disabled due to chemical meningitis as of February 9, 1995, that the employee’s claims were not barred by the parties’ stipulation for settlement, and that the preponderance of the evidence supported PPD ratings of 28 percent for the employee's low back and an additional 28 percent for the employee's neck.  The employer and insurer appealed to this court.  In a decision served and filed on July 15, 2019, we affirmed the determination that the employee was entitled to PTD due to his consequential chemical meningitis condition.  However, as the PPD rating adopted by the compensation judge was based on the employee’s overall symptomology, and the compensation judge had made no express findings addressing whether or what part of the employee’s permanent symptomology was the result of residual permanency attributable to the original 1977 work injury versus the chemical meningitis condition, we vacated and remanded the award of PPD benefits for further findings.

On remand, the employee offered as an additional exhibit a supplemental letter report from Dr. Halstrom as to the cause of the employee’s various disabilities and providing PPD ratings for the various body parts involved.  In this report, dated September 2, 2020, Dr. Halstrom opined that the chemical meningitis is the cause of peripheral neuropathy to the employee’s legs and led to a consequential brain injury when the employee fell and hit his head.  Thus, he opined that the substantial cause of the disabilities to the employee’s hands, arms, feet, and legs was the chemical meningitis.  However, he considered causation with respect to the employee’s cervical and lumbar spine conditions, “more problematic and difficult to determine . . . with precision.”  He acknowledged that “one could take the position taken by Dr. Burton in his report of October 8, 2014,” who opined that the employee’s work injury would typically have been temporary in nature; stating that in that case, all of the cervical and lumbar disability would be the result of the chemical meningitis.  If, on the other hand, as he had previously suggested, the condition was caused by a combination of factors arising both from the mechanical and chemical injury, he deemed it “appropriate to apportion the ratings . . . 10% to the mechanical injury and 90% to the chemical meningitis.”  Dr. Halstrom rated the functional loss of use of the lumbar and of the cervical spine at 40 percent each under the 1978 law, or 28 percent each as whole-body ratings.

The employer and insurer offered an additional exhibit consisting of the report of Dr. James R. Allen, who reviewed the prior medical records and evaluated the employee on March 2, 2021.  In his report, Dr. Allen opined that the employee’s initial work injury was a low back strain with some left L5 radiculopathy superimposed on pre-existing congenital and multilevel degenerative disc disease.  Dr. Allen did not believe the employee’s ongoing findings were attributable to either the work injury or to the chemical meningitis.  Rather, he related the employee’s symptoms and disability to multiple non-work-related medical issues, including metabolic syndrome and lupus with renal failure and associated vasculitis.  Dr. Allen offered a rating of from 5-8 percent of the whole body for the employee’s low back and 8 percent of the whole body for the cervical spine.

On remand, the compensation judge accepted into evidence this additional expert opinion evidence along with a few recent medical records.  With the agreement of the parties, the matter proceeded without a hearing on the submission of written arguments.  In his Findings and Order on Remand, the compensation judge expressly adopted the October 8, 2014, opinion of Dr. Burton that the employee’s 1977 injury had fully resolved and that 100 percent of the employee’s PPD was causally related solely to the chemical meningitis condition.  The judge also expressly adopted the PPD ratings of Dr. Halstrom.  In his Amended Findings and Order issued on June 30, 2021, the judge addressed the employee’s claims for PPD relating to other body parts, including the employee’s brain and all four extremities.  The judge denied PPD for these body parts, concluding that there was “no persuasive evidence that ties the disability to the employee’s other body parts solely to the effects of the chemical meningitis condition.”  (Mem. at 4.)

The employer and insurer appeal from the award of PPD for the lumbar and cervical spine.  The employee cross-appeals from the denial of PPD for other body parts.


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).



Causation and PPD ratings for the lumbar and cervical spine

In awarding PPD of the lumbar and of the cervical spine at 40 percent each under the 1978 law (which corresponds to 28 percent each as whole-body ratings), the compensation judge relied on the initial causation opinion of Dr. Burton in combination with the rating provided by Dr. Halstrom.

The appellants argue that this evidence fails to establish a causal relationship between chemical meningitis and any part of the employee‘s ratable disability.  They argue that a finding that the chemical meningitis is the sole cause of all of the employee’s current lumbar and cervical disability cannot be sustained as it discounts the possibility that structural changes following the work injury and the employee’s non-work conditions such as lupus, renal failure, and ordinary aging were contributing factors.

Specifically, the appellants contend that the opinion of Dr. Halstrom is conclusory and lacks foundation, noting that he did not directly discuss various potentially contributing non- work conditions in the employee’s medical history.  With respect to the opinion of Dr. Burton, they contend that the judge misunderstood that physician’s opinion and point to the differences in the doctor’s views between the doctor’s 2014 report and his 2017 deposition, contending that the judge should have adopted the doctor’s later deposition testimony, in which the doctor declined to assess the relative contributions of the chemical meningitis versus the original injury, as superceding the opinion expressed in his 2014 report.  Finally, they contend that the compensation judge should have adopted the views of Dr. Allen, which they assert are superior to those of the other physicians because, they assert, those views ". . . are well-founded and, quite simply, make sense.”

This was a case in which the medical evidence could support more than one result and in which reasonable minds can differ as to the outcome.  However, it is well-established that the fact-finder’s choice among different expert opinions will not generally be disturbed on appeal so long as the opinions relied upon have adequate foundation.[1]  We find no foundational defect and affirm the compensation judge’s reliance on the opinions of Dr. Halstrom and Dr. Burton.  The compensation judge could reasonably conclude that the medical records were most consistent with the opinion of Dr. Halstrom.  Nor did the compensation judge err as a matter of law in relying on the earlier opinion of Dr. Burton in his 2014 report over the doctor’s later deposition testimony to the extent that the views expressed in each were slightly at variance.[2]  Substantial evidence supports the compensation judge’s findings regarding medical causation, and we affirm the finding that the chemical meningitis condition was the sole cause of the PPD awarded.

Credit for earlier PPD payment

The appellants point to the fact that 15 percent PPD of the spine was paid to the employee in 1980 prior to the stipulation for settlement.  They argue that if this court affirms the determination that the employee’s current PPD claims are wholly related to the chemical meningitis condition, a credit should be deducted for this payment from the PPD awarded below.  In response, the employee points out that the parties stipulated at a prior hearing that this was paid for the 1977 back injury.

We conclude that because this payment preceded both the initial diagnosis of chemical meningitis and the parties‘ settlement in August 1983, and was referenced in that settlement, that payment must be considered part of the 1983 agreement.  That settlement was a full, final, and complete settlement of any and all claims relating to the neck and low back injuries of September 29, 1977.  In our prior opinion in this case, we affirmed the determination that the settlement did not foreclose benefits for the employee’s chemical meningitis condition as an injury consequential to the 1977 work injury.  It is therefore the law of the case that any payments made before that settlement are not payments related to the employee’s chemical meningitis condition, but to the underlying 1977 injury.  Accordingly, a credit against benefits awarded for the effects of the chemical meningitis condition is not warranted.

PPD for other body parts

In his cross-appeal, the employee argues that the compensation judge erred as a matter of law in denying PPD for the alleged disabilities to the employee’s four extremities and brain.  The employee argues that apportionment for non-work conditions was not permitted under the law in effect on the employee’s dates of original and consequential injuries in this case.  He points out that it is a matter of res judicata that the chemical meningitis condition was a causal factor in the employee’s PTD.  He contends that it must accordingly be accepted that his chemical meningitis is at least a contributing factor to any of his ratable PPD and that any non-work conditions are irrelevant, even if it could be demonstrated that they contributed to that PPD.  As a result, he argues, this court should reverse the denial of PPD benefits for the brain and upper and lower extremities and substitute its own findings by adopting the ratings provided by Dr. Halstrom for the disabilities to the employee’s other body parts, or, in the alternative, reverse the denial of PPD and remand to the compensation judge to make findings on the applicable ratings by which they should be calculated.

We disagree.  While, in our prior opinion in this case, we affirmed the determination that the employee’s chemical meningitis was a causative factor to the employee’s permanent total disability, that does not equate to a finding that the chemical meningitis condition was a contributing factor to every specific individual medical condition that the employee may have, whether or not each such condition contributes to permanent total disability.

The employee also argues that the compensation judge erred by relying on Dr. Allen’s opinion.  He points out that the compensation judge’s memorandum states that he relied on the opinion of Dr. Allen that “it is nearly impossible to separate the employee’s plethora of underlying conditions from the consequences of his chemical meningitis.”[3]  The employee argues that Dr. Allen’s opinion does not make sense in the context of the rest of the evidence and is insufficiently founded.  In particular, he notes that the basis of the causation process for the benefits that were awarded was that the employee’s low back and neck symptoms involved peripheral neuropathy caused by the chemical meningitis; in his view, it is thus illogical not to conclude that the same process of peripheral neuropathies must have involved his other body parts so as to contribute as a cause of those symptoms.

We are not persuaded.  The employee’s brain and upper and lower extremity conditions are not medically the same conditions that affect his lumbar and cervical spine.  We cannot assume that the same process that causes his lumbar and cervical symptoms would of necessity cause the symptoms he experiences in these distinct body parts.  While reasonable minds could differ on this issue, the opinion of Dr. Allen is sufficiently well-founded that it was not error for the compensation judge to rely upon it.  It was the employee’s burden to prove that the chemical meningitis condition was a substantial contributing cause of the disability to these other body parts, and to what extent.  There was substantial evidence to support the compensation judge’s finding that the employee failed to do so.  We accordingly affirm.

[1] Whether an expert’s opinion has adequate foundation is a determination for the compensation judge, subject to review for an abuse of discretion.  Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 77 W.C.D. 617 (Minn. 2017).  An expert opinion lacks adequate foundation when it does not include the facts and/or data upon which the expert relied in forming the opinion, it does not explain the basis for the opinion, or when the expert assumes facts that are not supported by the evidence.  Smith v. Carver Cnty., 931 N.W.2d 390, 398, 79 W.C.D. 495, 507 (Minn. 2019). “An expert need not be provided with every possible fact, but must have enough facts to form a reasonable opinion that is not based on speculation or conjecture.”  Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017).

[2] See, e.g., Armstrong v. RJ Sport & Cycle, 73 W.C.D. 457, 470 (W.C.C.A. 2013) (a compensation judge may accept all or parts of any one expert opinion and may accept all or parts of the expert opinions from different experts).

[3] Mem. at 3.