JULI TODD, Employee/Appellant, v. WEST WIND VILL., and CCMSI, Employer-Insurer/Respondents, and, HEALTHPARTNERS, INC., CUYUNA REG’L MED. CTR., SELECT THERAPY, HUMANA INS., and ALOMERE HEALTH, Intervenors.

The employee appeals from the compensation judge’s denial of her claim for benefits.  We affirm.

The employee’s claims, arising out of work injuries sustained on April 8, 2008, and September 25, 2008, have been the subject of four different hearings before compensation judges and three separate appeals to this court, including the present appeal.  Detailed facts may be found in those decisions.  We have reviewed the prior decisions and the record in detail in our consideration of the present appeal.

The first hearing was held on December 15, 2009.  Following that hearing, the compensation judge found that the employee had sustained a sprain/strain to her low back as a result of the April 8, 2008, work injury and that the employee had sustained a Gillette injury to her low back on September 25, 2008.  The compensation judge awarded temporary total disability benefits from October 22, 2008, and continuing.  There was no appeal from this decision.

A second hearing was held before a different compensation judge on March 3, 2011.  The employee claimed that she had developed depression as a consequence of the 2008 work injuries.  In Findings and Order issued on April 4, 2011, the compensation judge concluded that the employee had failed to establish by a preponderance of evidence that the 2008 injuries were a substantial contributing factor in the employee’s need for psychiatric or psychological treatment. The employee appealed to this court, arguing that the medical opinions relied on by the compensation judge did not have adequate foundation.  We affirmed the judge’s decision, concluding that the opinions at issue had adequate foundation to support the compensation judge’s decision.^[1]

A third hearing was conducted on June 19, 2012, before the same compensation judge from the 2011 hearing.  The employee alleged underpayment of temporary total and temporary partial disability benefits, including penalties, based on her assertion that her weekly wage had been incorrectly calculated.  The compensation judge found the weekly wage for calculation of wage loss benefits paid pursuant to the initial findings to be $498.76, which was the wage used by the insurer to calculate benefits.  However, the judge awarded penalties for late payment of benefits.  The employee appealed to this court, arguing that the April 2008 injury was a contributing factor to her disability and therefore should have been used to calculate the appropriate compensation rate which led to an underpayment of benefits.  This court affirmed the compensation judge’s determination.^[2]

The employee’s injuries from a motorcycle accident in August 2011 led to a multi-level fusion surgery from T3 to T9.  By March 2013, the employee had recovered from this injury.  Between 2011 and December 2015, the employee had minimal treatment for her low back.  On December 18, 2015, the employee began seeking treatment for low back pain with Dr. James Andrews.  On August 14, 2017, the employee was treated with a radiofrequency ablation for her low back pain, which was not as successful as a previous ablation in 2009.  Another low back ablation was performed on May 7, 2018.  In a May 9, 2018, letter, Dr. Andrews stated that the employee had been diagnosed with lumbar spondylosis and associated facet syndrome and opined that the injury was a substantial contributing factor of her current condition and need for treatment.  Later, Dr. Andrews’ diagnosis of the employee’s condition in September 2018 changed to lumbar spondylosis without facet arthopathy.  The employee sought payment for medical expenses for this treatment, which the employer and insurer denied.

On January 6, 2018, the employee underwent an independent medical examination with Dr. Paul Wicklund.  Dr. Wicklund opined that the employee’s ongoing symptoms and any need for treatment was related to an age-related degenerative condition.  He also opined that the employee did not have a permanency rating for her low back condition and did not need work restrictions related to her low back.  Dr. Wicklund conducted an additional medical record review in August 2021 and wrote another report dated August 26, 2021.  He opined that the employee’s 2008 low back strain and facet joint condition was temporary and had resolved, and therefore any medical treatment after 2015 was not related to that condition.

In September 2020, Dr. Andrews opined that the employee had 10 percent permanent partial disability for her lumbar spine, that she had permanent work restrictions, that her medical treatment was necessary, and that her low back condition was related to her work injury.

On September 14, 2021, a fourth hearing took place before another compensation judge on the employee’s claims that she was entitled to permanent total disability benefits (PTD) as the result of her 2008 work injuries, either as of January 1, 2017, or some other date, as well as medical expenses and rehabilitation services.  The compensation judge denied the employee’s claims, concluding that the preponderance of the evidence “fails to show either the April 2008 or September 2008 dates of injury continue to be a substantial contributing factor in the employee’s need for treatment.”  (Finding 42.)  The compensation judge noted the employee’s treatment after the 2011 accident and detailed the employee’s medical treatment for her low back since 2015.  On this point, he accepted the opinions of the employer’s independent medical expert, Dr. Wicklund.  The judge stated Dr. Wicklund’s findings and opinions were consistent with voluminous medical records in this case and, in the compensation judge’s opinion, most in line with the reality of the employee’s situation.  The employee 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).

In her brief, the employee argues that the compensation judge erred “as a matter of law” in failing to apply res judicata in considering the employee’s claim.  The employee contends that the compensation judge at the 2010 hearing “specifically found the diagnosis of Ms. Todd’s work-related low back condition as spondylosis with associated facet syndrome.”  (Employee’s brief at 12.)  Res judicata generally refers to two related legal doctrines, claim preclusion and issue preclusion, also called collateral estoppel, which bar relitigation of issues already determined in a previous litigation.  Mach v. Wells Concrete Prods. Co., 866 N.W.2d 921, 925, 75 W.C.D. 279, 282 (Minn. 2015);  Rhyner v. Mattress Giant Holding Corp., 79 W.C.D. 639, 642 (W.C.C.A. 2019).  Under a collateral estoppel theory, once a court has decided an issue or fact necessary to its judgment, that decision may preclude relitigating that issue in a suit on a different cause of action and involving a party to the first action.  Mach, 866 N.W.2d at 927, 75 W.C.D. at 286; Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn. 1978).

We disagree with the employee’s characterization of the compensation judge’s decision in 2010.  In his decision, he found that a “preponderance of the evidence demonstrates that the employee sustained a sprain/strain of her low back on April 8, 2008 . . . .”  (Findings and Order dated Mar. 22, 2010, Finding 13.)  As to the September 2008 Gillette injury, the compensation judge noted that one of the employee’s doctors had diagnosed lumbar spondylosis, and added that “the condition has not yet been fully evaluated.”  (Id. Finding 14.)  The compensation judge made no finding of a specific diagnosis of spondylosis with associated facet syndrome in his 2010 decision. There is no evidence in the record that the employee’s injuries were permanent or that the employee’s condition and need for treatment had remained the same for 14 years.  Further, we have found no determination in subsequent hearings that the employee suffered a permanent injury from either the April or September 2008 injuries.  Without a determination that there was a permanent injury, we conclude the doctrine of res judicata has no relevance to the present appeal.

The other issue raised for our consideration is whether the November 12, 2021, decision is supported by substantial evidence in considering the record as a whole.  See Minn. Stat. § 176.421.  As noted by the compensation judge in his memorandum,  this issue  was one primarily determined by the medical evidence presented by the parties, including Dr. Wicklund’s opinion.  The employee asserts that Dr. Wicklund’s opinion lacked foundation.  Absent an abuse of discretion, a compensation judge’s decision to adopt the opinion of an expert is upheld if the opinion has adequate foundation.  Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 621, 77 W.C.D. 617, 624 (Minn. 2017).  “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.”  Erickson v. Grand Itasca Clinic & Hosp., No. WC21-6413 (W.C.C.A. Nov. 16, 2021) (citing Hudson v. Trillium Staffing, 896 N.W.2d 536, 540, 77 W.C.D. 437, 442 (Minn. 2017)).   The employee contends that Dr. Wicklund did not adequately address all of the symptoms reported by the employee.  These assertions regarding the symptoms reported in the medical records go to the weight of the medical opinion, not its foundation.

As the trier of fact, the compensation judge has discretion in weighing medical evidence and in choosing between competing expert opinions.  Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 803, 77 W.C.D. 117, 126 (Minn. 2017).  In his findings, the compensation judge incorporated by reference the findings from the hearings in 2010, 2011 and 2012.  Further, the judge made detailed findings concerning the employee’s medical treatment with various providers from 2011 to 2020.  (Findings 2-40.)  The judge noted the employee’s lack of treatment for her low back for a substantial period of time and also considered the evaluation and conclusions reached by Dr. Wicklund.  In doing so, the judge assessed Dr. Wicklund’s opinion that the employee’s need for treatment after 2015 was not related to her 2008 condition as consistent with the employee’s “voluminous” medical records.  On the basis of that opinion, the compensation judge denied the employee’s claims.  Substantial evidence supports the compensation judge’s findings and, therefore, we affirm the compensation judge’s denial of the employee’s claims in their entirety.