NGAWANG D. TSOTSANG, Employee/Respondent, v. HENNEPIN HEALTHCARE SYS., INC., and HENNEPIN CNTY., Self-Insured Employer/Appellant, and HEALTHPARTNERS, INC. and ST. FRANCIS REG. MED. CTR., Intervenors.

The self-insured employer appeals from a compensation judge’s findings that the employee’s medical expenses, including her December 2020 cervical spine surgery, are compensable and that she is entitled to recommencement of temporary total disability benefits following the surgery.  We affirm in part, vacate in part, and remand for further findings.

The employee, Ngawang Tsotsang, began working as a housekeeper for the employer, Hennepin Healthcare System, Inc. (formerly known as Hennepin County Medical Center), in April 2001.  On December 4, 2015, the employee was cleaning a locker room at the employer’s facility and lifted a bag of wet linens.  She felt pain on the right side of her neck and into her right shoulder.  The employer admitted liability for this work injury and began paying various workers’ compensation benefits.

Following the injury, the employee was taken off of work and began receiving vocational rehabilitation services from a qualified rehabilitation consultant with the goal of returning to full-time employment with the employer.  By April 2016, the employee returned to work with the employer on a part-time basis and by December 2016, the employee began working for the employer on a full-time basis, albeit with restrictions.  Approximately one month later, however, the employee was limited to part-time employment again and remained in part-time employment through November 23, 2019, at which point the employer determined that it no longer had work available within the employee’s permanent restrictions.^[1]

The employee had also been undergoing several modalities of medical care following the injury, including physical therapy, epidural steroid injections, facet injections, nerve blocks, and acupuncture.  An MRI scan of the right shoulder showed degenerative changes and she was diagnosed with rotator cuff tendonitis.  An MRI scan of the neck showed multi-level degenerative disc disease, a disc protrusion at C3-4, and disc herniations at C4-5 and C5-6.

The employer paid the employee temporary total disability (TTD) benefits while she was off work completely.  Once she had returned to work on a part-time basis, it began paying temporary partial disability (TPD) benefits.  As of November 23, 2019, when there was no work available within the employee’s restrictions, the employer recommenced payment of TTD benefits.  The employer also paid the employee a seven percent permanent partial disability (PPD) benefit.

On September 3, 2019, Dr. Donald Asmussen, who had been treating the employee since 2016, completed a health care provider report where he assessed the employee as having reached maximum medical improvement (MMI).  On December 9, 2019, the employer served a copy of that MMI report and a notice of discontinuance of TTD benefits on the employee.  On March 5, 2020, 90 days after service of the MMI report, the employer discontinued payment of TTD benefits.

The employee also treated with Dr. Kevin Mullaney, an orthopedic surgeon, starting in 2016.  By October 2016, Dr. Mullaney was recommending a two-level cervical fusion surgery and by November 2016, he was recommending a three-level fusion.  The employee, however, wished to try other conservative care first, and Dr. Mullaney agreed with that approach.  On July 8, 2020, Dr. Mullaney again recommended the three-level fusion surgery to treat the employee’s neck complaints.  He stated that conservative care had proven unsuccessful, and while the fusion surgery would not cure all of her symptoms, it was the appropriate care at that point as all non-operative modalities had been exhausted.  The employee agreed and wished to proceed with the surgery.

Before approving the surgery, the employer had the employee examined by Dr. Hart Garner, who submitted a report on September 28, 2020.  Dr. Garner opined that the employee suffered an injury on December 4, 2015, but that it was primarily a muscle strain injury to her right shoulder and neck that had since resolved.  While he agreed with Dr. Mullaney’s suggestion that the employee should have a three-level cervical fusion, he concluded that the need for the surgery was not related to the December 4, 2015, work injury, but rather to a degenerative condition that pre-existed the work injury.  Dr. Garner noted a single medical visit by the employee regarding left-sided neck and shoulder symptoms approximately 10 months before the work injury and where the treating doctor recommended ibuprofen to treat the symptoms.  Likewise, Dr. Garner opined that the employee’s permanent work restrictions were appropriate but again, not related to her work injury.

On October 22, 2020, Dr. Mullaney noted in his records that he had reviewed Dr. Garner’s report and commented on Dr. Garner’s opinions.  He agreed with Dr. Garner that there were some underlying degenerative changes in the employee’s neck before the work injury, but opined that if the employee had never been seen by doctors, nurses, or physician assistants for neck and arm symptoms before the work injury, then he would support a causal connection between the work injury and the need for surgery.

On December 14, 2020, Dr. Mullaney performed the three-level cervical fusion surgery at St. Francis Regional Medical Center.

On February 18, 2021, the employee underwent a remote video history and examination by Dr. William Schneider, as requested by her attorney.  He opined that the need for the three-level fusion was causally related to the work injury, which had permanently aggravated the employee’s pre-existing neck spondylosis and stenosis.

The employee filed a claim petition seeking permanent total disability (PTD) benefits.  She later amended her claim petition, withdrawing the claim for PTD benefits and instead seeking TTD benefits following the December 2020 surgery performed by Dr. Mullaney, and payment for that surgery.

The employee’s claims were heard by a compensation judge who issued a Findings and Order on July 9, 2021.  The compensation judge found the opinion of Dr. Schneider to be more persuasive than the opinion of Dr. Garner in light of the employee’s testimony.  The compensation judge also awarded TTD benefits as requested by the employee, on the basis that the employee underwent surgery in December 2020 and had remained physically restricted from working since that surgery.

The employer appeals.

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 involve 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 employer argues that the compensation judge abused her discretion by choosing the opinion of Dr. Schneider over that of Dr. Garner, and committed an error of law by awarding the employee TTD benefits following the December 2020 fusion surgery.^[2]

Typically, when a compensation judge is presented with competing expert opinions, this court will defer to the choice of the compensation judge.  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  The employer argues, however, that Dr. Schneider’s opinion lacked credibility such that it was an abuse of discretion for the compensation judge to choose that doctor's opinion over that of Dr. Garner.  Specifically, the employer asserts that because (1) Dr. Schneider did not perform an actual physical examination of the employee while Dr. Garner did, (2) Dr. Schneider’s virtual visit with the employee did not involve a professional interpreter while Dr. Garner’s did, (3) Dr. Schneider’s examination took place after the surgery while Dr. Garner’s examination pre-dated the surgery, (4) Dr. Schneider is a Wisconsin-based paid orthopedic expert who does not claim to have performed neck surgery in his past career while Dr. Garner is a Minnesota-based neurosurgeon with past experience performing neck fusions, and (5) neither Dr. Mullaney nor any other treating doctor was asked to issue an expert medical opinion, the compensation judge abused her discretion in accepting the opinion of Dr. Schneider and in rejecting the opinion of Dr. Garner.  We are not persuaded by these arguments.

The issues regarding Dr. Schneider’s opinion raised by the employer go to the weight of the evidence as determined by the compensation judge.  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).  A compensation judge’s decision to adopt the opinion of an expert must be upheld if the opinion has adequate foundation, absent an abuse of discretion.  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 (Nov. 16, 2021) (citing Hudson v. Trillium Staffing, 896 N.W.2d 536, 540, 77 W.C.D. 437, 442 (Minn. 2017)).  Therefore, it is an abuse of a compensation judge’s discretion when a factual finding is made without any direct or inferential factual support in the record.  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, 889 N.W.2d at 802, 77 W.C.D. at 124.  In her memorandum, the compensation judge noted that she reviewed the medical records, heard the employee’s testimony, and reviewed the analysis of both medical experts and ultimately was persuaded by Dr. Schneider’s opinion over that of Dr. Garner.  The record shows the employee had a single doctor visit before her work injury where she complained of neck and shoulder symptoms without any evidence that this visit related to the same condition which necessitated the fusion surgery.  At that single doctor visit, she was instructed to take ibuprofen.  She did not require any work restrictions, nor was she seen again for neck and shoulder complaints until after the work injury.  Since her work injury, she has had ongoing and continuous care for years.  Likewise, the employee testified that she did not have previous symptoms to her neck and shoulder that were similar to those following her work injury.  Dr. Schneider’s opinion is that the employee’s pre-existing medical condition caused a single brief episode of pain and was essentially inconsequential.  In contrast, he found the work injury to be a substantial aggravating factor causing the employee’s neck to become and remain symptomatic leading to years of medical care, restrictions, and ultimately require fusion surgery.  Dr. Schneider’s medical opinion is consistent with the other medical evidence and the employee’s testimony.  We conclude that the compensation judge’s choice to adopt the opinion of Dr. Schneider rather than that of Dr. Garner was not an abuse of discretion.  We therefore affirm the compensation judge’s finding that the cervical spine fusion surgery was causally related to the work injury.

The employer argues that because the employee was at MMI, was no longer receiving TTD benefits because more than 90 days had passed from the time she was served with notice of MMI, and was not working at the time she became medically unable to work, she is therefore ineligible for recommencement of TTD benefits. 

Minn. Stat. § 176.101 subd. 1(j) provides that TTD benefits cease 90 days after the employee has reached MMI, and the employee has been served with a copy of an opinion establishing MMI.  Once TTD benefits cease under that subdivision, they may not recommence unless the employee returns to work and while working becomes medically unable to continue working due to her work injury.

Here, there is no question that the employee previously received TTD benefits and that those benefits were discontinued based upon the employer’s assertion that the employee had reached MMI.  The employer served the employee with notice that one of her doctors had determined her to be at MMI, a fact confirmed by an unappealed finding by the compensation judge.  After 90 days following the notice, the employer discontinued TTD benefits.  Likewise, there is also no question that the employee did not return to work after November 23, 2019, and was not working at the time she became medically unable to work following her surgery in December 2020.

The employer asserts that because the employee did not object to the discontinuance of her TTD benefits 90 days after service of MMI, and because she did not appeal the finding regarding service of the MMI notice, she has effectively agreed that she was at MMI at that time.  The employer notes that the MMI determination was made by one of the employee’s own doctors.

The employee disagrees and argues that the employer did not raise MMI as an issue before the compensation judge.  The record reveals, however, that the issue before the compensation judge was whether the employee was entitled to TTD benefits beginning in December 2020. Whether the employee is entitled to TTD benefits necessarily raises all of the potential issues for TTD benefit entitlement including the elements of Minn. Stat. § 176.101, subd. 1(j).  Furthermore, counsel for the employer specifically mentioned this argument in his closing statement before the compensation judge.  The issue of whether the employee was at MMI was clearly before the compensation judge. 

Whether an employee is at MMI is an issue of ultimate fact reserved for the compensation judge, and the opinion of a physician is not necessarily controlling.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 529, 41 W.C.D. 634, 640 (Minn. 1989).  Although the compensation judge made a finding that the employee was served with a notice of MMI, and the record establishes unequivocally that the employee was not working at the time that she became medically unable to work in December 2020, the compensation judge failed to address the major underlying factual issue of whether the employee was in fact at MMI in September 2019. 

Consequently, we vacate that part of Finding 41 and the whole of Order 2 which determined the employee was entitled to TTD benefits since her December 2020 surgery, and remand the matter for a finding on whether the employee was at MMI per Dr. Asmussen’s opinion in September 2019 and for a determination of whether the employee is entitled to recommencement of TTD benefits.