BRENT TWEET, Employee/Appellant, v. HOME DEPOT and NEW HAMPSHIRE INS. CO., Employer-Insurer/Respondents, and MINN. DEP’T OF HUMAN SERVS. and BLUE CROSS BLUE SHIELD OF MN, Intervenors.

The employee appeals from the compensation judge’s determination as to the nature and extent of his work injury on January 8, 2019, and from the denial of his claim for benefits.  We affirm.

The employee, Brent Tweet, began working for Home Depot in June 2018.  At that time, the employee was 48 years of age.  He had a history of low back pain and treatment before his employment with Home Depot.  In December 2007, the employee was seen in urgent care at St. Luke’s Hospital for low back pain that he reported was related to a wrestling injury he suffered as a senior in high school.  At an urgent care visit in 2013, the employee described going to a chiropractor “off and on.”  The employee injured his low back on October 30, 2014, which he attributed to the physical nature of his work at Union Gospel Missions.  An MRI on November 10, 2014, showed disc desiccation, a small central protrusion at L5-S1 abutting the nerve root, and facet joint hypertrophy.  When examined by Dr. Lynn Quenemeon on January 2, 2015, the employee maintained he had no history of back pain and thought his back pain might be from heavy work at his current job.  An MRI in July 2015 showed that the L5-S1 disc had extruded and had likely entrapped the left S1 nerve root.  On October 15, 2015, Dr. Dino Terzio performed a left L5-S1 hemilaminectomy and microdiscectomy, decompressing the left L5 nerve root.  The employee had no further treatment for his low back until January 2019.  He later reported that he had low back pain almost daily and just treated it at home.

The employee began work for Home Depot in June 2018.  In December 2018 he started noticing pain and numbness down his left leg that felt like a recurrence of his pain from 2015 and 2016.  Those symptoms gradually worsened.  On January 8, 2019, he reported that he was pulling a box of tiles weighing about 70 pounds from a shelf when he experienced pain in his low back.  He went to urgent care and described the injury as feeling a “pop” in low back.  The employee described his current symptoms as a recurrence of his earlier neurologic and radicular symptoms. The diagnosis at that time was acute lumbar strain superimposed on a previous lumbar laminectomy. The employee was given light duty work restrictions and advised to follow up with an occupational doctor.

The employee began treating with Dr. Douglas Wendland, an occupational medicine doctor.  In his report of January 28, 2019, Dr. Wendland diagnosed lumbar sprain, lumbosacral radiculopathy at S1, and discitis.  He concluded that the employee’s work was the primary and proximate cause of an aggravation or acceleration of the employee’s preexisting lumbar degenerative disc disease.  Dr. Wendland imposed work restrictions which were accommodated by the employer.

Dr. Wendland referred the employee for a neurosurgical consultation, conducted by Robert Bejnarowicz, D.O., on February 13, 2019.  Dr. Bejnarowicz recommended physical therapy and an SI joint injection.  The employee had the injection and reported improvement in his symptoms.  He returned to Dr. Bejnarowicz in April; the doctor continued to recommend against surgery due to the absence of evidence of recurrent disc herniation.

In July 2019, the employee changed doctors and began seeing Dr. Stefan Kaiser at the Duluth Clinic.  Dr. Kaiser ordered an active SpineX program.  The employee made good progress in the program and Dr. Kaiser released him to full duty as of October 11, 2019.  The employee returned to Dr. Kaiser in November 2019 and reported no leg symptoms, but continued experiencing intermittent low back pain.  Dr. Kaiser placed the employee under work restrictions and referred him to a physical medicine and rehabilitation doctor.  On February 14, 2020, the employee told Dr. Kaiser that he felt the same as he had before the surgery in 2015.  The employee stopped working for Home Depot that same month.  The employee attended physical therapy from January 28 to April 8, 2020.

In March 2020, the employee saw Dr. Erin Grimsby at the Duluth Clinic.  She recommended an updated MRI, facet joint injections, and physical therapy.  She also concluded the employee could return to work part time on a light-duty basis.  An MRI done on March 16, 2020, showed slightly narrowed disc space at L5-S1 and no spinal stenosis.

On March 27, 2020, the employee was evaluated by Dr. Thomas Jetzer at the request of the employer and insurer.  Dr. Jetzer opined that the employee had not sustained a low back injury as a result of his work at Home Depot and that his symptoms were instead due to the progression of his preexisting degenerative disc condition.  Dr. Jetzer recommended physical restrictions for the employee, not because of low back injury, but due to his age and general physical condition. Dr. Jetzer also stated that any additional medical treatment would be related not to the claimed work injury but to the employee’s preexisting degenerative condition.  Based on this report, the employer and insurer denied responsibility for any further workers’ compensation claims, including claims for medical care.

Dr. Grimsby wrote a report to the employee’s attorney dated May 5, 2020, in which she stated that the MRI of January 23, 2019, showed inflammation at L5-S1.  She also stated this was due to an injury on January 8, 2020.^[1]

On June 9, 2020, the employee went to the emergency department at St. Mary’s Hospital, complaining of a sudden onset of low back pain.  An MRI performed at that time was interpreted by the radiologist as showing no worsened findings from the March 2020 MRI.  The employee returned to Dr. Grimsby on September 9, 2020, complaining of pain in both legs and numbness in his feet.  Dr. Grimsby recommended a referral to neurosurgery.  The employee saw a nurse practitioner in the neurosurgery department at Gillette Clinic on September 29, 2020.  The employee was diagnosed with lumbar radiculopathy and degenerative disc disease and given a prescription for Gabapentin.

The parties reached a settlement of the employee’s claims on a to-date basis through October 22, 2020, and an Award on Stipulation was served and filed on January 5, 2021.

The employee underwent anterior posterior discectomy and interbody fusion surgery performed by Dr. Timothy Garvey on August 27 and 28, 2021.  In his post-surgery follow up, Dr. Garvey released the employee to light-duty employment.

Dr. Jetzer reviewed the employee’s additional medical records and issued a supplemental report on December 10, 2020.  Dr. Jetzer concluded that there had not been an injury on January 8, 2019, that would have changed the natural progression of the underlying and preexisting degenerative disc disease which, in his opinion, was the condition for which the employee had surgery.

A hearing on the employee’s claim petition was held before a compensation judge on February 10, 2022.  She issued her Findings and Order on March 9, 2022.  The compensation judge denied the employee’s claims, finding that the January 8, 2019, injury was a temporary aggravation of the employee’s preexisting degenerative condition which had resolved as of October 11, 2019, when Dr. Kaiser had released the employee to full employment.  The employee has appealed the compensation judge’s decision.

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 issues before the compensation judge at hearing were whether the employee sustained a work injury to his low back on January 8, 2019, and if so, the nature and extent of that injury.  Those issues were questions of fact determined by the compensation judge based on a consideration of the evidence submitted by the parties.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994); Domarus v. Yule Transp., No. WC20- 6387 (W.C.C.A. Jun. 29, 2021). The question for this court is whether substantial evidence supports the compensation judge’s decision.  In considering this question, this court is to give due weight to the compensation judge’s assessment of witness credibility, which is “the unique function of the compensation judge.”  Even v. Kraft, 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989).

The compensation judge found the employee had a long-standing degenerative back condition, which predated the claimed work injury and had resulted in surgery in 2015.  The compensation judge determined the January 8, 2019, work incident at Home Depot had aggravated that underlying condition.  (Finding 42.)  The judge concluded this aggravation resolved by October 11, 2019, when the employee was released to full duty by Dr. Kaiser.  (Finding 43.)

The employee argues in his brief that this decision is not supported by substantial evidence and must be reversed.  The argument is based on his contention that there are only “two expert medical opinions in evidence”; that of Dr. Jetzer and that of Dr. Grimsby.  Since, according to the employee, there was no foundation for Dr. Jetzer’s opinion, this means that there is no evidentiary support for the judge’s decision, and it should be reversed.  We do not accept this premise.  In this case, the compensation judge had before her medical records and reports from at least eleven providers covering the employee’s treatment for his low back from December 2007 through November 2021.  Dr. Jetzer reviewed those records and provided an updated report dated December 10, 2021.  This updated report was also in evidence.

In her decision, consisting of 47 findings and a two-page memorandum, the compensation judge itemized the evidence she found persuasive in this case.  A compensation judge is expected to use her judgment and experience in evaluating the evidence and in making a decision based on that evaluation.^[2]  It is not this court’s function to reconsider anew the employee’s claim but rather to determine if the decision reached by the compensation judge is based on substantial evidence in the record.  Substantial evidence exists here and we affirm the compensation judge’s decision.