CYRIL CHANDLER, Employee/Respondent, v. DRIVELINE SPECIALISTS, INC., and RAM MUT. INS. CO., Employer-Insurer/Appellants, and ESSENTIA HEALTH, DEBRA STICKLER, and BLUE CROSS BLUE SHIELD OF MINN, Intervenors.

The employer and insurer appeal from the compensation judge’s reinstatement of the employee’s temporary total disability (TTD) benefits and vocational rehabilitation services and the compensation judge’s order for payment of the QRC’s intervention claim.  We affirm.

The employee, Cyril Chandler, has worked for most of his adult life in the field of automobile repair.  The job requires repetitive use of tools and lifting 75 to 300 pounds either alone, with help, or with a lift.  He acknowledged having bumps and bruises over the years as well as aches and pains at times, but he did not recall ever treating for any problem with his left elbow.  In about 2015, he moved to a rural property in the woods where he heats his home with wood and snowplows his own road.

On November 23, 2019, the employee went to the emergency room at Essentia Health-Virginia with complaints of chest pain over two days and was diagnosed with uncontrolled atrial fibrillation.  Part of the medical record for this visit, titled “past medical history,” listed a dozen different prior diagnoses, one of which was “ulnar nerve lesion.”  This prior diagnosis, as well as the others listed in the record, are not otherwise explained or referenced by the examining provider.^[1]  The employee’s musculoskeletal examination, muscle mass, and joint appearance were all noted as normal during this emergency room visit.  The employee continued to work with no restrictions.  In 2020, he went off work and received short-term disability benefits due to his heart issues.

On June 19, 2021, the employee reported to the Essentia Health-Aurora emergency room for treatment of multiple tick bites.  The employee was prescribed medications and was urged to follow up as needed.  The employee was seen at Essentia Health-Aurora (Northern Pines Clinic) on June 25, 2021, with body aches and fatigue assumed to be due to tick bites and a possible reaction to the medication prescribed at the emergency room.  While the employee was not tested, he was presumed to have Lyme’s disease due to the tick bites.  The employee was put on a different medication.  No additional medical visits regarding the employee’s symptoms from the tick bites are in the record before the court.

In July 2021, the employee began working in automobile repair for the employer, Driveline Specialists.  His job was to repair engines, transmissions, and transfer cases, and to build differentials.  When he started, he was on heart medication but had no work limitations, no left arm symptoms, and no difficulty working with his left arm.

On November 2, 2021, the employee sustained a work injury while using a pry bar and sledgehammer to loosen a part in an automobile suspension.  When the part suddenly released, the employee’s left wrist was struck by a spring-loaded control arm.  As he jerked back to try to avoid the blow, the employee struck his left elbow on the end of the vehicle’s bumper.  His wrist was fractured, and he felt pain, numbness, and tingling in the back of his left arm from his triceps to his fingers.  The employee was treated at the Essentia Health Urgent Care in Duluth for left wrist and forearm pain with tingling and reduced range of motion.  X-rays revealed an avulsion fracture at the left wrist and the employee was fitted with a wrist brace.  The employee began seeing providers at his primary clinic at Essentia Health-Virginia on November 8, 2021.  He was experiencing tingling over the shoulder to his fingers, was exhibiting bruising on the ulnar portion of his left elbow, and was wearing his wrist brace.  He was referred to physical therapy and given work restrictions of no use of his left wrist and hand, no lifting over ten pounds with his left arm, and that he be excused from work for upcoming doctor and physical therapy visits.  The employee has not returned to work since the work injury.  There is no dispute that the employee cannot work, regardless of causation, in automobile repair while limited in the use of one of his arms.

The employee began physical therapy at Essentia Health-Virginia on December 17, 2021.  He had complaints of left shoulder and wrist pain as well as tenderness at the left elbow.  On December 21, 2021, the employee reported lateral left elbow pain with most exercises.  By December 27, 2021, the employee was reporting no pain in the left wrist or shoulder and that his pain was localized to the medial left elbow.  This complaint continued in subsequent physical therapy visits in 2022.  He also reported that he had tingling in his left hand when he woke up each morning which did not resolve until afternoon.

The employee first treated with Dr. Stefan Kaiser, an occupational health doctor at Essentia Health-Virginia, on January 18, 2022.  Dr. Kaiser noted that the employee continued to suffer from ulnar neuropathy symptoms of pain, constant numbness and tingling in his fourth and fifth digits, and lack of grip strength.  Despite therapy, he had not regained previous strength in his left hand.  Dr. Kaiser noted decreased range of motion of the left elbow, tenderness in the medial epicondyle and cubital tunnel region, sensory deficit in the left ulnar distribution, and weakness in the ulnar innervated digits of the left hand.  Dr. Kaiser reviewed the previous x-rays and assessed the employee with acute left elbow pain due to the direct trauma.  He also noted that the wrist fracture was healing.  He limited the employee to grasping and gripping of the left arm up to two pounds and lifting, carrying, pushing, and pulling of the left arm up to five pounds.  The employee continued his physical therapy into February 2022, with symptoms in the left elbow and numbness and tingling into the fourth and fifth fingers.

At the request of the employer and insurer, the employee was evaluated by Dr. David Carlson on February 3, 2022.  Dr. Carlson reviewed the employee’s medical records from the date of injury forward and examined the employee.  In a report dated February 16, 2022, he diagnosed the employee with left ulnar neuropathy and lateral epicondylitis, noting that the employee was markedly tender along the lateral epicondyle of the left elbow and less so at the medial ulnar groove, with positive Tinel’s signs at the left elbow and decreased sensation in the small and ring fingers of the left hand.  He opined that there was no evidence of a pre-existing condition and that the work injury substantially contributed to the diagnosis.  He assigned work restrictions of no lifting over ten pounds and avoiding repetitive use of the left arm.

The employee was assigned a qualified rehabilitation counselor (QRC), Debra Stickler, on February 7, 2022.  The rehabilitation plan called for a return to work with the same employer.  The employer informed QRC Stickler that it could not accommodate the employee’s work restrictions and would allow his return to work once he was able to work at full duty.

On March 1, 2022, the employee underwent an MRI scan of the left elbow which was ordered by Dr. Kaiser.  The MRI scan showed edema in the dorsal superficial tissues overlying the tip of the olecranon extending toward the cubital tunnel.  The employee returned to Dr. Kaiser on March 8, 2022, with complaints of persistent pain in the left arm as well as numbness in his ulnar innervated digits.  He demonstrated mild weakness with flexion of the left ulnar innervated digits.  Dr. Kaiser assessed the employee with left elbow pain due to direct trauma, with evidence of a left elbow contusion and with ulnar neuropraxia.  Dr. Kaiser noted the employee continued to demonstrate deficits in his distal ulnar nerve following direct trauma to the left elbow but suggested an EMG to rule out damage to the ulnar nerve at the cubital tunnel.  The EMG was performed on March 30, 2022, and showed very mild left median sensory neuropathy consistent with the diagnosis of carpal tunnel.  Although the left ulnar sensory and motor nerve responses were normal, mild chronic denervation was suggestive of ulnar neuropathy.

The employee saw Dr. Kaiser again on April 4, 2022, reporting worsening soreness since the EMG and numbness in the left arm in the ulnar nerve distribution.  Dr. Kaiser noted the employee’s symptoms were localized at the ulnar nerve with throbbing in the left elbow and weakness in the distal upper arm.  On examination, the employee’s active range of motion was well preserved but with reduced sensation in the left lower innervated digits.  Dr. Kaiser continued to assess the employee with a left elbow contusion with ulnar neuropraxia.

The employer and insurer requested job placement services because of the uncertainty of when the employee would be able to return to work with the employer.  The employee began working with a job placement specialist (JPS) in late May 2022 and was advised by QRC Stickler and/or the JPS to keep accurate logs of his job search activity.  He began to look for work within his restrictions.

The employee was seen for a surgical consultation with Dr. Bradley Kuzel at Essentia Health-Duluth on May 20, 2022.  The employee reported that his left elbow symptoms had worsened since his EMG, with increased pain, loss of motion, numbness, and tingling.  He told Dr. Kuzel that he had no prior injury to the joint.  He had no generalized symptoms such as fever, chills, weight loss, shortness of breath, abdominal pain, nausea, or burning.  Dr. Kuzel reviewed the x-rays and the EMG, discussed options with the employee, and recommended an ultrasound before further determination.  He prescribed gabapentin for nerve pain and assigned the same restrictions as Dr. Kaiser.  The ultrasound was performed on June 28, 2022, and demonstrated an enlargement of the ulnar nerve within the cubital tunnel space consistent with cubital tunnel syndrome and ulnar nerve shifting to the apex of the medial epicondyle during left elbow flexion.  On July 18, 2022, Dr. Kuzel discussed various surgical options with the employee, including a cubital tunnel decompression, and an ulnar nerve decompression with anterior transposition.  About a week later, the employee decided he would like to have the surgery.

At the request of the employer and insurer, the employee was seen by Dr. William Call on August 30, 2022.  He issued his report on September 13, 2022, which was served on the employee on September 21, 2022.  Dr. Call examined the employee and reviewed the employee’s medical records, including the x-ray, MRI, and ultrasound records.  He concluded that the employee suffered from a healed avulsion fracture at the left wrist and other nerve irritative symptoms with mild ulnar neuropathy of the left elbow.  He determined the employee was at maximum medical improvement (MMI) for the left wrist and that the work injury had caused the avulsion fracture of the left wrist, but that the mechanism of injury was not a contributing factor to the ulnar nerve condition.  He stated that a treatment note dated November 2, 2021, indicated that the work injury was possibly related to the ulnar neuropathy, but that subsequent medical records did not support the conclusion.  He concluded that the ulnar neuropathy was due to a pre-existing condition as corroborated by the medical records of chronic left arm pain from the summer of 2019^[2] and the medical history notations of “ulnar nerve lesion” in the employee’s records prior to the work injury.  Dr. Call also noted that Lyme’s disease “can lead to joint pain, and also numbness and tingling . . . [and] could contribute to the cause of his generalized symptoms.”  (Ex. 1.)  Dr. Call opined that regardless of causation the employee was not at MMI for the left elbow condition, that he should be restricted from forced or repetitive elbow flexion beyond 90 degrees or any pressure against the medial elbow, but that he should not undergo any elbow surgery.

On September 21, 2022, the employee returned to Dr. Kaiser, who noted that Dr. Kuzel suspected the employee may have an element of ulnar nerve instability and that he recommended surgical intervention.  The employee informed Dr. Kaiser that he would like to go ahead with the suggested surgery, but that it had been denied by the employer and insurer.  On examination, the employee continued to complain of paresthesia in the distal left upper extremity.  Dr. Kaiser continued the same work restrictions but noted that a two-day modified upper extremity FCE could determine permanent restrictions.  The employee informed Dr. Kaiser that he had decided to move to Texas for the winter and later explained at the hearing that given his left elbow condition he could not cut wood for heat or plow his road.

The employer and insurer filed a rehabilitation request on September 21, 2022, to discontinue the employee’s vocational rehabilitation benefits based on Dr. Call’s opinion that the employee’s work injury was only to the left wrist, which had completely healed.  The next day, the employer and insurer filed a notice of intention to discontinue (NOID) the employee’s TTD benefits for the same reason.  The employee requested administrative conferences on the NOID and on the rehabilitation request, which were held jointly before a compensation judge on October 18, 2022.  After the conference, the compensation judge issued two separate administrative orders.  On October 27, 2022, she found that Dr. Call’s opinion provided reasonable grounds to discontinue TTD benefits and ordered benefits paid through 90 days after service of the MMI opinion for the left wrist injury.  While she noted that during the administrative conference the employer and insurer had mentioned issues related to the employee’s job search as another basis to discontinue TTD benefits, she relied solely upon the basis raised in the NOID, Dr. Call’s causation opinion regarding the employee’s left elbow condition.  On November 22, 2022, she granted the request to stop vocational rehabilitation services on the same basis.  Per the first administrative order, the employer and insurer paid TTD benefits through December 20, 2022.

The employee filed an objection to discontinuance regarding the termination of his TTD benefits and a request for a formal hearing regarding the termination of his vocational rehabilitation services.  Per the second administrative order, QRC Stickler closed the employee’s rehabilitation file.  She petitioned to intervene, seeking payment for the services she provided after September 22, 2022, through the closure of the rehabilitation plan.  Essentia Health petitioned to intervene for payment of medical care provided after November 2, 2022, and Blue Cross/Blue Shield (BCBS) petitioned to intervene for medical payments made to Essential Health for medical services provided in November 2021 and May 2022.

The matters were consolidated for a single hearing, held before a different compensation judge, on April 28, 2023.  The parties stipulated that the employee had sustained a work-related left wrist injury that had healed and from which the employee had reached MMI.  The compensation judge listed the issues as whether the work injury was a substantial contributing factor to the employee’s left elbow condition and disability, whether he was entitled to TTD benefits and vocational rehabilitation services as a result of the injury, and whether the QRC’s intervention claim was payable.  On June 6, 2023, the compensation judge found that the employee sustained a work-related injury to his left elbow which remained a substantial contributing factor to his condition and disability, ordered reinstatement of the employee’s TTD benefits and vocational rehabilitation services, and ordered payment of the QRC’s intervention claim.  The compensation judge did not order payment to the other intervenors.  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).

The employer and insurer argue that substantial evidence does not support the compensation judge’s finding that the employee’s left elbow work injury continues to be a substantial contributing factor to the employee’s disability.  The employer and insurer also argue that the employee is not entitled to ongoing TTD benefits or rehabilitation services, and that the QRC is not entitled to payment for her services, because the employee failed to conduct a diligent job search, withdrew from the labor market, and otherwise failed to put forth a good faith effort in his statutory vocational rehabilitation.  We are not persuaded.

The compensation judge relied on Dr. Carlson’s causation opinion and portions of Drs. Kaiser and Kuzel’s medical records in determining that the employee’s left elbow work injury was a substantial contributing factor of his ongoing left elbow neuropathy.  The employer and insurer assert that Dr. Call’s causation opinion is more persuasive than Dr. Carlson’s opinion because unlike Dr. Call, he did not review the employee’s medical history or older medical records.  We are not convinced.

A compensation judge has the discretion to rely upon an expert opinion as long as it is well founded.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Smith v. Quebecor Printing, Inc., 63 W.C.D. 566, 573 (W.C.C.A. 2003), summarily aff’d (Minn. Aug. 15, 2003).  The expert opinion need only be based on “enough facts to form a reasonable opinion that is not based on speculation or conjecture.”  Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 621, 77 W.C.D. 617, 624 (Minn. 2017) (quoting Gianotti v. Indep. Sch. Dist. No. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017)).

Here, Drs. Carlson, Kaiser, and Kuzel each examined the employee and took a history of his work injury.  Dr. Carlson was provided with medical records from Essentia Health from and after the date of the employee’s work injury, including records referencing the employee’s past medical history of an “ulnar nerve lesion.”  Drs. Kaiser and Kuzel had access to all of the Essentia Health records, not just those from and after the date of injury, including those referencing the history of an “ulnar nerve lesion” and the possibility of the employee having contracted Lyme’s disease from tick bites.  Some of the treatment notes from Drs. Kaiser and Kuzel included the same past history list.  Further, the employee, who was determined to be credible by the compensation judge, testified that he had no recollection of any previous left elbow symptoms, and specifically testified that he had not missed work or required work restrictions due to left arm pain before the work injury.  Moreover, as noted by the compensation judge, the past medical history of “ulnar nerve lesion,” which Dr. Call relied upon in part to reach his causation opinion, is a passing notation contained in the Essentia Health record that is otherwise unexplained.  The notation does not specify which arm, how recent or remote the history was, or what symptoms, treatment, or results occurred, and therefore gives no substantial basis for placing a causative determination on the employee’s left elbow work injury.  While Dr. Call mentions some notations of past left arm symptoms as evidence that the employee had a long-standing pre-existing condition involving his left elbow, the employee had no long-term care or work restrictions related to his left arm or elbow and he could not recall any specific left elbow symptoms until the work injury.  There is no evidence of pre-existing left elbow ulnar neuropathy other than these nonspecific references.  After the work injury, the employee had persistent symptoms, treatment, and work restrictions.

In addition, while Dr. Call suggested that untreated Lyme’s disease “could contribute” to the employee’s symptoms, he offered no definitive opinion in that regard.  The employee’s medical records indicated that the treatment for tick bites occurred several months before the work injury, that the minor symptoms had dissipated before the work injury, and that there was no definitive diagnosis of Lyme’s disease.  The employee had no ongoing Lyme’s disease symptomatology after the treatment in June 2021.  Dr. Call mentioned that joint pain could be a symptom of Lyme’s disease, however, the employee only reported joint pain in his left elbow beginning immediately after the work incident.  The compensation judge reasonably concluded that the employee’s work injury, which immediately precipitated his ongoing symptoms that have continued unabated since the date of the injury, was the cause of his left elbow ulnar neuropathy.

The compensation judge did not err by relying on Dr. Carlson’s opinion and on portions of Drs. Kaiser and Kuzel’s records in finding that the employee’s work injury was a substantial contributing factor to his left elbow neuropathy.  This finding is supported by substantial evidence in the record and we affirm.

In their brief on appeal, the employer and insurer contend that the compensation judge erred by not discontinuing the employee’s TTD benefits and by not terminating his vocational rehabilitation benefits based on a lack of a diligent job search, withdrawal from the labor market, or failure to otherwise cooperate with vocational rehabilitation.

The employer and insurer initially sought to discontinue TTD benefits and vocational rehabilitation services based upon Dr. Call’s opinion that the employee’s ulnar neuropathy, which required work restrictions, was not caused by the work injury.  The employee’s job search efforts, withdrawal from the labor market, or lack of cooperation with vocational rehabilitation were not raised in the pleadings initiated by the employer and insurer.  These issues were also not addressed in the administrative decisions.  Generally, after an administrative conference, additional issues cannot be raised at a subsequent hearing absent agreement of the parties to expand the issues.  See Minn. Stat. § 176.102, subd. 13 (discontinuance of rehabilitation services is governed by sections 176.238 and 176.239); Minn. Stat. § 176.238, subd. 6; Reed v. Metro Ride, slip op. (W.C.C.A. June 9, 1997) (absent a clear agreement of the parties, only issues raised in the initial pleadings may be heard at the subsequent expedited hearing).

While the employer and insurer argued at the hearing that the employee failed to conduct a diligent job search, limited his job search by failing to apply for certain jobs, and had withdrawn from the labor market, and while there was some testimony from the employee addressing his job search, the record appears to be incomplete regarding job search concerns, e.g., there is no testimony from the QRC, because the parties did not expand the issues.^[3]  Further, the compensation judge commented on the employer and insurer’s job search arguments in his memorandum but made no specific findings on these issues.^[4]

Finally, we note that in Finding 28, which was not appealed, the compensation judge stated that the intervention claims of Essentia Health and BCBS were not addressed in the decision because “the parties did not agree to expand the issues beyond discontinuance of TTD benefits and termination of rehabilitation benefits as set forth in the consolidated Objection to Discontinuance and Request for Formal Hearing.”  The only issue raised in those pleadings was causation.^[5]

The job search issues argued by the employer and insurer on appeal were not raised by the NOID, rehabilitation request, objection to discontinuance, or request for formal hearing.  Issues may not be raised for the first time on appeal.  See Bradford v. Bureau of Engraving, 459 N.W.2d 697, 43 W.C.D. 279 (Minn. 1990); Robertson v. Manpower Temp. Servs., 77 W.C.D. 399 (W.C.C.A. 2017).  We conclude that the parties did not expand the issues beyond those raised in the pleadings, namely whether the employee was entitled to TTD benefits and vocational rehabilitation services due to the November 2, 2021, work injury being a substantial contributing factor to his left elbow ulnar neuropathy.

We have affirmed the compensation judge’s finding of causation above and we will not address any job search issues raised by the employer and insurer on appeal.