PAUL EULL, Employee/Respondent, v. METAL SALES & MFG. and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants, and ALLINA MED. CLINIC, UNITED HOSP., MINNEAPOLIS CLINIC OF NEUROLOGY, LTD., OPERATING ENGINEERS LOCAL 49 HEALTH & WELFARE FUND, and CENTRACARE, Intervenors.

The employer and insurer appeal from the compensation judge’s determination that the employee sustained injuries consequential to his 2009 work injury, and from the award of benefits.  We affirm.

The employee, Paul Eull, began working as a laborer for the employer, Metal Sales & Manufacturing, in April 2008.  His job duties included packaging and loading metal materials.  He worked ten-hour shifts without restrictions prior to his work injury.

On November 4, 2009, the employee sustained an injury to his right shoulder while wrapping and lifting a 75-pound piece of metal overhead.  The employee heard a pop in his shoulder and immediately experienced tingling and numbness in his entire right arm.  The following day, the employee was seen at Northwest Family Physicians by PA-C Melissa Kennedy for right-sided upper back and shoulder pain.  He was prescribed Ibuprofen and was released to return to work with a lifting restriction of five pounds and no reaching above his shoulders.

An MRI scan of the right shoulder performed on December 3, 2009, revealed AC joint hypertrophy and significant joint osteolysis.  The employee received injections without relief.  Given the lack of improvement, the employee was referred to Dr. Daniel Buss at Sports and Orthopedic Specialists (SAOS) who first saw the employee on January 7, 2010.  The employee reported constant high pain levels, had a positive O’Brien test, and dyskinesis was found.  Dr. Buss ordered physical therapy and imposed work restrictions.

Dr. Mark Friedland performed independent medical examinations (IME) of the employee on May 19, 2010, and October 5, 2011, at the request of the employer and insurer.  In his subsequent reports, Dr. Friedland opined that the employee’s right shoulder AC joint sprain/strain had resolved with no objective findings supporting the employee’s complaints of cervical right upper extremity pain, numbness, tingling, or weakness.  He considered the employee’s subjective complaints to be nonspecific and nonanatomic in nature.  Dr. Friedland assessed the employee to be at maximum medical improvement (MMI) as of May 19, 2010, with all medical care after that date not being reasonable, necessary, or causally related to the work injury.

Dr. Buss examined the employee again on May 28, 2010, for asymptomatic right shoulder AC osteolysis and right-sided neck pain.  Dr. Buss diagnosed impingement of the right shoulder with scapulothoracic dyskinesis.  He provided the employee with work restrictions and referred the employee to Dr. Erik Eckstrom at the Institute of Low Back and Neck Care (ILBNC) for his neck complaints.

On June 30, 2010, the employee was seen by Dr. Eckstrom for right-sided neck and shoulder pain.  At that visit, Dr. Eckstrom noted that the employee had sporadic tingling in the right elbow and finger regions with occasional right arm weakness.  A cervical MRI scan performed on July 1, 2010, revealed straightening of the normal cervical lordosis with mild right cervical rotation.

The employee attended four physical therapy sessions in July 2010.  While the treatment notes indicated that the employee was making progress, at the time of discharge he still complained of pain in the right cervical spine radiating to behind the right eye.  Dr. Eckstrom saw the employee at a follow-up visit on August 3, 2010.  The examination showed symptoms consistent with cervical dystonia with right lateral tilt.  Throughout the fall of 2010, the employee continued to be seen for right neck, eye, and shoulder pain for which therapies, rehabilitation, Botox injections, and trigger point injections were recommended.

The employee sought workers’ compensation benefits through a claim petition and a rehabilitation request.  On September 26, 2012, the case came before a compensation judge.  In a Findings and Order issued on November 26, 2012, the judge found that the employee’s current diagnosis was right scapular winging and impingement syndrome, and the employee’s work injury was not a temporary aggravation and had not resolved.  Further, the judge found that the employee’s levator scapula condition was ongoing and that Botox injections were not at that time reasonable and necessary medical care.  No appeal was taken from this decision.

The employee continued to treat for upper extremity symptoms with Noelle Maze, CNP, of SAOS.  The employee’s work restrictions remained in place and diagnostic trigger point injections were recommended.  By June 2013, the employee underwent an EMG which was normal.  By August 2013, the employee reported to Dr. Eckstrom that he was unable to move his right shoulder and arm and that his right hand appeared purple and swollen.  On examination, hypertrophy was seen during activity, but no edema, pulse, or temperature differences were observed.  He was diagnosed with cervical dystonia and chronic pain of the right shoulder.  Dr. Eckstrom made referrals for an MRI scan of the cervical spine and to Dr. Todd Hess for assessment of chronic regional pain syndrome (CRPS).

Dr. Friedland performed another examination of the employee on September 30, 2013.  In a report dated the same day, Dr. Friedland opined that the employee did not have CRPS based upon his examination and his review of the employee’s medical records and surveillance video.  Dr. Friedland considered the referral to Dr. Hess for a CRPS evaluation and stellate ganglion blocks to be unnecessary.

On October 2, 2013, the employee followed up with CNP Maze.  The employee wore a sling to the visit for comfort.  On examination, he was hypersensitive to touch through his right upper shoulder to the forearm and fingers.  His hand grasp was stiff and the right hand appeared mottled.  Scapulothoracic winging was found with limited active range of motion.  CNP Maze’s assessment was CRPS of the right upper extremity.  She concurred with Dr. Eckstrom’s referral to Dr. Hess for CRPS evaluation.

Dr. Angelito Sajor of United Pain Center (UPC) saw the employee for evaluation of CRPS on October 16, 2013.  Dr. Sajor concluded that the employee’s pain was originating from the right shoulder.  Based upon the examination, Dr. Sajor observed none of the criteria for CRPS and therefore sympathetic nerve blocks were not recommended.  Dr. Sajor recommended a repeat MRI scan of the right shoulder and, depending on the results, a right upper extremity arterial duplex study.

The employee was again seen by CNP Maze on January 16, 2014.  On examination, CNP Maze observed hypersensitivity in the employee’s right shoulder radiating in the right forearm and hand, and range of motion was limited by pain.  Permanent restrictions were given of 25 pounds lifting from tabletop to shoulder, and one pound above the shoulder with no repetitive use above the shoulder.  The diagnosis was recorded as right chronic scapular dyskinesis, levator scapula syndrome, impingement right shoulder, and CRPS of right upper extremity.  The employee was given an 11 percent permanent partial disability (PPD) rating with MMI reached on January 16, 2014.  PPD benefits were paid by the employer and insurer.

Dr. Sajor saw the employee for a follow-up visit on July 30, 2014, and again concluded that the employee’s symptoms did not support a clinical diagnosis of CRPS.  He recommended acupuncture and biofeedback for the employee’s ongoing symptoms.  At the employee’s acupuncture visits in October 2014, his right hand was discolored and he experienced numbness from the fingers to his shoulder area.  Neither the acupuncture nor biofeedback therapies provided long-term relief for the employee’s pain symptoms.

The employee continued to treat for pain but was not seen again by CNP Maze until April 18, 2017.  He continued to experience reduced range of motion and pain in his shoulder.  The employee’s restrictions remained in place and physical therapy was ordered.

The employee returned to CNP Maze on May 23, 2019.  The employee complained of shoulder pain radiating into his hand and fingers and he reported mottling of the hand and fingers.  CNP Maze assessed the employee’s condition as chronic CRPS, levator scapula syndrome, and impingement syndrome.  Based upon the employee’s history and diagnoses, CNP Maze referred the employee to UPC for evaluation.  The employee sought approval of the referral by way of a medical request.  By order, the referral was approved and was deemed reasonable, necessary, and causally related to the employee’s work injury.

The employee was evaluated by Dr. Erin Bettendorf at UPC on February 26, 2020, for chronic pain syndrome.  The employee reported severe right upper extremity pain, mottling and discoloration of the hand and fingers, swelling in the fourth and fifth fingers, and a cold sensation in the elbow.  Though the employee had symptoms of CRPS, Dr. Bettendorf concluded he did not meet the diagnostic criteria.  Dr. Bettendorf recommended additional treatment for the employee, including trigger point injections, right occipital nerve block, and possible stellate block.

Dr. Michael D’Amato saw the employee for an IME on behalf of the employer and insurer on February 26, 2020, and October 27, 2021.  Based upon his examination, Dr. D’Amato commented that the employee had no objective findings of injury, only subjective symptoms consistent with fabrication, malingering, or symptom exaggeration.  He concluded that the employee reached MMI for his temporary right shoulder injury by May 28, 2010.  Dr. D’Amato also concluded that the employee could work without restrictions and needed no further treatment to the right shoulder.  He deferred to appropriate specialists any opinions relating to the employee’s cervical spine, CRPS, and occipital neuralgia.  Dr. D’Amato confirmed these opinions in a deposition given on January 17, 2022.

On January 12, 2021, the employee saw Dr. Bettendorf.  At this visit, she commented that the employee had findings consistent with CRPS, but again failed to meet the diagnostic criteria.  The employee was interested in proceeding with a stellate ganglion block.  Other than the addition of a tension headache to the employee’s assessment, Dr. Bettendorf’s examination and diagnoses were consistent with her previous evaluations.

The employee saw Dr. Matthew Ostrander of the Minneapolis Clinic of Neurology on January 14, 2021.  The employee reported having chronic pain in his upper right back and right shoulder radiating into the right lateral neck, head, and eye.  The employee also reported discoloration of his right hand along with swelling which resulted in right-handed weakness and numbness in his fingers.  He also reported numbness in his right arm and triceps.  Given the employee’s numerous chronic symptoms and intermittent vasomotor symptoms, Dr. Ostrander opined that the employee likely had a variant of CRPS.  The employee was directed to follow-up with Dr. Ostrander following completion of a recommended EMG study of the right upper extremity and cervical MRI scan.  Stellate ganglion blocks, trigger point injections, and the EMG recommended by the employee’s treating physicians were all denied by the employer and insurer.

The employee was seen by a neurologist, Dr. Khalafalla Bushara, for an IME on December 6, 2021, on behalf of the employer and insurer.  In his report, Dr. Bushara opined that the employee had sustained a resolved, mild myoligamentous sprain/strain of the cervicothoracic spine, that the employee did not have CRPS or components of CRPS, occipital neuralgia, or cervical dystonia, and that the employee’s complaints were all subjective and not substantiated by objective findings.  From a neurological standpoint, Dr. Bushara opined that the employee required no restrictions or further medical treatment, including a cervical MRI scan, EMG, injection therapy, or prescription medications.  Dr. Bushara confirmed these opinions in a deposition given on January 17, 2022.

Dr. Bettendorf, a board-certified physician in anesthesiology and chronic pain management, issued a narrative report to the employee’s counsel dated January 7, 2022.  In her report, Dr. Bettendorf opined that the employee has symptoms of CRPS of the right upper extremity.  Dr. Bettendorf reviewed and explained how the employee’s history, symptoms, and physical findings on examination met the Budapest Diagnostic Criteria for CRPS.  As articulated by Dr. Bettendorf, support for the CRPS diagnosis included persistent, limiting, severe upper extremity pain in a regional distribution, episodic discoloration and cold sensation, swelling in the fourth and fifth digits of the right hand, decreased right hand, arm, and shoulder range of motion, temperature difference, and visible discoloration.  She also opined that the employee’s physical findings and symptoms could not be explained by malingering or subjective complaints.  She further opined that the work injury was a substantial contributing cause of the employee’s chronic neck pain, chronic right shoulder pain, myofascial pain, and right occipital neuralgia.  Medical care to treat the employee’s diagnosed work injury, which is reasonable, necessary, and causally related, included ganglion blocks for the CRPS, trigger point injections to the right neck and upper back for myofascial pain, occipital nerve blocks for occipital neuralgia, and complementary acupuncture.  Dr. Bettendorf recommended prescriptions for cyclobenzaprine, tizanidine, gabapentin, and pregabalin.

In a subsequent report dated January 17, 2022, Dr. Bettendorf noted that she reviewed video and photographs taken of the employee by the employee’s wife, which she opined were consistent with dystonic muscle spasm of the neck and upper back and was further evidence consistent with a CRPS diagnosis.  She also noted that one of the photos, which was taken during the examination on February 26, 2020, recorded discoloration of the employee’s right hand.  Dr. Bettendorf opined that these symptoms were all consistent with a CRPS diagnosis.

Dr. Bushara also issued a subsequent report dated February 4, 2022, after having received additional medical records and the same video observed by Dr. Bettendorf.  Dr. Bushara wrote that the video revealed the employee voluntarily tilting his head to the right.  Since the video demonstrated only a voluntary movement versus involuntary neck motion, it did not support a finding that the employee was suffering from spasms, dystonia, or seizures.  He commented that Dr. Bettendorf, as a pain specialist and not a neurologist, was not qualified to diagnose dystonia.  Dr. Bushara also opined that the photographs depicting discoloration do not confirm a CRPS diagnosis because depictions of discoloration can be staged.

On April 28, 2021, the employee filed a claim petition seeking benefits due to a work incident on November 4, 2009, which resulted in a neck injury, chronic pain, occipital neuralgia, chronic scapular pain, chronic neck pain, and CRPS.  In a prior Findings and Order dated November 26, 2012, it was determined that the employee had sustained a work-related injury to his right shoulder in the nature of right scapular winging and impingement syndrome.  The employer and insurer filed an answer admitting the right shoulder injury but denying all of the other claims for benefits.

The matter was heard by a compensation judge on January 14, 2022, who issued a Findings and Order on April 26, 2022, and an Amended Findings and Order on April 27, 2022.  The compensation judge found that as a result of the November 4, 2009, work injury, the employee sustained a consequential neck injury in the nature of occipital neuralgia^[1] and cervical dystonia,^[2] and consequential CRPS of the right upper extremity related to the right shoulder and neck injuries.  The judge awarded the claimed medical care for these conditions.  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).

On appeal, the employer and insurer argue that the evidence is inadequate to support the compensation judge’s findings and orders.  The employer and insurer disagree with the credibility findings made by the compensation judge and with the inferences drawn from the evidence.

Under this court’s limited standard of review, the issue for this court to determine is whether the findings made by the compensation judge have substantial support in the record, not whether the evidence might have provided substantial support for a contrary result.  See Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (whether an appellate court might have viewed the evidence differently is not the point, “but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate”); Minn. Stat. § 176.421, subd. 1.  This court, in reviewing factual determinations, looks to whether there is substantial evidence to support the conclusion reached by the compensation judge.  If so, this court is required to affirm that determination.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.  Based on the evidence in the record, we are not persuaded by the employer and insurer’s arguments.

The employer and insurer request remand of the case asserting it was error of law for the compensation judge to make any finding on cervical dystonia because it was not listed as an issue for determination.  A “compensation judge’s decision shall include a determination of all contested issues of fact and law” but may not resolve matters that are not at issue.  See Minn. Stat. § 176.371; Carroll v. Honeywell, Inc., slip op. (W.C.C.A. Mar. 31, 1992).  Fundamental fairness requires that parties be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlements to benefits can be made.  Kulenkamp v. TimeSavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988).

The record chronicles that cervical dystonia has been an issue in the case for more than a decade.  The record further shows that the employer and insurer introduced into evidence Dr. Friedland’s reports dated October 5, 2011, and September 12, 2012, specifically opining that the employee did not suffer from cervical dystonia.  Dr. Bushara stated the same in his report dated December 21, 2021, and reiterated his opinion at his deposition on January 17, 2022.  The nature of the injury, one of the issues before the compensation judge, necessarily includes the employee’s diagnoses which in this instance included cervical dystonia.  (Finding 32.)  The employer and insurer availed themselves of the opportunity to seek multiple examinations, opinions, and testimony regarding the employee’s diagnoses and condition, or lack thereof.  As such, we find no error of law and see no reason to remand on this issue.

The employer and insurer argue that the opinions of Dr. Bettendorf lack foundation and the judge should not have admitted her reports over the objection of the employer and insurer’s counsel.^[3]  They further assert it was an abuse of discretion for the compensation judge to choose her opinion over that of Dr. D’Amato and Dr. Bushara.  These contentions are based on the history set out in Dr. Bettendorf’s report differing from her records as Dr. Bettendorf did not diagnose the employee with CRPS and contributing pain conditions on February 26, 2020.  With the absence of this initial diagnosis of CRPS, they maintain that Dr. Bettendorf’s later medical opinion that the employee suffered from CRPS lacks foundation.  Further, they assert that Dr. Bettendorf, as a pain specialist, cannot diagnose CRPS, occipital neuralgia, or dystonia, and that only neurologists such as Dr. Bushara have the requisite training, experience, and education to diagnose these conditions.^[4]  Given her lack of specific scientific knowledge and experience relating to CRPS, the employer and insurer contend that the judge erred in admitting Dr. Bettendorf’s diagnosis and causation opinion. We are not persuaded by these arguments.

The employer and insurer’s assertion that the medical and professional opinions of Dr. D’Amato, Dr. Bushara, and Dr. Friedland are superior to that of Dr. Bettendorf and other opinions in the record and should have been adopted is contrary to the discretion afforded to the compensation judge and is not supported by the facts in this matter.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  When reviewing a determination as to expert qualification, reversal occurs only if there has been a clear abuse of discretion.  Mattick v. Hy-Vee Food Stores, 898 N.W.2d 616, 621, 77 W.C.D. 617, 624 (Minn. 2017); Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 427 (Minn. 2002) (citation omitted) (internal quotation marks omitted).  “The qualifications of an expert do not usually go to the admissibility of the expert’s opinion but merely to its weight.”  Ruether v. Mankato State Univ., 455 N.W.2d 475, 477 (Minn. 1990).

Dr. Bettendorf is a board-certified anesthesiologist and pain management physician.  Her practice includes treating patients with CRPS.  She took a history from the employee and examined the employee on several occasions. She also reviewed the employee’s treatment records following the work injury including those of Dr. Sajor, Dr. Buss, Dr. Eckstrom, Dr. Ostrander, and CNP Maze, as well as reviewed Dr. D’Amato’s report. “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)).  Dr. Bettendorf’s training, experience, level of knowledge, and review of the employee’s records establishes her competence to render an expert opinion in this case.  See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130, 1132-33 (Minn. 1988).

In addition to her consideration of the medical opinions, the compensation judge also based her findings, in part, on the employee’s testimony, which she found to be credible with regard to his description of the injury, his ongoing symptoms, and his quest for answers for diagnosis and treatment of his condition.  See Reimer v. Minnit Tool/M.I.T. Tool Corp., 520 N.W.2d 397, 51 W.C.D. 153 (Minn. 1994) (a compensation judge may base her conclusions on other reliable evidence in the record beyond the medical records); see also Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989) (assessment of a witness’s credibility is the unique function of the trier of fact); see also Shayda v. Minn. Mining & Mfg. Co., 46 W.C.D. 350 (W.C.C.A. 1991), summarily aff’d (Minn. Mar. 27, 1992) (the existence of a personal injury may be established based on subjective complaints of an employee coupled with the opinion of a medical expert that the employee sustained a work-related injury or aggravation).  The compensation judge did not err in adopting the opinion of Dr. Bettendorf in finding the employee’s CRPS and associated pain conditions were causally related to the work injury.

The employer and insurer claim that the compensation judge erred by failing to sufficiently explain her findings with regard to the diagnoses of cervical dystonia and occipital neuralgia.  This court has stated that a compensation judge should “state with clarity and completeness the facts essential to the ultimate decision so that a reviewing court can determine from the record whether these facts support the judge’s decision” and “should not leave to the reviewing court the obligation to seek or spell out the facts supporting the judge’s decision or to choose between conflicting testimony and inferences.”  Mendez-Merino v. Farmstead Foods, slip op. (W.C.C.A. Aug. 7, 2001); see also Barbknecht v. Am. Disc., Inc., of Minn., slip op. (W.C.C.A. Mar. 3, 2005).  This court has remanded decisions where we have been unable to discern the basis of, or underlying facts supporting, the compensation judge’s decision.  This is not such a case.  The question on appeal is not whether there was evidence by which the judge might have reached a different conclusion, but whether there is sufficient evidence in the record to support the decision.  See Regan v. VOA Nat’l Housing, 61 W.C.D. 142 (W.C.C.A. 2000), summarily aff’d (Minn. Apr. 6, 2001) (a compensation judge is not required to refer to or discuss every piece of evidence introduced as the hearing).  The judge made sufficient findings, on all issues, for this court to review her decision and the basis for her decision was clearly articulated, and we affirm.