EVIDENCE - ADMISSION; EVIDENCE - MEDICAL EXPERT OPINION. Including inadmissible witness statements in the documents reviewed by a medical expert does not preclude admission of that expert’s opinion under Minn. R. Evid. 703.
EVIDENCE - UNOPPOSED MEDICAL OPINION. Where an employee’s medical record contains substantial evidence that is contradictory to an expert opinion, the compensation judge is not obligated to treat the expert opinion as unopposed.
Compensation Judge: Kirsten M. Marshall
Attorneys: Eric S. Schwab, Fields Law Firm, Minnetonka, Minnesota, for the Appellant. Andrew Grimsrud, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Respondent.
Affirmed.
PATRICIA J. MILUN, Chief Judge
The employee appeals the compensation judge’s denial of approval for the employee’s left shoulder arthroplasty. As no error of law was made by the compensation judge and substantial evidence supports the compensation judge’s decision, we affirm.
The employee, Milton Rucker, fell on his left shoulder while using a pallet jack in September 2019. Due to continuing left shoulder symptoms, the employee underwent conservative treatment including an injection which provided relief for two weeks. The employee reported significant limitations in range of motion and rated his left shoulder pain as ten out of ten.
From April to May 25, 2020, the employee worked for FedEx unloading trucks. He also engaged in seasonal work of a similar nature for Target, which lasted about one month in December 2020. (T. 25.)
On October 28, 2020, the employee was examined by Kole A. Seiler, PA-C. The employee’s left shoulder was described as having “grossly limited active and passive range of movement in all directions.” (Ex. 7.) At a follow-up examination on November 24, 2020, the employee described no improvement. An MRI was ordered as the employee was showing “signs/symptoms of significant pathology which may require prompt surgical intervention.” (Ex. 4.)
On November 25, 2020, the employee underwent an MRI which showed marked glenohumeral joint osteoarthritis diagnosed as severe. (Ex. 3.) On December 8, 2020, the employee was examined for ongoing complaints of left shoulder instability and pain which he rated as ten out of ten. Joint injections and physical therapy were directed as well as “long term management for severe glenohumeral joint osteoarthritis and this includes a future left shoulder arthroplasty.” (Ex. 4.)
Physical therapy at Courage Kenny was ordered to address the employee’s left shoulder symptoms. On December 17, 2020, the employee was undergoing physical therapy when he described left shoulder pain with reaching in front of his body, behind his back, above shoulder level, and across his body, occurring in all parts of his left shoulder. On January 11, 2021, the employee could not perform many physical therapy exercises due to pain noted as six out of ten while resting and ten out of ten with movement. (Ex. 6.)
On December 28, 2020, the employee began working for Ramsey County, the self-insured employer, as a wellness assistant interacting with homeless people in a shelter setting. In this role, the employee assisted in stocking of food and supplies at the shelter. On February 12, 2021, the employee was unloading a truck when he caught a case of bottled water tossed by another worker. The employee described his left shoulder as being “slack” after catching the water. (T. 32.) The employee described approaching a supervisor to report an injury and being told to inform Lakeisha Weems, another supervisor, of the incident. Ms. Weems told the employee to contact human resources (HR) regarding the incident. The employee failed to do so because it “slipped his mind.” (T. 33.) The employee continued working following the incident but did not use his left shoulder or arm. The employee did not seek medical treatment that day or in the days immediately following the incident.
On February 17, 2021, the employee was examined by Randall J. Norgard, M.D., for complaints of left shoulder pain. Dr. Norgard set out the history of the employee’s left shoulder condition as follows:
[The employee] is a 48 year old male in for an evaluation of his left shoulder pain, ongoing for 10 years with no initial injury or trauma, he was then injured while incarcerated in 2019, when pulling a pallet he fell and felt a “tear” in his left shoulder. He was seen by his PCP [primary care physician] upon his release and was sent to CDI on 11/25/20 where images were obtained. His pain is located in the anterior, superior and lateral aspect of his left shoudler [sic]. Pain is exacerbated with use. He has tried physical therapy and cortisone for pain, with no relief. Numbness and tingling is [sic] present into his fingers.
(Ex. 3.) The employee did not mention a work injury on February 12, 2021. Dr. Norgard diagnosed severe left shoulder osteoarthritis and left shoulder impingement syndrome. Cortisone injections were performed that provided no pain relief. At a follow-up visit on March 24, 2021, the employee described a work injury that occurred on February 22, 2021, in which a coworker dropped a box on the employee resulting in his left shoulder giving out. On March 29, 2021, the employee underwent a left shoulder MRI which did not show any rotator cuff tear.
In March 2021, the employee contacted the HR representative for the shelter project regarding his inability to physically perform some of his duties due to a work injury. The representative told the employee that he needed to complete a first report of injury form and provide medical restrictions. The employee received restrictions on the use of his left arm. The employee’s position with the employer ended on March 18, 2021, due to the employee’s continuing inability to lift with his left arm and the employer’s inability to accommodate the restrictions.
On May 13, 2021, the employee underwent left total shoulder arthroplasty conducted by Dr. Norgard. Severe degenerative change to the rotator cuff was noted as well as eburnation of the humeral head. The surgery took longer than usual, in part due to the severity of the degenerative left shoulder arthritis encountered. The postsurgical diagnosis was glenohumeral degenerative joint disease. No evidence of a rotator cuff tear was observed during the surgery. (Ex. B.)
On March 3, 2022, Dr. Norgard provided a narrative report regarding the employee’s condition. Dr. Norgard referred to a work incident occurring on February 22, 2021, that was initially thought to be a rotator cuff tear, but no imaging evidence was found for such an injury. He opined that “assuming [the employee’s] history is correct, [the employee’s] left shoulder injury from February 22, 2021 resulted in an acceleration of his left shoulder pre-existing degenerative arthritis.” Dr. Norgard opined that this injury caused an earlier surgery than would have been required. Dr. Norgard provided a subsequent letter noting the claimed injury date of February 12, 2021, and indicating that the different date of injury did not change his opinion. (Ex. A.)
On April 21, 2022, Loren Vorlicky, M.D., completed a review of the employee’s medical record at the request of the self-insured employer. Dr. Vorlicky concluded that the employee suffered from longstanding osteoarthritis of the left shoulder unrelated to any work injury and there was no substantial contribution by any incident on February 12, 2021, to the employee’s need for shoulder surgery. (Ex. 1.)
The employee filed a claim petition against the employer seeking payment for the left shoulder arthroplasty and other benefits based on the February 2021 injury. The matter came on for hearing before a compensation judge on June 29, 2022. The compensation judge found the written statements of two witnesses, including that of Ms. Weems, inadmissible as the witnesses were not available for cross-examination. The narrative report of Dr. Norgard and the record review by Dr. Vorlicky were admitted into evidence over foundation objections.
The compensation judge found that the employee’s need for shoulder surgery arose from his preexisting shoulder condition and that the incident on February 12, 2021, did not substantially aggravate or accelerate the need for surgery, and therefore denied the employee’s claims. The employee 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 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 employee maintains that Dr. Vorlicky’s report was improperly admitted to the record because the report relied on inadmissible evidence, thereby violating Minn. R. Evid. 703. With the exclusion of Dr. Vorlicky’s report, the employee contends that the only medical opinion in the record supports the employee’s contention and therefore must be adopted. As the report at issue was properly admitted to the record and substantial evidence supports the compensation judge’s decision, we affirm.
In seeking an opinion regarding the employee’s left shoulder condition, the employer’s counsel sent a background letter to Dr. Vorlicky. Some of the background information relied on statements by the employee’s coworkers, including Ms. Weems. These statements were excluded from the evidentiary record as the coworkers were not available to testify at hearing. The employee argues that Minn. R. Evid. 703 precludes the admission of Dr. Vorlicky’s opinion, as he relied on inadmissible evidence in arriving at that conclusion.
The employee’s argument misstates the effect of Minn. R. Evid. 703. “An expert witness may rely on facts and data that would be inadmissible at trial to form an opinion, Minn. R. Evid. 703(a), but the expert may actually testify only to information that is independently admissible, Minn. R. Evid. 703(b).”[1] In this case, Dr. Vorlicky made no mention of the inadmissible statements in his opinion. The only references made in that opinion are to the employee’s medical record, which was admitted into evidence in the proceeding. The compensation judge made no error in admitting the opinion of Dr. Vorlicky to the record.
Had Dr. Vorlicky’s opinion been excluded from the record, the employee asserted that Dr. Norgard’s opinion must be adopted as an uncontested medical opinion. We disagree. The compensation judge may rely on the employee’s medical record and other evidence to reach a conclusion contrary to an unopposed medical opinion.[2] In this case, the employee was diagnosed as having a need for left shoulder arthroplasty before beginning work for the self-insured employer. The employee did not promptly report a work injury, sought medical attention several days after the claimed date of injury, did not mention any recent work injury to the treating physician, and continued working for approximately one month before seeking a work accommodation. The employee reported his pain levels as ten out of ten with movement prior to the February 12, 2021, work injury. The surgical report noted no tears in the left rotator cuff and the condition of the left shoulder was consistent with chronic, severe osteoarthritis. Substantial evidence supports the compensation judge’s conclusion that the February 12, 2021, work injury did not cause, substantially aggravate, or accelerate the need for the employee’s left shoulder arthroplasty. This evidence is sufficient support for the compensation judge’s decision, without regard to an opposing medical opinion.
As discussed above, the opinion of Dr. Vorlicky was properly included in the record. The compensation judge’s decision is supported by substantial evidence, including expert medical opinion, and we therefore affirm.