CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence, including medical records and expert medical opinion, supported the compensation judge’s determinations that the employee did not sustain a left shoulder injury, and as to the nature and extent of the employee’s back injury.
Compensation Judge: Stacy P. Bouman
Attorneys: Pro Se Employee, Appellant. Kenneth D. Nelson, Law Offices of Stacy Bert Walker, Chicago, Illinois, for the Respondents.
Affirmed.
KATHRYN H. CARLSON, Judge
This matter comes before the court on the pro se employee’s appeal from the Findings and Order of the Compensation Judge that he did not sustain an injury to his left shoulder on the date of injury, that his admitted lumbar spine injury has resolved, and that he is not entitled to claimed wage loss benefits. We affirm.
The employee cleaned rental vehicles for the employer for over sixteen years and also served as a union steward. He sustained an admitted injury to his low back on August 14, 2019, when he slipped between the front and back seats while vacuuming an SUV. After struggling to get out, he reported the injury to the Director of Operations. At the instruction of the employer, a co-worker drove the employee to the emergency department at Fairview Southdale Hospital. The employee reported back pain. After an examination, he was diagnosed with acute left-sided thoracic back pain and was discharged with Robaxin and ibuprofen. (Ex. 3.) The First Report of Injury describes the injury as a low back strain which occurred while bending. (Ex. 2.)
The employee attended a follow-up appointment at Park Nicollet Medical Center on August 16, 2019, and reported left-sided low back pain with left-sided sciatica. (Ex. 6.) On examination, his extremities were assessed as normal and he exhibited normal range of motion in all joints without tenderness. He was released to return to work with restrictions. (Ex. 6.) On August 23, 2019, the employee was seen at Concentra. He reported left-sided mid-back pain with some radiation to the left buttock. He was referred to physical therapy and had several therapy sessions at Concentra without improvement. (Ex. 4a.) On September 24, 2019, he was seen at HealthPartners, and the employee reported tenderness over the right paraspinal muscles in the lumbar spine. (Ex. 6.)
Due to ongoing symptoms, Dr. Gary Johnson at Concentra referred the employee to Physicians Diagnostic and Rehabilitation (PDR) on October 22, 2019. At the employee’s first visit to PDR on October 25, 2019, he reported pain in his neck, low back and mid back. On neurological exam, the employee was assessed as normal. A cervical and lumbar strengthening program was recommended. (Ex. C.) On October 28, 2019, the employee completed an Owestry Low Back Disability Questionnaire and scored a 63 percent, indicating that he perceived himself as crippled. (Id.) The employee continued physical therapy at PDR through March 2020.
On March 6, 2020, Dr. Johnson assessed the employee as normal on neurological examination. (Ex. 4.) The employee continued working full time for the employer until March 24, 2020, when he was laid off along with 110 other employees due to a reduction in business as a result of the COVID-19 pandemic. (T. 21, 119.) The employee was called back to work twice, in May and in June of 2020, but could not return to work as he had tested positive for COVID-19 on both occasions. (T. 123.) When the employee recovered from COVID-19 there was no longer a position available. In April 2021, the employer recalled its staff to work, including the employee, but they were not then able to accommodate the employee’s restrictions. (T. 125.)
The employee was seen at HealthPartners on April 21, 2021. In addition to reporting mid- to low-back pain and left-sided sciatica, the employee also reported injuring his left shoulder “due to a fall a few weeks prior.” (Ex. 6.) An x-ray was taken of the left shoulder and he was referred to physical therapy. At a subsequent visit, Dr. Jennifer Brooks noted that the employee’s shoulder condition did not appear to be related to his original back injury. (Exs. 6, A.) The employee underwent additional physical therapy from April through September 2021. (Ex. B.)
On July 23, 2021, Dr. Brooks noted that the employee had made little to no progress with regard to his mid and low back in the nearly two years since his injury despite several months of physical therapy. She ordered thoracic and lumbar MRIs. (Ex. 6.A.)
On November 19, 2021, Dr. Ross Paskoff examined the employee who reported left shoulder pain since a fall two years ago when working for a car rental company. Dr. Paskoff diagnosed a rotator cuff strain but expressed concern over a possible rotator cuff tear and subacromial bursitis of the left shoulder. Dr. Paskoff recommended an open-sided MRI of the left shoulder. (Ex. B.) As of the date of hearing, the employee had not undergone a left shoulder, thoracic or lumbar MRI. In April 2022, Dr. Brooks indicated that she could not continue work restrictions due to the lack of objective evidence that the employee was unable to perform his job. (Ex. A.)
Dr. Wicklund conducted an independent medical examination of the employee on behalf of the employer and insurer. Dr. Wicklund reviewed medical records, took the employee’s history and performed an examination. In his report issued November 23, 2022, Dr. Wicklund opined that the employee had no objective findings with regard to his thoracic spine, lumbar spine, or lower extremities. He diagnosed the employee with subjective back pain and numbness in his left leg without objective findings and with resolved thoracic pain. He opined that medical and/or chiropractic treatment for three months following the injury was reasonable, that the employee had reached maximum medical improvement by November 14, 2019, that the employee did not sustain any permanency as a result of his work injury, and that he did not need any further medical care or restrictions on his activities. (Ex. 1.)
Dr. Wicklund issued a supplemental report on June 21, 2023, after having reviewed additional records from before and after the date of injury, diagnostic imaging reports, and an accident report from 2012. In this report, Dr. Wicklund stated that his prior opinions regarding the employee had not changed. He also noted that the employee had not mentioned a left shoulder injury at the time of his examination on October 28, 2022. He opined that the employee did not sustain a left shoulder injury on August 14, 2019, pointing out that there is no mention of a left shoulder injury until several years after that claimed injury. (Ex. 1.)
The employee testified that he spoke to an Ombudsman at the Department of Labor and Industry and, upon their recommendation, looked for employment within his restrictions. He did not present job logs or other documentary evidence of a job search. He testified that he began working as a driver for Uber in August of 2022. (T. 84.)
The employee had a prior admitted work injury involving a burn to his right leg on May 25, 2012. He had also claimed consequential injuries to his head, neck, back, shoulders and upper extremities as a result of a motor vehicle accident that occurred while driving to a medical appointment related to the May 25, 2012, work injury. Those claims were settled by way of a Stipulation for Settlement and Award on Stipulation. (Ex. 12.) The employee testified that he believed the settlement was only for the lower extremity injury. (T. 102.)
The employee filed a claim petition seeking benefits related to a low back and left shoulder injury occurring on August 14, 2019, including wage loss benefits from March 24, 2020, through September 1, 2022, and payment of medical bills. The matter came before a compensation judge for hearing on May 1, 2024. The employee appeared pro se. The compensation judge found that the preponderance of the evidence failed to support a finding that the employee sustained left leg radiculopathy or an injury to the left shoulder arising out of and in the course and scope of his employment on August 14, 2019. The judge also found that the admitted mid- to low-back strain resolved no later than November 14, 2019. The claim for wage loss benefits was denied, as was the claim for payment of medical expenses. The pro se 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).
This matter comes before the court on the pro se employee’s appeal from the Findings and Order of the compensation judge. The employee did not file a formal appeal brief setting out the issues to be determined in this matter. In correspondence to the Office of Administrative Hearings dated October 29, 2024, the employee stated that he is not satisfied with the compensation judge’s decision. We note that pro se parties should be granted deference in litigation, and as the employee’s letter is adequate to identify his objections, we will review the issues decided by the compensation judge. Berge v. Jennie-O Foods, 47 W.C.D. 438 (W.C.C.A. 1992), summarily aff’d, (Minn. 1992); see LaPointe v. State of Minn., Dep’t of Admin., 39 W.C.D. 789 (W.C.C.A. 1986).
The compensation judge found that a preponderance of the evidence failed to support a finding that the employee sustained a left shoulder injury arising out of and in the course and scope of his employment on August 14, 2019. In making that finding, the compensation judge considered the contemporaneous medical records. The employee saw several medical providers, both medical doctors and physical therapists, and had numerous medical appointments, yet there is no mention of left shoulder symptoms until April 2021. Given the extent of medical treatment before April 2021 and that no shoulder issues were discussed, the compensation judge found that the employee’s testimony regarding his shoulder injury was unreliable. The assessment of a witness’s testimony is the unique province of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989).
The compensation judge also considered and adopted the expert medical opinion of Dr. Wicklund, who opined that the employee did not sustain an injury to his left shoulder on August 14, 2019. The compensation judge, as trier of fact, has discretion to choose between competing and conflicting medical experts’ reports and opinions. Ruether v. State of Minn., 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1122 (Minn. 1990); Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985); 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 (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)). In this case, Dr. Wicklund had adequate factual foundation for his opinions. As such, the compensation judge did not abuse her discretion by adopting those opinions. We affirm the determinations regarding the employee’s left shoulder.
The compensation judge found that the preponderance of the evidence supports a finding that the employee sustained a temporary mid- to low-back strain on August 14, 2019, which resolved no later than November 14, 2019, and that the injury did not include left leg radiculopathy. In her memorandum, the compensation judge discusses the contemporaneous medical records showing that the employee was diagnosed with a myofascial thoracic and/or lumbar strain, that only conservative care was recommended (specifically, physical therapy, as his symptoms did not warrant additional treatment). She also noted that the employee was able to return to work full time two days after the injury. The employee continued to work full time until he was laid off for economic reasons in March 2020. Although the employee continued to receive medical treatment for his subjective symptoms, his treating physicians eventually declined to provide him with work restrictions based solely on his subjective complaints.
Dr. Wicklund diagnosed the employee with subjective low back pain and numbness in his left leg without objective findings and with resolved thoracic pain. After performing an examination, taking the employee’s history, and reviewing medical records from numerous providers, Dr. Wicklund opined that the employee sustained only a temporary thoracic strain on August 14, 2019, that resolved by November 14, 2019. The compensation judge adopted the opinions of Dr. Wicklund. Again, as the expert medical opinion is based upon an adequate factual foundation, this court will not disturb the compensation judge’s finding in that regard. We affirm the compensation judge’s determinations.
[1] A physical therapy note from April 12, 2021, states that the employee complained of pain in his left leg and left arm, left side of neck and left side of low back. Those complaints continued through his course of physical therapy which ended on September 2, 2021. (Ex. 6.)
[2] The employee attempted a left shoulder MRI on October 8, 2021, but had to terminate the procedure due to claustrophobia. (Ex. 6.)