EVIDENCE – BURDEN OF PROOF. The compensation judge did not err in finding that the employer and insurer did not prove by a preponderance of the evidence that the employee’s work-related injury was temporary and fully resolved and in choosing to disregard the opinion of the employer and insurer’s medical expert.
Compensation Judge: Kirsten M. Marshall
Attorneys: Rick R. Larson, Rick R. Larson, P.A., Woodbury, Minnesota, for the Respondent. Tracy M. Borash, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed.
SEAN M. QUINN, Judge
The employer and insurer appeal from the compensation judge’s finding that the evidence failed to prove that the employee fully recovered from a left shoulder work injury, arguing that the compensation judge’s memorandum of law establishes that the employee sustained a permanent injury. We affirm.
The employee, Pamela Beguhl, began working as an independent living skills coach for the employer, Bridgeway to Independence, Inc., in 2018. In that role, she provided daily living services to clients, which included community engagement, transportation, and task and money management. Prior to her employment with the employer, the employee underwent treatment to her left shoulder, including a subacromial decompression and distal clavicle resection in 2005. A 2010 MRI scan showed ongoing rotator cuff pathology, without full thickness tears. In 2019, the employee complained of pain and tenderness and showed signs of positive impingement. She was diagnosed with left shoulder impingement and rotator cuff tendonitis and underwent a cortisone injection. At the time she was hired by the employer, the employee had permanent work restrictions for her left shoulder, including no reaching or lifting overhead, and no lifting below shoulder height over ten pounds. She was able to perform her job duties within these restrictions.
On September 7, 2022, the employee was entering an elevator of a client’s apartment building when she was aggressively pushed from behind by a stranger. Her head and left shoulder hit the wall of the elevator and she briefly lost consciousness. Paramedics were called and she was taken by ambulance to Woodwinds Hospital. The employee began a course of care for her left shoulder, a concussion, and associated neurological symptoms. The employer and insurer accepted liability and began paying benefits including medical care, rehabilitation, and temporary total disability (TTD) benefits. When she returned to work on a limited basis, the employee began receiving temporary partial disability (TPD) benefits.
The employee underwent an MRI scan of her left shoulder on October 24, 2022, which showed a complete tear of the rotator cuff. The employee was evaluated by Dr. Scott Pepin of Summit Orthopedics on November 15, 2022. She told Dr. Pepin that, despite her prior left shoulder condition, her left shoulder had been doing well until the work injury. She complained of pain in the left shoulder joint when reaching away from her body and when raising her arm overhead. After the examination and a review of the MRI scan, Dr. Pepin recommended a cortisone injection and physical therapy.
The employee returned to see Dr. Pepin on January 12, 2023. She described some short-term relief from the cortisone injection. Dr. Pepin recommended a platelet rich plasma injection. The employee, however, felt dismissed by Dr. Pepin and sought a second opinion.
The employee was then seen by Dr. Jonathan Cooper of Twin Cities Orthopedics on January 31, 2023. He examined the employee and reviewed the MRI scan from October 2022. He recommended that the employee attend additional physical therapy and modify some of her activities, but also discussed surgery. The employee underwent additional physical therapy and returned to see Dr. Cooper on March 14, 2023. Dr. Cooper recommended a total reverse shoulder arthroplasty.
At the request of the employer and insurer, the employee was examined by Dr. Jack Bert on June 5, 2023. Dr. Bert did not have medical records related to the employee’s prior left shoulder treatment, but only medical records following the September 7, 2022, work injury. He agreed that the employee had a rotator cuff tear and significant degenerative changes and that a total reverse shoulder arthroplasty was appropriate. He also opined that the employee required significant work restrictions of no overhead work and no lifting over ten pounds. However, he opined that the work injury was not the cause of the needed surgery or work restrictions and was a temporary aggravation which had resolved within three months.
On December 5, 2023, Dr. Cooper administered a cortisone injection and recommended additional physical therapy given that the surgery had not been approved. He opined that the employee needed work restrictions of no overhead work and no lifting over ten pounds. On May 7, 2024, Dr. Cooper again recommended the total reverse shoulder arthroplasty procedure. He also explained in his treatment note that causation for the need for left shoulder surgery was difficult to determine considering the employee’s preexisting issues with her left shoulder.
The employee was dissatisfied with Dr. Cooper and instead saw Dr. Michael Freehill of Summit Orthopedics on June 14, 2024. Dr. Freehill agreed with the other providers and examiners that the employee required a total reverse shoulder arthroplasty. In addition, he stated that the employee had a permanent aggravation of her underlying glenohumeral arthrosis with possible propagation of her underlying rotator cuff pathology.
In light of several medical experts supporting the opinion that the employee no longer suffered any lingering effects from the work injury, the employer and insurer petitioned to discontinue the employee’s workers’ compensation benefits. The petition was heard by a compensation judge on July 2, 2024. At the hearing, the employee testified that her left shoulder was “fine” before the 2022 work injury. (T. at 37.)
Following the hearing, the compensation judge issued a findings and order on August 13, 2024. The compensation judge found that the employee had recovered from the effects of the work-related concussion by June 1, 2024, and that the employee did not require restrictions or additional medical treatment for her head injury.[1] As to the employee’s left shoulder injury, however, the compensation judge found that the employer and insurer failed to prove by a preponderance of the evidence that the employee had fully recovered from the effects of the work-related left shoulder injury. In her memorandum of law, the compensation judge commented that she accepted “the opinion of Dr. Freehill regarding causation of the employee’s current left shoulder condition.” (Mem. at 12.) The compensation judge further found, however, that because the effects of the work injury did not substantially contribute to the employee’s current restrictions and wage loss, the employer and insurer had shown that they are entitled to discontinue benefits and to terminate the rehabilitation plan. The employer and insurer’s petition to discontinue benefits was granted. 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 appeal the compensation judge’s finding that the employer and insurer failed to prove that the employee had fully recovered from the effects of the work-related left shoulder injury and assert that the compensation judge, in her memorandum of law, made an implicit finding that the left shoulder injury was permanent. We are not persuaded.
The compensation judge determined that:
[T]he employee’s shoulder restrictions are identical to those as they existed prior to the work injury. Because the effects of the work injury do not substantially contribute to the employee’s current restricted capacity or resulting wage loss, the employer/insurer have shown that they are entitled to discontinue the employee’s TPD benefits and terminate the employee’s rehabilitation plan.
(Finding 66.) Based upon this conclusion, the compensation judge granted the employer and insurer’s petition to discontinue benefits. The employer and insurer do not dispute this conclusion.
In the same finding, however, the compensation judge stated:
The preponderance of the evidence fails to prove that the employee has fully recovered from the effects of her work-related left shoulder injury.
(Id.) On appeal, the employer and insurer assert that the compensation judge erred in making this finding and that substantial evidence shows that the employee’s left shoulder injury was temporary and had resolved. The employer and insurer had the burden of proof at the hearing to show that the employee’s left shoulder injury was temporary and had resolved. See Violette v. Midwest Printing, 415 N.W.2d 318, 40 W.C.D. 445 (Minn. 1987). To meet this burden, the employer and insurer submitted the expert opinion of Dr. Bert. The compensation judge did not adopt the opinion of Dr. Bert and found that the employer and insurer failed to meet their burden on that issue.
The employer and insurer assert that the compensation judge should have adopted the opinion of Dr. Bert. We disagree. Dr. Bert saw the employee on one occasion for her left shoulder, took a history from her, and conducted a physical examination. He only reviewed medical records related to treatment received after the employee’s work injury. Despite not having reviewed any medical records related to the employee’s condition and treatment prior to the work injury, Dr. Bert concluded that the employee had a long-standing left shoulder condition. He opined that the work injury was a significant aggravation of that condition, and yet had resolved within three months. Dr. Bert provided no explanation to support this determination. The compensation judge’s disregard of Dr. Bert’s opinion was within her discretion, and we affirm.
The employer and insurer also argue that the compensation judge erred by stating in her memorandum that she “accepts the opinion of Dr. Freehill regarding causation of the employee’s current left shoulder condition.” (Mem. at 12.) They contend that this statement is an implicit finding that the employee’s injury was permanent based on the chart note of Dr. Freehill, and that this finding was erroneous as his chart note does not amount to an expert medical opinion and does not have adequate foundation.
The compensation judge’s findings were limited to whether the employer and insurer had proven the employee’s left shoulder injury was temporary. She did not find the injury to be permanent. The statement in her memorandum was not a finding. Minn. Stat. § 176.135, subd. 1, provides that compensation judges are required to determine all contested issues of fact presented at the hearing and to include memorandums “only if necessary to delineate the reasons for the decision or to discuss the credibility of witnesses.” A conclusion expressed in a memorandum is not a finding of fact. See Bennetts v. United Hosp., 74 W.C.D. 587 (W.C.C.A. Feb. 18, 2014). To the extent that the compensation judge may have relied on Dr. Freehill’s opinion in making her findings, we will address the issue of foundation.
An expert’s opinion lacks adequate foundation when (1) “the opinion does not include the facts and/or data upon which the expert relied in forming the opinion,” (2) “it does not explain the basis for the opinion,” or (3) “the facts assumed by the expert in rendering the opinion are not supported by the evidence.” Hudson v. Trillium Staffing, 896 N.W.2d 536, 540, 77 W.C.D. 437, 442 (Minn. 2017) (internal citations omitted). The opinion must be based upon “enough facts to form a reasonable opinion that is not based on speculation or conjecture.” Gianotti v. Indep. Sch. Dist. No. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017) (citing Wenner v. Gulf Oil Corp., 264 N.W.2d 374, 381 (Minn. 1978)). The determination of whether an expert opinion has adequate foundation is within the discretion of the compensation judge. See Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760-61 (Minn. 1998).
The opinion of Dr. Freehill referred to by the compensation judge in her memorandum was expressed in his June 14, 2024, chart note. In that note, Dr. Freehill took a history from the employee that referred to her preexisting condition as:
[S]he has a working diagnosis of osteoarthritis in her left shoulder. She had a previous shoulder surgery in 2005. She states that her left shoulder was nonsymptomatic and doing well prior to her work comp injury on 9/7/2022. After that she has had significant difficulties with all activities regarding her left shoulder.
(Ex. N at 1350.) Later in the same note, he stated, “she appears to have had a permanent aggravation of her underlying glenohumeral arthrosis with possible propagation of her underlying rotator cuff pathology.” (Id. at 1351.) This was the first and only time Dr. Freehill treated the employee and there is no evidence that he reviewed any prior medical records other than the October 2022 MRI. The note contains no explanation for this conclusion and there is no reference to the work injury as the cause of the alleged permanent aggravation of one part of the anatomical structure of the employee’s left shoulder joint and of possible propagation of another part of the joint. We agree with the employer and insurer that Dr. Freehill lacked adequate foundation to reach his conclusion.[2]
Given the procedural circumstances of the case, the issue before the compensation judge was whether the employer and insurer could meet their burden of proof to discontinue benefits, which she decided based on her finding that the employee’s work injury did not substantially contribute to her current restricted capacity or resulting wage loss. Substantial evidence supports the judge’s finding, and we affirm.
[1] The employee’s concussion injury is not at issue on appeal.
[2] The employer and insurer argue that Dr. Freehill’s chart note does not amount to an expert medical opinion. Further, the chart note does not address causation as stated by the compensation judge. While notable, we need not address deficiencies beyond foundation.