DANIEL KRUMSIEG, Employee/Appellant, v. BLOOMINGTON METRO MITSUBISHI and FARM BUREAU PROP. & CAS., Employer-Insurer/Respondents, and FAIRVIEW HEALTH SERVS. – ALL ENTITIES, N. MEM’L HEALTH CARE, BHSI, MERCY HOSP., ABBOTT N.W. HOSP., HEALTHPARTNERS, INC., and VGM d/b/a HOMELINK, Intervenors.

The employee appeals from the compensation judge’s determination that the work injury in the nature of a traumatic brain injury did not cause high cholesterol, sleep apnea, obesity, and low testosterone, and from the denial of additional permanent partial disability benefits.  The employee also appeals from the compensation judge’s decision not to impose a sanction against the employer and insurer.  We affirm.

Daniel Krumsieg, the employee, suffered a traumatic brain injury (TBI) as a result of falling off a ladder while working for Bloomington Metro Mitsubishi, the employer, on April 9, 2007.^[1]  At the time of the injury, the employee was 34 years old, and was considered “morbidly obese”^[2] with a height of five feet nine inches and weight of 280 pounds.  He had been previously diagnosed with bipolar disorder and severe obstructive sleep apnea.  The employer and insurer admitted liability, ultimately stipulated that the employee was permanently and totally disabled, and paid workers’ compensation benefits.

After the 2007 work injury, the employee’s pre-existing obesity and sleep apnea conditions worsened, and he developed type II diabetes, high cholesterol, high blood pressure, and low testosterone - all of which he attributed to the TBI.  The employer and insurer admitted liability for the employee’s previous claims for lymphedema, dental health issues, epilepsy, psychological or psychiatric care, traumatic brain injury and treatment, behavioral skills deficits, and venous insufficiency.  However, the employer and insurer disputed the employee’s claim that his diabetes, obesity, high cholesterol, high blood pressure, sleep apnea, and low testosterone conditions were related to the April 9, 2007, work injury.

The employee also claimed a permanent partial disability (PPD) rating of 95 percent^[3] plus 20 percent^[4] pursuant to Minn. R. 5223.0360 and based upon the opinion of Natalia Dorland, M.D.  The employer and insurer disputed this claim and stipulated that the employee is entitled to, and is being paid, PPD benefits for a rating of 81.568 percent.^[5]

Following the work injury, several medical professionals treated and/or offered their medical opinion regarding the relationship between the work injury and the employee’s obesity, high cholesterol, sleep apnea, and low testosterone conditions. 

Jeanne Mohler, M.D., of North Memorial Clinic opined that the employee gained significant weight as a result of long-term hospitalization and inactivity due to the TBI.  Because of the weight gain, Dr. Mohler reasoned, the employee developed hypertension, type II diabetes, hyperlipidemia, bipolar disorder, and hypogonadism.  She opined that the employee’s medical treatment for these conditions was due to his work-related TBI.

Endocrinologist Kevin Sheridan, M.D., determined that the employee’s obesity was not related to his TBI.  The employee had a Body Mass Index indicating that he was morbidly obese prior to the work injury.  Bonnie Warhol, M.D., of Courage Center agreed with Dr. Sheridan that the endocrinologic issues were not related to the work injury.

Physical Medicine and Rehabilitation specialist Ronald Bateman, D.O., P.A., noted that the employee had impulse control issues, but that his cognitive abilities appeared intact.  Dr. Bateman reported that, prior to the work injury, the employee had a family history of diabetes, a low testosterone level, and obesity.  He opined that the diagnoses of diabetes, obesity, high blood pressure, and hypogonadism were not clearly related to the TBI.

Dr. Dorland, a neurologist who began treating the employee after he was hospitalized for a seizure in 2017, opined that the employee had gained weight because he was unable to regulate his food intake. 

Neurologist and psychiatrist Joseph Burgarino, M.D., examined the employee on behalf of the employer and insurer.  Dr. Burgarino conducted a medical history, performed a neurological and neurovascular examination, and examined the employee’s range of motion, cerebellar function, and reflexes.  He reviewed multiple medical records and opined that the employee’s obesity was not related to the work injury.  He explained that obesity was overdetermined, that there were many reasons why people gained and lost weight, and that he found no reference directly relating the employee’s weight gain to the work injury.

Dr. Dorland reported that before the injury, the employee had a history of depression and obesity, but no history of diabetes, high cholesterol, or hypertension.  She noted that the employee suffered from a lack of impulse control and was unable to regulate his food intake, causing his weight gain.  

Dr. Burgarino opined that he was confident within a reasonable degree of medical certainty that there is no neuropathophysiological basis to associate the employee’s high cholesterol to the employee’s TBI.  (Ex. 31.)

Dr. Dorland noted that after the work-related TBI, the employee had developed central sleep apnea superimposed on his prior obstructive sleep apnea.  She diagnosed the employee with a major neurocognitive disorder, due to the work injury, which severely impaired the employee’s judgment.

Sleep specialist Jason Cornelius, M.D., did not indicate that the employee’s sleep apnea was impacted or substantially aggravated by the work-related TBI.  (Joint Ex. 8.)

Dr. Burgarino also found no relationship between the employee’s sleep apnea and the work injury.  He reasoned that sleep apnea was caused by many factors and was not substantially and directly related to the work injury.

Urologist Dean Tortorelis, M.D., evaluated the employee for hypotestosteronemia.  He was unable to definitively link the hypotestosteronemia to the employee’s work injury.

Dr. Burgarino opined that he could not associate the employee’s low testosterone condition with the TBI.  (Ex. 31.)

The employee filed a claim petition on October 15, 2019, alleging an underpayment of permanent total disability benefits, and claiming entitlement to additional PPD benefits and payment of medical benefits for the alleged consequential injuries.

The matter was heard before a compensation judge on June 4, 2024.  At the hearing, the parties stipulated that the employer and insurer had issued payment of PPD benefits for 56.2 percent in 2014 and that weekly PPD benefit payments had been made to the employee since June 29, 2023, ongoing until 81.568 percent has been paid.  The compensation judge found that the employee’s diabetes and high blood pressure were causally related to the work injury, but that the employee’s obesity, high cholesterol, sleep apnea, and low testosterone conditions were not.  The compensation judge denied the employee’s claims for additional PPD benefits and penalties.  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 involve 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 employee argues that the compensation judge erred in finding that the employee failed to prove that his obesity, high cholesterol, sleep apnea, and low testosterone conditions were causally related to the work injury.  He also argues that the compensation judge erred in admitting and adopting Dr. Burgarino’s opinion, which he claims lacks foundation.  The employee also argues that the compensation judge erred in not imposing a sanction against the employer and insurer for alleged spoliation of evidence with respect to Dr. Burgarino’s destroyed notes.  Finally, the employee argues that the compensation judge erred in denying additional PPD benefits, asserting that the qualifiers under Minn. R. 5223.0360, subp. 7, were met regarding the extent of the employee’s need for assistance and supervision of his activities of daily living.  We are not persuaded.

Fundamental to the employee’s medical causation argument is that consequential injuries are compensable under the Workers’ Compensation Act.  Eide v. Whirlpool Seeger Corp., 109 N.W.2d 47, 21 W.C.D. 437 (Minn. 1961).  The general rule is that “every natural consequence that flows from the injury” is compensable.  Peterson v. City of Minneapolis, No. WC23-6527 (W.C.C.A. June 28, 2024).  However, the employee has the burden of proving that the work injury is a substantial contributing factor.  Here, the compensation judge concluded that the employee failed to meet that burden.

The compensation judge found that the employee did not prove by a preponderance of the evidence that the work-related TBI was a substantial contributing factor to his obesity, high cholesterol, sleep apnea, and low testosterone conditions.  She weighed the opinions of multiple medical experts.  She found that Dr. Dorland related the weight gain to the inability to regulate food intake and found that Dr. Mohler believed that the three months of hospitalization and inactivity led to weight gain.  However, the compensation judge adopted the opinions of four other medical experts, Dr. Bateman, Dr. Sheridan, Dr. Warhol, and Dr. Burgarino - who did not relate the weight gain to the work injury.  The compensation judge found that the employee was obese before the injury and reasonably concluded that the obesity was not causally related to the work injury.

The compensation judge also found that employee did not meet his burden of proving that the high cholesterol was causally related to the work injury.  High cholesterol was diagnosed in 2010, but there was no explanation as to its relationship to the work injury.  The compensation judge adopted the opinions of Dr. Bateman, Dr. Sheridan, Dr. Warhol, and Dr. Burgarino, who did not find a causal connection. 

The employee claimed that his pre-existing sleep apnea was aggravated by the work injury.  He relied on Dr. Dorland’s opinion that the employee had developed central sleep apnea superimposed on his prior obstructive sleep apnea.  However, the compensation judge adopted the medical opinions of Dr. Burgarino and Dr. Cornelius who did not draw a causal link between the pre-existing sleep apnea and the work-related TBI.

Likewise, the judge determined that the employee’s claim that his low testosterone was related to the work injury was not supported by a preponderance of the evidence.  The medical expert opinion from the treating urologist and from Dr. Burgarino did not support the causal connection.  There is a paucity of evidence that the work-related TBI was a substantial contributing factor to low testosterone.  Therefore, it was reasonable for the judge to reject the causal connection. 

Where, in the context of the record as a whole, the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate, we must affirm.  Lagasse v. Horton, 982 N.W.2d 189, 201 (Minn. 2022).  We therefore affirm the compensation judge’s findings that the work-related TBI was not a substantial contributing factor to the employee’s obesity, high cholesterol, sleep apnea, and low testosterone.

The employee also argues on appeal that Dr. Burgarino lacked the necessary foundation on which to base his opinion, such that the compensation judge erred in adopting Dr. Burgarino’s opinion.  We disagree.

We acknowledge that a compensation judge’s choice among conflicting expert opinions must be upheld unless the opinion lacked adequate factual foundation.  Nord v. City of Cook, 360 N.W.2d 337, 342-43 (Minn. 1985).  An expert 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 an opinion are not supported by the evidence.”  Hudson v. Trillium Staffing, 896 N.W.2d 536, 540 (Minn. 2017) (internal citations omitted).  The opinion need only be based on “enough facts to form a reasonable opinion that is not based on speculation or conjecture.”  Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802 (Minn. 2017).

Here, Dr. Burgarino’s opinion was based on enough facts to form a reasonable opinion that is not based on speculation or conjecture.  Dr. Burgarino reviewed extensive medical records, conducted an examination of the employee, and took a medical history from the employee’s spouse.  He underwent scrutiny of his opinions when questioned during his deposition under oath, and demonstrated in his testimony and narrative reports his knowledge of the essential facts of the case.  Based on the record, Dr. Burgarino had the necessary foundation upon which to base his opinion under the Hudson and Gianotti standard.

The employee also maintains that evidence was destroyed during litigation and this spoilation of evidence requires a reversal of the compensation judge’s decision.  Dr. Burgarino admitted to destroying the notes he wrote in the course of his examination of the employee, as well as the draft reports written before the final report was edited by non-medical staff employed by the medical expert firm.  The compensation judge denied the employee’s motion to draw a negative inference from Dr. Burgarino’s destruction of notes.  According to the employee, this “essentially authoriz[es] IME doctors to destroy their contemporaneous records and base their opinions on half of a worker’s medical record,” which “violates the most basic concepts of fairness in litigation and ignores the prejudice suffered by [the employee].”  (App. Brief at 22.)  We are not persuaded.

Spoliation of evidence is the destruction of evidence by a party which affords an evidentiary advantage to the party alleged to have destroyed the evidence.  Himes v. Woodings-Verona Tool Works, Inc., 565 N.W.2d 469, 471 (Minn. Ct. App. 1997).  As the compensation judge noted, the employee cites no authority requiring a medical expert to retain all notes used in formulating an opinion.  There is no duty to do so under the Workers’ Compensation Act.  See Minn. Stat. § 176.155.  The employee did not make an adequate showing as to how the medical expert’s work product was relevant or how its destruction was prejudicial.  The compensation judge declined to impose the sanction pursuant to Minn. R. 1420.3700, that was requested by the employee.  We conclude that the compensation judge did not abuse her discretion in denying the employee’s motion, and affirm.  See Whitaker v. Walmart, Inc., No. WC21-6439 (W.C.C.A. Mar. 23, 2022).

Finally, the employee argues that the judge erred in denying his claim for a 95 percent PPD rating, plus 20 percent for epilepsy, combined for a rating of 96 percent.  The employer and insurer do not dispute that the 20 percent PPD rating for the epilepsy condition was work-related and have included that rating in ongoing PPD benefit payments.

With respect to the 95 percent rating under Minn. R. 5223.0360, subp. 7C(5), the compensation judge found that the employee failed to meet his burden of proof.  She reasoned that the employee’s condition had deteriorated since his Parkinson’s diagnosis which was not claimed as a work injury, and which has caused some loss of motor function in eating and dressing.  She noted that the employee may need occasional assistance with eating and dressing, but that this did not rise to the level of requiring assistance with all activities of daily living as Minn. R. 5223.0360, subp. 7, requires.^[6]  Characterizing the opinion of Dr. Dorland as “ill-supported,” the compensation judge denied additional permanency based on the the employee’s current ability to perform some of his activities of daily living without assistance, and because his Parkinson’s had not been definitively linked to his work-related TBI.  (Mem. at 16.)

The employee argues that the compensation judge incorrectly stated that the employee has a diagnosis of Parkinson’s disease, while Dr. Dorland diagnosed “Parkinsonism,” which is caused by head trauma.  The employee acknowledges that Dr. Burgarino considered the correct diagnosis.  The compensation judge adopted Dr. Burgarino’s opinion, and therefore, we cannot say that this distinction is of consequence.  Based on an examination of the employee, a review of medical records, and the deposition testimony of the employee’s wife describing the employee’s ADLs, Dr. Burgarino opined that the employee’s condition did not rise to the level of a 95 percent PPD rating.

The employee argues that Dr. Burgarino did not correctly analyze the rule as intended, and that the employee does not need to show total or significant assistance for ADLs to qualify for the 95 percent PPD rating.  We disagree.  The spouse’s testimony did not support significant assistance in ADLs.  She testified that the employee could talk and listen, read, walk and climb stairs, sleep through the night on his own, use the bathroom by himself, and shower by himself, if reminded to use soap.  She testified that he is able to put on his clothes.  He volunteers at Global Health Ministries and participates at the RISE program.  He is able to operate a mobile phone and went on a cruise vacation.  Moreover, the compensation judge reviewed the expert medical opinions and determined that Dr. Burgarino’s opinion was more persuasive than that of Dr. Dorland, which she determined was not well supported by the record.  The issue of PPD ratings is one of ultimate fact and the findings of the compensation judge must be affirmed if supported by substantial evidence.  Jacobowitch v. Bell & Howell, 404 N.W.2d 270 (Minn. 1987).  It was reasonable for the compensation judge to conclude that the employee did not meet his burden in proving entitlement to the 95 percent PPD rating and we affirm.