ROGER WICAL, Employee/Appellant, v. CLEVELAND CLIFFS, f/k/a INLAND STEEL MINING, Self-Insured Employer/Respondent, admin’d by GALLAGHER BASSETT.

The employee appeals the compensation judge’s denial of his claim for consequential injuries to his thoracic and lumbar spine with related permanent partial disability benefits.  We affirm.

The employee, Roger Wical, suffered an admitted low back injury on October 7, 1985, when pulling an air hose while working for the self-insured employer, Inland Steel Mining Company, now known as Cleveland Cliffs.  The employee received wage loss and medical benefits as a result of the work injury.  He was seen by Dr. Richard F. Galbraith for an independent medical examination at the employer’s request on February 9, 1993.  Dr. Galbraith diagnosed the employee with a herniated disc at L5-S1 on the left, rated him at 14 percent permanent partial disability (PPD) pursuant to Minn. R. 5223.0070, subp. 1.B(1)(b),^[1] and assigned a permanent lifting restriction of no more than 20 pounds.

In 1994, the parties entered into a stipulation for settlement, agreeing that the employee had sustained an injury to his low back on October 7, 1985, which arose out of and in the course of his employment, that he had been permanently and totally disabled since July 16, 1990, and that he was due 14 percent PPD benefits.  The parties agreed to close out wage loss benefits and left future medical benefits open.  An award on stipulation was served and filed on July 13, 1994.

Over the years, the employee continued to seek treatment for his low back condition.  In April 2001, the employee underwent a left L4-5 laminectomy and discectomies at L4-5 and L5-S1.  He underwent surgery again in May 2001 to repair a pseudomeningocele and a recurrent left L4-5 herniated disc.  A third L4-5 microdiscectomy was performed in December 2001 for the recurrent disc herniation at L4-5.  In a May 2003 impairment rating evaluation report, Dr. Wayne J. Anderson found the employee had reached maximum medical improvement and assigned 15 percent PPD under Minn. R. 5223.0070, subp. 1.B(2)(d) and 3.25 percent pursuant to Minn. R. 5223.0160, subp. 1.P and subp. 2.  Given the prior 14 percent PPD benefit payment and the application of the combined ratings formula, the employee was paid an additional 3.7 percent PPD benefit based upon Dr. Anderson’s ratings.

In November 2007, an MRI scan of the employee’s lumbar spine revealed dehydration and degeneration at L2-3 and L3-4, left greater than right facet joint disease at L4-5 with post-surgical changes, and considerable scar formation from prior surgery at L5-S1 with no nerve root impingement identified.  In 2011, the employee aggravated his low back when he jumped to avoid a rattlesnake.  An MRI scan taken after that event revealed a L3-4 disc protrusion which had not been present on scans taken after the employee’s 2001 surgeries.  Another MRI scan on October 25, 2017, demonstrated moderate, diffuse lumbar spondylosis, disc protrusion at L5-S1, bulging disc at L4-5, paracentral disc protrusion at L3-4 with foraminal narrowing right greater than left, facet arthropathy at L2-3, and bulging disc with foraminal narrowing at L1-2.

In 2018, the employee moved to a farm in Colorado, where he lived for five years.  He testified at the hearing that he hired people to do the physical work on the farm.  On February 21, 2018, the employee was seen by Dr. Scott Stanley at Centra Health for lumbar back pain and left lower extremity radiculopathy.  Lumbar x-rays indicated severe degenerative disc disease (DDD) at L5-S1, moderate DDD at L2-5, and spondylolisthesis at L3-4.  Dr. Stanley opined that the employee’s symptoms were related to severe stenosis at L3-4 and recommended a L3 laminectomy, which he performed on March 26, 2018.  Dr. Stanley’s pre- and post-operative diagnoses included L3-4 stenosis and bilateral lower extremity radiculopathy.

On November 4, 2020, the employee fell while chasing a chicken and suffered a complete tear of his right hamstring tendon.  He was treated at the emergency department at Arkansas Valley Regional Medical Center in La Junta, Colorado, and was admitted overnight.  No surgery was recommended at that time.  In June 2021, the employee was seen at Centura Health after experiencing three days of acute back pain and difficulty walking while working on his farm.  MRI scans of the employee’s thoracic and lumbar spine were completed on June 25, 2021, and revealed a large right paracentral disc extrusion at T10-11 causing acute spinal cord compression and a disc osteophyte complex causing moderate to severe central canal stenosis at L2-3 and L3-4.  Based upon the scan findings, the employee underwent a T10-11 right microdiscectomy with a posterior lumbar fusion at L2 to L4 performed by Dr. Stanley on June 29, 2021.  A May 6, 2022, CT scan showed postsurgical changes at L2-3 and L3-4, disc bulge at L4-5, and disc osteophyte protrusion at L5-S1, as well as multilevel DDD, facet arthrosis, and foraminal stenosis.

Dr. Robert Wengler performed an independent medical examination on behalf of the employee on May 18, 2022, issuing a report on the same day and a supplemental report on December 12, 2022.  According to the history provided to Dr. Wengler, the employee continued to have lower extremity numbness and radicular symptoms after the surgeries in 2001.  Dr. Wengler opined that the employee’s T10-11, L2-3, and L3-4 conditions were a consequence of the employee’s 1985 lumbar spine injury because that area was adjacent to the previous surgery site and was subject to deterioration and herniation due to the surgery.  He rated the employee as having five percent PPD pursuant to Minn. R. 5223.0070, subp. 3.B(2)(a), for the T10-11 herniation; 20 percent pursuant to Minn. R. 5223.0070, subp. 1.B(2)(d) and (3), for a herniated intervertebral disc at a single level treated with multiple operations with poor results and recurrent herniated disc treated with surgery; 23 percent pursuant to Minn. R. 5223.0070, subp. 1.C(2), for severe stenosis and microdiscectomy surgery at multiple levels; 22.5 percent pursuant to Minn. R. 5223.0070, subp. 1.D, for fusion surgery at L2 to L4; and 13 percent pursuant to Minn. R. 5223.0160, subp. 1.P, for total loss of sensation and function of the L5 nerve root.^[2]

At the request of the employer, the employee underwent an independent medical examination by Dr. William Simonet on July 25, 2023.  Dr. Simonet examined the employee, took a history, and reviewed his medical records, including Dr. Wengler’s May 18, 2022, report.  The employee stated that his leg pain improved after the surgeries in 2001, but his back pain continued, and that the surgeries in 2018 and 2021 provided some improvement and pain relief.  Dr. Simonet opined that the employee’s 1985 work injury only involved the L5-S1 and L4-5 discs and did not cause his T10-11, L2-3, and L3-4 conditions.  Instead, those conditions were caused by age-appropriate multilevel degenerative disc disease which had been accelerated by his chronic morbid obesity, deconditioning syndrome, history of cigarette smoking, and diabetes.  Dr. Simonet also stated that additional traumas experienced by the employee years after the work injury would be consistent with the thoracic disc herniation and further opined that following the 2001 work-related surgeries, the employee had 20 percent PPD of the lumbar pursuant to Minn. R. 5223.0070, subp. 1.B(2)(d) and (3) and 3.25 percent PPD for left foot weakness resulting from partial loss of motor function pursuant to Minn. R. 5223.0160, subp. 1.P and subp. 2, not 13 percent for complete loss of motor function as rated by Dr. Wengler.  Dr. Simonet also disagreed with Dr. Wengler’s ratings for any additional PPD to the employee’s thoracic and lumbar spine because the discs rated by Dr. Wengler were not adjacent to the L5-S1 and L4-5 discs injured in 1985 and the previous surgeries on those discs were not fusion procedures.

In September 2024, the employee was seen by Dr. Heather Preuss at Monument Health Family Practice for a Medicare wellness examination.  At the assessment, the employee complained of chronic low back pain with bilateral sciatica.  X-rays of the employee’s lumbar spine demonstrated multilevel degenerative spondylosis, prior fusion and decompression at L2 to L4, and prominent diffuse idiopathic skeletal hyperostosis (DISH).  Dr. Preuss defined DISH as a noninflammatory condition that can cause abnormal calcification and bone formation in the soft tissues around the spine and other joints, which increases pain symptoms and decreases movement.  Based upon her examination of the employee, Dr. Preuss’s diagnoses included chronic back pain with bilateral sciatica, chronic thoracic pain, DISH, and peripheral vascular disease.

The employee filed a claim petition which came on for hearing before a compensation judge on November 22, 2024.  In Findings and Order issued on December 20, 2024, the compensation judge found that the employee’s 1985 work injury substantially contributed to his herniated discs at L4-5 and L5-S1.  The judge also found the opinions of Dr. Simonet more persuasive than those of Dr. Wengler and determined that the employee failed to prove his conditions at T10-11, L2-3, and L3-4 and his need for the 2021 surgeries were substantially related to, or a consequence of, the 1985 work injury.  Based upon the medical opinions of Dr. Simonet and Dr. Anderson, the compensation judge found that the employee was entitled to permanency benefits, including 20 percent PPD for his lumbar spine injury and 3.25 percent PPD for his left foot weakness, resulting in a combined PPD rating of 22.6 percent per Minn. R. 5223.0010, subp. 2, for his 1985 work injury, less the PPD benefits previously paid.  The employee appeals, asserting the compensation judge’s denial of his claim for additional PPD related to the claimed consequential injuries was clearly erroneous and not supported by substantial evidence.^[3]

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).  When the findings are supported by substantial evidence, the Workers’ Compensation Court of Appeals must defer to the compensation judge. Lagasse v. Horton, 982 N.W.2d 189, 202 (Minn. 2022).  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); see also Smith v. Carver Cnty., 931 N.W. 2d 390, 79 W.C.D. 495 (Minn. 2019).

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); see also Busch v. Advanced Maint., 659 N.W.2d 772, 778-79 (Minn. 2003).

The employee argues that the compensation judge erred in finding that he failed to prove that his T10-11, L2-3, and L3-4 conditions were consequential to the 1985 work injury and in denying his claim for additional PPD benefits related to those conditions.

The Minnesota Supreme Court has established that consequential injuries are compensable.  Eide v. Whirlpool Seeger Co., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961).  The general rule is that when a primary injury is compensable, a natural consequence flowing from the injury is compensable.  Id.; see also Wallace v. Judd Brown Constr. Co., 269 Minn. 455, 131 N.W.2d 540, 23 W.C.D. 362 (1964); Gerhardt v. Welch, 267 Minn. 206, 125 N.W.2d 721, 23 W.C.D. 108 (1964).  The employee has the burden of proving that the work injury is a substantial contributing factor of the subsequent injury.  See, e.g., Fisher v. Saga Corp., 463 N.W.2d 501, 501, 43 W.C.D. 559, 560 (Minn. 1990) (the employee bears the burden of proving entitlement to workers’ compensation benefits by a preponderance of the evidence).

The employee argues that the opinions of Dr. Wengler satisfy his burden of proof.  The question before this court, however, is not whether the evidence might have supported a contrary finding, but whether the determination made by the compensation judge was adequately supported by the record.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.  “Where two opposing inferences can be drawn with equal justification from the same circumstantial evidence, it cannot be said that one preponderates over the other, and in that event the party having the burden of proof must lose.”  Dille v. Knox Lumber/Div. of Sw. Forest, 452 N.W.2d 679, 681, 42 W.C.D. 819, 823 (Minn. 1990). It is not the role of this court to make its own evaluation of the credibility or probative value of conflicting testimony or to choose different inferences than those of the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990).

The compensation judge’s choice among conflicting expert medical opinions must be upheld unless the opinions lack adequate factual foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  An expert’s opinion is required to 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, 77 W.C.D. 117 (Minn. 2017).  In this case, Dr. Wengler offered the opinion that the employee’s thoracic and lumbar degeneration and herniations were causally related to the employee’s 1985 work injury.  This opinion was contradicted by Dr. Preuss’s diagnosis of DISH after the issuance of Dr. Wengler’s opinion.  Further, the adequately founded medical opinions of Dr. Simonet provided persuasive and plausible explanations that the employee’s claimed thoracic and lumbar conditions were not causally related to his work injury because the additional surgeries were not adjacent to the 2001 surgeries at L4-5 and L5-S1, the 2001 surgeries were not fusions placing additional stress at those levels, and the conditions were age related and caused by natural degeneration.

The compensation judge reviewed and weighed the expert medical opinions and found the opinions of Dr. Simonet and Dr. Anderson persuasive.  The DISH diagnosis of Dr. Preuss and the opinions of Dr. Simonet provide substantial evidence supporting the compensation judge’s determination that the employee did not meet his burden of proof that he had sustained consequential injuries to his thoracic and lumbar spine, and we affirm.  See Nord, 360 N.W.2d at 342, 37 W.C.D. at 371.

The employee also argues on appeal that the compensation judge erred by denying his claim for additional PPD benefits.  The determination 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, 39 W.C.D. 771 (Minn. 1987).  The compensation judge awarded PPD benefits to the employee based upon a 20 percent PPD rating for the lumbar spine injury and a 3.25 percent PPD rating for his left foot weakness, resulting in a combined PPD rating of 22.6 percent for his 1985 work injury, less PPD benefits previously paid by the employer.

The compensation judge reviewed the medical evidence and analyzed the medical reports at length in her memorandum of law.  Choosing between the expert medical opinions submitted at the hearing, the compensation judge determined that Dr. Simonet’s PPD opinion was more persuasive than that of Dr. Wengler, and denied the claim for additional PPD, including the 45.5 percent PPD claimed for the 2021 surgeries at T10-11, L2-3, and L3-4 and the additional 20 percent for stenosis.  The compensation judge explained in her memorandum that the employee had not proven that his herniations at T10-11, L2-3, and L3-4 were a substantial result of the 1985 work injury, that the herniations L4-5 and L5-S1 were not bilateral, and that Dr. Wengler’s PPD rating for stenosis duplicated his rating for the L4-5 and L5-S1 herniations.  The compensation judge assessed the employee’s medical records, including the expert opinions, and concluded that the PPD rating for the employee’s work-related low back condition was most consistent with Minn. R. 5223.0070, subp. 1.B(2)(d) and (3).  The medical records and opinions provide substantial support for the compensation judge’s determination of the employee’s PPD ratings.

The point is not whether the reviewing court might have viewed the evidence differently, “but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate.”  Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  We conclude the compensation judge’s determination of the employee’s PPD was not clearly erroneous and is supported by substantial evidence in the record. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.  Accordingly, we affirm.